Summary
holding that R.C. 2941.25 "prohibits a conviction of both, not the submission to the jury of both."
Summary of this case from State v. WhiteOpinion
No. 76-791
Decided December 30, 1976.
Criminal law — Aggravated murder — Selection of venire — Voir dire — Crim. R. 24(F), construed — Change of venue — Denied, when — Sequestration of jury — Discretionary — Appeal — Alleged defective record — Evidence — Extrajudicial declarations of co-conspirator — Sufficiency of evidence — Conviction — R.C. 2941.25, construed — Charge to jury — Propriety — Jury verdict — Sustained, when — Death penalty — Constitutionality — Mitigating circumstances — Constitutionality.
APPEAL from the Court of Appeals for Franklin County.
On December 15, 1974, the deceased, Hermalee Ross, was abducted by two men from the parking lot of an Ontario food store in Franklin County, and was later found dead with bullet wounds to the back of her head and neck, and to her ear and hand, and with numerous other abrasions and contusions apparently caused by repeated strikings with a blunt instrument.
Robbery was ruled out as the motive since the victim was still wearing her watch and a ring when her body was discovered, and the victim's purse, containing a $100 bill, was recovered from two young girls who had found it on the Ontario parking lot. The victim's automobile was also recovered on the Ontario lot.
In the course of the police investigation, it was discovered that the victim's husband, Edgel Ross, and defendant-appellant, Alberta Osborne had been involved in an affair of long standing.
On December 30, 1974, Alberta L. Osborne was indicted on three counts by the Franklin County Grand Jury. The first count charged kidnapping in violation of R.C. 2905.01; the second count charged aggravated murder in violation of R.C. 2903.01(A), with two specifications of aggravating circumstances, that the homicide was for hire, pursuant to R.C. 2929.04(A)(2), and that the murder was in the course of a kidnapping, pursuant to R.C. 2929.04(A)(7); and the third count charged aggravated murder in violation of 2903.01(B), murder committed in the course of a kidnapping, with the same specifications as listed in the second count.
The state alleged that Carl Edward Osborne, Jr. (appellant's son), James Kenneth Weind, Carl's friend, and appellant, while acting in concert, kidnapped and murdered Hermalee Ross.
Appellant entered a plea of not guilty to all three counts of the indictment and was separately tried by a jury.
Appellant filed a pretrial motion asserting that exhaustive news media coverage of this homicide had attracted intense public interest and that detailed news reports of the results of the police investigation had saturated Franklin County and made it unlikely that a jury could be impaneled which would be able to fairly try the defendant free of the influence of that publicity.
Appellant asserts that such influence was aggravated by the fact that the subpoenas served upon prospective jurors in her case contained her name, and argues that one must assume that persons thus notified would avidly read all the pretrial newspaper accounts of the matter and thus be particularly aware of evidence and speculation contained therein.
The trial court reserved its ruling until after the voir dire was conducted and then overruled the motion.
At appellant's trial, Delaware County deputies testified that they received a call from Mrs. Dorothy Hale who lived about 150 yards from an abandoned schoolhouse in that jurisdiction. She reprrted that she had observed two males pull up to the school in a blue-green automobile; that they removed a female, and took her inside; and that a few moments later, the two men left the schoolhouse without the female. The deputies then proceeded to that location and found the deceased's body.
One Lois Berg, who was in a laundromat near the Ontario store at the time of the abduction, testified that she observed a tall, light-skinned black, wearing jeans and a patterned bandana around his head, in the Ontario lot that morning. She testified further that a "commotion" with another person took place, and that a blue-green car with two occupants left the lot.
Photos of appellant's family cars were shown to Lois Berg and to Mrs. Hale and to her son, who had partially observed the incident. All identified the photo of a blue-green 1969 Plymouth automobile as being the one they had previously seen. It was later shown that the identified automobile belonged to Kay L. Osborne, appellant's daughter.
The bullets retrieved from the victim's body and from the scene of the murder were determined to have been fired from a Raven .25 caliber automatic pistol. One Michael M. Goins, hoping to obtain leniency in an unrelated crime, assisted police in recovering a Raven .25 caliber automatic pistol from Alum Creek in Franklin County. There was expert testimony, based on a ballistics report, that such gun was the murder weapon.
Goins testified that in the early morning hours of December 15, 1974, James Weind, who was with Carl Osborne, Jr., in a car, had purchased a .380 automatic pistol from him. Goins testified further that Weind had thrown the Raven pistol into Alum Creek later on the same day in the presence of Goins and another man.
Kay Osborne testified that her brother Carl and Weind had borrowed her car about 6:00 a.m., on December 15, 1974, and returned it at about 10:00 a.m., and that on those occasions Weind was wearing jeans and a dark blue and white bandana. Kay Osborne testified further that she saw her mother go out to Kay's car with a bucket of water. Kay was told to drive her mother's automobile to work because additional cleaning was needed on Kay's car since Weind had become ill in the car.
There was evidence that appellant had new carpeting installed in Kay's car within a few days and had replaced all the tires, as well as evidence that pretrial newspaper articles had reported that a tire print was lifted from the mud outside the schoolhouse where the body was found. The police testified that blood stains had been found on the back of the front seat of Kay's car and on Weind's shoes.
Kay Osborne's further and most incriminating testimony was that her mother had told her some time following the homicide that she was going to lose Edgel Ross because he was leaving her, and that appellant had told her daughter Kay that she had hired her son Carl and his friend Jimmy Weind to kill Mrs. Ross for the sum of $325.
Edgel Ross in court admitted to the existence of a five-year clandestine relationship between himself and appellant.
The jury found Alberta Osborne guilty of kidnapping and of two counts of aggravated murder, with the specification that the homicide was for hire on both counts. However, appellant was found not guilty of the specification that the homicide was done in the course of a kidnapping.
A mitigation hearing was held as required by R.C. 2929.02, 2929.03 and 2929.04. After hearing the testimony of two psychiatrists, appellant's brother, employees of the Columbus Women's Correctional Institution and a missionary who frequented that institution, the trial court found that none of the mitigating circumstances contained in R.C. 2929.04(B) had been established. The trial court then sentenced appellant to death, as required by law.
The Court of Appeals affirmed the judgment of the trial court, and the cause is now before this court as a matter of right.
Mr. George C. Smith, prosecuting attorney, and Mr. Ronald J. O'Brien, for appellee. Messrs. Hunter, Hollenbaugh, Theodotou Kunkler, Mr. James K. Hunter, III, Messrs. Ahern Ehrie and Mr. Dennis B. Ehrie, Jr., for appellant.
Appellant Osborne asserts nine propositions of law.
In her first proposition, appellant claims that numerous errors occurred which, considered together, denied her due process of law and the right to a fair and impartial trial. One such error concerns the fact that the summons for special veniremen contained her name on its face; that, after the first summons was exhausted, the second summons also had her name on its face with the effect heretofore stated; that Crim. R. 24(F), which refers to the selection and seating of alternate jurors, was not strictly followed; and that extensive publicity both pretrial and throughout the trial was damaging and prejudicial. Appellant asserts that the trial court abused its discretion and thus committed prejudicial error in not granting a change of venue, a continuance of the trial, or the sequestration of the jury.
The fact pattern of this murder undeniably attracted public attention and was given a greater amount of coverage than the average case. However, in spite of the pretrial publicity, the record indicates that an impartial jury was obtained. The news coverage was not so spectacular or extensive that appellant could not select a jury uninfluenced thereby nor receive a fair trial. See Sheppard v. Maxwell (1966), 384 U.S. 333; Estes v. Texas (1965), 381 U.S. 532; Rideau v. Louisiana (1963), 373 U.S. 723; and Irvin v. Dowd (1961), 366 U.S. 717.
It is evident from the record that counsel both for the defendant and the prosecution and the trial court all sought with equal diligence to select and to impanel an unbiased jury. The voir dire lasted four days. A large number of prospective jurors were rejected or disqualified, and thus an additional special venire had to be drawn to obtain an impartial jury.
Appellant quotes, in her brief, excerpts from the questioning of over a dozen prospective jurors. Presumably the remarks chosen for quotation demonstrate to appellant's best advantage that many of the panel members were aware of pretrial publicity. However, of those quoted, only six actually served as jurors. We have examined the responses of each of these and find that none had formed a preconceived opinion as to defendant's guilt, and that all had evinced a willingness and ability to judge the accused and base his verdict solely on the evidence. There is nothing in the record to support a contrary claim.
Appellant's complaint that the subpoenas served upon prospective jurors contained her name or the style of the case argues, as we have noticed, that if a jury panelist is given in this manner the name of the case on which he may serve, then he will become more likely to read everything that pertains to "his" case, and thus a biased jury will result. As previously stated, the record discloses that this position is untenable. Responses to extensive voir dire demonstrate that jurors uninfluenced by the publicity were found in sufficient numbers.
Appellant argues that a mistrial should have been declared when the original venire was exhausted. Upon review of the procedure, we find that it was in conformity with R.C. 2945.18 and 2945.19 which provide that between 50 and 75 jurors are to be called for a venire. If it is anticipated that such a number will not be sufficient, a larger number is still not permitted to be drawn. If that number is exhausted, the drawing of additional jurors as a special venire is authorized. Appellant at trial did not object to this procedure nor move for a mistrial. We find the trial court did not commit error on this issue, and additionally, that the claim of error not being asserted at trial was surely waived.
Appellant claims that the dictates of Crim. R. 24(F) were not strictly followed in the seating of alternate jurors.
Crim. R. 24(F) reads as follows:
"The court may direct that not more than six jurors in addition to the regular jury be called and impanelled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, have the same qualifications, be subject to the same examination and challenges, take the same oath, and have the same functions, powers, facilities, and privileges as the regular jurors. An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict. Each party is entitled to one peremptory challenge in addition to those otherwise allowed if one or two alternate jurors are to be impanelled, two peremptory challenges if three or four alternate jurors are to be impanelled, and three peremptory challenges if five or six alternate jurors are to be impanelled. The additional peremptory challenges may be used against an alternate juror only, and the other peremptory challenges allowed by this rule may not be used against an alternate juror."
The rule is directory in nature, rather than mandatory. No prejudicial error was shown to result from seating the alternate jurors other than in the specific order in which they were called. All such alternates were qualified to be jurors. By passing the alternate for cause and exercising no peremptory challenge against her, appellant implicitly indicated her satisfaction with the alternate juror.
In sum, appellant has demonstrated no real prejudice from any alleged errors of the trial court. Unless prejudice to the defendant is shown, we will not reverse a judgment because of minor and technical defects in jury-selection procedures. State v. Strodes (1976), 48 Ohio St.2d 113, 116.
The trial court under this record did not abuse its discretion in denying the motion for change of venue. The record discloses that appellant did not request the trial court to continue the case due to alleged pretrial publicity, and thus the asserted claim of prejudice for a denial of a continuance not demonstrated by the record is overruled as not based upon a timely motion.
Appellant's final complaint in her first proposition of law is that the court did not sequester the jury during the trial. The matter of sequestering the jury is within the sound discretion of the trial court, and we find no abuse of this discretion. The trial court took a great deal of care in, and gave considerable attention to, the usual admonitions with advise to the jury in detail of their responsibility to avoid external influence. The jury was sequestered as required by R.C. 2945.33 after the case was submitted for decision.
Accordingly, for the foregoing reasons, all of the errors asserted in appellant's first proposition of law are overruled, and we find that the process was due and that the trial was fair.
Appellant asserts, in her second proposition of law, that where, as here, a trial court has undertaken, for an experimental period, to record the trial proceedings by electronic means, and such means fail to accurately record the proceedings in total detail, a new trial must be ordered as the accused was denied due process and equal protection of the law.
Parts of the taped record indeed appear to be of poor technical quality due to either the equipment or its operator.
While appellant asserts that the "record is of such poor quality as to prohibit a complete review," she has failed to point out to us a specific instance where review is thereby effectively inhibited or precluded. Appellant did not seek to modify or correct the record, as might have been done under App. R. 9(E), by submitting to the trial court any additions or modifications that she believes would better preserve her arguments for review.
Any such claim as may have been caused by the defects in the record was waived by the failure of appellant to correct and supplement the record. Despite this waiver, we find that no actual prejudice resulted to appellant. She was clearly inculpated by the record which we must presume, in the absence of a contrary showing, to be substantially complete and correct. We cannot imagine what detail important enough to be exculpatory could be absent from the record without an immediate, or at least an early, outcry from appellant's counsel.
In her third proposition of law, appellant claims that her constitutional right to confront and cross-examine witnesses was violated when the trial court permitted the introduction of extrajudicial declarations of an alleged co-conspirator. Appellant argues that these statements were admitted before the state had established that a conspiracy existed.
Where the existence of a conspiracy has been established by other evidence, an extrajudicial statement of a co-conspirator, made in furtherance of the objectives of that conspiracy, is admissible as an exception to the hearsay rule. See State v. Carver (1972), 30 Ohio St.2d 280.
The record shows this exception to be applicable here. Michael Goins was initially called by the state before Kay Osborne testified. Appellant objected to testimony by Goins as to the statements of Weind, the alleged co-conspirator, and those objections were properly sustained by the trial court because the prosecution had not yet established a prima facie case of conspiracy.
The state thereupon withdrew Goins from the witness stand and subsequently called Kay Osborne who testified that her mother "told me she had paid Carl and Jimmy to kill Mrs. Ross." Although that statement, standing alone, would be sufficient to establish the prima facie case of conspiracy necessary to make the extrajudicial statements by the co-conspirator admissible, there was other evidence giving double assurance of the existence of the conspiracy.
Goins, recalled, testified as to statements made to him by Weind prior to the homicide. These statements fall directly within the stated exception to the hearsay rule. The trial court properly ruled.
Goins further testified as to statements by Weind following the murder. Even if they were inadmissible, appellant failed to timely object which constitutes a waiver. See State v. Gordon (1971), 28 Ohio St.2d 45.
Accordingly, appellant's third proposition of law is overruled.
Appellant's fourth proposition of law states that (a) the state failed to offer proof sufficient to support an essential averment of the indictment, and (b) that the jury verdict was not sustained by sufficient evidence or was contrary to law; therefore, appellant asserts, it was the duty of the trial court to sustain motions by appellant or to modify the jury.
Upon review of the entire record, we conclude that sufficient credible evidence upon all the essential elements of the crimes was adduced at trial.
Appellant asserts in her fifth proposition of law that where the same conduct by the accused in a criminal proceeding can be construed to constitute two or more allied offenses, the trial court must require an election as to which of the offenses is to be submitted to the jury for final determination.
We see no such requirement in R.C. 2941.25(A) which provides that a defendant may not be convicted on all counts of a multiple-count indictment. The basic thrust of this section is to prevent "shotgun" convictions. Maumee v. Geiger (1976), 45 Ohio St.2d 238, 242.
Appellant contends, in her brief, that the trial court "bathed * * * [her] in a prohibitive sea of guilt that, by virtue of the oppressive number of verdict forms, flowed into the jury room and poisoned the minds of the jurors."
The prosecution in this instance was justified in submitting both premeditated murder and felony murder counts to the jury. The statute prohibits a conviction of both, not the submission to the jury of both. See Maumee v. Geiger, supra.
Although the jury did find appellant guilty on both counts, the trial court set aside one of the aggravated murder counts and sentenced appellant on only the one count, thus complying with R.C. 2941.25(A).
Since the jury found appellant guilty on both counts, the requirement of an election would have still resulted in appellant's conviction. This proposition of law is overruled.
Appellant in her sixth proposition argues that the trial court improperly charged the jury in that it failed to charge on lesser-included offenses, used language from a repealed code section, and permitted uncontrolled questioning by the jury.
The record reflects that appellant's counsel did not object to the jury charge. Thus, this proposition of law could be properly overruled purely on the basis of Crim. R. 30 which provided at the time of the trial herein:
"* * * No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury."
Nor upon review of the charge, do we find that it contained error.
Appellant asserts in her seventh proposition of law that the jury verdict either was against the manifest weight of the evidence presented or was contrary to applicable state law and thus cannot be permitted to stand.
This is substantially the same contention raised by appellant in her fourth proposition of law, part (b). For the reasons there cited, this proposition of law is overruled. There was sufficient credible evidence to sustain the jury verdict.
In proposition of law number eight, appellant contends that R.C. 2903.01, 2929.02, 2929.03 and 2929.04 permit the rare, random and arbitrary imposition of the punishment of death in violation of the Eighth and Fourteenth Amendments to the United States Constitution. This issue was decided by this court in State v. Bayless (1976), 48 Ohio St.2d 73, and need not be reconsidered here. This proposition of law is overruled.
In her ninth proposition of law, appellant asserts that R.C. 2929.03 and 2929.04 are unconstitutional (1) in that the statutes do not require the Supreme Court to compare the sentences imposed upon similarly situated defendants; (2) in that the statutes do not require the sentencing authority to focus its attention on the defendant's individual characteristics, and the circumstances surrounding the act itself; and (3) in that the statutes do not require review or direct review by the Supreme Court.
As to the first assertion of this proposition, the constitutionality of Ohio's general scheme was upheld in Bayless, supra, and need not be repeated at length here. The Ohio statutes require the death sentence to be imposed upon all defendants convicted of aggravated murder coupled with at least one of seven aggravating circumstances, provided that none of the three mitigating factors exists. All similarly situated defendants are thus sentenced alike.
We find the second assertion that claims Ohio's mitigating circumstances are unconstitutionally narrow also without merit. R.C. 2929.04(B) states:
"Regardless of whether one or more of the aggravating circumstances listed in division (A) of this section is specified in the indictment and proved beyond a reasonable doubt, the death penalty for aggravated murder is precluded when, considering the nature and circumstances of the offense and the history, character, and condition of the offender, one or more of the * * * [three statutory mitigating circumstances] is established by a * * * [preponderance] of the evidence." (Emphasis added.)
Thus, the wording of the statute itself answers this argument of appellant. In State v. Bell (1976), 48 Ohio St.2d 270, we held that the mitigating circumstances of R.C. 2929.04(B) were not to be construed narrowly and that relevant factors, such as prior criminal record and age of defendant, were to be considered by the sentencing authority.
Thus, in considering whether the crime was primarily the product of a "mental deficiency," under R.C. 2929.04 (B)(3), the trier of fact at the penalty proceedings may consider any mental deficiency or incapacity in light of all the circumstances including the nature of the crime. See State v. Black (1976), 48 Ohio St.2d 262. Similarly, in R.C. 2929.04(B)(2), the terms "duress" and "coercion" are to be construed more broadly than when used as a defense in criminal cases. See State v. Woods (1976), 48 Ohio St.2d 127, 135. These constructions appropriately allow consideration of the broad range of information relevant to mitigation set out in R.C. 2929.04. Accordingly, we find this assertion by appellant to be without merit.
Appellant alleges further that Ohio's death penalty scheme does not require review or direct review by the state Supreme Court.
Although it is true that this court does not directly review cases from the Court of Common Pleas, we believe that the constitutionality of the scheme is not threatened by this procedure. Appellant seems to argue that since the state of Georgia has a provision for direct review of the trial court by its Supreme Court, and since the United States Supreme Court has upheld the Georgia law, then all states must have such a direct review to be constitutional. Such reasoning is clearly erroneous. The United States Supreme Court has never stated that the constitutionality of a state death penalty scheme hinges on whether it provides for direct review by the state Supreme Court.
Appellant's argument that the Ohio scheme does not require review is without merit. It is undeniably clear that all convicted defendants in criminal cases have access to the Court of Appeals. Section 2(B) ( 2)(a)(ii), Article IV of the Ohio Constitution states that this court shall have appellate jurisdiction in appeals from the Court of Appeals as a matter of right in cases in which the death penalty has been affirmed.
Thus, we find all three assertions of appellant's ninth and final proposition of law without merit, and so overrule it.
Accordingly, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, STEPHENSON and P. BROWN, JJ., concur.
STEPHENSON, J., of the Fourth Appellate District, sitting for W. BROWN, J.