State v. Lott, 89-846

Citation555 N.E.2d 293,51 Ohio St.3d 160
Decision Date06 June 1990
Docket NumberNo. 89-846,89-846
PartiesThe STATE of Ohio, Appellee, v. LOTT, Appellant.
CourtUnited States State Supreme Court of Ohio

John T. Corrigan, Pros. Atty. and Carmen M. Marino, Cleveland, for appellee.

David L. Doughten, Cleveland and Patricia Walsh, Rock Creek, for appellant.

WRIGHT, Justice.

Gregory Lott appeals his convictions and sentence of death. We have reviewed Lott's seventeen propositions of law, independently balanced the aggravating circumstance against the mitigating factors, and evaluated the proportionality of the sentence to those imposed in similar cases. As a result, we affirm the convictions and sentence of death.

I Joinder of Offenses

In his initial proposition of law (I), Lott claims he was deprived of due process through the joinder of the 1983 aggravated burglary and petty theft offenses with the 1986 offenses against John McGrath. Lott contends that the 1983 offenses were unrelated to the 1986 offenses and prejudiced his cause. He contends as well that evidence of the 1983 offenses was also inadmissible, since it fell under the "other acts" portion of Evid.R. 404(B). The state responds that Lott could not have been prejudiced by joinder and that Lott also waived any error by not requesting severance.

We turn first to Lott's assertions of prejudice through joinder. Before trial began Lott faced serious charges relating to crimes against five victims besides McGrath. At Lott's June 1987 pretrial hearing, the state agreed to press only the McGrath offenses in a single trial. Defense counsel was fully apprised of Lott's position and made the deliberate tactical decision to proceed in a single trial.

The law favors joining multiple offenses in a single trial under Crim.R. 8(A) if the offenses charged "are of the same or similar character." State v. Torres (1981), 66 Ohio St.2d 340, 20 O.O.3d 313, 421 N.E.2d 1288. While joinder is a viable trial procedure, an accused may move to sever under Crim.R. 14 upon a showing of prejudice. For an appellate court to reverse a trial court ruling denying severance, the defendant must demonstrate that the trial court abused its discretion.

"A defendant * * * under Crim.R. 14 has the burden of affirmatively showing that his rights were prejudiced; he must furnish the trial court with sufficient information so that it can weigh the considerations favoring joinder against the defendant's right to a fair trial, and he must demonstrate that the court abused its discretion in refusing to separate the charges for trial." State v. Torres, supra, at syllabus.

A prosecutor can use two methods to negate such claims of prejudice. Under the first method, the "other acts" test, the state argues that it could have introduced evidence of the 1983 crimes under the "other acts" portion of Evid.R. 404(B), if the 1983 and 1986 offenses had been severed for trial. See Bradley v. United States (C.A.D.C.1969), 433 F.2d 1113, 1118-1119. Under the second method, the "joinder" test, the state is not required to meet the stricter "other acts" admissibility test, but is merely required to show that evidence of each crime joined at trial is simple and direct. State v. Roberts (1980), 62 Ohio St.2d 170, 175, 16 O.O.3d 201, 204, 405 N.E.2d 247, 251; State v. Torres, supra, at 344, 20 O.O.3d at 315, 421 N.E.2d at 1291. Thus, when simple and direct evidence exists, an accused is not prejudiced by joinder regardless of the nonadmissibility of evidence of these crimes as "other acts" under Evid.R. 404(B). State v. Roberts, supra; State v. Torres, supra; United States v. Catena (C.A.3, 1974), 500 F 2d 1319, 1325-1326, certiorari denied (1974), 419 U.S. 1047, 95 S.Ct. 621, 42 L.Ed.2d 641.

The trial court joined the 1983 aggravated burglary and petty theft charges with the 1986 charges, as "similar" offenses under Crim.R. 8(A). Such joinder was proper because Lott had burgled the same house and stolen from the same victim in 1983. Indeed, the facts of the 1983 offenses were simple and direct. State v. Roberts, supra; State v. Torres, supra. It is beyond credibility that the panel of judges would be confused by the offenses or would improperly cumulate evidence of the various crimes. See State v. Brooks (1989), 44 Ohio St.3d 185, 542 N.E.2d 636. In fact, Lott fails to explain how he would have defended differently if the 1983 offenses had been severed. See Drew v. United States (C.A.D.C.1964), 331 F.2d 85, at 88, 90-92.

Moreover, the plain error rule applied to Lott's objection to joinder raised now but waived at trial. As stated, Lott's defense counsel, with Lott's full knowledge, made the tactical decision to proceed, without objection, with a single trial on all charges relating to McGrath. "Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph three of the syllabus. See, also, State v. Wolery (1976), 46 Ohio St.2d 316, 75 O.O.2d 366, 348 N.E.2d 351. Since our independent review of the record reveals neither reversible error nor a manifest miscarriage of justice we find Lott's objections to such joinder to be without merit.

II Evidence of Instrumentalities

In proposition II, Lott argues plain error and deprivation of due process rights by the admission of evidence concerning a telephone cord and bottle of lamp oil found near McGrath, evidence which Lott asserts was irrelevant and prejudicial.

The state clearly showed the relevance of the telephone cord. The cord that police found lying next to McGrath was unusual, indeed out of place. One end was torn and frayed; the other end had a telephone plug on it. Police could not link this cord to any telephone in the house. The deputy coroner saw crusted abrasions on McGrath's ankle and wrist. Additionally, the ambulance run report noted a blue telephone extension cord looped around the patient's hand. Such evidence does not depend on what McGrath said, but what ambulance personnel saw, as is clear from the context of the evidence.

The state could hardly have shown the relevance of the lamp oil more clearly. The victim suffered second degree burns over twelve to eighteen percent of his bodyburns from a fire, not chemicals. Yet, aside from some charred drapes, there was no evidence of a fire. McGrath himself clearly had been set ablaze; he was fuel for the fire. The instrumentality to explain this was within an arm's length--an open bottle of flammable lamp oil. Police found no matches or lighter, and no kerosene heater in the house to explain the lamp oil.

These nearby instruments of violence, the telephone cord and lamp oil, tended to prove the charged aggravated offenses of burglary, robbery, arson and murder. Evid.R. 401. Lott had no basis to object to admission of this evidence at trial and did not do so. Having failed to object to their admissibility, Lott now claims due process violations and plain error. Those claims lack merit. There was no miscarriage of justice and any error was waived. State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364, vacated on other grounds (1978), 438 U.S. 911, 98 S.Ct. 3137, 57 L.Ed.2d 1156; State v. Long, supra; State v. Wolery, supra.

III Prosecutorial Misconduct--Trial

In propositions III and IV, Lott asserts that the prosecutor by his misconduct violated Lott's various federal constitutional rights, particularly his right to due process. The state denies misconduct, argues waiver through lack of defense objections, and maintains that Lott was not prejudiced. Lott correctly argues that the prosecutor erred, but he fails to demonstrate prejudice.

Proposition III concerns the prosecutor's reference to evidence the court had previously rejected. The state offered into evidence a post-arraignment, August 12 statement by Lott that was secured in the absence of counsel. The court suppressed this evidence at a hearing during trial. The state moved to delete the term "kidnapping" from the aggravated murder charge and death penalty specification. Those charges alleged aggravated robbery, aggravated burglary and kidnapping. In so doing, the prosecutor repeatedly referred to Lott's pretrial statement that had already been suppressed as the source of evidence to prove kidnapping: " * * * [P]aragraphs 4, 5 and 6 tell what was done to restrain his [the victim's] freedom."

" * * * [W]e could have proved the kidnapping very easily based on the statement." Despite defense objections, the court granted the motion to amend by deleting "kidnapping."

Lott describes the prosecutor's motion to amend as a thinly veiled attempt to inject the contents of the suppressed statement into the case. In response, the state correctly points out the need for the amendment, since the indictment's language in the conjunctive might have required proof of robbery, burglary and kidnapping.

In proposition IV, Lott complains of remarks by the prosecutor during closing argument which repeatedly referred to hearsay statements in the victim's medical records. Some examples will suffice: "In the record he says that he was tied up and burned by somebody." "I'm telling you that the man was tied up and burned to death * * *." "It is not a theory. What happened was that someone tied him up and burned him to death." Lott also accuses the prosecutor of attempting to inflame the trier of fact to reach a verdict based on sympathy for the victim.

The test for prosecutorial misconduct is whether remarks are improper and, if so, whether they prejudicially affected substantial rights of the accused. State v. Smith (1984), 14 Ohio St.3d 13, 14-15, 14 OBR 317, 318-319, 470 N.E.2d 883, 885-886; United States v. Dorr (C.A.5, 1981), 636 F.2d 117, 120, citing United States v. Garza (C.A.5, 1979), 608 F.2d 659, 663.

" * * * [T]he prosecution is entitled to a certain degree of...

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