State v. Green

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The State of Ohio, Appellee, v. Green, Appellant.

[Cite as State v. Green (1993), Ohio St.3d .]

Criminal law -- Aggravated murder -- Death penalty upheld, when.

(No. 90-1673 -- Submitted January 5, 1993 -- Decided April

21, 1993.)

Appeal from the Court of Appeals for Hamilton County, No.

C-880504.

On January 4, 1988, defendant-appellant, Elizabeth Green,

visited her friend Belinda Coulter at her apartment and asked

if Coulter could help her sell food stamps so Green could buy

drugs. Coulter went across the street to see the victim,

Thomas Willis, because he usually bought and sold food stamps.

He also sold "after-hours liquor" to his acquaintances. On

Green's behalf, Coulter sold a forty-dollar book of stamps to

Willis for twenty-five dollars. At Green's request, Coulter

then bought some cocaine on the street, which Green and Coulter

smoked.

Over the next several hours, Coulter and Green returned to

Willis' apartment several times, either together or

separately. They used various pretexts to gain entrance, such

as asking to use Willis' phone or seeking to sell him sex.

Some discussion involved a five-dollar stamp missing from the

food stamp book. Before their last visit, a plan was

formulated to rob and kill Willis.

Green and Coulter told conflicting versions as to what

occurred next.

According to Coulter, Green came up with the idea to rob

Willis, and Coulter simply gave three dollars to Green to show

Willis that she wanted to buy some liquor. Green then went

alone to Willis' apartment, taking socks for her hands to

prevent fingerprints from being left at the scene. After a

long time, Coulter joined her. When Coulter arrived, she heard

a noise like something falling and saw blood on the living room

floor. Coulter went into the kitchen, and there "I screamed[,]

[a]nd then she [Green] was standing over him [Willis] with a

pillow over his face and there was blood everywhere." Coulter

did not see Green go there with a knife, but she knew Green had

a knife "because we used it to cut cocaine that we had

smoked." Coulter asserted, "I didn't stab. I had nothing to

do with killing that man at all."

On cross-examination, Coulter admitted she had talked to

the police five times after the murder, that she originally

denied knowing anything about the crime, and that she then made

conflicting statements about the details of the robbery and

murder. She was unsure of what she had told police. Coulter

also admitted that Willis had previously given her clothes for

her two children and had loaned her money.

In a pretrial statement given to police, Green asserts

that it was Coulter who planned to rob and kill Willis because

Coulter saw Willis with a lot of money when he paid her the

twenty-five dollars for the food stamps. Both Coulter and

Green went to Willis' apartment with children's socks on their

hands. At the time of the murder, Coulter and Green told

Willis they wanted to buy some liquor. Green followed Willis

into the kitchen where he went to get the liquor. According to

Green, Willis became suspicious, took out a knife, and said

they were trying to rob him. Green grabbed for the knife, a

struggle ensued, both Green and Willis wrestled on the floor,

and Green's finger got cut. Willis got the knife and lunged at

her, and Green retrieved the knife and "plunged" at him several

times. While they were struggling, Green says she yelled for

Coulter to come and assist her. Green claimed that Coulter

also stuck the knife into Willis' legs. (There were no stab

wounds in his legs.)

Green asserts that Coulter went through Willis' pockets

and kept his money, except for $125 which she gave to Green.

Before they left, they took a half pint of liquor. Back at

Coulter's apartment, Green washed the blood out of her pants in

the kitchen sink, and Coulter threw her clothing into the

trash. In her pretrial statement, Green agreed she normally

carried a knife, but she denied carrying a knife that day.

On January 4, 1988, around 7:00 p.m., James R. Cody,

Coulter's live-in boyfriend and the father of her two children,

arrived home from work and saw Green and Coulter smoking

cocaine. He left around 9:30 p.m. When he came back an hour

or so later, "things seemed suspicious." Green was wearing

Coulter's clothes, and was washing her clothing in the kitchen

sink. Cody asked them, "Who did you rob?" Neither Coulter nor

Green responded. Later, Green asked Cody to buy some cocaine

for her, but Cody refused. Green left the apartment around

12:30 a.m. in a taxicab.

On January 5, 1988, Sammy Gentry, who lived in the

apartment below Willis', did not hear Willis upstairs and

became concerned. Around 1:30 p.m., Gentry went into Willis'

unlocked apartment, saw Willis on the kitchen floor, and called

paramedics. Fire department personnel responded and found

Willis dead; his body was very rigid, lying face up in a large

pool of blood. The police were called.

Dr. Harry J. Bonnell, a forensic pathologist, examined

Willis' body at the scene and supervised the autopsy. Willis,

age sixty-eight, was five feet, eight and one-half inches tall,

weighed one hundred thirteen pounds and was in poor health. He

suffered from severe coronary artery disease, severe

arteriosclerosis, and severe emphysema. Willis died as a

result of "blood loss caused by multiple stab wounds and

incised wounds of his body."

Dr. Bonnell counted thirty-eight neck wounds, forty-six

wounds to the torso, ten to the left arm, and fifteen on the

right arm and hand. One neck wound involved a cut jugular

vein, which also severed the nerve controlling the heart and

breathing; another struck the side of the liver; one wound

perforated the lung; and another could have collapsed a lung.

However, many wounds were superficial cuts, some were difficult

to distinguish as separate wounds, and some could have been

exit wounds. Almost all the arm wounds could have been

defensive wounds. The knife used was single edged, no more

than one inch in width, and two and one-half to three inches in

length.

Police investigators at the scene found a number of

clues. A bloodstained pillow lay on the floor next to Willis'

head, and a bloodstained child's sock also lay on the floor

near the entrance to the apartment. In addition to a large

quantity of blood on the kitchen floor, police also found a few

blood stains on the living-room floor and on the bedspread in

the bedroom. Some of the stains were blood type O, the same

blood type as Willis'; but other stains were blood type B, the

same as Green's.

Police also determined from a bloody shoeprint that the

perpetrator wore a size seven or seven and one-half shoe, and

that the shoe was probably a woman's shoe. A visitor to the

apartment had smoked Salem cigarettes. Although Willis had

been stabbed to death, police found no weapon at the scene.

Police investigation revealed that Willis, a retired city

employee, cashed his retirement check for $514 on January 4,

1988. Police also established that Willis was very careful

about whom he let into his apartment, allowing in only people

he knew and trusted.

Police initially interviewed Coulter as a part of a

neighborhood canvass, and eventually talked with her a total of

five times. Police learned that Coulter had sold food stamps

to Willis previously, that she wore a size seven shoe, and that

she smoked Salem cigarettes. She had been seen recently with

one one hundred dollar bill and two fifty dollar bills.

Eventually, Coulter admitted she knew how Willis had died, and

she told the police about Green's involvement in the murder.

The defense argued that Green was unable because of

extensive drug and alcohol use to form the specific intent to

kill Willis. Coley Turner, Green's ex-fiancee, testified that

Green smoked marijuana and cocaine daily, took pills and drank

heavily. Michael J. Ratto, a substance abuse and mental health

counselor, determined that Green was chemically dependent on

alcohol, marijuana, and cocaine. On the afternoon of the

offense, Green had smoked five or six marijuana cigarettes,

drunk four large shots of gin, and smoked crack cocaine. She

would have had a blood-alcohol level of at least .162 that

afternoon and possibly even .22.

Dr. Nancy Schmidtgoessling, a clinical psychologist, found

that Green functioned intellectually in the bottom one percent

of the population and had an IQ of 66. She termed Green

grossly intellectually deficient except in simple everyday

activities. Green also suffered from a deficit disorder since

she was easily distracted by sounds. Green's problem-solving

ability was slow, rigid, and laborious, and she was unable to

discern her feelings. Green's long-term marijuana and cocaine

use together could have affected her thinking processes, memory

and judgment. At the time of the offense, Green could have

been suffering from an intense craving for more cocaine. The

marijuana and alcohol she ingested caused her thinking to be

less critical and impaired her concentration and memory,

thereby affecting her behavior. Schmidtgoessling testified

that Green "consistently told me that she only plunged [the

knife] at him [Willis] maybe three times. That's what she told

me each time." Green also said that Coulter went through

Willis' pockets and took his money but later gave some to Green.

Coulter and Green were both indicted for aggravated murder

and aggravated robbery. The death-penalty specification

alleged that the murder occurred in the course of aggravated

robbery, was committed with prior calculation and design, and

both Coulter and Green were principal offenders. Coulter pled

guilty to aggravated robbery and to involuntary manslaughter,

was convicted of these crimes and later was subpoenaed to

testify against Green. Before a panel of three judges, Green

was tried and convicted, as charged, of aggravated robbery and

aggravated murder.

Sentencing Evidence

Thomas Green, the defendant's father, testified that Green

had had a terrible childhood. When Green was three years old,

her mother tried to kill her sister and her by tying them to

chairs and setting their house on fire. Thomas took custody of

Green and remarried. Her stepmother, Rosetta, and father had a

rocky and violent relationship with excessive drinking and

turbulence. At times, Rosetta would draw a knife on Thomas and

almost killed him once. Thomas believed that Green's friend,

Coulter, was a bad influence on Green.

Coley Turner, Green's former boyfriend, lived with Green

for several years. Green was jealous, insecure, and had low

self-esteem, and she remained too dependent on Turner when they

were together. Green had serious problems with alcohol,

marijuana, and cocaine. Lisa Green, Green's half-sister,

affirmed the family's violent and turbulent history. Rosetta

often forced Green to remove her clothing and beat her with a

belt. In a rage, Thomas would throw furniture, and Rosetta

would defend herself with a knife. Green tried to break up the

weekly fights. At one time, Joseph Green, Green's

half-brother, pulled a knife on Lisa, and Green tried to take

it away from him. Thomas hated Green because she reminded him

of her mother whom he hated. Green regularly carried a knife

for protection. Joseph supported Lisa's testimony about the

fights and turbulence in the family.

Linda Werner, a volunteer chaplain at the Justice Center

where Green was incarcerated, conducted regular Bible studies

and ministerial visits. She described Green as very quiet,

reserved and grieving over the effect the murder would have on

her family. Although inmates were often insincere, she found

Green sincere, consistent in her conversations, and truthful.

Gloria Ross, a former social worker, had helped Green about ten

or eleven years previously when Green had been in a juvenile

facility. Ross built a strong mother-daughter relationship

with Green because Green's stepmother wanted nothing to do with

her. Ross found Green to be "warm, affectionate, loving, and

need[ing] a great deal of nurturing." Green adjusted to this

juvenile facility, and she spent most of her time there since

her family would not accept her at home. Green left the

facility when she became pregnant. Though she desperately

wanted the baby, she suffered a miscarriage. Ross was shocked

that Green had committed any crimes.

Dr. Schmidtgoessling testified that Green showed no signs

of schizophrenia, but that she was intense, preoccupied and

hyperactive. Green displayed a high level of distractibility

and had deep dependency needs. Green felt worthless because

even her own mother had tried to kill her, and her father, an

alcoholic, had beat her and constantly told her she was bizarre

like her mother. Ultimately, Green became the family scapegoat

of her strongly dysfunctional family. She only developed to

the emotional level of a seven or eight-year-old and to the

intellectual level of a ten to twelve-year-old. Green suffered

from "a personality disorder marked by dependency, avoidance

and intense, often depressive, mood states." Prior to

incarceration, Green had been using marijuana and alcohol

extensively for five or six years and cocaine for two years.

"At the time of the offense, her behavior and psychological

functioning were most likely effected [sic] by her cognitive

status, intoxicated state, and drive for more cocaine."

In an unsworn statement, Green said she was very sorry for

this crime and asked forgiveness from the victim's family. She

had been taking drugs for nine years, but she now had a clear

head since she had been in jail. She was twenty-four years

old, afraid to die, and asked that her life be spared. She

outlined the circumstances of the offense similar to those she

described in her pretrial statement. Coulter first suggested

robbing Willis, but Green put socks on her hands at Coulter's

urging. Green claimed Willis pulled a knife because he

suspected they were going to rob him. Green and Willis

wrestled, and Green managed to take the knife from Willis and

"cut" him three or four times.

After the sentencing hearing, the three-judge panel

sentenced Green to death and to a consecutive term of ten to

twenty-five years for aggravated robbery. The court of appeals

affirmed the conviction and death penalty.1

Arthur M. Ney, Jr., Prosecuting Attorney, and William E.

Breyer, Assistant Prosecuting Attorney, for appellee.

Timothy A. Smith and D. Shannon Smith, for appellant.

Francis E. Sweeney, Sr., J.

GUILT PHASE ISSUES

Cross-examination of Coaccused

In her Proposition of Law No. 1, Green argues that the

three-judge panel erred in limiting the defense's cross-

examination of Coulter. After direct examination, Green's

counsel cross-examined Coulter about the specifics of her

pretrial statements to the police. After a cross-examination

three times longer than direct, the panel asked if the parties

could stipulate that Coulter had made certain prior

statements. The parties so stipulated, and the prior

statements were then admitted into evidence so the panel could

examine them for inconsistencies.

Cross-examination of a witness is a matter of right, but

the "extent of cross-examination with respect to an appropriate

subject of inquiry is within the sound discretion of the trial

court." Alford v. United States (1931), 282 U.S. 687, 691,

694, 51 S.Ct. 218, 219-220, 75 L.E. 624, 627, 629. The right

of cross-examination includes the right to impeach a witness'

credibility.

In this case, Green clearly had the right to impeach

Coulter by cross-examining her about prior statements.

However, the defense cross-examination on that point had become

tedious and repetitive; counsel simply repeatedly asked if

Coulter remembered making certain statements. No dispute

existed that Coulter had made these prior statements, which

were partially inconsistent with each other and with her in-

court testimony. In fact, Coulter admitted she had told the

police "a lot of different things" and that she had "lied" to

them. These admissions rendered pointless any further

questioning as to whether she had made the statements.

A trial judge has broad discretion "to preclude repetitive

and unduly harassing interrogation[.]" Davis v. Alaska (1974),

415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347, 353.

As stated in Delaware v. Van Arsdall (1986), 475 U.S. 673, 679,

106 S.Ct. 1431, 1435, 89 L.Ed.2d 674, 683, "trial judges retain

wide latitude * * * to impose reasonable limits on such

cross-examination based on concerns about, among other things,

harassment, prejudice, confusion of the issues, the witness'

safety, or interrogation that is repetitive or only marginally

relevant."

In this case, the trial panel acted within its discretion

in finding the defense questioning tedious and repetitive, and

suggesting that counsel stipulate the prior statements.

Defense counsel attempted to impeach Coulter by questioning her

about her plea bargain, and her refusal to speak to defense

counsel. Further, defense counsel did cross-examine her about

her prior statements. In fact, all the evidence of the prior

inconsistent statements went to the panel for its consideration.

Additionally, the panel's suggestion of a stipulation did

not prejudice Green. With the prior statements admitted,

Green's counsel could freely point out and argue any

inconsistencies that did exist. Moreover, Coulter's brief

direct testimony did not provide the crucial evidence against

Green. Green's own confession in which she admitted there was

a plan to rob and kill Willis, and admitted stabbing him,

together with other evidence constituted overwhelming evidence

of guilt even without Coulter's testimony. Lack of an

opportunity to fully cross-examine is harmless error when

there is overwhelming, untainted evidence supporting a

conviction. Harrington v. California (1969), 395 U.S. 250,

253-254, 89 S.Ct. 1726, 1728-1729, 23 L.Ed.2d 284, 287-288.

Most crucially, the panel's findings demonstrate the lack

of prejudice because the panel rejected Coulter's version of

the events. Coulter tried to minimize her participation in the

murder to that of an accessory, mostly an accessory after-the-

fact. However, the panel found both Green and Coulter to be

principal offenders. Thus, Proposition of Law No. 1 is

rejected.

Ineffective Assistance of Counsel

In Proposition of Law No. 2, Green argues that her

counsel's acceptance of the panel's suggestion of a stipulation

covering Coulter's prior statements amounted to a denial of

Green's right to the effective assistance of counsel. In

addition, Green argues that her counsel made a grievous error

by allowing the admission of Coulter's pretrial statements.

Reversal of a conviction or sentence based on the

ineffective assistance of counsel requires satisfying the two-

prong standard of Strickland v. Washington (1984), 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Strickland requires (a)

deficient performance--"errors so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the

Sixth Amendment"; and (b) prejudice--"errors * * * so serious

as to deprive the defendant of a fair trial, a trial whose

result is reliable." Id. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d

at 693.

However, defense counsel's decision to allow the prior

statements into evidence instead of further cross-examining

Coulter was a reasonable tactical decision. Since the prior

statements were admitted into evidence, counsel could freely

argue all inconsistencies without a further belabored

cross-examination. The tactical decision to agree to the

stipulation fell "within the wide range of reasonable

professional assistance." Id. at 689, 104 S.Ct. at 2065, 80

L.Ed.2d at 694. Thus, counsel did not perform deficiently.

Green also failed to satisfy the second Strickland

requirement of prejudice. No reasonable probability exists

that, but for counsel's unprofessional errors, the result of

the proceeding would have been different. Strickland at 695,

104 S.Ct. at 2069, 80 L.Ed.2d at 699. Coulter's testimony was

not crucial; Green's conviction rested upon other compelling,

convincing evidence of guilt, which included her confession.

Also, the panel essentially accepted Green's version and found

Coulter equally responsible for the robbery and murder.

Moreover, no evidence exists that the court considered

Coulter's pretrial statements other than to compare

inconsistencies. The three-judge panel must be presumed not to

have improperly used these statements. See State v. White

(1968), 15 Ohio St.2d 146, 151, 44 O.O.2d 132, 136, 239 N.E.2d

65, 70, quoted in State v. Post (1987), 32 Ohio St.3d 380, 384,

513 N.E.2d 754, 759. Thus, Proposition of Law No. 2 lacks

merit.

SENTENCING PHASE ISSUES

Circumstances of Offense

In Proposition of Law No. 3, Green argues the trial

panel's sentencing decision failed to specify the aggravating

circumstance and improperly relied upon the nature and

circumstances of the offense as aggravating circumstances.

Admittedly, the panel's opinion inaccurately asserted: "The

nature and circumstances of this savage act far outweigh any

mitigating factors."

However, perusal of the entire panel opinion demonstrates

that the panel correctly identified the aggravating

circumstance to be that the aggravated murder occurred in the

course of an aggravated robbery. When a trial court correctly

identifies a statutory aggravating circumstance, "this court

will infer that the trial court 'understood the difference

between statutory aggravating circumstances and facts

describing the nature and circumstances of the offense.'"

State v. Wiles (1991), 59 Ohio St.3d 71, 90, 571 N.E.2d 97,

120, quoting State v. Sowell (1988), 39 Ohio St.3d 322, 328,

530 N.E.2d 1294, 1302. Moreover, the panel correctly evaluated

the nature and circumstances of the offense when it stated,

"there was nothing mitigating about the nature and

circumstances of the offense. This was a brutal, purposeful,

cold and calculated act that culminated in [aggravated murder]."

Thus, the trial panel did not err. In fact, a trial court

or three-judge panel "may rely upon and cite the nature and

circumstances of the offense as reasons supporting its finding

that the aggravating circumstances were sufficient to outweigh

the mitigating factors." State v. Stumpf (1987), 32 Ohio St.3d

95, 512 N.E.2d 598, paragraph one of the syllabus. See, also,

State v. Steffen (1987), 31 Ohio St.3d 111, 117, 31 OBR 273,

278, 509 N.E.2d 383, 390. State v. Davis (1988), 38 Ohio St.3d

361, 528 N.E.2d 925, is distinguishable, since the trial panel

in that case improperly delineated four circumstances

surrounding the offense as specific aggravating circumstances.

Additionally, this court's independent assessment of the

sentence would cure any deficiency in the trial panel's

sentencing decision. See Clemons v. Mississippi (1990), 494

U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725; State v. Landrum

(1990), 53 Ohio St.3d 107, 124, 559 N.E.2d 710, 729; State v.

Lott (1990), 51 Ohio St.3d 160, 170, 555 N.E.2d 293, 304.

Thus, Proposition of Law No. 3 lacks merit.

Disparity of Sentences

In Proposition of Law No. 4, Green argues the court of

appeals erred by not finding the disparity of treatment between

Coulter and Green to be a mitigating factor. Pursuant to

guilty pleas, it is undisputed that Coulter was sentenced to

seven to twenty-five years for involuntary manslaughter and to

five to twenty-five years for aggravated robbery, the sentences

to run consecutively. Green argues that since the trial panel

found the sentence disparity to be a mitigating factor, the

court of appeals is equally required to find that disparity to

be a mitigating factor.

The state responds to Green's argument by asserting

waiver. But waiver is inapplicable here. Green cannot be

expected to raise, in advance, an issue about the court of

appeals' sentencing decision before that court issues its

decision.

Nonetheless, Green's argument that the court of appeals

erred lacks merit. R.C. 2929.05(A) contemplates a separate and

independent assessment of the sentence. See State v. Maurer

(1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768,

paragraph four of the syllabus. Neither the court of appeals

nor this court need be bound by a lower court's opinion as to

whether a factor is mitigating. If a higher court were so

bound, the review would not be independent. In fact, R.C.

2929.05(A) specifies that:

"The court of appeals and the supreme court * * * shall

review and independently weigh all of the facts and other

evidence disclosed in the record in the case and consider the

offense and the offender to determine whether the aggravating

circumstances * * * outweigh the mitigating factors in the

case, and whether the sentence of death is appropriate."

(Emphasis added.)

In a comparable situation, this court has recognized that

the individual weighing of mitigating factors is a matter

within a decision-maker's discretion. R.C. 2929.04(B) requires

the court to consider an offender's history, background and

character, but the court need not give mitigating weight to

that factor if it finds it not mitigating. State v. Stumpf,

supra, at paragraph two of the syllabus. See State v. Steffen,

supra, at paragraph two of the syllabus ("* * * The fact that

an item of evidence is admissible under R.C. 2929.04(B)(7) does

not automatically mean that it must be given any weight.").

Moreover, this court's independent sentence assessment

would cure any defect in the court of appeals' sentencing

decision. State v. Lott, supra; State v. Landrum, supra. The

question as to what weight, if any, should be given to the

sentence disparity will be addressed in the independent

sentence assessment. Proposition of Law No. 4 is rejected.

Proportionality Review

In Proposition of Law No. 5, Green argues that her death

sentence must be set aside, pursuant to the statutory

proportionality review, because of the disparity between her

sentence and Coulter's sentence.

We have held that "[t]he proportionality review required

by R.C. 2929.05(A) is satisfied by a review of those cases

already decided by the reviewing court in which the death

penalty has been imposed." State v. Steffen, supra, at

paragraph one of the syllabus. See State v. Stumpf, supra, at

107, 512 N.E.2d at 610.

Additionally, we have ruled that disparity of sentence

does not justify reversal of a death sentence when the sentence

is neither illegal nor an abuse of discretion. State v.

Jamison (1990), 49 Ohio St.3d 182, 191, 552 N.E.2d 180, 188.

Proposition of Law No. 5 lacks merit.

Significance of Mitigation

In Proposition of Law No. 6, Green argues that the state

failed to prove beyond a reasonable doubt that the aggravating

circumstance outweighs the mitigating factors. Green points

out that she had a horrible life and that she is mentally and

emotionally retarded. She argues: "Willis was killed by a

mentally retarded, emotionally disturbed, doped-up child, who

was induced to commit the crime by her drug supplier, who

received a 7-25 year sentence as payment for her testimony."

Green cites no legal authority as to why the aggravating

circumstance does not outweigh the mitigating factors, so this

issue will be examined in the context of the court's

independent sentence review. Proposition of Law No. 6 is

rejected.

Constitutionality of Death-Penalty Statute

In Proposition of Law No. 7, Green argues that Ohio's

death-penalty statute is unconstitutional because it fails to

provide for adequate appellate review. Specifically, she

contends a proper proportionality review should encompass not

only cases where the death penalty was sought but also cases

where the death penalty was not sought but could have been

sought. Although Green raised this issue in the court of

appeals, she did not raise the issue at trial. See State v.

Awan (1986), 22 Ohio St.3d 120, 22 OBR 199, 489 N.E.2d 277,

syllabus. Moreover, the current system of appellate review has

been ruled constitutional. State v. Steffen, supra, at

122-124, 31 OBR at 283-284, 509 N.E.2d at 394-395; State v.

Jenkins (1984), 15 Ohio St.3d 164, 209, 15 OBR 311, 350, 473

N.E.2d 264, 304. This proposition of law is overruled.

In Proposition of Law No. 8, Green further challenges the

constitutionality of Ohio's death-penalty statute. However,

Green neither argues nor provides authority for her

challenges. Green also waived these issues by not raising them

before the trial court. State v. Awan, supra. Additionally,

this court has consistently upheld the statute's

constitutionality. State v. Buell (1986), 22 Ohio St.3d 124,

136, 22 OBR 203, 213, 489 N.E.2d 795, 806; State v. Jenkins,

supra. Summary disposal is appropriate. State v. Poindexter

(1988), 36 Ohio St.3d 1, 520 N.E.2d 568, syllabus. Proposition

of Law No. 8 lacks merit.

INDEPENDENT SENTENCE ASSESSMENT

Pursuant to our duties imposed by R.C. 2929.05(A), we now

independently review the death-penalty sentence for

appropriateness and proportionality.

The evidence establishes beyond a reasonable doubt the

aggravating circumstance that Green killed Willis during an

aggravated robbery and that she was a principal actor in the

murder. Because Green and Coulter planned to rob and kill

Willis, which is evidenced by the fact that the victim knew

Green and Coulter and both perpetrators put socks on their

hands to prevent fingerprints at the scene, the trial panel

reasonably found prior calculation and design.

The nature and circumstances of the offense provide few

mitigating features. Green and Coulter planned and carried out

the deliberate and calculated robbery and murder of an elderly,

frail, citizen in his own home. Their motive was simply a

desire for more money to buy cocaine. Even assuming that

Willis pulled a knife when he suspected a robbery, that fact

would scarcely be mitigating. A citizen's choice to defend

himself against an unlawful assault does not lessen the moral

culpability of the assault. See State v. Clark (1988), 38 Ohio

St.3d 252, 263, 527 N.E.2d 844, 856. However, the cut that

Green suffered on her hand in that initial struggle with Willis

probably explains the frenzy of her ensuing attack.

Green's "history, character, and background" do provide

mitigating features. Green suffered a terrible childhood: her

mother tried to kill her when she was three years old, her

alcoholic father beat her frequently, and her stepmother

neither loved nor nurtured her. Family fights in which her

stepmother pulled a knife to defend herself were frequent.

Green became the family scapegoat, and at age thirteen or

fourteen, she went into a juvenile facility. At age fifteen,

she became pregnant and suffered a miscarriage. Ultimately,

she transferred her deep dependency needs from her boyfriend,

Turner, and social worker, Ross, to drugs and alcohol. The

evidence clearly established she was chemically dependent on

marijuana, cocaine, and alcohol and had been so dependent for

years. With an IQ of 66, she functioned only very marginally.

Dr. Schmidtgoessling described Green as intellectually "ten,

eleven, twelve; emotionally, much younger than that, more like

seven or eight."

In our review of any statutory mitigating factors, Willis

arguably "induced or facilitated" the offense because he

illegally bought food stamps and sold liquor. See R.C.

2929.04(B)(1). However, even if true, no significant

mitigating weight need be assigned to this factor. The moral

culpability of a murder is not lessened because the frail,

elderly victim operated on the fringe of the law. Green did

not act under "duress, coercion, or strong provocation," within

the meaning of R.C. 2929.04(B)(2). While Green may have been

shocked by the cut on her hand, she brought that upon herself

with her plan to rob and kill Willis. Since Green was a

principal actor in the offense, R.C. 2929.04(B)(6) is

inapplicable.

Green's very limited intelligence, an IQ of 66, would

qualify as a mental defect within R.C. 2929.04(B)(3), although

she suffered no mental disease. However, evidence is lacking

that her mental defect caused Green to lack "substantial

capacity to appreciate the criminality" of her conduct or

conform that conduct to law. Nonetheless, Green's limited

intelligence would be a mitigating "other factor" under R.C.

2929.04(B)(7). Green's age of twenty-four only nominally

satisfies the mitigating factor of "youth of the offender,"

R.C. 2929.04(B)(4), and is entitled to only slight weight.

As to R.C. 2929.04(B)(5), the trial panel found, as a

fact, that Green had three prior adjudications as a juvenile

and four adult misdemeanor convictions. The court of appeals

agreed that Green's "history of criminal convictions and

delinquency adjudications, does not weigh in Green's favor

because she has previously been convicted of several criminal

acts, including theft, drug abuse and resisting arrest." This

finding apparently rests upon a presentence investigation not

forwarded as a part of the record of trial. Since Green does

not claim the absence of a criminal record, as a mitigating

factor, the absence of formal documentation of her record can

be considered as harmless error. R.C. 2929.04(B)(5) is thus

not applicable.

Under R.C. 2929.04(B)(7), as mitigating "other factors,"

we consider the different treatment accorded to Coulter,

Green's remorse, the circumstances of her upbringing, her

alcoholism and drug addiction, and her limited intelligence.

Coulter was convicted and sentenced for involuntary

manslaughter and aggravated robbery. We determine the possible

significance of this mitigating factor is diminished because

Coulter pled guilty and Green stabbed the victim.

In weighing the aggravating circumstance against

mitigating factors, we find that the aggravating circumstance

does outweigh the mitigating factors beyond a reasonable

doubt. Collectively, Green's lack of intelligence, family

upbringing, and alcohol and drug addiction are entitled to

modest weight. In contrast, Green planned and carried out a

calculated robbery and murder of a frail, elderly man in his

own home. The number and manner of the stab wounds

convincingly demonstrate an intention to commit murder. The

manner of death and the prior calculation and design tend to

negate Green's later claims of remorse.

The death penalty in this case is neither excessive nor

disproportionate, but is appropriate, when compared with other

felony-murder cases. See State v. Smith (1991), 61 Ohio St.3d

284, 574 N.E.2d 510; State v. Wiles, supra; State v. Jackson

(1991), 57 Ohio St.3d 29, 565 N.E.2d 549; State v. Landrum,

supra; State v. Lott, supra; State v. Johnson (1989), 46 Ohio

St.3d 96, 545 N.E.2d 636; State v. Van Hook (1988), 39 Ohio

St.3d 256, 530 N.E.2d 883; State v. Greer (1988), 39 Ohio St.3d

236, 530 N.E.2d 382; State v. Holloway (1988), 38 Ohio St.3d

239, 527 N.E.2d 831.

Accordingly, the judgment of the court of appeals is

affirmed.

Judgment affirmed.

Moyer, C.J., A.W. Sweeney, Douglas and Resnick, JJ.,

concur.

Wright, J., concurs separately.

Pfeifer, J., dissents.

FOOTNOTE:

1 In January 1991, the Governor of Ohio commuted Green's

death sentence to life imprisonment. However, in Wilson v.

Maurer, case No. 91 CVH01-763, the Franklin County Court of

Common Pleas set aside that commutation. An appeal in that

case is now pending before the Franklin County Court of

Appeals. In State ex rel. Maurer v. Sheward, case No. 92-1350,

the sentenced defendants filed a prohibition action in the

court of appeals asserting that the trial judge lacked

jurisdiction to consider the Governor's commutation. That case

is now on appeal here. See, also, State ex rel. Ney v.

Governor (1991), 58 Ohio St.3d 602, 567 N.E.2d 986. We express

no judgment as to the merits of the underlying commutation case

or case No. 92-1350 by our decision today.

Wright, J., concurring. While I concur without

reservation with the vast majority of the court's opinion, I

write briefly to articulate my position on the weight of the

mitigating factors presented by Green.

Justice Sweeney fully and accurately discusses Green's

extremely low intelligence, her advanced alcoholism and drug

addiction, and her limited intellectual and emotional

development. I disagree, however, with the conclusion that

these factors are entitled only to "modest weight." I believe

that together they carry considerable weight.

Although in past cases the existence of such factors has

led me to dissent from the imposition of the death penalty,2

the aggravating circumstance present in this case is very

strong; in my view it outweighs the mitigating factors beyond a

reasonable doubt. The evidence showed that Green and Coulter

coldly formulated a plan to rob and kill an elderly victim in

his home and that Green carried the plan into action. In a

case in which an offender committed a premeditated felony

murder, evidence of low intellect, advanced chemical

dependency, and limited emotional development should not be

sufficient to warrant vacating the death penalty on appeal.

However, in a different case -- one that does not involve

prior calculation and design -- these same strong mitigating

factors could lead me to vote to vacate the death penalty

pursuant to R.C. 2929.05. In short, I respectfully disagree

with the majority's allotment of only "modest weight" to these

factors.

FOOTNOTE:

2 See, e.g., State v. Slagle (1992), 65 Ohio St.3d 597,

615, 605 N.E.2d 916, 932 (Wright, J., dissenting); State v.

Rogers (1985), 17 Ohio St.3d 174, 188, 17 OBR 414, 426, 478

N.E.2d 984, 997 (Wright, J., dissenting).

Pfeifer, J., dissenting. I dissent from the majority's

decision to uphold Elizabeth Green's death sentence. This

court's statutorily mandated proportionality review should

include a consideration of the disproportionate sentence given

to her co-defendant, Belinda Coulter. Also, the aggravating

circumstance of Green's crime fails to outweigh the mitigating

factors present in this case.

I

The trial panel in this case stated in its opinion that

Belinda Coulter "also was a principal offender and both Green

and Coulter actively participated in the offense and the acts

that led to the death of Thomas Willis." The panel determined

that "both Green and Coulter [were] equally responsible for the

Aggravated Murder and Aggravated Robbery of Thomas Willis

* * *." While there is some question in the record as to

whether Coulter inflicted any stab wounds, the record does show

that she planned the murder of Willis with prior calculation

and design.

According to the evidence in the record, including Green's

confession and Coulter's statements to police, it was Coulter

who had the ongoing relationship with Willis. Coulter was the

intermediary in Green's sale of her food stamps to Willis. It

was Coulter who noticed that he was carrying a large amount of

cash on the day of the murder. It was she who had already

spent $100 that day on cocaine, and it was she who craved

more. It was she who engineered the women's entry into Willis'

home, asking Willis to sell her some liquor. She, too, was

wearing socks on her hands to avoid leaving fingerprints. She

took Willis' wallet. She ended up with about two-thirds of the

stolen cash. She disposed of what she thought was evidence of

the crime. One of the socks she wore on her hands was found

bloody at the murder scene.

However, Coulter pleaded guilty to a reduced charge of one

count of involuntary manslaughter and one count of aggravated

robbery. Her combined sentence was for a period of twelve to

fifty years.

In reviewing a death sentence, we are required by R.C.

2929.05(A) to "consider whether the sentence is excessive or

disproportionate to the penalty imposed in similar cases."

This court has resisted considering a co-defendant's sentence

in its proportionality review. State v. Stumpf (1987), 32 Ohio

St. 3d 95, 108, 512 N.E.2d 598, 611. However, the statute does

not prohibit such a consideration, and a logical reading of the

statute requires it.

The obvious purpose of the statute's proportionality

language is to ensure that a death sentence is fair in

comparison to the penalty received by other persons committing

like crimes. In most cases, there are not two principals

involved in a particular crime, and it thus becomes necessary

to look at how the death penalty has been applied in cases with

similar facts.

Proportionality is most accurately determined when

comparing the sentences of two persons involved in the same

crime. No other case could be more similar, or more relevant.

R.C. 2929.05(A) has little meaning if the defendant's sentence

cannot be compared to the most relevant sentence possible --

that of her co-defendant.

In this case, Green's sentence is astonishingly

disproportionate to the sentence received by Coulter. Granted,

the sentence imposed upon Coulter was for nominally different

crimes than those with which Green was charged, but both

sentences arose from the same set of operative facts and are

based upon acts for which the trier of fact found Green and

Coulter equally responsible. The only difference between the

two is that Coulter was able to plea bargain. The effect of

that plea bargain was negligible given Green's own confession.

While plea bargains may be a necessary evil, prosecutors

should avoid situations where a plea bargain will result in the

death penalty for one defendant, as opposed to a greatly

reduced charge for another principal in the same crime. This

state's statutory safeguards require that the death penalty not

be arbitrarily administered.

In this case, the prosecutor determined who was to live

and who was to die. That result is disquieting given the

General Assembly's attempt to ensure proportional

administration of capital punishment.

The plain reading of R.C. 2929.05(A) requires that

proportionality review include the sentences of co-defendants.

In this case, Green's death sentence should be overturned. It

is clearly disproportionate to Coulter's reduced charge and

twelve-to-fifty-year combined sentence.

II

If Coulter's sentence is not considered in this court's

proportionality review, it should at least be considered as a

strong mitigating factor. Another strong mitigating factor is

the fact that the victim in this case basically had a welcome

mat out for attack. Willis was a known illegal dealer in food

stamps and also sold liquor out of his home. He was involved

in criminal activity and invited the risk of meeting a violent

end.

These mitigating factors, together with Green's

extraordinarily low IQ, relatively young age, chemical

dependency, and terrible childhood and adolescence, are not

outweighed by the aggravating circumstance present in this

case. For that reason as well, Green's death sentence should

be vacated.