State v. Martin
| Decision Date | 09 August 1985 |
| Docket Number | No. 84-1660,84-1660 |
| Citation | 19 OBR 330,19 Ohio St.3d 122,483 N.E.2d 1157 |
| Parties | , 19 O.B.R. 330 The STATE of Ohio, Appellee, v. MARTIN, Appellant. |
| Court | Ohio Supreme Court |
On December 20, 1982, Ernel Foster, a security guard, was robbed of his .38 caliber Smith & Wesson revolver, Model 10, Serial No. D431784, by a black male, while waiting at a bus stop on East 93rd Street and Kinsman Avenue. Foster testified that he chased the offender for a block and a half and was able to see his face. He further noted that the offender's hair was in small braids. On February 1, 1983, Foster was summoned to the police station to view a line-up composed of six black males. Foster was able to identify the defendant-appellant, Ernest Martin, noting that his hair was braided in the same manner as it appeared on December 20, 1982. Later, Foster identified appellant in the courtroom as the man who had taken his weapon.
Appellant's girlfriend, Josephine Pedro, testified that he had threatened her with a gun earlier that year, telling her that he had stolen the weapon from a security guard at East 93rd and Kinsman. Pedro wrote down the serial number of the gun on the back of an envelope box. The number was identical to the serial number of Foster's weapon except that the letter "D" had been purposely transformed into a "9." Pedro testified that this was done to make the number sequence look like a telephone number in order to ward off any suspicion.
Pedro further testified that in the early hours of January 21, 1983, appellant revealed a plan to rob Robinson's Drug Store. She attempted to dissuade him but the appellant threatened her if she did not cooperate in the robbery. Appellant then left the apartment and returned approximately ten minutes later with the gun he had taken from Foster.
Appellant devised a plan whereby Pedro was to go to the store and attempt to buy medicine for a cold. When Robert Robinson, owner of the store, unlocked the door to allow Pedro's entrance, appellant planned to follow her in and rob the premises. The appellant wore gray pants, tennis shoes and a waist length black leather jacket. He covered his face with a brown knit cap in which he cut holes for his eyes to avoid identification. At approximately 12:45 a.m., Pedro arrived at the store and knocked on the door. Upon recognizing Pedro, Robinson unlocked the door to let her in. However, he locked the door again before the appellant had a chance to gain entrance. As Robinson stood in front of the door after locking it, two shots were fired through the door fatally wounding him. After firing the shots the appellant allegedly went to the apartment to change his clothes and then returned to the store to finish the robbery.
Monty Parkey, an employee of Robinson, was in the back room at the time of the shooting. After hearing the shots and seeing what had occurred, Parkey called an ambulance and the police. He then instructed Pedro to go to Robinson's house to get Mrs. Robinson. Pedro complied and upon returning was interviewed by the police concerning the events. She gave them her name and address and stated she knew nothing about the shooting. The appellant was also present at this time and talked to the police. Upon completing her interview, Pedro returned to her apartment.
When Pedro reached the apartment she called her neighbor, Larry Kidd. Appellant returned approximately thirty-five minutes later. Pedro asked appellant whether the evening's events had been worth it. He showed her a pile of bills under a blanket which he then took into the bathroom and explained that he had stolen between $38 and $39 from the store.
Appellant then drove Kidd and Pedro to an "after hours" spot for drinks. After they sat down at the table, appellant took two spent cartridges from his pocket and placed them on the table. Kidd remarked: "* * * [M]ust be a night of the duces [sic ], you got a duce [sic ] and a quarter, and Mr. Robinson got shot twice, and you got two cartridges." Appellant did not respond to this comment.
Several days after the shooting the police again questioned Pedro and appellant. By this time the two had put together a story for the police that Pedro had gone to the store to get cough medicine when the deceased was shot and that appellant only came to the store after she had been gone for an unusually long time. On January 29, 1983, the police returned and arrested Pedro and appellant for the murder of Robinson. After several days in jail, Pedro told the police that she had helped set up the robbery by going to the store and that the appellant had shot the deceased.
Soon afterwards, appellant's father contacted Pedro asking her to change her statement. While visiting appellant in jail, appellant's father again asked Pedro to change her story. During the trial, the state introduced a letter dated February 13, 1983, wherein appellant asked Pedro to "tell the truth" and implicate a man named "Slim" for the murder-robbery of Robinson. An additional letter dated February 17, 1983, in which appellant again asked her to implicate "Slim," was also introduced into evidence. Pedro has continually denied that "Slim" had anything to do with these crimes.
The state also offered another letter into evidence which had been written by the appellant to Pedro when he was in jail in February 1981 for another offense. Pedro identified the letter and read it into the record. The letter asked Pedro to lie for appellant and to implicate someone else for the commission of the offense for which the appellant was charged. Pedro admitted lying for the appellant pursuant to the letter in the previous trial for the other offense.
Finally, Antoinette Henderson testified that she lived with Pedro for about five or six months until the middle of December 1982. During December she heard the appellant say he was going to rob Robinson's store. Appellant threatened her with a gun, warning her that she had better not tell anyone of his plan.
During the trial the defense presented no witnesses, but sought to introduce into evidence written statements of Pedro and Henderson. The court denied this request finding the written statements were not inconsistent as alleged by the defense.
The jury found the appellant guilty of the aggravated robbery of Ernel Foster and of the aggravated robbery and aggravated murder of Robert Robinson with the specification of being the principal offender of the aggravated murder while committing or attempting to commit aggravated robbery. After the mitigation hearing was conducted, the jury recommended that appellant receive the death penalty. On July 8, 1983, the trial court sentenced appellant to death. On July 13, 1983, appellant filed a motion for a new trial. On May 9, 1984, the motion was denied. On May 23, 1984, the court filed its required judgment entry and separate opinion, pursuant to R.C. 2929.03(F), finding that the aggravating circumstances outweighed the mitigating factors. The following day, the trial court filed its opinion on the motion for a new trial.
On August 5, 1983, appellant appealed his conviction to the court of appeals. The court of appeals affirmed the sentence of the trial court and issued a separate opinion as required by R.C. 2929.05(A) on September 27, 1984.
The cause is now before this court upon an appeal as of right.
John T. Corrigan, Pros. Atty., and Carmen Marino, Cleveland, for appellee.
Thomas M. Keane, Cleveland, for appellant.
In order to determine whether the appellant's death sentence should be affirmed, this court is required to do three things. First, we must answer the specific issues raised by the appellant regarding the proceedings below. Second, we must independently weigh the aggravating circumstances in this case against any factors which mitigate against the imposition of the death penalty. Finally, we must independently consider whether appellant's sentence is disproportionate to the penalty in similar cases.
Appellant alleges that the trial court wrongfully excluded four prospective jurors on the basis of their underlying beliefs regarding the death penalty rather than their inability to follow the law or obey the court's instructions. He directs the court's attention to Witherspoon v. Illinois (1968), 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 , wherein the Supreme Court held that the death sentence could not be carried out if the jury that imposed or recommended the sentence excluded veniremen for cause on the grounds that they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.
Appellant asserts that four jurors were successfully excluded for cause when none of them met the criteria of exclusion set forth in Witherspoon. A careful review of the voir dire record serves to establish that each of the four excluded jurors either could not or would not consider the imposition of a sentence of death in a particular case. Pursuant to R.C. 2945.25(C), jurors who harbor such convictions may be challenged for cause. Accordingly, appellant's assignment of error concerning the exclusion of jurors was properly overruled by the appellate court. 1 Appellant next challenges the trial court's denial of a motion to separate the aggravated robbery count arising from the incident involving the gun taken from Ernel Foster and the counts of aggravated robbery and aggravated murder with specifications involving the death of Robert Robinson.
Crim.R. 8 permits joinder of separate offenses only where the offenses charged "are of the same or similar character, or are based on the same act or transaction, or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, or are part of a course of criminal conduct." Crim.R. 14 further permits a defendant to move for separation of the offenses if it is evident that he is prejudiced by the joinder of such offenses.
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