State v. Hutton

• Decision Date: 08 August 1990
• Docket Number: No. 88-1074,88-1074
• Citation: 559 N.E.2d 432,53 Ohio St.3d 36
• Parties: , 89 A.L.R.4th 397 The STATE of Ohio, Appellant and Cross-Appellee, v. HUTTON, Appellee and Cross-Appellant.
• Court: Ohio Supreme Court

Page 36

53 Ohio St.3d 36

559 N.E.2d 432, 89 A.L.R.4th 397

The STATE of Ohio, Appellant and Cross-Appellee, v. HUTTON, Appellee and Cross-Appellant.

No. 88-1074.

Supreme Court of Ohio.

Submitted Feb. 6, 1990.

Decided Aug. 8, 1990.

Syllabus by the Court

1. A presentence investigation report in a capital case may include the defendant's arrest record.

2. The "trial jury," as that term is used in R.C. 2929.03(C)(2)(b) and (D)(2), consists of all the jurors, including any properly substituted alternates. (State v. Penix [1987], 32 Ohio St.3d 369, 513 N.E.2d 744, distinguished.)

3. Crim.R. 24(F) is not violated in a capital case where an alternate juror is substituted for another juror after the guilt phase verdict, but before deliberations begin in the penalty phase.

On Friday, September 13, or Saturday, September 14, 1985, Percy "June" Hutton confronted Samuel Simmons, Jr. outside Simmons's home and accused him of stealing a sewing machine belonging to Hutton. Claiming that he had seen Simmons's friend Derek "Ricky" Mitchell trying to sell the machine, Hutton demanded that Simmons give the machine back immediately. Simmons suggested that Hutton "go talk to Ricky."

When Mitchell arrived, Hutton went upstairs with him. When they came back down, according to Simmons, Hutton said that "it wasn't what he was looking for and if he found out we had anything to do with what was missing or stolen he was going to kill us."

The following Monday morning, September 16, Hutton went back to Simmons's home at about 12:00 a.m. and asked him to work on a car. Hutton and Simmons got into Hutton's car, where Bruce Laster was waiting for them. When he got in, Simmons saw a .22 caliber rifle on the back seat. Hutton drove them to Mitchell's house saying, "I want to talk to you and Ricky, man." When they arrived, Simmons told Mitchell that "June wanted to talk to him."

After accusing Mitchell of stealing tires from Hutton's back yard, Hutton demanded the return of his sewing machine, in which he had hidden $750. Mitchell denied taking the machine. Hutton insisted that Mitchell had tried to sell the machine to a Mr. Evans and demanded that Mitchell come with him to Evans's house. According to Simmons, Hutton said: " * * * If Evans said you ain't the one who tried to sell him the sewing machine, * * * I will apologize. If he say you tried to sell the sewing machine, that mean I'm f---ing you up. * * * "

Mitchell and Simmons got into the car. Hutton pointed the rifle at Simmons's side and said that he didn't appreciate Simmons and others breaking into his sister's house.

Instead of going to Evans's house, Hutton drove to a parking lot behind a bus depot on 93rd Street. He ordered Mitchell out of the car. Mitchell and Hutton walked away from the car so that Simmons could not hear their conversation, but he saw Hutton put a pearl-handled, nickel-plated, .22 caliber automatic pistol to Mitchell's head.

Hutton and Mitchell returned to the car. Following Mitchell's directions, Hutton drove to a building on 30th Street. Hutton and Mitchell went inside for a few minutes and emerged with a white sewing machine case.

Hutton drove to his mother's house, took the case inside, and returned to the car. Hutton drove a short distance and parked in an alley next to a brown El Dorado. Simmons got out. Hutton moved his car to the other end of the street. He then walked back to the El Dorado.

Simmons got behind the wheel as Hutton "went under the hood" and said, "Try to start it." He then walked back to Simmons and shot him twice in the head.

Simmons, unable to move, lay partly in and partly out of the car and cried for help. No one responded. He managed to get up and stagger to two nearby houses to seek aid. Hutton found him pounding on the back door of the second house and told him to get into the car. Telling Mitchell that someone had shot Simmons, Hutton then drove Simmons to St. Luke's Hospital.

At the hospital, Simmons asked Mitchell to go inside with him. Mitchell refused and said they were going to get the person "that did this to you." Simmons then got out of the car and went into the hospital by himself.

At 2:30 a.m., Mitchell, Hutton, and Laster returned to Mitchell's apartment. They woke Mitchell's alleged common-law wife, Eileen Sweeney, and, taking her to the hospital, they dropped her off and left. Sweeney went in to visit Simmons. Telling her that Hutton had shot him, Simmons sent her to warn Mitchell to get out of the car. She went outside, but the car had gone. She never saw Mitchell again.

Half an hour later, Hutton and Laster returned to the hospital. Hutton told Sweeney that Mitchell was home and offered to take her there. Instead, Hutton took Sweeney to a park, where he raped her vaginally and orally. Hutton had a small handgun with a white handle and a silver-colored barrel. During the rape, Hutton advised Sweeney to "forget about" Mitchell because "Ricky wasn't coming back."

After the rape, Hutton took Sweeney home. The door to the apartment had been damaged and the apartment was in disarray. Mitchell was not there. Too "scared and nervous" to drive, Sweeney accepted Hutton's offer to drive her to the home of Mitchell's sister LaWanda. Hutton accompanied Sweeney into LaWanda Mitchell's house. Sweeney testified that "[H]e told me, Ricky wasn't coming back, and if I told[,] someone would be looking for me."

On September 30, a decomposing corpse was found near the intersection of East 88th Street and St. Catherine Avenue, Cleveland. A large tire lay on the corpse. The autopsy disclosed that the body was Derek Mitchell's, and that Mitchell had been shot to death. Two bullets were recovered. A firearms expert identified them as .22 caliber long rifle ammunition that could have been fired from either a rifle or a handgun. The bullets that killed Mitchell had the same class characteristics as a bullet that had been removed from Simmons's head, but the expert could not tell whether all three had been fired from the same gun.

Hutton was indicted on two counts of murdering Derek Mitchell. The first count charged that he committed the murder with prior calculation and design. The second charged him with murdering Mitchell while committing, attempting, or fleeing the commission or attempted commission of kidnapping. Each murder count carried one firearm specification, R.C. 2929.71(A), and two capital specifications: a course-of-conduct specification, R.C. 2929.04(A)(5), and a felony-murder specification of kidnapping, R.C. 2929.04(A)(7). ¹ Hutton was also indicted for kidnapping Mitchell and Simmons, and for the attempted murder of Simmons. Each count carried a firearm specification.

Hutton's defense was that Mitchell was not killed on September 16, but at some later time when Hutton was in Indianapolis. Denise Richardson testified that she saw Mitchell alive and spoke to him at about 3:00 p.m. on September 17, 1985, the day after the state claimed Mitchell was murdered. According to Hutton, he was in Indianapolis at the time Richardson spoke to Mitchell and stayed there until October 3, except for two brief visits to Cleveland on September 21 and 28. An employee of the Fall Creek branch of the Indianapolis YMCA saw Hutton there sometime after 4:00 p.m. on September 17. She testified that he paid rent covering the period September 17 to October 3.

A jury of the Cuyahoga County Court of Common Pleas convicted Hutton of all charges and specifications. After a mitigation hearing, the trial court sentenced him to death. The Court of Appeals for Cuyahoga County, in a split decision, reversed the conviction and sentence and remanded to the common pleas court for further proceedings. The state appealed this judgment. Hutton cross-appealed, alleging that the court of appeals erred in overruling several of his propositions of law.

The cause is now before this court pursuant to the allowance of a motion and cross-motion for leave to appeal.

John T. Corrigan, prosecuting attorney, and George J. Sadd, Cleveland, for appellant and cross-appellee.

Floyd B. Oliver and David L. Doughten, Cleveland, for appellee and cross-appellant.

MOYER, Chief Justice.

The state advances seven propositions of law in support of its appeal. Hutton, cross-appealing certain aspects of the court of appeals' decision, asserts seven propositions of his own. For the reasons that follow, we reverse the judgment of the court of appeals and remand to that court for further proceedings.

I

The court of appeals held that Eileen Sweeney's testimony that Hutton raped her was inadmissible under R.C. 2945.59, the substantial equivalent, in relevant part, of Evid.R. 404(B). In its first proposition of law, the state contends that this holding was erroneous.

First, the state contends that evidence of the rape was admissible as evidence of Hutton's "scheme, plan, or system" under Evid.R. 404(B). "Scheme, plan, or system" evidence is relevant where it tends to prove the offender's identity or where " * * * the 'other acts' form part of the immediate background of the alleged act which forms the foundation of the crime charged in the indictment. * * * To be admissible pursuant to this subcategory of 'scheme, plan, or system' evidence, the 'other acts' testimony must concern events which are inextricably related to the alleged criminal act. * * * " State v. Curry (1975), 43 Ohio St.2d 66, 73, 72 O.O.2d 37, 41, 330 N.E.2d 720, 725.

The state suggests that the testimony "tended to establish identity of the criminal * * *." However, the rape, as distinct from what Hutton said during the rape, was clearly irrelevant to the identity of Mitchell's killer. We recently held that: " * * * 'Other acts' may be introduced to establish the identity of a perpetrator by showing that he has committed similar crimes and that a distinct, identifiable scheme, plan, or system was used in the commission of the charged offense. * * * " State v. Smith (1990), 49 Ohio St.3d 137, 141, ...