State v. Tenace
| Citation | 2003 Ohio 3458 |
| Decision Date | 30 June 2003 |
| Docket Number | Court of Appeals No. L-00-1002. |
| Parties | State of Ohio Appellee v. Troy Matthew Tenace Appellant. |
| Court | United States Court of Appeals (Ohio) |
Julia R. Bates, Lucas County Prosecuting Attorney, and Craig T. Pearson, Assistant Prosecuting Attorney, for appellee.
Jeffrey M. Gamso and Gary W. Crim, for appellant.
DECISION AND JUDGMENT ENTRY
{¶1} This appeal is from the November 4, 1999 judgment of the Lucas County Court of Common Pleas which sentenced appellant, Troy Matthew Tenace, to death, following his conviction of aggravated murder, and to incarceration for 10 to 25 years following his conviction of aggravated robbery. Upon consideration of the assignments of error, we affirm the decision of the lower court.
{¶2} Appellant was indicted on February 9, 1994 with one count of aggravated murder, in violation of R.C. 2903.01(B), with a death penalty specification (R.C. 2929.04(A)(7) and R.C. 2941.14) and on one count of aggravated robbery, in violation of R.C. 2911.01(A)(2). Appellant was charged with the killing of an elderly man, Edward Kozlowski, on January 26, 1994. Appellant had performed some handyman work for Mr. Kozlowski earlier in the week. The night of the murder, appellant returned to Mr. Kozlowski's home allegedly to reimburse Mr. Kozlowski because appellant overcharged Mr. Kozlowski.
{¶3} Appellant was first tried in 1997, but his conviction was overturned on appeal. State v. Tenace (1997), 121 Ohio App.3d 702. A second trial was held on September 28 and 29, 1999. The jury found appellant guilty of both counts and of the death penalty specification. On November 4, 1999, the trial court sentenced appellant. Appellant then sought an appeal to this court. The state's request for cross-appeal was denied. On appeal, appellant asserts the following twenty-two assignments of error:
{¶4} "Assignment of Error Number One: The jury erred in concluding that the aggravating circumstance outweighed the mitigating factors beyond a reasonable doubt and that death is the appropriate sentence.
{¶5} "Assignment of Error Number Two: The trial court erred in concluding that the aggravating circumstance outweighed the mitigating factors beyond a reasonable doubt and that death is the appropriate sentence.
{¶6} "Assignment of Error Number Three: The trial court erred in failing to grant the Rule 29 Motion.
{¶7} "Assignment of Error Number Four: The Government's lawyers committed misconduct when one of them told the jury that the coroner would testify that the only reason that this amount of damage was inflicted on this person was to cause his death.
{¶8} "Assignment of Error Number Five: The Government's lawyers committed misconduct when one of them told the jury that the defendant had left the victim to die.
{¶9} "Assignment of Error Number Six: The Government's lawyers committed misconduct when one of them told the jury that the defendant had stomped the neck of the victim.
{¶10} "Assignment of Error Number Seven: The Government's lawyers committed misconduct when one of them told the jury that the defendant had a plan to eliminate the victim.
{¶11} "Assignment of Error Number Eight: The Government's lawyers committed misconduct when one of them told the jury that the victim suffered massive injury.
{¶12} "Assignment of Error Number Nine: The Government's lawyers committed misconduct when they wildly speculated in rebuttal about how the incident happened without any supporting evidence.
{¶13} "Assignment of Error Number Ten: The Government's lawyers committed misconduct when they repeatedly told the jury that the judge would instruct them that under some circumstances the death penalty was mandatory.
{¶14} "Assignment of Error Number Eleven: The conduct of the defendant's trial lawyers fell below the constitutionally required level when they failed to object to one of the Government lawyers telling the jury that the coroner would testify that the only reason that this amount of damage was inflicted on this person was to cause his death.
{¶15} "Assignment of Error Number Twelve: The conduct of the defendant's trial lawyers fell below the constitutionally required level when they failed to object to one of the Government lawyers telling the jury that the defendant left the victim to die.
{¶16} "Assignment of Error Number Thirteen: The conduct of the defendant's trial lawyers fell below the constitutionally required level when they failed to object to one of the Government lawyers telling the jury that the defendant had stomped the neck of the victim.
{¶17} "Assignment of Error Number Fourteen: The conduct of the defendant's trial lawyers fell below the constitutionally required level when they failed to object to one of the Government lawyers telling the jury that the defendant had a plan to eliminate the victim.
{¶18} "Assignment of Error Number Fifteen: The conduct of the defendant's trial lawyers fell below the constitutionally required level when they failed to object to one of the Government lawyers telling the jury that the victim suffered massive injury.
{¶19} "Assignment of Error Number Sixteen: The conduct of the defendant's trial lawyers fell below the constitutionally required level when they failed to object to one of the Government lawyers wildly speculated in rebuttal about how the incident happened without any supporting evidence.
{¶20} "Assignment of Error Number Seventeen: The conduct of the defendant's trial lawyers fell below the constitutionally required level when they failed to object to one of the Government lawyers repeatedly telling the jury that the judge would instruct them that under some circumstances the death penalty was mandatory.
{¶21} "Assignment of Error Number Eighteen: The conduct of the defendant's trial lawyers fell below the constitutionally required level when they proposed jury instructions placing the burden of proving the mitigating factors by a preponderance of the evidence on the defendant.
{¶22} "Assignment of Error Number Nineteen: The conduct of the defendant's trial lawyers fell below the constitutionally required level when they failed to protect the defendant's rights under international law.
{¶23} "Assignment of Error Number Twenty: The trial court erred in dismissing Juror No. 02761, Julie Vitale.
{¶24} "Assignment of Error Number Twenty-one: The trial court erred in overruling defendant's motion to suppress the statements [sic].
{¶25} "Assignment of Error Number Twenty-two: The trial court erred in failing to dismiss the death penalty pursuant to the defendant's motion.
{¶26} Weighing the aggravating circumstances against the mitigating factors.
{¶27} In his first and second assignments of error, appellant argues that the jury and the court erred in finding that the aggravating circumstances outweighed the mitigating factors beyond a reasonable doubt and that death was the appropriate sentence.
{¶28} R.C. 2929.03(D)(2) provides that the jury
{¶29} After receiving the jury's recommendation that the sentence of death be imposed, the court must find "*** by proof beyond a reasonable doubt, *** , that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors, ***" before it can impose the death penalty. R.C. 2929.03(D)(3).
{¶30} The appellate court also has a statutory duty to independently review a death sentence. R.C. 2929.05(A). Therefore, we are statutorily required to determine whether the evidence supports the jury's finding of each aggravating circumstance, whether the aggravating circumstances outweigh the mitigating factors, and whether the death sentence is appropriate. In determining whether the sentence is appropriate, the court must determine if the sentence is excessive or disproportionate to those affirmed in similar cases.
{¶31} In this case, appellant was indicted for aggravated murder with a death penalty specification pursuant to R.C. 2929.04(A)(7). That section provides that the prosecution must prove beyond a reasonable doubt that the aggravated murder "offense was committed while the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit *** aggravated robbery ***, 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."
{¶32} Appellant does not challenge on appeal that there was insufficient evidence to establish the aggravating circumstances beyond a reasonable doubt. However, appellant argues that the jury and trial court did not properly weigh the aggravating circumstances against the mitigating evidence in this case. Appellant contends that the trial court's findings were flawed in three respects. Appellee contends, however, that we need not address these alleged errors since the appellate court independently weighs the aggravating circumstances against the mitigating factors.
{¶33} We agree with appellee that our independent review of the death sentence will correct any alleged errors. State v. LaMar (2002), 95 Ohio St.3d 181, 210, 2002-Ohio-2128, certiorari denied (2002), 531 U.S. 1055; State v. Hill (1996), 75 Ohio St.3d 195, 210, certiorari denied (1996), 519 U.S. 895; State v. Wilson (1996), 74 Ohio St.3d 381, 397, certiorari denied (1996), 519 U.S. 845; and State v. Fox (1994), 69 Ohio St. 3d 183 {¶34} However, for purposes of...
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