State v. Jamison

• Decision Date: 07 March 1990
• Docket Number: No. 88-1286,88-1286
• Citation: 49 Ohio St.3d 182,552 N.E.2d 180
• Parties: The STATE of Ohio, Appellee, v. JAMISON, Appellant.
• Court: Ohio Supreme Court

Page 182

49 Ohio St.3d 182

552 N.E.2d 180

The STATE of Ohio, Appellee, v. JAMISON, Appellant.

No. 88-1286.

Supreme Court of Ohio.

Submitted Nov. 14, 1989.

Decided March 7, 1990.

Syllabus by the Court

Other acts forming a unique, identifiable plan of criminal activity are admissible to establish identity under Evid.R. 404(B). To be admissible these other acts must tend to show by substantial proof "identity" or other enumerated purposes under Evid.R. 404(B). Although the standard for admissibility is strict, the other acts need not be the same as or similar to the crime charged. (State v. Broom [1988], 40 Ohio St.3d 277, 533 N.E.2d 682; State v. Flonnory [1972], 31 Ohio St.2d 124, 60 O.O.2d 95, 285 N.E.2d 726; Whiteman v. State [1928], 119 Ohio St. 285, 164 N.E. 51, followed; State v. Hector [1969], 19 Ohio St.2d 167, 48 O.O.2d 199, 249 N.E.2d 912, distinguished.)

On August 1, 1984, Gary Mitchell was alone, tending bar at the Central Bar. The Central Bar, located near downtown Cincinnati, had been owned by Mitchell's family for forty years. When two patrons came into the bar, around 2:00 p.m., they found the bar empty and Mitchell unconscious, lying face down behind the bar. The cash register was open and empty. One patron called the police and an ambulance.

Soon thereafter the police and an ambulance arrived. When the ambulance crew carried Mitchell out, he had a large bruise on the side of his head. Upon arrival at the hospital, Mitchell was found nearly brain dead by treating physicians. Eight days later, Mitchell died from multiple brain bruises and bleeding caused by a traumatic blunt injury.

Cincinnati police found few clues to solve this crime. They did find a gym shoe print on the top of the bar. After photographing the print, they lifted an impression of it, discovering it was made by a Pony gym shoe. One bystander described two males that he saw running from the area of the bar at approximately the time of the crime as being in their mid-twenties, one, 6'2"'' to 6'4"', weighing approximately two hundred pounds, and the other, shorter, 5'3"' to 5'9"'.

Police investigated other robberies similar in pattern to the Central Bar homicide. Two earlier robbery victims had suffered severe head injuries, requiring extensive hospitalization. After the Central Bar homicide, other similar robberies continued to occur.

On October 12, 1984, the police, after being alerted by an automatic alarm, arrested appellant, Derrick Jamison, shortly after he had robbed a Gold Star Chili restaurant. A hidden automatic camera photographed appellant when he robbed Gold Star Chili. Appellant was arrested and taken into custody. Police found on his person marked money from Gold Star Chili jewelry from another robbery, and a gun taken from a third robbery. In addition, appellant was wearing Pony gym shoes, the soles of which were similar to the shoe print found at the Central Bar two and one-half months earlier. Appellant, 6'3"'' tall, twenty-three years old, and weighing one hundred seventy pounds, fit the earlier general description of one of the suspects running from the Central Bar on August 1, 1984. Appellant, while being a suspect, was not charged with the Central Bar incident at that time since he could not be positively identified. Police continued their investigation.

In January 1985, police apprehended Charles Howell, appellant's accomplice in the Central Bar homicide. Police discovered Howell through a Crime Stopper tip. Howell told police he and appellant were playing basketball at about noon on August 1st and on the spur of the moment, they decided to rob the Central Bar. Howell acted as the lookout. It was appellant who attacked the bartender. Appellant took the cash from the register, later giving Howell $80. Howell agreed to testify against appellant and pled guilty to aggravated robbery. Howell testified before a grand jury, which indicted appellant for aggravated robbery and the felony murder of Gary Mitchell.

On October 12, 1985, a jury found appellant guilty as charged in the indictment. Count One, aggravated murder, in violation of R.C. 2903.01, alleged murder committed during, or while fleeing from, an aggravated robbery and that defendant was the principal offender in the aggravated robbery. Count Two alleged aggravated robbery, in violation of R.C. 2911.01, and that defendant had a prior 1979 robbery conviction. The judge dismissed a firearms specification because there was no supporting evidence. Following the jury's death penalty recommendation, the trial judge sentenced appellant to death on Count One. On Count Two, he sentenced appellant to a consecutive fifteen to twenty-five-year prison term. The court of appeals affirmed the convictions and sentence.

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

Arthur N. Ney, Jr., Pros. Atty., and William E. Breyer, Cincinnati, for appellee.

William E. Flax and Peter Pandilidis, Cincinnati, for appellant.

ALICE ROBIE RESNICK, Justice.

I

The crucial question we decide today involves the admissibility of other acts to establish an accused's identity of the charged offenses. We find the other acts, i.e., robberies, forming a unique, identifiable plan of criminal activity, sufficiently probative as to identity to warrant their admission. To be admissible, these other acts must tend to show by substantial proof "identity" or other enumerated purposes under Evid.R. 404(B). Although the standard for admissibility is strict, the other acts need not be the same as or similar to the crime charged. We also find appellant's other propositions of law without merit. We affirm his convictions and death sentence.

Appellant argues that the other acts evidence, i.e., seven robberies, had no clear focus, but simply a diffused pattern. He argues they were sufficiently dissimilar in details to the charged offenses as not to form a common plan or scheme which would establish appellant's identity. Appellant points out that "[b]ecause R.C. 2945.59 and Evid.R. 404(B) codify an exception to the common law with respect to other acts of wrongdoing, they must be construed against admissibility, and the standard for determining admissibility of such evidence is strict. * * * " State v. Broom (1988), 40 Ohio St.3d 277, 533 N.E.2d 682, paragraph one of the syllabus. Appellant asserts that a variety of businesses were robbed, that the offenses occurred over several months, and that the robber acted alone or with an accomplice. Sometimes the robber used a firearm; at other times, no gun was observed. Also, the robber escaped on foot or by bicycle. Despite these differences, we find sufficient similarities to demonstrate a unique, identifiable plan of criminal activity.

The facts of the other robberies were as follows:

On June 18, 1984, appellant robbed Orville Smith, a sixty-five-year-old clerk at Acres of Books. A patron found Smith alone, face down, unconscious, head injured, and the cash register open and empty.

On June 27, 1984, Jack G. West owned the Metropolitan Gallery. West testified appellant "came into my business and proceeded to attack me, rob me, beat me and leave me for dead." West suffered a "[s]kull fracture, brain damage, head lacerations, other minor injuries." He woke up five days later in the hospital. Police found jewelry belonging to West when they arrested appellant on October 12.

On August 7, appellant robbed the Save discount store with an accomplice. Forcing the store manager to the floor, appellant put a gun to her forehead. Appellant forced the manager to open the register but took the money out himself. As they were leaving, appellant struggled with and robbed a patron who fell to the floor. Appellant returned to where the manager was lying on the floor and kicked her in the face three or four times.

On September 5, appellant robbed the owner of Rensler Portrait Studio, another small family business. Appellant dragged June Rensler to the back of the studio by her hair. He held a gun to her face. After tying her up, he kicked her. He then opened the register himself and took the money.

On September 8, 1984, appellant robbed the Kings News. He made the cashier get down on the floor and "put * * * a gun on * * * [her] face." After he took the money from the register, appellant put a gun to another worker's head and told him "if he made a move, he would blow him away." Appellant took another gun from Kings News that police found on his person at the time of arrest.

On October 5, 1984, appellant robbed the Curve Cafe, another bar. He put a gun to one victim's head, threatening "to blow her brains out." He attempted, unsuccessfully, to open the register and, finally, took money from an envelope behind the bar. He forced or threw all victims to the floor and robbed them.

The last of these robberies was Gold Star Chili on October 12. At Gold Star Chili, appellant pulled out a gun, jumped over the counter and physically took money from the cash register. He threw a patron to the floor and robbed him. All the foregoing robberies occurred near downtown Cincinnati in close proximity to each other, during weekday afternoons, except for one which occurred on a Saturday evening. The places robbed were all first floor on-the-street, walk-in businesses.

Under longstanding principles of Anglo-American jurisprudence, an accused can not be convicted of one crime by proving he committed other crimes or is a bad person. As Evid.R. 404(B) states: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith." Nonetheless, evidence of other acts, though they be crimes, may be admissible for other purposes. Evid.R. 404(B) specifies admissibility to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." R.C. 2945.59, predating Evid.R. 404(B), mandates admissibility for specific purposes such as defenda...