State v. Trocodaro

• Decision Date: 22 May 1973
• Citation: 36 Ohio App.2d 1,65 O.O.2d 1,301 N.E.2d 898
• Parties: , 65 O.O.2d 1 The STATE of Ohio, Appellee, v. TROCODARO, Appellant.
• Court: Ohio Court of Appeals

Page 1

36 Ohio App.2d 1

301 N.E.2d 898, 65 O.O.2d 1

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

Court of Appeals of Ohio, Tenth District, Franklin County.

May 22, 1973.

Syllabus by the Court

1. Where the state grants immunity from prosecution to one of two accused lawbreakers in exchange for his appearance as a prosecution witness, and the selection is a reasonable exercise of discretion which is not based on unjustifiable standards, such does not deny to the other accused an equal protection of the laws.

2. Where it has been determined that a criminal conspiracy existed with regard to the commission of a crime, it need not be proved that an aider or abettor possessed those individual elements needed to establish the crime against the perpetrator.

George C. Smith, Pros. Atty., Miles C. Durfey, Columbus, and Judi Smith Solon, Legal Intern, for appellee.

Roy F. Martin and William Lazarow, Columbus, for appellant.

HOLMES, Judge.

This is an appeal from a conviction of first degree murder entered by the Court of Common Pleas of Franklin County. The matter was submitted to the court following a waiver of the jury by the defendant, appellant herein. The waiver was given with the knowledge and approval of the defendant's legal counsel.

The facts upon which this conviction was based clearly evidence one of the most cold blooded acts of murder that the writer of this decision has had the unpleasant duty to review upon appeal.

The facts, in brief, are that the defendant-appellant, in company with two other men, a Robert Laws and a Robert Latham, did, on the night of October 21, 1971, proceed in Latham's automobile to the east side of Columbus-more specifically, to Tom's Steak House on East Fifth Avenue.

The expressed purpose of such trip was to observe such place of business, determine who the manager might be, and then proceed to effect a robbery of the business, or the manager.

The record shows that both this defendant-appellant and Laws were armed with hand guns, and there was no suggestion in the evidence that either man had brought along such firearms for other than an unlawful purpose.

After arriving at Tom's Steak House, the trio lay in wait on the outside of the building for the emergence of one whom they might deem to be the manager. Instead, the deceased, Mrs. Jean B. Smith, who the trio mistook for the manager, emerged from the restaurant.

When Mrs. Smith left the parking lot driving her automobile, the trio followed in Latham's car to a certain roadway some distance north of the steak house, and at the opportune moment passed Mrs. Smith's car and stopped immediately in front of it, causing her to stop also.

Appellant and Laws proceeded back to Mrs. Smith's car, opened the door and forced their way inside. Laws took the wheel and ordered Mrs. Smith into the rear seat with the defendant.

Laws then proceeded to drive to a dead end street while appellant was removing the rings from Mrs. Smith's fingers. The auto stopped at a place where there was an open field, and Laws told the appellant to shoot Mrs. Smith because she had recognized Laws. Appellant responded that he 'didn't want to shoot the lady.' During such conversation, Mrs. Smith was begging these men for her life.

Thereupon, Laws stated that he was going to take Mrs. Smith out into the field, tie her up and knock her out. Latham and appellant testified, however, that there was no rope or line present with which to tie Mrs. Smith.

Laws proceeded to march Mrs. Smith into the weed-filled area of the vacant lot while the other two men remained at the car. A few moments later, the two at the car heard two shots, which were followed by the singular reappearance of the murderer, Laws.

Mrs. Smith's body was found on October 24, 1971, by residents of the area. An autopsy of the victim revealed that the cause of her death was two gunshot wounds to the area of the brain.

On December 8, 1971, Latham was brought to the detective bureau for questioning in connection with a series of robberies and shootings. In an interview with Detective Verne, Latham related information concerning numerous robberies, abductions, rapes, and aggravated assaults in which he as well as Laws and this defendant-appellant were involved.

Latham volunteered information concerning the homicide of Mrs. Smith, implicating the appellant, Robert Laws and himself, and establishing the first connection between these men and this crime. In return for his agreement to testify for the state against appellant and Laws, Latham was apparently promised immunity for this particular offense by the police officer and the prosecutor's office.

On December 10, 1971, appellant was arrested, advised of his rights and questioned by the police. He made a voluntary statement, recorded by a stenographer, which implicated him in a series of robberies and also in the murder of Mrs. Smith. The appellant was indicted by the Franklin County Grand Jury on the count of murder in the first degree under R.C. 2901.01. While the evidence reflects the fact that Laws fired the fatal shots, the appellant was brought to trial as an aider and abettor under the authority of R.C. 1.17.

The trial began before a jury. At the close of the state's case, defense counsel moved for a dismissal, and the motion was overruled by the court. The defense put on a ballistics expert to prove that the gun which the appellant had brought along the night of the murder had not been the gun that had actually been used in the murder.

Thereafter, the defense rested, and the court, in the absence of the jury, reviewed proposed instructions to the jury and discussed the intended charge with both counsel.

The trial record shows that the court stated to counsel: '(At the request of the defendant the court will charge on) the elements of murder in the first degree and also on the element of aiding and abetting as to this defendant, which will be considered by the jury if they find that the person who shot and killed Jean Smith committed murder in the first degree * * *.'

The prosecutor then submitted the following special instruction for the court's consideration:

'Where only such unlawful act was contemplated in the original conspiracy, although not identical with or similar to the criminal act charged, if the conspired unlawful act and the manner of its performance would be reasonably likely to produce death, each conspirator is equally guilty with the principal offender, as an aider and abettor in the homicide, although such aider and abettor was neither present nor had knowledge of the physical killing or of the weapon used. The State of Ohio v. Doty, 94 Ohio St. 258 (, 113 N.E. 811).'

The trial court, in refusing such instruction, stated: 'The Court feels that it cannot give the request for the reason that it is based upon 'the original conspiracy' * * *.'

Further, the court stated: 'The Court feels that the only charge under these facts the Court can submit to the jury is the question as to whether or not this Defendant aided and abetted in the act which resulted in the killing of Jean Smith * * *.'

Thereafter, as stated, the appellant voluntarily waived and relinquished the right of a further consideration of the case by a jury. The trial court, after considering the matter, found the appellant, to have been an aider and abettor and to be guilty of murder in the first degree.

I

The appellant's first assignment of error is as follows:

'The trial court erred in denying defendant's motion to dismiss at the close of the state's case in that there was no evidence to convict, hence said ruling denied defendant due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution.'

The supporting proposition for such assignment of error is that 'in prosecuting on indictment of murder with premeditation and malice aforethought, the state must produce some evidence of intention to kill in order to maintain their case.'

Stated another way, the appellant contends that where a crime requires the existence of a particular intent, an alleged aider and abettor cannot be held as a principal unless it is established that the aider knew that the perpetrator of the act had the required intent.

The appellant was indicted and tried for murder in the first degree, pursuant to R.C. 2901.01, together with Laws, the man who actually fired the gun that killed Mrs. Smith. Such indictment and prosecution was pursuant to the aider and abettor statute of Ohio, R.C. 1.17, which section is as follows:

'Any person who aids, abets, or procures another to commit an offense may be prosecuted and punished as if he were the principal offender.'

The key question to be answered by the trier of the facts within the fact situation presented here is whether or not this defendant-appellant aided and abetted in the act of homicide upon Jean Smith.

As stated in 15 Ohio Jurisprudence 2d Rev. 314, Criminal Law, Section 52: 'To 'aid' means to help to assist, or to strengthen; to 'abet' means to encourage, to counsel, to incite, or to assist in a criminal act * * *.'

The Ohio statute makes the crime of advising, aiding or abetting in a crime an independent offense. The advisor, aider or abettor is declared to be guilty of the same offense and is made liable to the same kind of punishment.

One may be found to be an aider and abettor in the commission of a crime even though he was not actually present at the time the crime was committed; such presence may take the form of constructive presence. Examples of such are drivers of vehicles used in perpetrating crimes. State v. Palfy (1967), 11 Ohio App.2d 142, 229 N.E.2d 76; Collier v. State (1932), 12 Ohio Law Abst. 713; lookouts during the commission of crimes, Breese v. State (1861), 12 Ohio St. 146; and persons who set up certain schemes for obtaining entry by others into premises which are sites of criminal acts, Stephens v. State (1884), 42 Ohio St. 150; Breese v. State...