State v. Greer, 87-684

CourtUnited States State Supreme Court of Ohio
Writing for the CourtHOLMES; MOYER; DOUGLAS
Citation39 Ohio St.3d 236,530 N.E.2d 382
PartiesThe STATE of Ohio, Appellee, v. GREER, Appellant.
Docket NumberNo. 87-684,87-684
Decision Date09 November 1988

Page 236

39 Ohio St.3d 236
530 N.E.2d 382
The STATE of Ohio, Appellee,
GREER, Appellant.
No. 87-684.
Supreme Court of Ohio.
Submitted May 31, 1988.
Decided Nov. 9, 1988.
Syllabus by the Court

1. When a document, upon its face, purports to be a particular type of newspaper or periodical publication, its admission into evidence pursuant to Evid.R. 902(6) is not dependent upon whether the material contained in the publication has been verified. If claimed to be unreliable, the document may be impeached after its admission.

2. The right to peremptorily challenge jurors during voir dire is a substantive right. The numerical limitation imposed by Crim.R. 24(C) upon the exercise of such right reasonably regulates it. Accordingly, Crim.R. 24(C) is a rule "governing practice and procedure" under Section 5(B), Article IV of the Ohio Constitution. R.C. 2945.21(A)(2) is a law "in conflict with such rule" and is therefore "of no further force or effect." Section 5(B), Article IV of the Ohio Constitution.

3. When the death penalty is sought in an aggravated murder case the defendant is entitled to only one voir dire of the jury, absent provable irregularities which demonstrably prejudice the defendant's case.

4. The trial court has a limited discretion to delete purely erroneous matters which have a potential to mislead the jury from presentence investigative reports and psychological evaluations which are requested by a defendant under R.C. 2929.03(D)(1). Deletions should be made only when clearly necessary, in light of the General Assembly's determination that such reports are to be submitted for the jury's evaluation. R.C. 2929.03(D)(1).

On Tuesday afternoon, January 29, 1985, the body of Louis A. Roth was discovered on his kitchen floor. It was determined that he had been stabbed or otherwise wounded twenty-two times, several of which stab wounds punctured the left lung and right ventricle of the heart. The time of death was established as approximately between 11:00 p.m. Sunday night and 1:00 a.m. Monday morning. There was no sign of any struggle and it was apparent that Roth had been stabbed while he sat at his kitchen table. Roth's home had been thoroughly searched. Bloodstains were also found throughout the home.

Police officers began to question

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Roth's neighbors, including appellant, Paul W. Greer. Eventually their canvassing efforts led back to appellant. This was because a neighbor had observed two cuts on appellant's fingers on Monday afternoon. Since the murder had been committed [530 N.E.2d 388] by means of a knife, investigators began to question appellant more closely concerning his wounds and his relationship to the victim. It was established that Roth had rented a home to appellant, who was unemployed, and allowed him to make repairs in lieu of paying rent. Also, Roth had, during the time of appellant's tenancy, provided, inter alia, food, money and a hot plate for appellant and his girlfriend. It was established that Roth was contemplating eviction of appellant. After hearing about cuts on appellant's fingers, police requested appellant to accompany them to the police station, which he did.

Police, with the permission of appellant's girlfriend, performed a search of the couple's residence. Therein police discovered various articles of bloody clothing and a wristwatch belonging to the victim. Eventually appellant confessed to having gone through the victim's home in search of valuables, but he insisted that he had not done so until Monday morning when Roth was already dead. Neighbors established that appellant had gone to see Roth at approximately 10:00 p.m. the night of the murder.

On February 6, 1985, appellant was indicted on the following charges: one count of aggravated murder in violation of R.C. 2903.01(A); one count of aggravated murder in violation of R.C. 2903.01(B), and one count of aggravated robbery in violation of R.C. 2911.01(A)(1). The state included an aggravated robbery specification to the second murder charge pursuant to R.C. 2929.04(A)(7), thus seeking the death penalty for the crime. Appellant pled not guilty and gave notice of his alibi defense. Following a trial on the merits, appellant was convicted of all counts, including the specification on the second count. At the sentencing phase, appellant presented evidence in mitigation. The jury thereupon recommended that a sentence of death be imposed. The trial court then sentenced appellant to death. By its opinion dated March 4, 1987, wherein it conducted its independent analysis and review, the court of appeals affirmed both the trial court's judgment of conviction and the sentence of death.

The cause is now before this court pursuant to an appeal as of right.

Lynn C. Slaby, Pros. Atty., and Marc R. Wolff, Akron, for appellee.

Baker, Chapman & Diefenbach, Peter T. Cahoon, Akron, and Richard S. Kasay, Cuyahoga Falls, for appellant.

HOLMES, Justice.


Appellant, by his twelfth proposition of law, challenges his conviction as being against the weight of the evidence and, because the verdict was based solely upon circumstantial evidence, that the evidence was not "consistent only with the theory of guilt and irreconcilable with any reasonable theory of innocence." State v. Kulig (1974), 37 Ohio St.2d 157, 160, 66 O.O.2d 351, 352, 309 N.E.2d 897, 899. Admittedly, the evidence before the jury was circumstantial; however, a review of such evidence reveals that appellant was fully implicated as the sole person who could have committed this crime.

It was shown at trial that appellant had spoken to the victim several times on the day of the murder. Appellant knew that the victim would be home later that night and knew that the door could not be effectively locked due to a broken glass door pane. At trial, the coroner testified that there were

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physical indicia placing the victim's time of death at approximately between 11:00 p.m. Sunday and 1:00 a.m. Monday. An acquaintance of the victim spoke with him by phone at 9:00 p.m. that evening but, when she called the victim again at 11:00 or 11:15 p.m., the phone went unanswered. Appellant admitted on the witness stand that he had indeed met with the victim at the victim's home on the night of the murder, but he then claimed that this was not later than 9:00 p.m. However, there was testimony from the victim's next-door neighbor that appellant had arrived at her home at approximately 10:00 p.m. that evening seeking the victim and had then left her home apparently intending [530 N.E.2d 389] to go to the victim's nearby residence.

The victim was killed as he sat in his kitchen. There were no signs of a struggle. However, blood spots were found by police investigators throughout the entire home. Moreover, the blood spots were incidental to a thorough search of the victim's home, i.e., the drawers which had been pulled out had blood stains on them, and an overturned mattress had blood stains on it as did the linens, and other areas of the home. As will be more fully explained, the Bureau of Criminal Investigation's ("BCI's") analysis of these blood smears and accompanying fingerprints indicated that both the smears and fingerprints were those of appellant. Eventually, appellant confessed to having entered the premises on the morning following the murder and to then searching the premises for valuables. He explained that those valuables belonging to the victim which were discovered in appellant's home were stolen at that time. The blood spots he admitted came from cuts on his fingers which he claimed to have received on the prior evening while taking out his trash. All the above evidence must be viewed and interpreted in context with additional evidence which is more directly inculpatory.

Police discovered two shoeprints at the crime scene. These shoeprints were composed of the victim's blood which was found only around the victim. They were not smear prints but had resulted from someone first stepping in the victim's wet blood and then making the print. It was the coroner's testimony that all the victim's blood would have dried within five to six minutes of being exposed to the air. Thus, as the coroner testified, the print had to have been made within five to six minutes of the murder. Also, one of the shoeprints was obscured by and partly covered by the victim's fallen body. This shoeprint had to have been made between the time the victim first bled and the time his body came to rest on the floor. Both of the shoeprints were of a left tennis shoe bearing the distinctive pattern found only on Converse All-Star tennis shoes.

Appellant's Converse All-Star tennis shoes were confiscated from him at the police station. When appellant had been asked at his home to accompany police, it was observed that he put on the dark green Converse tennis shoes and this despite the fact that he was going outdoors during mid-winter when there was a relatively deep accumulation of snow on the ground. When questioned about this, appellant replied that the Converse All-Star tennis shoes were the only shoes he owned.

Having observed that the pattern of appellant's shoes looked similar to the shoeprint found at the crime scene, police sent the shoes to the BCI lab for comparative analysis. At trial, the BCI's expert testified that he had made such tests and that, although the bloody shoeprints did not have a sufficient amount of detail for him to positively

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identify them as belonging to appellant, nevertheless it was observed that appellant's shoe possessed the same characteristics as the shoeprint found at the crime scene. (This would include the same brand, pattern, shoe size and width.)

Appellant's jacket was also examined and found to contain bloodstains in both pockets. These bloodstains could only originally have been made by blood in a liquid form. The BCI's expert analyzed both the victim's and appellant's blood, these being the only two types found in...

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