State v. Post

Citation513 N.E.2d 754,32 Ohio St.3d 380
Decision Date16 September 1987
Docket NumberNo. 86-425,86-425
PartiesThe STATE of Ohio, Appellee, v. POST, Appellant.
CourtUnited States State Supreme Court of Ohio

Page 380

32 Ohio St.3d 380
513 N.E.2d 754
The STATE of Ohio, Appellee,
POST, Appellant.
No. 86-425.
Supreme Court of Ohio.
Sept. 16, 1987.
Syllabus by the Court

1. A client's disclosure to a third party of communications made pursuant to the attorney-client privilege breaches the confidentiality underlying the privilege, and constitutes a waiver thereof.

2. In determining sentence under R.C. 2929.03(D), the trial court, jury or three-judge panel is not required to compare the mitigating factors established in prior cases with the mitigating factors presented in the case before it.

In the early evening of December 14, 1983, the defendant, Ronald Post, met with Jeff Hoffner in Elyria, Ohio. They picked up Ralph Hall, who brought with him a .22 caliber handgun. The three drove around in Post's car, discussing the possibility of robbing several establishments in the area.

The three made an unsuccessful robbery attempt on the manager of an IGA in North Eaton, Ohio. Driving back to Elyria, they discussed robbing the Slumber Inn and decided to investigate the possibilities. Post parked in the lot next to the inn and went inside while the other two waited in the car.

Inside, Post found Carol Bokar, a previous acquaintance, working as the desk clerk. He told her he had come to inquire into room rates and that he might need a place to stay.

When Post returned to the car, the three decided not to rob the Slumber Inn. Post returned Hall to the Colonial Motel at which time he obtained Hall's handgun. Post then dropped Hoffner off in Elyria.

Alone, and without the knowledge of Hoffner or Hall, Post returned to the Slumber Inn where he initiated another conversation with Carol Bokar. Carol introduced him to Mrs. Helen Vantz, who was to relieve Carol on the desk shift. Post accompanied Carol as she checked motel rooms for a possible problem. Carol then reported the day's activities to Vantz and told her that Post might return for a room. Post and Carol left together and proceeded to the Jackson Hotel where they met Sandy Collins, a friend of Carol. They stayed until about 2:15 a.m.

At approximately 3:00 a.m., Post, armed with the handgun, returned alone to the Slumber Inn. His plan was to kill Vantz and steal whatever he could find. At the Slumber Inn, Post engaged Mrs. Vantz in conversation until past 4:00 a.m., when she made a wake-up call to room number 30. Her next wake-up call, scheduled for 6:00 a.m., was never made.

Sometime between 4:00 a.m. and 6:00 a.m., Vantz, while sitting at her desk working on the nightly accounts, was shot from behind, in the head, by Post. Post shot her a second time to

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make sure she was dead. The body was later found, slumped at the desk, a pencil clasped in the hand. After shooting Vantz, Post collected certain items of value, including a bank deposit bag containing approximately $100, and Vantz's handbag.

Post then drove to North Ridgeville where he met with Ralph and Debbie Hall. Post told the Halls what he had done and gave Ralph the gun for disposal. Post then went to the home of James Harsh in order to persuade Harsh to say that Post had been at the Harsh residence between the hours of 2:30 a.m. and 7:30 a.m. that day. Later, Post admitted to Harsh that he had killed and robbed Vantz. Harsh then refused to support the alibi. Post also admitted his involvement in the crime to several others including David Thacker, Richard Slusher, Jeff Hoffner and John Thompson. Post admitted to two Elyria police detectives that he had told Thacker he was the perpetrator of the crimes.

On April 17, 1984, Post was indicted on one count of aggravated robbery with a firearm specification (count one); one count of aggravated murder under R.C. 2903.01(A), with a specification that the offense was committed while Post was committing or attempting to commit aggravated robbery, and that Post was the principal offender or committed the murder with prior calculation and design, and with a firearm specification (count two); and one count of [513 N.E.2d 757] aggravated murder under R.C. 2903.01(B), with the same specifications as enumerated in count two above (count three).

Post pleaded not guilty; however, he changed his plea to no contest pursuant to an agreement that he would be permitted to change a previously submitted motion in limine to a motion to suppress, without objection by the state. A panel of three judges accepted Post's plea and received the statement of facts proffered by the state.

On November 30, 1984, the three-judge panel found Post guilty on all counts and specifications contained in the indictment. The state subsequently elected to proceed on counts one and two with specifications for sentencing purposes.

On March 12, 1985, the three-judge panel convened to hear evidence of the aggravating circumstances and mitigating factors, and to impose sentence. The next day the panel announced that the state had proved one aggravating circumstance beyond a reasonable doubt, to wit: that Post was the principal offender and had committed a murder while committing an aggravated robbery and in possession of a firearm.

The panel further found that Post, age twenty-four, was not a youthful offender. It considered Post's history of criminal convictions and delinquency adjudications. While the panel found no delinquency adjudications, it did find the existence of misdemeanor convictions reflecting a tendency to violence. The panel also considered the "no contest" plea and found that such failed as an act of contrition.

The panel unanimously found that the state proved the aggravating circumstance beyond a reasonable doubt, that the defendant did not prove mitigating factors by a preponderance of the evidence, and that the sentence of death should be imposed. As to the aggravated robbery offense, a sentence of ten to twenty-five years' imprisonment was imposed and an additional three-year sentence was imposed on the firearm specification.

The court of appeals affirmed the aggravated murder conviction and found that the aggravating circumstance outweighed the mitigating factors beyond a reasonable doubt. The

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court of appeals unanimously approved the sentence of death as appropriate.

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

Gregory A. White, Pros. Atty., and Mark E. Stephenson, Elyria, for appellee.

Randall M. Dana, Public Defender, David C. Stebbins, G. Benjamin Wills, Columbus, and Randall Porter, Marietta, for appellant.


In accordance with R.C. 2929.05(A), we are required to undertake a three-part review. First, we must review the judgment and consider the issues as we are required to do in all criminal cases. Second, we must independently weigh the evidence disclosed in the record and determine whether the aggravating circumstance the appellant was found guilty of committing outweighs the mitigating factors beyond a reasonable doubt. Finally, we must decide whether the sentence of death is appropriate after considering whether the sentence is excessive or disproportionate to the penalty imposed in similar cases. For the reasons set forth below, we affirm the judgment of conviction and uphold the sentence of death.


Appellant asserts, by supplemental brief, that the three-judge panel committed prejudicial error in considering victim impact evidence in its sentencing decision. Appellant makes two claims: (1) the Ohio Revised Code does not authorize the introduction of victim impact evidence in a capital case, and (2) such evidence is inflammatory and prejudicial, and therefore denies a fair sentencing determination as guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution and Sections 9 and 16, Article I of the Ohio Constitution. We address these issues in light of the United States Supreme Court's recent decision [513 N.E.2d 758] in Booth v. Maryland (1987), 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440.

In Booth, the court invalidated a provision in a Maryland statute which required consideration of a victim impact statement during sentencing proceedings, 1 holding that the introduction of such evidence during the sentencing phase of a capital murder trial violates the Eighth Amendment to the United States Constitution. Id. at ----, 107 S.Ct. at 2536, 96 L.Ed.2d at 452.

The defendant in Booth had been found guilty of the robbery and murder of an elderly couple. Prior to capital sentencing, the prosecutor read a victim impact statement to the jury which described the personal characteristics of the victims, the emotional impact of the crimes on their family, and recited the family's opinions and characterizations of both the crimes and the defendant.

The court determined that the information supplied in a victim impact statement " * * * is irrelevant to a capital sentencing decision, and that its admission creates a constitutionally unacceptable risk that the jury may impose the death penalty in an arbitrary and capricious manner." Id. at ----, 107 S.Ct. at 2533, 96 L.Ed.2d at 448. The court reasoned that victim impact statements focus on the character and reputation of the victim and the effect of the crime on family members, which factors may not be

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related to the culpability of the defendant or the decision to kill. The court further stated that "[t]his evidence thus could divert the jury's attention from the defendant's background and record, and the circumstances of the crime." Id. at ----, 107 S.Ct. at 2534, 96 L.Ed.2d at 450. Finally, the court noted that the formal presentation of the grief and anger experienced by the family served to inflame the jury, and concluded that "[t]he admission of these emotionally-charged opinions as to what conclusions the jury should draw from the evidence clearly is inconsistent with the reasoned decisionmaking we require in capital cases." (Footnote omitted.) Id. at ----, 107 S.Ct. at 2536, 96 L.Ed.2d at 452.

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