State v. Robb, 98-1166.

• Citation: 88 Ohio St.3d 59,723 NE 2d 1019
• Decision Date: 01 March 2000
• Docket Number: No. 98-1166.,98-1166.
• Parties: THE STATE OF OHIO, APPELLEE, v. ROBB, APPELLANT.
• Court: United States State Supreme Court of Ohio

88 Ohio St.3d 59

723 NE 2d 1019

THE STATE OF OHIO, APPELLEE, v. ROBB, APPELLANT.

No. 98-1166.

Supreme Court of Ohio.

Submitted October 19, 1999.

Decided March 1, 2000.

Mark E. Piepmeier, Special Prosecuting Attorney, William E. Breyer and Thomas P. Longano, Assistant Special Prosecutors, for appellee.

David J. Graeff and W. Joseph Edwards, for appellant.

LUNDBERG STRATTON, J.

In this appeal, defendant advances twenty-nine propositions of law. (See Appendix.) Finding none meritorious, we affirm his convictions. We have also independently weighed the aggravating circumstances against mitigating factors, and compared his sentences to those imposed in similar cases, as R.C. 2929.05(A) requires. As a result, we affirm the sentences of death.

I PRETRIAL MOTION TO SUPPRESS

In proposition of law I, defendant argues that FBI tunnel microphones and recorders installed during the siege, which intercepted and recorded inmate conversations, violated inmates' rights to private communications under R.C. 2933.51 et seq. as it existed before the 1996 amendments. See 141 Ohio Laws, Part I, 457. Thus, defendant argues that the trial court erred in not suppressing evidence from the tunnel tapes under former R.C. 2933.63. The court of appeals agreed that such evidence should have been suppressed, but found the error harmless.

However, in our view, the trial court correctly rejected defendant's suppression motion, and the court of appeals erred in holding otherwise. Admittedly, the electronic interception and recording of oral conversations, as done here without a warrant, apparently fell within the ambit of the pre-1996 restrictions in R.C. 2933.51 et seq. See former R.C. 2933.52, 141 Ohio Laws, Part I, 461. The state contends that the prohibition against intercepting oral communications extends only to situations where there is a reasonable expectation of privacy, and rioting inmates could not have such an expectation. Defendant counters that privacy expectations were then irrelevant under Ohio's statutory scheme protecting communications. As defendant notes in his brief, the General Assembly "added a reasonable expectation of privacy requirement to the definition of `oral communication' contained in R.C. 2933.51(B)" only when it amended the statute in 1996.

We agree with the court of appeals that privacy expectations were not relevant to protections provided in the pre-1996 statutory scheme in former R.C. 2933.51 et seq. See State v. Bidinost (1994), 71 Ohio St.3d 449, 462, 644 N.E.2d 318, 328-329. Nonetheless, Bidinost involved communications by a cordless telephone, where legitimate expectations of privacy still exist. Id.

However, we cannot reasonably interpret former R.C. 2933.51 et seq. as granting a statutory right to privacy in communications between rioting inmates. The General Assembly could not have envisioned creating such a right in a state prison under siege. Granting privacy rights in these circumstances makes no sense in view of the state's interest in operating a prison and, in this case, restoring order, saving the lives of hostages and nonrioting prisoners, and protecting state property. "[A] statute should not be interpreted to yield an absurd result." Mishr v. Poland Bd. of Zoning Appeals (1996), 76 Ohio St.3d 238, 240, 667 N.E.2d 365, 367, citing State ex rel. Dispatch Printing Co. v. Wells (1985), 18 Ohio St.3d 382, 384, 18 OBR 437, 439, 481 N.E.2d 632, 634.

Nevertheless, we hold that former R.C. 2933.51 did not protect the inmate conversations in this case, but for an entirely different reason. Ohio law provided (and still provides) a specific statutory exception for federal electronic interceptions. Former R.C. 2933.52(B)(1) stated that Ohio restrictions on electronic interceptions do not apply to an interception that is "made in accordance with section 802 of the `Omnibus Crime Control and Safe Street Act of 1968,' 82 Stat. 237, 254, 18 U.S.C. 2510 to 2520 (1968), as amended."

In this case, FBI agents, acting under the authority of federal law, installed and monitored the electronic interception and recording devices that were used. Federal law explicitly defines "oral communications" as only those "exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation." Section 2510(2), Title 18, U.S.Code. Accord State v. Bidinost, 71 Ohio St.3d at 462, 644 N.E.2d at 328. See, also, United States v. Paul (C.A.6, 1980), 614 F.2d 115, 117-120 (Phillips, J., concurring in judgment); State v. Smith (1997), 117 Ohio App.3d 656, 662, 691 N.E.2d 324, 327-328.

Inmates generally, and rioting inmates in particular, have no right to expect any privacy in their cells. Hudson v. Palmer (1984), 468 U.S. 517, 526, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393, 402-403. The Hudson court held that the complete withdrawal from prisoners of certain rights is justified by the considerations underlying the penal system, "chief among which is internal security." Id., 468 U.S. at 524, 104 S.Ct. at 3199, 82 L.Ed.2d at 401. Certainly, if security considerations justify the complete withdrawal of a prisoner's right ever to claim privacy in his cell, as Hudson held, then surely those considerations warrant the forfeiture of any claim to privacy for a prisoner who has left his cell to participate in a violent prison takeover. The idea that rioting prisoners are entitled to privacy in plotting the deaths of guards and other prisoners is absurd. Oral communications are protected under Section 2510(2), Title 18, U.S.Code, only if they may justifiably be considered private. No such justification can possibly be claimed in this case.

Defendant argues that only state law, not federal law, should control because the FBI was not at Lucasville to investigate civil rights violations. However, neither R.C. 2933.52(B)(1) nor Section 2510(2), Title 18, U.S.Code, makes any such distinction. Moreover, rioting inmates repeatedly claimed to the media that their civil rights were being violated. Inmates, including defendant, also repeatedly asserted in negotiations that they wanted to consult with FBI officials and wanted the FBI to oversee the negotiations and surrender to protect their civil rights.

Since the authorities made the interceptions in accordance with Sections 2510(2) and 2511(1), Title 18, U.S.Code, those interceptions were necessarily and specifically exempt under R.C. 2933.52(B)(1), Ohio's statutory exception for federal interceptions made in accordance with those sections. Hence, we reject the court of appeals' conclusion that R.C. 2933.51 was violated by these FBI interceptions.

We agree with the court of appeals' conclusion that admitting the tunnel tapes did not prejudice defendant's substantial rights. As that court noted, only tunnel tape 61 contributed to the state's case. However, several witnesses, including Lavelle, Snodgrass, Lomache, and Jenkins, independently testified that defendant voted for killing a guard at gang meetings. Even outside the meetings, defendant made repeated threats to kill a guard. Aside from tunnel recordings, detailed and substantial evidence established defendant's leadership of the Aryans, his directions to inmates during the siege, his relationship with gang leaders, and his involvement in kidnapping Clark and Vallandingham, the latter's murder, and the murder of Sommers. Thus, we reject proposition of law I.

II

EVIDENCE ISSUES

Other Acts Evidence

In proposition of law II, defendant first complains about the admission of evidence of criminal acts not charged against him. Admittedly, the state never charged defendant with or linked him to certain crimes, although it introduced evidence of these crimes, including (a) the murders of several white inmates early in the riots, (b) the attempted murder of Johnny Fryman, and (c) the murders of Pop Svette, Bruce Harris, and Earl Elder.

However, "[t]he admission or exclusion of relevant evidence rests within the sound discretion of the trial court." State v. Sage (1987), 31 Ohio St.3d 173, 31 OBR 375, 510 N.E.2d 343, paragraph two of the syllabus. Here, the trial court did not abuse its discretion. This evidence helped prove a conspiracy, namely that prison gang leaders, including defendant, conspired over eleven days to seize and control L-complex, settle old scores, take hostages and even murder one, all in an attempt to force concessions from prison authorities. Several witnesses, e.g., Snodgrass and Lavelle, provided "independent proof of the conspiracy." Evid.R. 801(D)(2)(e). Although the substantive offense of conspiracy was not charged, the state could prove a conspiracy in order to introduce out-of-court statements by conspirators in accordance with Evid.R. 801(D)(2)(e). See, e.g., State v. Duerr (1982), 8 Ohio App.3d 396, 8 OBR 511, 457 N.E.2d 834; State v. Milo (1982), 6 Ohio App.3d 19, 6 OBR 44, 451 N.E.2d 1253.

Additionally, evidence of the murders of the white "snitch" inmates helped explain defendant's motives in working closely with black inmates in the other gangs, Muslims and BGDs. Proving the murders of Harris and Elder and the attempted murder of Fryman demonstrated gang solidarity, control, and discipline, which was relevant to defendant's complicity as a gang leader. These murders were important events during the riot and siege, and were part of the setting of the case. See State v. Wilkinson (1980), 64 Ohio St.2d 308, 316-317, 18 O.O.3d 482, 487-488, 415 N.E.2d 261, 268-269; State v. Roe (1989), 41 Ohio St.3d 18, 23-24, 535 N.E.2d 1351, 1358-1359. Further, since defendant was not implicated in these crimes, the evidence did not constitute "other acts" evidence proscribed by Evid.R. 404(B). Finally, the court carefully instructed the jury as to the limited use of this evidence. In proposition of law II, defendant also points to other evidence that did link him to uncharged crimes, and defendant claims that admitting such evidence violated Evid.R. 404(B)....