State v. Penix

• Decision Date: 16 September 1987
• Docket Number: No. 86-1723,86-1723
• Citation: 32 Ohio St.3d 369,513 N.E.2d 744
• Parties: The STATE of Ohio, Appellant and Cross-Appellee, v. PENIX, a.k.a. Davis, Appellee and Cross-Appellant.
• Court: Ohio Supreme Court

Page 369

32 Ohio St.3d 369

513 N.E.2d 744

The STATE of Ohio, Appellant and Cross-Appellee, v. PENIX, a.k.a. Davis, Appellee and Cross-Appellant.

No. 86-1723.

Supreme Court of Ohio.

Sept. 16, 1987.

Syllabus by the Court

When an accused is tried by jury and convicted of aggravated murder with specification, a death sentence may be imposed by the trial judge only upon recommendation of the same jury that tried the guilt phase of the proceedings, pursuant to the criteria set forth in R.C. 2929.03. Thus, when a case is remanded to the trial court following vacation of the death sentence due to error occurring at the penalty phase of the proceeding, the trial court, in resentencing the offender, is limited to the sentences of life imprisonment with parole eligibility after serving twenty full years of imprisonment or life imprisonment with parole eligibility after serving thirty full years of imprisonment. (R.C. 2929.06, applied and construed.)

Appellee, Billy Penix, a.k.a. Bill Davis, ¹ was indicted by the Clark County Grand Jury for aggravated murder with a death penalty specification that the murder was committed while he was committing or attempting to commit aggravated robbery, and for robbery, aggravated robbery, tampering with evidence and abuse of a corpse in the death of Stephen Barker. Barker died of severe head injuries on August 21, 1982, and his body was found in the trunk of his car in a a garage behind appellee's house. Appellee's fingerprints were found on the trunk and a baseball bat covered with blood was found in appellee's house.

Appellee met Barker the night of his death when Barker hailed the car in which appellee and several others were traveling and asked directions to a local bar. Appellee and the others escorted Barker to the bar and stood in the parking lot talking with him, drinking beer and smoking marijuana. Several witnesses testified that appellee noticed a money bag in Barker's car and then had a discussion with his friend, Jeff Finney. Appellee, however, stated that Finney first noticed the money bag or box and suggested robbing Barker. Appellee and the others joined Barker in the bar a little later, and they drank together at that bar and other locations for several hours.

During the course of the evening, Barker indicated that he needed a place to stay for the night, and appellee invited Barker to stay with him. Appellee, Barker, and the others then proceeded to appellee's home. Barker, who had been drinking heavily, fell asleep on the couch soon after they arrived at the house, and, apparently, appellee, Finney, and possibly some of the others again discussed robbing him. A short time later, while Barker was still sleeping, appellee hit him on the head with an aluminum baseball bat, and took his wallet and keys. Jeff Finney then took the money from Barker's wallet and departed with the others, leaving appellee alone with Barker.

After the others left, appellee dragged the body out of the house and placed it in the trunk of Barker's car. Later, when Finney and the others returned, they assisted appellee in pushing the car into a garage on the premises.

Following a jury trial, appellee was convicted of aggravated murder with accompanying death specification, aggravated robbery, tampering with evidence, and abuse of a corpse. ² At the conclusion of the penalty phase, the jury recommended that appellee be sentenced to death, which recommendation was accepted by the trial court.

Appellee appealed his conviction and sentence raising numerous assignments of error, including an assertion that the court erred in charging the jury in the penalty phase. The court of appeals upheld the conviction, but reversed the sentence, finding that the trial court erred in its charge to the jury in the penalty phase. The cause was remanded to the trial court for resentencing.

The cause is now before this court pursuant to the allowance of a motion and cross-motion for leave to appeal.

Stephen A. Schumaker, Pros. Atty., and David Smith, Springfield, for appellant and cross-appellee.

Randall M. Dana, Public Defender, David C. Stebbins and S. Adele Shank, for appellee and cross-appellant.

WRIGHT, Justice.

I

We first turn to appellee's cross-appeal attacking his conviction. Upon a review of the record, the briefs of the parties, and the exhaustive opinion of the court of appeals, we find no prejudicial error in the guilt phase of the proceedings. Therefore, we affirm appellee's conviction for aggravated murder.

II

We now turn to the penalty phase of the proceedings. During this phase, the trial jury must "determine whether the aggravating circumstances the offender was found guilty of committing are sufficient to outweigh the mitigating factors present in the case." R.C. 2929.03(D)(2). A sentence of death may be imposed only if the trial jury finds that the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt.

At the conclusion of the penalty phase, over objection by appellee's counsel, the trial judge instructed the jury that there were two aggravating circumstances to weigh against the factors in mitigation, namely:

"1) That the Defendant, Bill Penix, aka Bill Davis, committed the offense of aggravated murder with prior calculation and design, and;

"2) That the Defendant, Bill Penix, aka Bill Davis, as the principal offender committed the offense of aggravated murder of Stephen Barker while the Defendant was committing or attempting to commit aggravated robbery."

The court of appeals held that the charge with respect to the first aggravating circumstance was inaccurate and misleading, resulting in prejudicial error. We agree. The aggraving circumstance of which appellee was convicted was R.C. 2929.04(A), which provides as follows:

"Imposition of the death penalty for aggravated murder is precluded, unless one or more of the following is specified in the indictment or count in the indictment pursuant to section 2941.14 of the Revised Code and proved beyond a reasonable doubt:

" * * *

"(7) The offense was committed while the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit kidnapping, rape, aggravated arson, aggravated robbery, or aggravated burglary, and either the offender was the principal offender in the commission of the aggravated murder or, if not the principal offender, committed the aggravated murder with prior calculation and design."

Since the jury found that appellee was the principal offender, the second aggravating circumstance referred to in the instructions was present. The first, however, was an incomplete statement of a portion of R.C. 2929.04(A)(7) not applicable to appellee. Prior calculation and design is an aggravating circumstance only in the case of an offender who did not personally kill the victim. Thus, the criteria set forth in R.C. 2929.04(A)(7) are constructed in the alternative. If the aggravated murder was committed during the course of one of the enumerated felonies, then the death penalty may be imposed only where the defendant was the principal offender (i.e., the actual killer), or where the defendant was not the principal offender, if he committed the murder with prior calculation and design. The language of the statute provides that these are alternatives which are not to be charged and proven in the same cause. Thus, if the defendant is found to be the principal offender, then the aggravating circumstance is established, and the question of whether the offense was committed with prior calculation and design is irrelevant with respect to the death sentence.

When at least one aggravating circumstance has been established beyond a reasonable doubt, the jury must consider and weigh the aggravating circumstances against the mitigating factors. R.C. 2929.04(B). This weighing process is designed to guide the sentencing authority's discretion by focusing on the "circumstances of the capital offense and the individual offender * * *," thus reducing the arbitrary and capricious imposition of death sentences. State v. Jenkins (1984), 15 Ohio St.3d 164, 173, 15 OBR 311, 319, 473 N.E.2d 264, 277. Like all penalty provisions, R.C. 2929.04(B) must " * * * be strictly construed against the state, and liberally construed in favor of the accused." R.C. 2901.04(A).

In State v. Johnson (1986), 24 Ohio St.3d 87, 94, 24 OBR 282, 288, 494 N.E.2d 1061, 1067, this court held that "[p]resenting the jury with specifications not permitted by statute impermissibly tips the scales in favor of death, and essentially undermines the required reliability in the jury's determination." Therefore, we held that "R.C. 2941.14 limits the aggravating circumstances which may be considered in imposing the death penalty to those specifically enumerated in R.C. 2929.04(A)," and vacated the death sentence. Johnson, supra, at the syllabus.

The state argues, however, that the holding in State v. Jenkins, supra, that a death sentence can stand despite jury instructions on duplicative specifications, is controlling. We disagree. In Jenkins, although the aggravating circumstances involved were duplicative and several of them should have been merged, they did comport with the circumstances set forth in R.C. 2929.04(A). None of the instructions in Jenkins was invalid as was the first instruction in the cause at issue. Furthermore, in finding that the error in Jenkins was harmless, we relied on the fact that in charging the jury "the trial judge herein made no suggestion that the 'presence of more than one aggravating circumstance should be given special weight.' " (Citations omitted.) State v. Jenkins, supra, 15 Ohio St.3d at 199, 15 OBR at 341, 473 N.E.2d at 296. However, in the cause at issue, the trial court compounded the error by charging the jury that "[i]t is not only the quantity of the aggravating circumstances versus the quantity of the mitigating factors which are to be the basis...