State v. Lockett

• Decision Date: 30 December 1976
• Docket Number: No. 76-424,76-424
• Citation: 358 N.E.2d 1062,49 Ohio St.2d 48
• Parties: , 3 O.O.3d 27 The STATE of Ohio, Appellee, v. LOCKETT, Appellant.
• Court: Ohio Supreme Court

Page 48

49 Ohio St.2d 48

358 N.E.2d 1062, 3 O.O.3d 27

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

No. 76-424.

Supreme Court of Ohio.

Dec. 30, 1976.

Syllabus by the Court

1. In a prosecution for aggravated murder with specifications, a potential juror may be disqualified on voir dire if the trial court is satisfied from the inquiry that the juror will not render an impartial finding according to law as to defendant's guilt or innocence, both of the charge and the specifications. (Paragraph two of the syllabus in State v. Bayless, 48 Ohio St.2d 73, 357 N.E.2d 1035, approved and followed.)

2. Where the record on voir dire establishes that prospective veniremen have been exposed to pre-trial publicity, but that they have affirmed that they would judge the defendant solely upon the law and evidence presented at trial and upon no outside source of information, it is not error to impanel such jurors.

3. Where the record in a prosecution for aggravated murder committed during the commission of an armed robbery establishes that the participants in the offense entered into a common design to commit the armed robbery by the use of force, violence and a deadly weapon and all the participants were aware that an inherently dangerous instrumentality was to be employed to accomplish the felonious purpose, a homicide occurring during the commission of the felony is a natural and probable consequence of the common plan which must be presumed to have been intended, and such evidence is sufficient to allow a jury to find a purposeful intent to kill.

4. If a conspired robbery, and the manner of its accomplishment, would be reasonably likely to produce death, each person engaged in the common design to commit the robbery is guilty with the principal killer as an aider and abettor in the homicide although not actually present at the time of the homicide, and a purposeful intent to kill by the aider and abettor may be found to exist beyond a reasonable doubt under such circumstances.

5. In the absence of plain error, under Crim.R. 52(B), an appellate court will not review alleged errors in the giving or failure to give instructions to a jury, unless the party objects thereto before the jury retires to consider its verdict, pursuant to Crim.R. 30.

6. Ohio's statutory framework for the imposition of capital punishment, R.C. 2903.01, 2929.03 and 2929.04, as adopted and effective January 1, 1974, is constitutional and does not impose cruel and unusual punishment within the meaning of the Eighth Amendment to the United States Constitution. (Paragraph one of the syllabus in State v. Bayless, 48 Ohio St.2d 73, 357 N.E.2d 1035, approved and followed.)

7. Where the record indicates that a defendant has been represented by competent appointed counsel, it is within the sound discretion of the trial court to refuse to grant a continuance the day prior to trial to allow defendant to retain counsel and prepare for trial.

8. Where the record indicates that a defendant has been represented by two competent appointed attorneys, the mere temporary absence of one of the counsel at certain stages of the proceedings does not violate the defendant's right to counsel under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.

9. Where the record indicates that defense counsel performed conscientiously and, at least, as well as a lawyer with ordinary training and skill in the criminal law, and investigated and asserted all the apparently substantial defenses that were available to a defendant, in the face of the evidence against the defendant, mere failure to make objections which seem appropriate after the fact does not establish prejudicial error as a deprivation of the Sixth Amendment right to counsel.

10. Where the record fails to reveal misconduct by the prosecutor prejudicial to the rights of a defendant, there is no basis for a claim that a defendant was denied a fair trial and due process of law.

11. The requirement in R.C. 2929.04(B) that a defendant prove by a preponderance of the evidence circumstances mitigating the imposition of the death penalty at a mitigation hearing after guilt has been proven, does not impose an unconstitutional burden upon a defendant, rendering the Ohio statutory framework for imposition of capital punishment unconstitutional.

12. Where the record at a mitigation hearing consists of the testimony of expert witnesses in the fields of psychiatry and psychology to the effect that the defendant's participation in the offense of aggravated murder was not primarily the product of a psychosis or mental deficiency, and the only other testimony was that the defendant had a lower than average I.Q., was unduly influenced by others, and was undergoing methadone treatment, then the defendant has failed to meet the burden of proving the mitigating circumstances listed in R.C. 2929.04(B)(3).

On January 15, 1975, Sidney Cohen was shot and killed in his pawn shop, located in downtown Akron. On January 21, 1975, appellant Sandra Lockett, was indicted by the Summit County grand jury in connection with the Cohen homicide. She was charged with aggravated murder (felony murder), including specifications, and with aggravated robbery.

Appellant, approximately two weeks prior to trial, was offered the negotiated plea of voluntary manslaughter and aggravated robbery if she would cooperate with the state. This plea was rejected.

Prior to commencement of trial, on March 28, 1975, after the state had prepared its case, appellant was offered the negotiated plea of aggravated murder. This, too, was rejected. The offer was renewed on April 1, 1975, the date of trial, and was again rejected by appellant. On April 3, 1975, appellant was subsequently found guilty by a jury, of aggravated murder, with two specifications, and of aggravated robbery. The trial court, upon completion of the statutory requirements found no mitigating circumstances and sentenced appellant to death, and the Court of Appeals affirmed.

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

Stephan M. Gabalac, Pros. Atty., Akron, and Carl M. Layman, III, for appellee.

Max Kravitz, Gerald Simmons and Bruce Jacob, Columbus, for appellant.

J. J. P. CORRIGAN, Justice.

I.

Appellant propounds 17 propositions of law in this cause. The following is a summary of the relevant testimony in this court:

Al Parker testified that, prior to coming to Akron on January 14, 1975, he was a resident of Orange, New Jersey. During the weekend prior to coming to Akron, Parker indicated that he met, for the first time, Joanne Baxter and the appellant in Jersey City, New Jersey (Friday, January 10, 1975). Baxter and the appellant, residents of Akron, were visiting the New Jersey area, and were apparently staying with relatives.

As the weekend progressed, Parker introduced Baxter and the appellant to his friend, Nathan Earl Dew. On Monday, January 13, 1975, Dew borrowed $60 from Parker, so that Dew could make bail for the appellant's brother James Lockett. After James Lockett was released from jail, Baxter, the appellant, David Ford (the appellant's 17-year-old uncle), and James Lockett planned to return to Akron in appellant's car.

Dew and Parker agreed to lead the appellant to the interstate highway for the return trip to Akron. Because of bad weather, Dew and Parker eventually accompanied the group all the way to Akron.

Parker and Dew arrived in Akron on January 14, 1975, with the appellant, James Lockett, Ford and Baxter. After the appellant was taken to the local Methadone Clinic for her heroin substitute, Parker and Dew, along with the others, eventually ended up at the Lockett residence.

Because they had no money to go home, Parker and Dew discussed pawning Dew's ring. When the appellant and James Lockett became part of this conversation (with only Dew, Parker, James Lockett, and the appellant participating), the appellant suggested a robbery. She then proceeded to suggest and point out certain business establishments that might be suitable as a target for the robbery. Because none of the four had a pistol, James Lockett suggested robbing a pawnshop where they could ask to see a pistol, load it, and then use it to rob the pawnshop. Since Parker already had four cartridges in his possession, he was elected to be the triggerman at the suggestion of James Lockett. Appellant offered to lead the group to the pawnshop, but suggested that she not actually go in because the pawn shop operator knew her. After it was determined that the robbery would take place the next day, Dew and the appellant, using Parker's car, dropped Parker off at Baxter's house.

The next morning, January 15, 1975, Dew, James Lockett and the appellant, using Parker's car, picked up Parker at Baxter's apartment. According to Parker, the robbery plan called for Dew and James Lockett to enter Syd's Market Loan, in downtown Akron, ostensibly to pawn Dew's ring. Parker was then to follow, look at a pistol, and carry out the robbery. The appellant was to stay in Parker's car, wait two minutes, and then start the engine.

The actual robbery commenced during the noon hour with Dew and James Lockett entering the pawnshop as planned. Approximately a minute later, Parker left the car and entered the pawnshop. Parker indicated that, when he entered, the owner, Sidney Cohen, was the only person present besides Dew and James Lockett. At Parker's request, Cohen showed him a pistol. Parker returned this pistol, at which point Dew pointed out another pistol, which Parker requested. Parker then took two cartridges out of his pocket, loaded the pistol, and declared that this was a stickup. The gun was pointed at Cohen with Parker's finger on the trigger. Parker testified that the weapon went off when Cohen grabbed at the pistol. As Cohen went down, he activated the robbery alarm behind the counter. The trio ran when Parker indicated that the alarm had been pushed. Parker...