State v. Poindexter

• Decision Date: 23 March 1988
• Docket Number: No. 87-243,87-243
• Citation: 36 Ohio St.3d 1,520 N.E.2d 568
• Parties: The STATE of Ohio, Appellee, v. POINDEXTER, Appellant.
• Court: Ohio Supreme Court

Page 1

36 Ohio St.3d 1

520 N.E.2d 568

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

No. 87-243.

Supreme Court of Ohio.

March 23, 1988.

Syllabus by the Court

When issues of law in capital cases have been considered and decided by this court and are raised anew in a subsequent capital case, it is proper to summarily dispose of such issues in the subsequent case.

During February 1985, Dewaine Poindexter, appellant herein, was serving a sentence in the workhouse (Community Correctional Institution) for felonious assault on his former girlfriend and the mother of his two children, Tracy Abernathy. On February 11 or 12, 1985, appellant confided in a fellow inmate that Abernathy was " * * * going with some other guy," and that appellant was going to kill the man.

On February 15, 1985, appellant was released from prison. On February 19 1985, at approximately 10:30 a.m., Abernathy, Kevin Flanaghan and Abernathy's son, Michael, were asleep on the second floor of Abernathy's townhouse apartment in Cincinnati, Ohio. They were awakened by the crash of breaking glass. As Abernathy and Flanaghan started to investigate the noise, they were confronted by an armed man, appellant, as they reached the top of the steps. Appellant ordered Abernathy and Flanaghan back into the bedroom and asked Flanaghan to identify himself. Just as Flanaghan stated that his name was Kevin, appellant, who was aiming a revolver at Flanaghan's chest, pulled the trigger. The weapon misfired, emitting only a clicking noise. Thereupon, appellant aimed the weapon and pulled the trigger a second time. This time the weapon fired, striking Flanaghan in the chest ¹ and knocking him back onto the bed where he died a short time thereafter. Appellant then assaulted Abernathy, striking her on the face, and ordered her to pick up her one-year-old son and go downstairs to the living room.

About the time of Abernathy's beating, John Hurt, an unarmed security guard for the apartment complex, arrived on the scene. Hurt initially went to the rear of the apartment where he found a broken window. Upon hearing screams and seeing a man and a woman move toward the front door of the apartment, Hurt ran to the front of the apartment in time to observe appellant and Abernathy coming out.

Abernathy told Hurt that her boyfriend had been shot. Hurt, walking in front of appellant, followed Abernathy upstairs to Flanaghan's body. While there, appellant produced the pistol from his pocket, ordered Hurt to kneel on the floor and announced that he was going to kill both Hurt and Abernathy. Appellant aimed the revolver at Hurt's head and, from a range of eighteen to twenty inches, fired two shots. Both shots missed. When appellant attempted to fire a third shot, the weapon misfired. Appellant thereupon left the bedroom and was heard reloading the revolver. As soon as appellant left the room, Hurt radioed for police assistance.

After reloading, appellant reentered the bedroom, pistol-whipped Abernathy twice and ordered Hurt and Abernathy to accompany him out of the apartment. Once they were all outside, a Cincinnati police cruiser arrived on the scene and appellant fled on foot. Not long thereafter, appellant's pistol was recovered from a nearby trash dumpster and appellant was arrested without incident at his sister's apartment.

On March 1, 1985, appellant was indicted on two counts of aggravated murder with death penalty specifications in violation of R.C. 2903.01 and 2929.04, ² one count of aggravated burglary in violation of R.C. 2911.11, one count of felonious assault in violation of R.C. 2903.11, one count of kidnapping in violation of R.C. 2905.01, and one count of attempted aggravated murder in violation of R.C. 2903.01 and 2923.02.

Appellant's trial began on May 9, 1985, and concluded May 15, 1985. The jury found appellant guilty on all counts of the indictment. The subsequent penalty hearing resulted in a recommendation by the jury that appellant be sentenced to death. The trial court, upon completion of its required independent weighing of the mitigating factors against the aggravating circumstances, adopted the recommendation of the jury and imposed the penalty of death. Additionally, the trial court sentenced appellant to consecutive terms of incarceration of ten to twenty-five years for aggravated burglary, eight to fifteen years for felonious assault, eight to fifteen years for kidnapping, and seven to twenty-five years for attempted aggravated murder.

The court of appeals affirmed the convictions and sentences in all respects.

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

Arthur M. Ney, Jr., Pros. Atty., Christian J. Schaefer, John D. Valentine and Patrick Dinkelacker, Cincinnati, for appellee.

Dominic F. Perrino, Peter Pandilidis and H. Fred Hoefle, Cincinnati, for appellant.

DOUGLAS, Justice.

This appeal presents this court with numerous issues concerning appellant's convictions and the penalty of death which was subsequently imposed. For the reasons discussed infra, we affirm the judgment of the court of appeals in all respects and uphold appellant's death sentence.

Initially, it should be noted that although R.C. Chapter 2929 requires this court to review capital cases in a certain manner, that chapter does not mandate that this court address and discuss, in opinion form, each and every proposition of law raised by the parties. While we recognize that certain issues of law must be raised to preserve a party's right of appeal in federal court, we will not reconsider and discuss such issues at length in each case. We, therefore, hold that when issues of law in capital cases have been considered and decided by this court and are raised anew in a subsequent capital case, it is proper to summarily dispose of such issues in the subsequent case.

Appellant's first two propositions of law challenge the trial court's instruction to the jury that its recommendation of death would not be binding on the court, and that the final responsibility for the imposition of the death penalty rested with the court. Appellant cites Caldwell v. Mississippi (1985), 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231, for the proposition that such an instruction impermissibly reduces the jury's sense of responsibility and increases the likelihood of a recommendation of death.

We considered and rejected this argument in State v. Buell (1986), 22 Ohio St.3d 124, 143-144, 22 OBR 203, 219-220, 489 N.E.2d 795, 811-812; State v. Williams (1986), 23 Ohio St.3d 16, 21-22, 23 OBR 13, 18-19, 490 N.E.2d 906, 912; State v. Rogers (1986), 28 Ohio St.3d 427, 28 OBR 480, 504 N.E.2d 52; State v. Steffen (1987), 31 Ohio St.3d 111, 113-114, 31 OBR 273, 275, 509 N.E.2d 383, 387-388; and State v. Thompson (1987), 33 Ohio St.3d 1, 6, 514 N.E.2d 407, 413. We are not persuaded by appellant's arguments to change our position.

Appellant argues in his third proposition of law that the use of the same felony twice, to elevate the offense to aggravated murder and again to elevate it to capital aggravated murder, fails to narrow the class of offenders eligible for the death penalty. This court has rejected this argument. State v. Jenkins (1984), 15 Ohio St.3d 164, 177-178, 15 OBR 311, 322-323, 473 N.E.2d 264, 279-280. See State v. Buell, supra, at 141-142, 22 OBR at 218, 489 N.E.2d at 810-811; State v. Barnes (1986), 25 Ohio St.3d 203, 206-207, 25 OBR 266, 269, 495 N.E.2d 922, 924-925; State v. Steffen, supra, at 114, 31 OBR at 275-276, 509 N.E.2d at 388. For the reasons expressed in those decisions, we adhere to that position.

Appellant's fifteenth and sixteenth propositions of law attack the constitutionality of Ohio's death penalty statute and, additionally, assert that it is racially biased. We have determined these issues and have found the statute to be constitutional when measured against similar attacks. See State v. Jenkins, supra; State v. Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768; State v. Buell, supra; State v. Steffen, supra; State v. Zuern (1987), 32 Ohio St.3d 56, 512 N.E.2d 585; State v. Byrd (1987), 32 Ohio St.3d 79, 86, 512 N.E.2d 611, 619. We decline to change our position and, therefore, find these propositions of law not well-taken.

In propositions of law thirteen and fourteen, appellant contends that proportionality review of capital cases must include a review of cases where an offender was eligible to receive, but did not receive, the death penalty. This court has, in State v. Steffen, supra, previously rejected this argument. See, also, State v. Byrd, supra, at 86, 512 N.E.2d at 619; State v. Stumpf (1987), 32 Ohio St.3d 95, 107, 512 N.E.2d 598, 610; and State v. Post (1987), 32 Ohio St.3d 380, 391-392, 513 N.E.2d 754, 765. We decline to alter our current position.

In propositions of law seven and nine, appellant questions the sufficiency of the opinion and the conclusions of the trial court. We have thoroughly reviewed the record and find no evidence that the trial court's conclusions were based, as appellant contends, on the conclusions of other courts. Further, we are convinced that the conditions set forth in R.C. 2929.03(F), ³ State v. Maurer, supra, at paragraph three of the syllabus (cf. State v. Mapes [1985], 19 Ohio St.3d 108, 19 OBR 318, 484 N.E.2d 140; and State v. Martin [1985], 19 Ohio St.3d 122, 19 OBR 330, 483 N.E.2d 1157) have been complied with by the trial court in its decision. These propositions of law are not well-taken.

In propositions of law eight and twelve, appellant questions the trial court's and court of appeals' weighing of the mitigating factors against the aggravating circumstances. Pursuant to our duty to independently weigh the aggravating circumstances against the mitigating factors, we address these propositions infra.

Appellant also contends, in proposition of law ten, that the prosecutor impermissibly commented upon appellant's silence. Appellant argues that the prosecutor's comments...