State v. Michael Goodwin, 97-LW-0746

• Decision Date: 17 April 1997
• Docket Number: 97-LW-0746,68531
• Parties: STATE OF OHIO, Plaintiff-Appellee v. MICHAEL GOODWIN, Defendant-Appellant CASE
• Court: Ohio Court of Appeals

STATE OF OHIO, Plaintiff-Appellee v. MICHAEL GOODWIN, Defendant-Appellant

No. 68531.

97-LW-0746 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

April 17, 1997

CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-314527.

For Plaintiff-Appellee: STEPHANIE TUBBS JONES, Cuyahoga County Prosecutor, BY: THOMAS CONWAY (#0021183), Assistant County Prosecutor, The Justice Center - 8th Floor, 1200 Ontario Street, Cleveland, OH 44113.

For Defendant-Appellant: STEPHEN A. FERRELL (#0061707), Assistant State Public Defender, Counsel of Record; J. JOSEPH BODINE JR. (#0042132), Assistant State Public Defender; Ohio Public Defender Commission 8 East Long Street - 11th Floor Columbus OH 43215-2998; ROBERT M. INGERSOLL (#0023748), Assistant Public Defender, The Marion Building - Room 307, 1276 West Third Street, Cleveland, OH 44113.

OPINION

SPELLACY P.J.

Defendant-appellant Michael Goodwin ("appellant") appeals from one count of aggravated murder in violation of R.C. 2903.01(A), one count of aggravated murder in violation of R.C. 2903.01(B), and from the imposition of the death penalty.

Appellant assigns the following errors for review:

1.

THE TRIAL COURT ERRED WHEN IT INSTRUCTED THE JURY AT THE PENALTY PHASE REGARDING THE FACTORS TO CONSIDER IN RECOMMENDING PUNISHMENT AND WHEN IT INDEPENDENTLY CONSIDERED MORE THAN ONE AGGRAVATING CIRCUMSTANCE. U.S. CONSTITUTION AMENDMENTS VI, VIII AND XIV; OHIO CONSTITUTION ARTICLE I, SECTIONS 9, 10, AND 16.

2.

DEFENSE COUNSEL'S ACTIONS AND OMISSIONS AT THE PENALTY PHASE OF APPELLANT GOODWIN'S CAPITAL TRIAL DEPRIVED HIM OF THE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 9, 10 AND 16 OF THE OHIO CONSTITUTION.

3.

DEFENSE COUNSEL'S ACTIONS AND OMISSIONS AT THE GUILT PHASE OF GOODWIN'S CAPITAL TRIAL DEPRIVED HIM OF THE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 9, 10 AND 16 OF THE OHIO CONSTITUTION.

4.

PROSECUTORIAL MISCONDUCT IN APPELLANT GOODWIN'S CAPITAL TRIAL DENIED MR. GOODWIN HIS DUE PROCESS RIGHT TO A FAIR TRIAL AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.

5.

A COURT OF APPEALS CANNOT, CONSISTENT WITH THE MANDATE OF OHIO REV. CODE ANN. SECTION 2929.05 (ANDERSON 1993), CONDUCT A REVIEW OF A CAPITAL CASE WHEN THE RECORD ON APPEAL IS INCOMPLETE.

6.

APPELLANT GOODWIN'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT VOIR DIRE.

7.

THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT GOODWIN WHEN IT FAILED TO ASSURE APPELLANT OF A FAIR AND IMPARTIAL JURY BY COMMITTING ERRORS IN VOIR DIRE. U.S. CONSTITUTION AMENDMENT VI, VI II AND XIV; OHIO CONSTITUTION ARTICLE I SECTIONS 9, 10 AND 16.

8.

A CAPITAL DEFENDANT IS DENIED HIS RIGHTS TO A FAIR TRIAL, DUE PROCESS AND A RELIABLE DETERMINATION OF HIS GUILT AND SENTENCE AS GUARANTEED BY THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION WHEN THE TRIAL COURT ADMITS EVIDENCE OF LITTLE PROBATIVE VALUE THAT IS HIGHLY PREJUDICIAL.

9.

WHEN A TRIAL COURT RECEIVES AND CONSIDERS A VICTIM'S REQUEST FOR THE DEATH PENALTY, A RESULTING SENTENCE OF DEATH IS UNRELIABLE IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

10.

THE STATE FAILED TO INTRODUCE SUFFICIENT EVIDENCE TO PROVE THE ELEMENT OF PRIOR CALCULATION AND DESIGN BEYOND A REASONABLE DOUBT. APPELLANT WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

11.

THE TRIAL COURT ERRED BY GIVING THE JURY AN INSTRUCTION ON REASONABLE DOUBT THAT WAS BASED UPON A DEGREE OF PROOF BELOW THAT REQUIRED BY THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

12.

THE TRIAL COURT ERRED WHEN IT FAILED TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF INVOLUNTARY MANSLAUGHTER. U.S. CONSTITUTION AMENDMENTS VI, VIII AND XIV, OHIO CONSTITUTION ARTICLE I, SECTIONS 9, 10 AND 16.

13.

WHEN THE DEATH SENTENCE IS EXCESSIVE AND DISPROPORTIONATE TO THE SENTENCES IN SIMILAR CASES, AND WHEN IT IS INAPPROPRIATE, THE DEATH SENTENCE MUST BE VACATED AND A LIFE SENTENCE IMPOSED.

14. OHIO'S DEATH PENALTY SCHEME IS UNCONSTITUTIONAL.

Finding none of the assignments of error to have merit, the judgment of the trial court is affirmed.

On September 13, 1994, appellant and Jermaine Brown went to the home of Derrick Flonnory between 8:15 and 8:30 a.m. Appellant asked Flonnory to assist appellant in robbing a neighborhood grocery store, the Big Star Market, located at East 55th Street and Quimby in Cleveland. Flonnory refused because he was tired. Appellant and Brown left. Appellant did not ask Brown to accompany him to the Big Star Market. The two parted ways as appellant told Brown he had to take care of some business downtown.

Appellant succeeded in recruiting James Padgett and James Johnson to join in his plan. The three walked to the Big Star Market. Appellant was armed with a .357 revolver he had illegally purchased from Brown two weeks earlier. Johnson carried a .45 semi-automatic gun. Padgett later denied having a weapon that day and no one saw Padgett with a gun during the robbery. The three wore hats pulled low over their faces. The trio arrived at the store between 9:30 and 9:45 a.m.

Appellant entered the store first and then stepped back outside to signal to Johnson and Padgett to continue with the scheme to rob the store. Inside the store that day were two employees, cousins Mustafa Sammour and Almohannad Ismail Sammour, known as Shorty. Each stood behind separate counters on either Bide of the door. As the three cohorts entered the store, Padgett sought to distract Shorty by asking for some merchandise. Shorty turned his back to the men to retrieve the requested item and was grabbed by Padgett or Johnson. Appellant did the same to Mustafa and pulled out his weapon.

Appellant was screaming at Mustafa to move and to take him to where the money was. Mustafa stood with his hands up over his head. Appellant pressed the muzzle of his .357 Magnum to Mustafa's forehead. Appellant then fired a bullet through Mustafa's head, killing Mustafa Sammour instantly.

Appellant stood for a few seconds before going to the other side of the store and grabbing Shorty. Appellant demanded Shorty accompany him to the store's safe which was located in a small room toward the front of the store. While Shorty walked toward the small room, appellant kept his gun to Shorty's head. Shorty succeeded in opening the safe and began to give appellant the money. Appellant could not reach into the safe because the open office door prevented the safe from being fully opened. Appellant fired a second shot into the floor. After all of the money was removed from the safe, appellant told Shorty to take him to the lottery machine. As the two stepped out of the small room into the store, appellant was informed that a milk delivery truck had pulled up outside the store. Appellant shoved Shorty aside. The three began to run from the store. On his way out, appellant reached into the open cash register drawer above Mustafa Sammour's body and removed some more cash. Appellant shoved the money into his pocket as he exited the store, dropping some of the bills to the pavement.

Appellant, Padgett, and Johnson went to appellant's home where the money was divided. Appellant had splatters of blood on his shirt and blood on his shoes. Appellant reportedly told Padgett Mustafa was shot because Mustafa reached for appellant's mask. No one saw Mustafa make any movements. Mustafa Sammour's hands were above his head at the time of the shooting. Johnson testified appellant stated he had not meant to shoot the clerk.

The morning of the robbery, appellant telephoned a friend, Tyrone Griffin, and asked Griffin to throw something away for him. Griffin went to appellant's house and removed a bag from the stairs as appellant had directed. Griffin took the bag to his grandfather's home. Griffin removed a shirt with a "7" on it that appellant wore during the robbery and a pair of pants and burned the clothing in a fire his grandfather had lit in his backyard.

The police recovered a partially mangled bullet at the scene. The bullet could not have been fired from a .45 caliber semiautomatic handgun but had to have been fired from a .357 revolver or a .38 revolver. There was no evidence a semi-automatic weapon was fired at the crime scene.

The police arrested appellant for the robbery and murder the next day, September 14, 1994. Appellant gave a statement to the police in which he admitted his involvement in the crime but claimed he had acted alone. Appellant averred his gun just went off, killing Mustafa. The gun unexpectedly fired again when appellant tried to reach into the safe and remove money.

While in jail, appellant met a friend of his, Antoine Robinson. Robinson asked appellant if he committed the murder. Appellant replied in the positive and said that he already had given police a statement admitting his culpability. Appellant asked Robinson how long a prison term he thought appellant would receive. Robinson replied fifteen or twenty to life. Appellant said he could do it, whatever they gave him. Appellant then went to sleep.

Police later brought appellant back to the Homicide Unit and again advised appellant of his Miranda rights. The police told appellant he was being charged with capital murder in connection with the Big Star Market homicide. Appellant was quite surprised the case...