State v. Herring

• Decision Date: 27 February 2002
• Docket Number: No. 98-904.,98-904.
• Citation: 94 Ohio St.3d 246,762 NE 2d 940
• Parties: THE STATE OF OHIO, APPELLEE, v. HERRING, APPELLANT.
• Court: Ohio Supreme Court

94 Ohio St.3d 246

762 NE 2d 940

THE STATE OF OHIO, APPELLEE, v. HERRING, APPELLANT.

No. 98-904.

Supreme Court of Ohio.

Submitted July 17, 2001.

Decided February 27, 2002.

Paul J. Gains, Mahoning County Prosecuting Attorney, Janice T. O'Halloran and Dawn M. Durkin, Assistant Prosecuting Attorneys, for appellee.

David H. Bodiker, Ohio Public Defender, Pamela Prude-Smithers and Angela Greene, Assistant State Public Defenders, for appellant.

PFEIFER, J.

Shortly after midnight on April 30, 1996, five masked gunmen intent on robbery entered the Newport Inn, a bar in Youngstown. They shot five people, robbed the till, and left. Three of the five victims died. One of the gunmen, Willie S. "Stevie" Herring, is the appellant in this case. He was convicted of three counts of aggravated murder and sentenced to death on each count.

Herring's partners in crime were Adelbert Callahan, Antwan Jones, Eugene Foose, Louis Allen, and Kitwan Dalton. On the night of April 29, 1996, these five gathered at Herring's house. At one point, Callahan and Jones left the house for about fifteen minutes before returning with a stolen van.

Herring and the others got into the van, Callahan taking the wheel. Callahan drove to a blue house on Laclede Avenue near Hillman Street and Rosedale Avenue. Herring went inside the blue house and came back with four guns. He gave a .38 special to Allen, a 9 mm pistol to Callahan, and a .357-caliber pistol to Jones. He did not give a gun to Foose, who was already carrying a .45, or to Dalton, who was to be the getaway driver. Herring kept a 9 mm Cobray semiautomatic for himself.

Herring then said to the others, "If you all know like I know, then you all want to get paid." It turned out that all six needed money. They therefore decided to commit a robbery. Foose suggested the Newport Inn as a target. Callahan drove the van there.

Everyone but Dalton got out of the van carrying a gun. They put on disguises. Herring donned a white Halloween mask, which Dalton agreed was a "store-bought" mask similar to one seen in "slasher" movies. No one else had such a mask; the others hid their faces with bandanas or, in Allen's case, a T-shirt. Herring, Allen, and Foose went to the back door of the Newport Inn; Callahan and Jones took the front door.

Ronald Marinelli, the Newport Inn's owner, was tending bar that night. He had six or eight customers, including Deborah Aziz, Herman Naze, Sr., Dennis Kotheimer, and Jimmie Lee Jones. Jones was sitting with a woman at a table in the back.

Sometime between 1:45 and 2:15 a.m., the robbers burst in. Hearing a sound like a gunshot, Marinelli looked and saw four armed black males in the bar. The two at the front door were disguised in dark bandanas. One carried a revolver; one had what looked to Marinelli like a 9 mm semiautomatic pistol. Marinelli saw two more at the rear. One wore a bandana, the other a "white hockey-type mask." Herring, in the white mask, carried a "very distinctive" gun, which looked like an Uzi or a MAC-10, squarish in shape, with a long clip. Allen, entering last through the back door, saw Jimmie Lee Jones already lying on the floor. At a nearby table, a woman was screaming. Allen told her to be quiet. Then he returned to the van.

One of the other gunmen ordered Herman Naze: "Give me your fucking money." "I don't have any money," Naze replied. The gunman immediately shot him. Then Herring shot Deborah Aziz, who fell to the floor. She managed to crawl away and hide between a cooler and a trash can. She later described her assailant's mask as "a hard plastic, like one of those Jason masks."

Now Herring walked around the end of the horseshoe bar toward Marinelli and the cash register. As he approached, he shot Marinelli four times in the stomach from about five feet away.

Somehow Marinelli managed to stay on his feet as Herring came closer. Herring stopped about a foot away from him. Marinelli noticed his assailant's long reddish-orange hair. Despite the mask, Marinelli could also see that his assailant had an "odd skin pigment," large eyes "almost like a hazel" color, and buckteeth.

Herring said, "Give me your fucking money." Despite his wounds, Marinelli obeyed, handing over the cash in the register. But the robber screamed that Marinelli hadn't given him everything. He had guessed right: in a nearby drawer there was some cash belonging to a pool league.

As Herring threatened to "blow [Marinelli's] brains out," Marinelli gave him the money from the drawer. Herring screamed for more. Marinelli urged him to "[b]e cool" and told him there was no more. Herring responded by leveling his gun at Marinelli's head.

Marinelli reached into the drawer again. This time, he pulled out a gun of his own. But by now, Marinelli was so weak that Herring easily took the gun from him. Marinelli collapsed. Herring said, "You ain't dead yet, motherfucker," and shot Marinelli in the legs as he lay on the floor.

After Herring shot Marinelli, Aziz heard Dennis Kotheimer say, "You motherfucker." Then she heard more shots. Marinelli saw Kotheimer get shot but did not see who shot him. Nobody saw who shot Jimmie Lee Jones.

Someone reported the gunshots to the Youngstown police, and officers were sent to the Newport Inn. When the officers saw the carnage inside, they summoned emergency personnel.

The five shooting victims were taken to a Youngstown hospital. Herman Naze and Jimmie Lee Jones were both pronounced dead on the morning of April 30. Dennis Kotheimer died on May 1.

Autopsies showed that each victim died of gunshot wounds to the trunk. Jones had been shot twice; one 9 mm slug was recovered from his body. Kotheimer and Naze had each been shot once, but no bullets were recovered from either victim.

On May 7, 1996, Officer Daniel Mikus responded to a report of an unruly juvenile at 641 West Laclede Avenue. There, Mikus confronted sixteen-year-old Obie Crockett, who was sitting on a couch with his hand concealed under a pillow. Mikus looked under the pillow and found State's Exhibit 5, a 9 mm semiautomatic firearm. A forensic scientist at the Bureau of Criminal Identification and Investigation later determined that State's Exhibit 5 had fired the 9 mm slug recovered from the body of Jimmie Lee Jones.

Herring was indicted on three counts of aggravated murder in violation of R.C. 2903.01(B). Count One charged him with killing Jimmie Lee Jones; Count Two, with killing Herman Naze; Count Three, with killing Dennis Kotheimer. The instructions and verdict forms on Count One gave the jury the option of convicting Herring of the aggravated murder of Jones either as the principal offender or as an accomplice. The indictment also included two counts of attempted aggravated murder in violation of R.C. 2923.02(A), and two counts of aggravated robbery in violation of R.C. 2911.01(A)(1).

Each aggravated murder count originally had two death specifications attached: multiple murder, R.C. 2929.04(A)(5), and felony-murder, R.C. 2929.04(A)(7). Ultimately, the (A)(7) specifications for Counts Two and Three were not submitted to the jury.

On Count One, the jury found Herring not guilty of committing aggravated murder as a principal offender, but guilty of complicity in the aggravated murder of Jones. The jury also found Herring guilty of the (A)(5) multiple-murder specification to Count One. The jury convicted Herring of all other counts and specifications. After a penalty hearing, the jury recommended death for all three aggravated murders, and the trial judge sentenced Herring to death.

I. Intent to Kill

In his first and second propositions of law, Herring contends that faulty instructions on the issue of specific intent to kill invalidate his aggravated-murder convictions.

Purpose (i.e., intent) to kill is an essential element of aggravated murder. R.C. 2903.01. See, e.g., State v. Garner (1995), 74 Ohio St.3d 49, 59, 656 N.E.2d 623, 634. Moreover, "[t]o support a conviction for complicity by aiding and abetting pursuant to R.C. 2923.03(A)(2), the evidence must show * * * that the defendant shared the criminal intent of the principal." State v. Johnson (2001), 93 Ohio St.3d 240, 754 N.E.2d 796, syllabus.

With respect to Count One (aggravated murder of Jimmie Lee Jones), the trial court gave a standard instruction on specific intent. However, the court then instructed that if the state failed to prove that Herring was the principal offender on Count One, the jury could consider whether he was guilty of complicity. The court instructed: "You may not convict Willie S. Herring of complicity to commit aggravated murder unless you find beyond a reasonable doubt that he specifically intended to aid and abet another in causing the death of Jimmie Lee Jones." On Counts Two (aggravated murder of Herman Naze) and Three (aggravated murder of Dennis Kotheimer), the court gave the same instruction, precluding the jury from convicting Herring of complicity in aggravated murder unless it found that he "specifically intended to aid and abet another in causing the death of" each victim. The court also defined the terms "aid" and "abet" as follows: "Aid means to help, assist or strengthen. Abet means to encourage, counsel, incite or assist." See 4 Ohio Jury Instructions (2000) 573, Sections 523.03(8) and 523.03(9). These instructions, Herring contends, did not sufficiently inform the jury that it could not find him guilty on Counts One, Two, or Three without finding that he specifically intended to kill.

Where an instruction is claimed to be "ambiguous and therefore subject to an erroneous interpretation," the court must inquire "whether there is a reasonable likelihood that the jury has applied the challenged instruction" incorrectly. See Boyde v. California (1990), 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316, 329.

Herring's claim assumes that the jury could have found that he "specifically intended to aid and abet another in causing the death" of another without...