State v. Jackson

• Decision Date: 15 August 2001
• Docket Number: No. 98-726.,98-726.
• Citation: 92 Ohio St.3d 436,751 NE 2d 946
• Parties: THE STATE OF OHIO, APPELLEE, v. JACKSON, APPELLANT.
• Court: Ohio Supreme Court

92 Ohio St.3d 436

751 NE 2d 946

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

No. 98-726.

Supreme Court of Ohio.

Submitted April 24, 2001.

Decided August 15, 2001.

Ron O'Brien, Franklin County Prosecuting Attorney, Joyce S. Anderson and Amy H. Kulesa, Assistant Prosecuting Attorneys, for appellee.

W. Joseph Edwards and Keith Yeazel, for appellant.

FRANCIS E. SWEENEY, SR., J.

Appellant, Kareem Jackson, appeals his conviction of, and death sentence for, the aggravated murders of Antorio Hunter and Terrance Walker.

The evidence at trial revealed that on the evening of March 24, 1997, appellant and four other individuals decided to rob an apartment in Columbus, Ohio. Appellant and a man called "Little Bee" devised the plan, which called for both men to enter the apartment and purchase drugs. The men would then be joined by two others, Michael Patterson and Derrick Boone, who would enter the apartment armed with guns. Malaika Williamson was put in charge of driving the men to and from the robbery.

Just past midnight, on March 25, 1997, Malaika Williamson drove the men to the Lupo Court apartment. The victims, Antorio Hunter and Terrance Walker, were inside the apartment with their friends, Nikki Long and Becky Lewis. Long and Walker were in the back bedroom talking when appellant and Little Bee knocked at the door. Hunter answered the door and allowed appellant and Little Bee to enter. Walker came out of the back bedroom, recognized appellant, shook appellant's hand and said, "I haven't seen you in a long time." Appellant and Little Bee then bought some marijuana.

Almost immediately after the purchase, Patterson and Boone burst into the apartment armed with shotguns. The men searched the apartment for drugs and money. Appellant struck Lewis on the head with his handgun, placed a pillow behind her head and threatened to kill her. Lewis begged appellant not to kill her, and appellant refrained from doing so. Appellant led Lewis into the kitchen. Patterson and Little Bee left the apartment, but appellant and Boone remained.

According to Boone's testimony, Walker and Hunter were both lying on the floor. Appellant ordered one of them to crawl beside the other and to lie face down on the floor so that his head was next to the other's. While on the floor, either Hunter or Walker told appellant that he "didn't have no money or weed" and that he wouldn't call the police. Nevertheless, appellant told Boone, "They know my name. I have to kill them." Appellant then grabbed a pillow, hesitated, and shot one of the men in the head. The other, while still lying on the floor, begged for his life, saying, "Please don't kill me. I ain't going to say nothing." Despite his plea, appellant placed a pillow behind the second victim's head. Appellant hesitated again and then shot him in the back of the head.

Following the shootings, appellant and Boone left the apartment and joined the others in the car. Williamson drove the men back to her apartment, where they divided the proceeds from the robbery, which consisted of approximately $40 in cash, $60 worth of marijuana, and a cellular phone.

In the meantime, Long and Lewis, who had heard the gunshots but had not witnessed the shootings, waited in the kitchen until they felt it was safe to leave. They called Hunter's name, and when there was no response, they went into the living room and saw that Hunter and Walker had been shot. The two women, afraid to leave through the front door, fled through a bedroom window. They went into another apartment and called the police.

Officer Andrew Shuster of the Clinton Township Police Department responded to a dispatcher's call at about 12:42 a.m. Upon arriving at the Lupo Court apartments, the officer found the door to the apartment ajar and discovered the bodies of Hunter and Walker lying face down on the floor just inside the doorway. A cushion with bullet holes was found next to the victims.

Later that morning, an agent from the Bureau of Criminal Identification and Investigation met with Long, who provided him with enough information to make a composite portrait of Boone using a face kit. Police distributed the sketch of Boone to the sheriffs department and to the media. Soon after the release of the composite, Boone turned himself in to the Franklin County Sheriffs Department.

Boone cooperated with the police and gave them a statement implicating appellant and the others involved in the shootings. As a result, the police presented Lewis with a photo array lineup, which included a photo of appellant. Lewis positively identified appellant from the photo array lineup as the "guy with the little gun," the person who hit her over the head with the gun during the robbery and threatened to kill her.

Police then collected physical evidence relating to the shootings. Police retrieved a handgun from Williamson's apartment, which was tested and found to have fired the bullets retrieved from Antorio Hunter. The firearms expert could not conclusively state that the handgun fired the other bullet removed from Terrance Walker. However, this bullet possessed some characteristics matching appellant's handgun, and the bullet was the same caliber as his weapon. Police also searched the apartment appellant shared with his girlfriend, Ivana King, and found a shotgun in a closet and two rifles hidden beneath the molding under the kitchen sink cupboard. Police retrieved nine .38 caliber bullets from the apartment. Police also interviewed Ivana King, who said that appellant had told her that "he had done two people."

Deputy coroners from the Franklin County Coroner's Office performed autopsies on Hunter and Walker. Each coroner concluded that the victims had died from gunshot wounds to the head.

Appellant was arrested on March 28, 1997, and was subsequently indicted on six counts of aggravated murder for the deaths of Hunter and Walker. Each murder count included two death penalty specifications for multiple murder and murder during an aggravated robbery and/or kidnapping in violation of R.C. 2929.04(A)(5) and (A)(7). Appellant was also charged with four counts of aggravated robbery, four counts of kidnapping, and one count of felonious assault. Each of the fifteen total counts carried a firearm specification.

At trial, the trial court granted appellant's motion for acquittal on count eight, the aggravated robbery of Lewis. However, the jury found appellant guilty as charged on the remaining counts.

At the conclusion of the penalty phase, the jury recommended that the court sentence appellant to death. The trial court accepted this recommendation and sentenced appellant accordingly.

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

Appellant presents seventeen propositions of law for our consideration, which we have considered fully. In addition, we have considered the death penalty for appropriateness and proportionality and we have independently weighed the aggravating circumstances against the evidence presented in mitigation. For the reasons that follow, we affirm appellant's convictions and uphold the sentence of death imposed.

I. ALTERNATE JURORS' PRESENCE IN DELIBERATIONS

In proposition of law three, appellant contends that he was deprived of a fair trial under the Sixth and Fourteenth Amendments because the trial judge permitted alternate jurors to remain in the jury room during deliberations. Defense counsel did not object, and in fact expressly stated that he had no objection to their presence. Therefore, since defense counsel acquiesced to the alternate jurors' presence in deliberations, the alleged error is subject to plain error analysis. As this court has repeatedly emphasized, an error "does not constitute a plain error or defect under Crim.R. 52(B) unless, but for the error, the outcome of the trial clearly would have been otherwise." State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph two of the syllabus.

Crim.R. 24(F) provides that "an alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict."

Despite the clear language of Crim.R. 24(F), the trial court instructed the alternate jurors to sit in on the jury deliberations. Specifically, the trial court told the jury in the guilt phase that they "should listen to the deliberations but must not participate in the deliberations. I can't stress that enough. No facial indications, no nodding of heads, no notes back and forth. You have to sit there and listen, and that is all you can do. Okay? Unless and until, if ever, the alternates are called upon to serve as regular jurors."

Prior to sentencing deliberations, the trial court again allowed alternate jurors to sit in on the deliberations, reminding them that they should "listen to the deliberations but must not participate in the deliberation unless and until, if ever, called upon to serve as regular jurors."

The trial court clearly erred in failing to abide by the mandates of Crim.R. 24(F) in allowing the alternate jurors to remain present during deliberations. Appellant contends that because of this error, we must presume that he was prejudiced. Although prejudice has been presumed by some courts, see, e.g., United States v. Virginia Erection Corp. (C.A.4, 1964), 335 F.2d 868, we are unwilling to presume prejudice in the case at bar.

Instructive to our analysis is the United States Supreme Court decision of United States v. Olano (1993), 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508. In Olano, the district court allowed two alternates to be present during jury deliberations, with no objection by defense counsel. The Ninth Circuit Court of Appeals found that the presence of alternates was "inherently prejudicial" and reversible per se. 934 F.2d 1425, 1438. The Supreme Court reversed. Although acknowledging that it was error to let alternate jurors attend deliberations, the court nonetheless held that the error did...