State v. Von Clark Davis

• Decision Date: 27 May 1986
• Docket Number: CA84-06-071,86-LW-1979
• Parties: STATE of OHIO, Plaintiff-Appellee, v. VON CLARK DAVIS, Defendant-Appellant.
• Court: Ohio Court of Appeals

STATE of OHIO, Plaintiff-Appellee, v. VON CLARK DAVIS, Defendant-Appellant.

No. CA84-06-071.

86-LW-1979 (12th)

Court of Appeals of Ohio, Twelfth District, Butler County.

May 27, 1986

John F Holcomb, Butler County Prosecutor, Hamilton, Ohio, for plaintiff-appellee.

Holbrock & Johnson Law Firm, Timothy R. Evans, Hamilton, Ohio, for defendant-appellant.

OPINION

KOEHLER Judge.

Today we address questions raised by appellant Von Clark Davis' aggravated murder conviction and subsequent death sentence. On December 12, 1983, at approximately 7:40 p.m., police officers of the Hamilton Police Department reported to the scene of a shooting at 727 Central Avenue, the location of American Legion Post #520. Lying on the pavement approximately six feet outside the front door was the body of a young woman later identified as Suzette Butler. An autopsy performed the next day at the direction of the Butler County Coroner revealed that Butler had died of multiple (four) gunshot wounds to the left side of her head.

During the noon hours of December 12, 1983, appellant had sought out one Mark Lovette at Gabe's Tavern and had requested that Lovette "do him a favor.' Along with one Wade Coleman, a cousin of appellant, they drove in appellant's automobile to Gil's Loans, a pawn shop, where Lovette purchased for appellant a $49.50 Raven P25 semi-automatic handgun. After stopping to purchase shells at a K-Mart store Lovette was taken back to Gabe's Tavern.

Shortly thereafter, appellant and Coleman again appeared at Gabe's. The record indicates that the shells previously purchased at K-Mart "didn't fit the gun very well.' Appellant drove to Butler County Gun in Fairfield where Lovette purchased one box of PMC .25 automatic shells. These shells were turned over to appellant. In the presence of both Lovette and Coleman, appellant then loaded four or five shells into the clip, placed the clip inside the gun and slid the gun under the driver's seat. At trial, Coleman testified that appellant dropped him off at his residence at approximately 3:00 or 3:30 p.m.®1¯

At approximately 5:30 or 6:00 p.m., Butler, the victim of the shooting, met one Mona Aldridge at the above mentioned American Legion. Appellant arrived about five minutes later and walked up to Butler at the bar. After approximately one hour, appellant and Butler went to a table where they were joined by Aldridge. Five or ten minutes elapsed at which time appellant and Butler arose and walked out the front door. Before leaving, Butler told Aldridge that she would be "right back' and requested that Aldridge watch her personal articles, i.e., a jacket and her cigarettes and drink.

After several minutes Aldridge became concerned and went to the front door to check on Butler. Upon cracking the door open, Aldridge observed that appellant and Butler were standing approximately three or four feet apart and that appellant had a gun pointed at Butler's head. Aldridge panicked and went back inside the bar. Shortly thereafter, others came in behind her saying that someone had been shot.

The record further establishes that Cozette Massey and Reginald A. Denmark witnessed this shooting. At approximately 7:15 p.m., they had departed Massey's apartment intending to take a walk around downtown Hamilton "to look at the Christmas lights.' As they were walking down Central Avenue they saw two people talking in front of the American Legion. It did not appear as if these individuals were arguing. At this point, two shots rang out and the woman put her hands up to her face and exclaimed "oh, no.' As she fell, another shot was fired. Finally, "* * * after she was down, he bent down and shot her in the head, it was about a couple inches from her head * * *.' At trial, both Massey and Denmark identified appellant as that person who had shot Butler.

Appellant was subsequently arrested and an indictment was filed against him on January 6, 1984. In count one thereof, appellant was charged with the aggravated murder of Butler in violation of R.C. 2903.01(A)®2¯, with specification of having a firearm. Count one also contained a specification of the aggravating circumstance that prior to this offense appellant had been convicted of an offense an essential element of which was the purposeful killing of, or attempt to kill, another [R.C. 2929.04(A)(5)].®3¯ In count two, it was alleged that appellant did knowingly acquire, have, carry or use a firearm having previously been convicted of felonies of violence, i.e., shooting with intent to wound on April 10, 1970 and murder in the second degree on April 20, 1971, in violation of R.C. 2923.13(A)(2).®4¯

Appellant waived his right to a jury and guilt phase of his trial commenced on May 9, 1984 before a three judge penel of the Court of Common Pleas of Butler County. The three judge panel found appellant guilty of both counts of the indictment and of both specifications to count one. On May 29, 1984, the penalty phase of the trial was held to determine whether the death penalty would be imposed. The panel found that the aggravating circumstance of the murder outweighed the mitigating factors and, inter alia, sentenced appellant to death.

On this appeal appellant raises seven assignments of error as follows: FIRST ASSIGNMENT OF ERROR:

"The court erred in failing to dismiss the death penalty specifications against the defendant on the grounds that the death penalty is unconstitutional.' SECOND ASSIGNMENT OF ERROR:

"The court erred in failing to allow the defendant the right to inspect the grand jury transcript.' THIRD ASSIGNMENT OF ERROR:

"The court erred in denying defendant's motion to bifurcate the trial and to sever the charges.' FOURTH ASSIGNMENT OF ERROR:

"The judgment was against the manifest weight of the evidence and contrary to law.' FIFTH ASSIGNMENT OF ERROR:

"The court erred in not dismissing the specification of the indictment that the appellant had committed a prior homicide, on the basis that such specification was too remote in time to be used against appellant.' SIXTH ASSIGNMENT OF ERROR:

"The court erred in imposing the death penalty as the court found as aggravating [circumstnaces] factors not listed in the Ohio Revised Code and factors which were improper for consideration under the Ohio Revised Code.' SEVENTH ASSIGNMENT OF ERROR:

"Under the proportionality review required to be done by this court, the penalty imposed upon Von Clark Davis is out of proportion to the other sentences given for similar crimes in this county.'

The constitutional claim raised by appellant's first assignment of error has been subdivided into ten issues. Before considering those issues, however, we note that the statutory framework for imposition of capital punishment has been upheld by the Ohio Supreme Court in the context of the arguments raised in State v. Jenkins (1984), 15 Ohio St. 3d 164, certiorari denied (1985), 473 U.S. ^^, 105 S.Ct. 3514; State v. Maurer (1984), 15 Ohio St. 3d 239; State v. Mapes (1985), 19 Ohio St. 3d 108; State v. Martin (1985), 19 Ohio St. 3d 122; and, State v. Buell (1986), 22 Ohio St. 3d 124. Paragraph one of the syllabus to Maurer, supra, atates:

"Ohio's statutory framework for imposition of capital punishment, as adopted by the General Assembly effective October 19, 1981, and in the context of the arguments raised herein, does not violate the Eighth and Fourteenth Amendments to the United States Constitution or any provision of the Ohio Constitution. (State v. Jenkins, 15 Ohio St. 3d 164, paragraph one of the syllabus, followed.)'

The ten issues raised by appellant are as follows:

"1. The death penalty violates Article 1, Section 16 of the Ohio Constitution and the Fourteenth Amendment to the United States Constitution.' (Under this issue, it is appellant's position that the death penalty violates due process in that the societal interests at stake i.e., deterrence, incapacitation, and retribution, can be adequately protected with a less restrictive approach than the imposition of death, i.e., life imprisonment.)

"2. Ohio's death penalty violates the Eighth Amendment of the United States Constitution and Ohio Constitution, Article One, Section 9, prohibiting the infliction of cruel and unusual punishment.' (Here, appellant argues that the death penalty constitutes cruel and unusual punishment in that it is more severe than is necessary to serve legitimate state interests.)

"3. The death penalty is arbitrarily and capriciously applied, constituting a denial of equal protection of the laws.' (Appellant raises several arguments under this issue: (a) that the death penalty is arbitrary and capricious since prosecutors inevitably exercise discretion in pursuing capital cases; (b) that the extent of proportionality review is constitutionally infirm in that neither a three judge panel nor a jury is required under R.C. 2929.05(A) to determine whether a particular sentence of death is excessive or disproportionate to sentences imposed in similar cases; (c) that the sentencing procedure is inadequate and unconstitutional in that neither a three judge panel, a judge nor a jury is required to decide the appropriateness of the death penalty.)

"4. The Sections of the Ohio Revised Code that deal with the death penalty, deprive the Defendant of due process of law and constitute cruel and unusual punishment because these provisions permit imposition of the death penalty on a less than adequate showing of guilt and the appropriateness of the death penalty.' (Appellant here raises two arguments: (a) that in a capital case, the state's burden should be "proof beyond all doubt'; (b) that the statutory definition of "reasonable doubt' contained in R.C. 2901.05(D) is inadequate and fails to convey the concept of reasonable doubt required by In re

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