State v. Montgomery

• Decision Date: 14 August 1991
• Docket Number: No. 89-70,89-70
• Citation: 575 N.E.2d 167,61 Ohio St.3d 410
• Parties: The STATE of Ohio, Appellee, v. MONTGOMERY, Appellant.
• Court: Ohio Supreme Court

Page 410

61 Ohio St.3d 410

575 N.E.2d 167

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

No. 89-70.

Supreme Court of Ohio.

Submitted June 5, 1991.

Decided Aug. 14, 1991.

Cynthia Tincher and Debra Ogle shared an apartment on Hill Avenue in Toledo, Ohio. On March 8, 1986, at approximately 6:00 a.m., Glover Heard and appellant William T. Montgomery arrived at the Hill Avenue apartment and Ogle, who knew appellant, agreed to drive the two men to appellant's residence. Thus, Ogle, Glover and appellant left the apartment in Ogle's vehicle.

At appellant's request, Ogle stopped the vehicle on Hill Avenue and appellant then ordered Ogle to exit the vehicle. According to Glover, appellant and Ogle exited the vehicle and walked to a nearby wooded area where Ogle either sat or knelt on the ground. Glover then heard two gunshots and observed Ogle lying on the ground.

Appellant returned to the vehicle and drove Glover back to the Hill Avenue apartment. Appellant then instructed Glover to drive the vehicle to Glover's home. Thereafter, Glover took the vehicle, removed Ogle's wallet therefrom, and abandoned the vehicle near his home.

On March 8, 1986, at approximately 8:00 a.m., police found the body of Cynthia Tincher (Ogle's roommate) in Tincher's automobile near the intersection of Angola and Wenz Roads in Toledo. Tincher had been shot in the head at close range. Earlier that morning witnesses saw Tincher's vehicle at the intersection and observed a person near the automobile. Witnesses stated that the person they observed wore a dark hooded jacket and the hood was drawn tightly around the person's face.

On March 12, 1986, appellant was arrested on an outstanding warrant for forgery. When encountered by the arresting officers, appellant indicated that he had some knowledge concerning a homicide.

During subsequent questioning, appellant offered conflicting accounts of his movements on the morning of March 8, 1986. However, appellant finally admitted that he and Glover took a taxi to the Hill Avenue apartment on March 8. Appellant maintained that Glover killed Ogle and Tincher and claimed to have no knowledge of Ogle's whereabouts. Later, appellant offered to help the police locate Ogle's body and directed officers to the wooded area near Hill Avenue where Ogle's body was subsequently discovered. Ogle had been shot in the head and neck at close range.

Police recovered the weapon used to murder both Ogle and Tincher. The murder weapon was owned by appellant and had been purchased by him shortly before the murders. At the time appellant purchased the weapon, he was wearing a hooded jacket, and the hood was drawn tightly around his face. Police recovered a black hooded jacket while conducting a search of appellant's apartment.

Appellant was tried before a jury for the murders of Ogle and Tincher. Appellant was found guilty of murder for purposely causing the death of Cynthia Tincher. Appellant was also found guilty of aggravated murder for purposely causing the death of Debra Ogle while committing or attempting to commit aggravated robbery. Additionally, regarding the aggravated murder of Ogle, appellant was found guilty of two death penalty specifications.

For the aggravated murder of Ogle, the trial court, following the jury's recommendation, sentenced appellant to death. For Tincher's murder, appellant was sentenced to an indefinite term of incarceration of fifteen years to life. The court of appeals affirmed appellant's convictions and the sentence of death.

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

Anthony G. Pizza, Pros. Atty., James D. Bates, Toledo, Lawrence J. Kiroff and Dean P. Mandross, for appellee.

Randall M. Dana, Public Defender, David C. Stebbins, Kathleen A. McGarry and Sharon H. Hainley, Columbus, for appellant.

DOUGLAS, Justice.

Appellant presents a number of issues for our consideration. (See Appendix, infra.) We have considered appellant's propositions of law, independently weighed the aggravating circumstances against the evidence of mitigation, and reviewed appellant's death sentence for appropriateness and proportionality. Upon review, and for the reasons which follow, we uphold appellant's convictions and affirm the sentence of death.

I

Previous cases decided by this court are dispositive of the issues presented by appellant in his third, twelfth, thirteenth, fifteenth, twenty-fourth, twenty-sixth, thirtieth, thirty-first and thirty-second propositions of law and, without further comment, ¹ we reject these propositions of law. Likewise, we reject the arguments briefed by appellant under subsection A of his tenth proposition of law.

With respect to appellant's remaining propositions of law, upon careful review of the record and the applicable case law, we find no errors that would undermine our confidence in the outcome of appellant's trial. Indeed, many of appellant's arguments have been waived. Accordingly, we reject appellant's remaining propositions of law and address, in opinion form, only the following issues which merit some discussion.

II

Prior to trial, appellant moved for a change of venue. This motion was denied. In his twenty-ninth proposition of law, appellant contends that the denial of his motion constitutes reversible error. Specifically, appellant alleges that adverse publicity concerning his trial resulted in public antagonism toward appellant such that he could not, and did not, receive a fair trial in Toledo.

In State v. Swiger (1966), 5 Ohio St.2d 151, 34 O.O.2d 270, 214 N.E.2d 417, paragraph one of the syllabus, this court held that:

"The examination of jurors on their voir dire affords the best test as to whether prejudice exists in the community against the defendant, and where it appears that opinions as to the guilt of the defendant of those called for examination for jurors are not fixed but would yield readily to evidence, it is not error to overrule an application for a change of venue, in absence of a clear showing of an abuse of discretion."

The term "abuse of discretion" " * * * connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. * * * " State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 173, 404 N.E.2d 144, 149. We find, as did the court of appeals, that the trial court did not "abuse its discretion" in denying appellant's motion to change venue.

A thorough review of the record before us demonstrates that many prospective jurors who were questioned concerning pretrial publicity had, indeed, obtained some form of information regarding appellant's crimes as a result of pretrial publicity. However, the record shows that a significant number of the prospective jurors were not influenced by the publicity, and that some knew nothing about the crimes. Furthermore, the record supports the conclusion that the impartiality of the members of the jury ultimately selected in the case at bar was not compromised by the pretrial publicity.

In his brief, appellant makes several representations regarding the nature and extent of pretrial publicity and the resulting public outrage directed toward appellant. However, these matters are not substantiated by the record and, hence, will not be considered.

The decision whether to grant or deny a motion for change of venue rests within the sound discretion of the trial court. Appellant has presented no persuasive argument indicating that the trial court abused its discretion. Thus, we reject appellant's twenty-ninth proposition of law.

III

On the first day of testimony, the trial judge instructed the jury to avoid media accounts of the trial. In his twenty-third proposition of law, appellant contends that this instruction represents a failure of the trial court to adequately instruct the jury to avoid potentially prejudicial media accounts of the court's proceedings. Appellant contends that during the voir dire, the potential jurors were not instructed to avoid media accounts of the proceedings and, thus, the jurors were not impartial or indifferent. Appellant asserts, therefore, that his constitutional rights, as protected by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution were violated.

In Warner v. State (1922), 104 Ohio St. 38, 44, 135 N.E. 249, 251, we stated that " * * * in criminal cases it is not so much a question of what prejudice might be inferred from irregularities, omissions and technical errors, but rather a question [of] what error has probably intervened as shown by the record." In the instant case, appellant has failed to put forward evidence suggesting that any juror accessed prejudicial information between the voir dire and the first day of trial, when the jury was instructed as to media coverage. Moreover, despite the fact that several jurors acknowledged exposure to media coverage, these same jurors indicated that they could make an impartial evaluation of the evidence. Therefore, we find that appellant's constitutionally guaranteed right to a trial by an impartial jury was not jeopardized. Accordingly, appellant's twenty-third proposition of law is not well taken.

IV

In the guilt phase, the trial court instructed the jury on the element of "purpose." In his twentieth proposition of law, appellant contends that the trial court's instruction was in error. With respect to the element of purpose necessary to sustain a conviction of aggravated murder or murder, appellant contends that the instruction "created an unconstitutional conclusive presumption * * *." Judge Abood's instruction to the jury was:

"The purpose with which a person does an act is determined from the manner in which it is done, the means used, and all other facts and circumstances in evidence. "If a wound is inflicted upon a person with a deadly weapon in a manner calculated to destroy life, the purpose to cause the...