# Petition — Weind v. Ohio > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0822%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 438 U.S. 910 ## Text Supreme Court, U.S ~ FILED i IN THE , NOV 25 1977 SUPREME COURT OF THE UNITED STATES MICHAEL RODAK, JR., CLERK October Term, 1977 No. A-290 77-5787 JAMES KENNETH WEIND, Petitioner STATE OF OHIO, Respondent PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO JAMES KURA Franklin County Public Defender 400 South Front Street Columbus, Ohio 43215 Phone: (614) 224-0570 and GREGORY L. AYERS 400 South Front Street Columbus, Ohio 43215 Phone: (614) 224-0570 Counsel for Petitioner VOR GF FE CSc cco ccc cccseccessececcsesscnesceeesdceoseses 4. 8 1! SPPPPPTITITETITTITITTTTT ET riTrriririiririie ieee Si} is) rere rrr rr rrr rr rrr rrirrerrrr rrr rrr rr rer rrr rT it GSU NOD PURSUE occ ceccccecececccceesesconsesseuveesseceeees CONSTITUTIONAL AND STATUTORY PROVISIONS, AND RULES OR PROCEDURE PE 6 64:0 b6 6-65 bb 666d 0656S cekins Kekeheunateeateenecdeédekédedss EE WE Ih 6 660.6606 ebanck bcd cccénreesecdseceeanisuers RD CG GPE WEE GUNN U cd wiccedcdsuecnscddtesccavaceds Heese Be THIS COURT SHOULD GRANT CERTIORARI TO CONSIDER THE CONSTITUTIONAL VALIDITY OF PETITIONER'S DEATH GP 04s. ddd dee honde ccdndudacunbeneeeecesmnake A. The Ohio Death Penalty Statutes, as Written, Construed, and as Applied to Petitioner, Un- constitutionally Limit the Proper Considera- tion of All Relevant Mitigating Circumstances. B. The Ohio Death Penalty Statutes Denied Peti- tioner his Right to a Judgment of his Peers in Determining the Existence of Mitigating Circumstances in Violation of the Sixth, Eighth, and Fourteenth Amendments............ S. Ohio's Capital Sentencing Procedures Uncon- Stitutionally Shift to Defendants the Burden of Proving the Existence of Mitigating Factors by a Preponderence of the Evidence........... D. Ohio Capital Sentencing Procedures Unconstitu- tionally Penalize the Capitally Accused Who Exercise their Rights to a Jury Trial........ E. The Unlimited Opportunities for the Injection of, and Excessive Use of Discretion by the Prosecuting Attorney Renders the Ohio Statute PAGE NO. iii 10 10 10 17 18 19 Violative of the Principles of Furman v. Georgia, GED U.S, TED Else de ve cccccctenseessetineses = Dananarr Beorwens, Puscisnens, Spaivcriein, Omo , — * =* my name and affixed the seal of the Supreme Court om; * this....23°9.day of November 19...27 oe ee es £6 ee be Oe Oe EE EEE EEE EEE EEE EEE ET SESE SEES ESSE SEE ESE EEE SH THREE Ee j _ 7a : / sag gE Sf. ad bk . echeged......Deputy. ” Buys. 4 7 . 51 ~—— ES MOS, Nap eee he we: ES SNe pace -. Gn Me Spee % saa ROS re = ets ‘yA .>*,. onan Sale, ee WSS ~~. et ~ ae 6 ye aie wi, “? x And ~ *¥ x 2” Neer 4 wer. © ANS APPENDIX D IN THE COURT OF APPEALS ui! FRANKLIN COUNTY, OHIO BG POS . iw st ke State of Ohio, % a Plaintiff-Appellee, rs v. ° No. 75AP-355 James Kenneth Weind, Defendant-Appel lant. BEN HEE t AEASS ne) oy A e a TT. * ree: * DECISION’ acy oy . tox te Rendered on August 10, 1976 MR. GEORGE C. SMITH, Prosecuting Attorney, MR. DAVID J. GRAEFF, Assistant, Franklin County Hall of Justice, 569 South High Street, Columbus, Onio, For Plaintiff-Appellee. MR. JOHN C. NEMETH, 673 Mohawk Street, Columbus, Ohio, For Defendant-Appel lant. McCORMAC, J. ~2555- BEST COPY AVAILABLE 52 > . ome .- ~~, 4 w* ae . a en rte . a.* = — “oy we ~* aes oye, , pi a? o. “sé ae ha ea ok -* " ~ . # ~~ a ee ee a’ a. te ~~ “oe su. v* Qe & ~*. * _* *- Ae o i oe i mn One he ty “~D ~ te ~ 2! 2%, i.e Ate ay ae - P oe “~ .* ys x. a & " 2 “a VF ” ’ wey ~~ ad x! + - = VN re we ih s*- = 4 We. i a, a en od a> > ) pam he ey, * . it ae “n * ates illite Fact OR OPee Ce % Oe 2 te i a ve Se Me, . “ - . mm 8 . ** . ‘ . We een OS : No. 75AP-355 2 Appellant was charged with two counts of aggravated murder (R. C. 2903.01) and one count of kidnapping (R. C. 2905.01), all pertain- | ing to the alleged kidnapping and murder of Hermalee Ross on December 15, oe 1974. It was further specified by the grand jury that the aggravated murder was committed with prior calculation and design during a kidnapping (R. C. 2929.04[A][7]) and that the offense was committed for hire (R. C. 2929.04[A][2]). Appellant was found guilty of all charges and specifica- tions. Two codefendants were also tried separately upon the same charges, found guilty and given death sentences. ; Following the guilty finding by the jury, the trial judge, as required by R. C. 2929.03, ordered a presentence investigation and psychiatric examinations to be made and reports submitted to the court, ’ and heard testimony and other evidence pursuant to R. C. 2929.03 (0D). Upon consideration thereof, the court found that none of the mitigating circum- Stances listed in R. C. 2929.04 (B) had been established by a preponderance of the evidence and imposed the sentence of death as required by law. From that judgment appellant has filed a timely notice of appeal, setting forth | the following assignments of error: "(1) The court erred by abusing its discretion in overruling defendant's motion for a continuance : and this violated defendant's constitutional rights. "(2) Defendarit was denied fundamental fairness inherent with his constitutional right to due process f of law and a fair trial when discoverable informa- tion requested and moved for earlier by counsel for defendant was not so provided. | ~2556- A. 53 , i ae oe ; ‘ Pe “wre lw, t * “ee => ok oe of, SS ne a EIN De RG GPO Rag Ik Ei oI BR ™, ‘ - a : , . “ea. wo oe oh Pe =. ® Fw > >* e5 Aye? or 0%. . hed ne - Pee . OF Anping % Be Ss ve ry 4 oe Ne =, “sae OO ee > ‘s es ey al > — woe 7, . oe ofeteey. ~—o >o . Ves Pe fe en ee © i ° No. 75AP-355 3 "(3) The trial court erred in not granting defendant's motion for mistrial or in ordering the same upon the repeated examples of trial publicity and in not effectively instructing = jurors to disregard the same. "(4) The court erred in calling Michael Goins as a court witness and in applying the wrong legal standard to Mr. Goins' status when he testified. wil "(5) The trial court erred in not instructing the jury to disregard all testimony regarding alleged tape recordings between witness Boswell yea 5 —- Boer g +t ¥ ; eee and witness Goins and especially as to the S. substance after it had ruled that they would not i ay be admitted into as evidence. ; "(6) The trial court erred in admitting into ‘ha evidence hearsay testimony thus denying defendant a his right to confrontation and due process of law. a ot > fo "(7) The jury verdict of quilty in this case is te not supported by sufficient evidence and hence ae is contrary to law. 5 "(8) The court erred in not requiring the £S- prosecuting attorney to elect which count of aggravated murder he wanted to go to the jury. a ik "(9) The trial court erred when it refused to charge the jury on the lesser included offense of obstruction of justice and recharged the jury on aggravated murder when, in light of the repeated requests for re-reading of testimony, a hung jury should have been declared. "(10) Section 2929.04 0.R.C. is unconstitutional in that it violates the Eighth and Fourteenth Amendments to the Constitution of the United States and Article I, Section 9 of the Constitu- tion of Ohio. "(11) The death penalty offends contemporary Standards of decency and constitutes cruel and unusual punishment prohibited by the Eighth and * Fourteenth Amendments to the Constitution of , the United States. ; -2557- 54 pt aera ne OSC SAN er Sm Sn maar ae NT Ae . AY usm -. Cina Or aa * a alien @ Ps NM “San “ee fm "Vase® 4 - *, oe) "ss. im “= ed Ye of Oe ‘- . — Mh A Zts* o% , of. *~ x “ef ~*~. e™» _* “ - 7 a y ‘oe e * ~~ F 2 7 Boe wer ot 7 o- ae ¢ F States who had also reacted to the Furman decision by adopting revised in provisions for implementation of the death penalty. Gregg v. Georgia, é Proffitt v. Florida, Jurek v. Texas, Woodson v. Worth Carolina, Roberts v. 3 . Louisiana (1976), 44 U. S. Law Week 5229-5292. In none of these cases 4 . was the Ohio method specifically discussed although, as will be related : hereafter, the aforesaid decisions apply the basis for a determination of | the validity of the Ohio laws. R. C. 2929.04 (A) sets forth seven aggravating circumstances, at least one of which must be found by a jury to justify the death penalty. =I ‘ Those are: "(1) The offense was the assassination of the president of the United States or person in line of succession to the presidency, or of the governor or lieutenant governor of this state, or of the president-elect or vice president-elect of the ¥ United States, or of the covernor-elect or lieu- a. tenant governor-elect of this state, or of a candidate for any of the foregoing offices. For purposes of this division, a person is a candidate if he has been nominated for election according to law, or if he has filed a petition or petitions {- according to law to have his name placed on the ~~ ballot in a primary or general election, or if he campaigns as a write-in candidate in a primary or general election. -2559- 56 - . a ‘ ' | * oo” * “*, . ee” ae ois * “es . =>" > ix a « ~"s, > *. ("Papa AY Soh py Nie SR ae QDS niger Po eter qe Nag Pin .. Sn Fe eee! =) alate = . ou 8 a ? SF ae S&S e. Ce ee ee ee Ns > > + eT bh ee .. Y ~ -~ ° _-* * “wed Pe xh a es. cad a ae we 2 SF nee by ie s “an wi? A a Par ers ar? SS PAA ee ae cat . we mare wee w~* ae ee ee ee OF CIPI “TT ° ' . Ne A . ; ve . oe +0 = ee ee ee one . os . . No. 75AP-355 6 i 4 ‘ f "(2) The offense was committed for hire. ' ; "(3) The offense was committed for the Purpose it of 2scaping detection. apprehension, trial, or ' punishment for another offense committed by the , offender. "(4) The offense was committed while the offender waS a prisoner in a detention facility as defined in section 2921.01 of the Revised Coda. "(5) The offender has previously been convicted Of an offense of which the gist was the purposeful killing of or attempt to Kill another, comnitted i prior to the offense at bar, or the offense at bar was part of a course of conduct involving the purposeful killing of or attempt to kill two or ww ee we ow Se et ee ee eee oe Ri nore persons by the offender. ' | "(6) The victim of the offense was a law enforce- Me ment officer whom the offender knew to be such, }! and either the victim was engaged in his duties i. at the time of the offense, or it was the of fend- er's specific purpose to kiil a law enforcement 2 officer, i i yt "(7) The offense was committed while the offender \. was Coumitting, attempting to commit, or fleeing i! imnediately after committing or aticnpting to i commit kidnapping, rape, agqravated arson, aggra- vated ,obbery, or aggravated burglary." ‘ b ie Se , — : ;' i Thus, the Ohic jaw permits a finding of aggravating circumstances hi t Giving rise to consideration of the death penalty only in the instance of 1 One or more of the seven specified types of aggravating circumstances in conjunction with a murder. Two of those Circumstances were presented to a, eo the jury in this case and found to exist as a fact beyond a reasonable doubt. i . Those were murder for hire and murder while committing the crime of kid- _—. ; napping. -2560- 57 Ne ONE oe oe + eS | ee °« . 2 . -* “ ~~ oe . i ae ~ ~ ' —_—— ; ee ee ee . ° *\ s % ‘ - — « > 4 Fe ON Oe ae PF oe *. r é Pog an dy -. ¥ ty one ~. 2 ep re Fan wa S o ees Fe _* . a” x . = e + i ee *,"e * ® « ‘. ° ie a es er ™& « . ie Aa 3 «* . » ~~! ~~ : =~ : Fig . POT RIM rE By tna PPA pom octet . 5 . te ~~. 2 of 4 a - . * , 2 oe tegen Oe) FPA ORE OOO EMR ‘ a 4 wis , “sa bat, e Ar i - i. . ...* - = * “ oe yes “ore Bena 00 E SO te . is. * ° . sl iz ta ae Stee. aby ee. ~* ¢ - - em et No. 75AP-355 7 R. C. 2929.03 (E) makes mandatory the imposition of the death penalty where the requisite factual findings have been made by the jury beyond a reasonable doubt, unless the trial court makes a factual finding by a preponderance of the evidence that one or more of the mitigating circumstances set forth in R. C. 2929.04 (B) is involved. R. C. 2929.04 (B) provides, as follows: "(B) Regardless of whetier 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 deat" 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 Following is established by a prepondence [preponderance] of the evidence: "(1) The victim of the offense induced or facilitated it. "(2) It is unlikely that the offense would have been committed, but for the fact that the offender was under duress, coercion, or strong provocation. "(3) The offense was primarily the product of the offender's psychosis or mental deficiency, though such condition is insufficient to establish the defense of insanity." As we pointed out in the case of State v. Harris, unreported case number 74AP-580 (1975 Decisions, page 1316), under Ohio law no discretion is vested in the court or jury as to whether to impose the death penalty under this method. On the other hand, certain factual determinations are required to be made. The jury must separately determine whether the defendant is guilty of aggravated murder and whether he is guilty of the particular form -2561- *-— “eo *- § »5 . - ’ . ~ . , = oe : . GN ee ee ee Dey Bid on Eel Se ae ; * ae Nel OPO SOA ‘oe wf I, * re ee rh I'D Le OO ence yet o~ PURE ARO x . “/", “es +A * >, "ad oF", .- a ™*, « a “ales Fy Sy os, * Pr »' * - “ e *..% . ey te “ ~ ‘ afl >. —9- 2" “~ . SS ne . *e a e432 + “x. 7 ue A. * ri oi Yo. Wakes” * RAL. “Ae ea is Sieve 5M. : = - 3 aS - j-'3+ 4 we ° ’ SGg"@ » +s SCCtion is specified jn the indictment P eyond a reasonable doubt, the deat’ Penalty for 299ravated Murder js Precluded when, CONSi dering the nature and Circumstances Of the Offense and the » and Condition history, Character Of the offender, he Following is One or more of t} Cstablishog by a Prepondence [preponderance ] of the Cvidence: "(1) The Victim of facilitated it. "(2) It is Unlikely that the offe been committed, but # WaS under duress, cc "(3) The Of fens Offender' the Offense induced or NS@ would have or the fact that the Of fender *rcion, or Strong Provocation. e was Primarily the Product of the S PSyChosis or Menta] ici CTiciency, though is insufficient CO establish the defense of insanity," » Page 1316), © court or Jury as to whe On the Other hand, The Jury must Separately determine whether the defendant is r and whether he is guilty of the Particular form ~2561]- . * My is >» oo eee —.) Panis SA Seton “wy NT at ay - os Og ae "* a t %. ag! tO pe. ty, . ns “A, we eed te Pee ae eed Mois sw - "* - Com » a a “le, = oe Saree ee . ‘ . oO os wy “es ante “NS ees BM wee = VL 4 a ae = , ake ie Sa ~~ 2 “Gs, ~ . . oe," * » OOS ny - . ~~ r Ver acer ‘ ‘a -. + - _ .’*,"# rd 2 hoe: “ a” © hun. f..* r. —_—-~ ee —ee ee ener ss ane ee oe a. — —. oee No. 75AP-355 8 of aggravated murder which requires imposition of the death penalty. If the jury so finds, the tria] court must then make a factual Finding as to the existence of one or more of the mitigating circumstances. The court has no discretion as to whether or not to impose the death penalty, but must impose it unless it is established by a preponderance of the evidence that at least one of the three mitigating circumstances exists, and cannot impuse the death penalty otherwise. In light of the recent decisions of the United States Supreme Court, we must first consider whether the general statutory scheme in Ohio meets constitutional muster. If the answer to that question is in the affirmative, we must then consider whether the particular application of those laws to the case at hand meets constitutional and legal requirements. The first issue, which is now easily answered, is whether the death penalty in itself violates the prohibition against cruel and unusual] punishment, prohibited by the Eighth Amendment to the Constitution of the United States. That question was left unanswered in Furman, but was unequivocally answered to the contrary in Gregg v. Georgia. The United States Supreme Court pointed out that history and precedence Strongly support . a negative answer to this question. Legislative response, as indicated by the Ohio statute, demonstrates society's endorsement of the death penalty for murder. In Short, a local determination that capital punishment may be necessary in some cases has not been demonstrated to be clearly wrong. However, because capital punishment is unique in its severity and irrevocability, the Supreme Court has stated that the punishment of death must not be dis- proportionate in relation to the crime for which it is imposed. In Ohio, as in Georgia, capital punishment has been imposed only for the crime of -2562- 60 ary *oosa» oe ... 2G - “Ds, amy rot tat om. yy “e? oo me PON Raed ee Sten" = . ee _ Pe Te ts, ete Se fe #, . >% Pw all —_ a es ba eat Sa Ses a “Ae >on ee Ae mies ign a ae: a. Ss ol + a ae PACS 2 “Ais onl . 723 No. 75AP-355 9 murder, where a life has been taken deliberately by the offender, in which instance the United States Supreme Court held that it cannot be Said, as a constitutional Proposition, that the punishment is invariably disproportionate to the crime. Thus, the death penalty provided for in Ohio is not in itself constitutionally invalid. The next issue is whether the Ohio method for imposing the death penalty creates a substantial risk that it will be inflicted in an arbitrary and capricious manner, as prohibited by the court in Fursnan. “Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be Suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." Gregg v. Georgia, supra. Georgia, as Ohio, narrowed the class of murders subject to capital He ° i” punishment by specifying ten Statutory aggravating circumstances, one of ~~ Ae 2 ey ‘ ye ‘- A. ~ P; ‘ y ** pete. Keine, Se OTS * r $e. a Sg ~S »,* “tos a a ar, OEE, : ~My. Poe f -- te? ne wi i oe “Sy ae as Nereis % . *- eP ~ = rx) ae rt 2 wee wi? Ymazt x Nes? wee e's oN BaP Vote cats a ame ° “es ‘6. ‘ , oh . - No. "75AP-355 W mitigating factor is that the offense was primarily the product of the - Offender's psychosis or mental deficiency, though such condition is insufficient to establish the defense of insanity. In considering this mitigating Circumstance, the court is instructed to consider the nature and circumstances of the offense and the history, character and condition Of the offender. This permits, if not instructs, the court to consider *. factors such as prior history of criminal activity, the amount of partici- pation by the defendant when accomplished by another person, thc youth of the defendant at the time of the crinic, as well as the mental and physical condition of the defendant. The fact that the trial] judge makes this determination in the bifurcated trial, rather than the Jury, does not ‘render the Ohio inethod unconstitutional. In Florida, a jury renders an advisory verdict, but the final determination is by the court who is not required to follow the jury's recommendation of wercy if the facts are clear and convincing ‘in Suggesting a death penalty so that Virtually no reasonable person could differ. That method is constitutional. See Proffitt v. Florida. As the Supreme Court pointed out in Proffitt, judicial sentencing should lead to greater con- Sistency in sentencing, as a trial judge is more experienced in sentencing than a jury. The fact that determination of mitigating circumstances and subsequent sentencing is exclusively placed in the hands of the trial court in Ohio is proper. The fact that Ohio has not specified Standards for review and comparison of death sentences as does Georgia and Florida does not invalidate . -——, [Sy “Pay, PES: — 2565 ‘ — J- ~ a ! 63 ww, # See lp am ‘ Sa Sek a Mee ely Ne. / “et nae fae ol ror pe | ae a>. ro Pt a “~ OAs, ~ yeas al i “/ —% aaa. tah oe to”, wt ee me's, “af ~ ; po id Nad * _ ~~. . ‘ > - Z o y . . il Ne es -. % . a? 4 Powis a? “ = a SSN a ee a EO IR Hees PC Nee Et ob OS SPR SAIL: * 7 OO oe w * * , 4 > AE Te eS “ ; Fe ~ ping ah ¥v e nk - ~~. er 13. eo ae oh al > ‘ ay Re ri (4 ; Dy a et, sae torr % -~ ~ ay e ‘yt royv7F pot Paes : . + ALO + PS No. 75AP-355 13 In substance, the five cases decided by the United States Supreme Court establish three factors that must be contained within a System for imposing the death penalty in order for it to meet consti- tutional muster against arbitrariness or caprice. First, there must be a reasonably definitive systei for reaching a factual finding as to the existence of aggravating circumstances. Ohio requires such a finding by the jury beyond a reasonable doubt. second, there must be opportunity for consideration of mitigating circumstances of a sufficiently definitive nature. Ohio provides for consideration of ail relevant mitigating cir- cumstances in a sufficiently definitive way to meet constitutional muster. The fact that the finding is by the court, rather than the Jury, does not affect the constitutionality of the Ohio statutes. Third, there must be 3 Opportunity for appellate review in death penalty cases, inferentially by the highest court in the Stale, who can provide the degree of uni formity by their review necessary to act as a safwquard against arbitrary imposition of the deati sentence on a different basis in one section of the state than in another. The nature of the review need not be set forth specificaily. Ohio has provided that opportunity by making mandatory the review of death penalty cases by the Ohio Supreme Court. None of the systems reviewed by the United States Supreme Court involve a jury finding of aggravating factors beyond a reasonable doubt and a finding by the trial court of mitigating circumstances by a preponderance of the evidence. It is our opinion that this System not only meets consti- tutional muster, but also that it is the best method for uniform imposition -2567- 65, , : . . er : a Pu» s > hey en’ ~ ee, a ee Surw .. Sonne See ee ke oe ~* OE hha hese oat ate FPL ~s, me OS aw.” ok YES ewe eo aN, Or ee: Payee ee ad 7 & Sa i. os 4 . ~. Ps eed mee a ° "7 ~s “ aor en he i ME oe x “2+ ie Fee : ca ‘Oe oe: Pa * a ° . a Pad x «%.** x Pm APM Hat w~S @. 4 1 Pe. s mange m oom s No. 75AP-355 14 % t : of the death penalty, once the policy decision to provide the death penalty has been made. At the point that the court considers mitigating circumstances, we have had a unanimous jury finding that a specific aggravating circumstance existed beyond a reasonable doubt. At that ri point, it is appropriate, within the local legislative prerogative, to re- i. quire an affirmative finding by the preponderance of the evidence that there 7 was some specific factor in the nature of the crime or propensity of the : ne individual to miti§ate the death penalty that would otherwise follow. In ‘ ' ; } the bifurcated trial, there is an opportunity at this point to place before i: t it the court all circumstances relating to the consideration of mercy to the defendant. The trial court is required to order a presentence investigation i and a psychiatric examination to be made with copies of the reports to be jf furnished to the offender and his counsel. The offender may make a statement without being subjected to .cross-examination, if he chooses not to be under Oath. While the procedure for inflicting the death penalty may place a te greater burden upon the defendant in regard to mitigating circumstances HH than in some other systems, it also provides a fair and nonarbitrary system f. for that determination. It ¢s within local leyislative discretion to require that the mitigating circumstances be shown by the preponderance of the evidencc Knowledge of mitigating circumstances is much more peculiarly within the . hands of the defendant than the prosecution. The defendant has no specific burden to produce proof of mitigating circumstances and the court has the burden to order evidence to be produced by objective outsiders not connected to either the prosecution or the defendant. -2568- 66 SNR athe ASO» 4 G > we Vw, Dit an x . 2 Zé.” * te e «fe o % wer, : Z ~ al VY, */ ee Neen “> os Wr 4 ane , . - - we, La) _ , . “s a DP hee” pa , oS Swell o%, ae, a Pe a ees cade oh se -"s a ; ~*e a a Te %s ~" Seas, ™ V™ «eos ,” a, Fee y 7ohs LIEN By Pw No. 75AP-355 15 Consequently, in light of the recent decisions of the United States Supreme Court, the Statutory scheme for enforcement of the death penalty in Ohio meets constitutional muster and is not in itself improper. Proof of lack of mitigating circumstances is not an affirmative defense nor an item of proof placed upon the prosecution by R. C. 2901.05. As in many other criminal] cases, the court is given the authority to mitigate aU punishment that would otherwise be = et oe ae tS ~~ 4 applicable by individually reviewing ” bs ™, . 2 a BAS circumstances concerning the crime and the individual who committed it. The only basic difference is that more specific guidelines are provided aS be +E =e for the court to consider in finding mitigating circumstances to contro] its discretion within constitutional limits. lr 5 Following the jury verdict of guilty of aggravated murder with aap ey >. 4° R53. ° ¥} ¥ = % ize Specifications, the court ordered a mitigation hearing, as required by R. C. 2929.03 (D). Ae ta Prior to the hearing, the court ordered a presentence investigation and referred the defendant for two psychiatric examinations. > ay is “1 a ae oc The hearing was conducted by the court, calling the psychiatrists to the a ™”) “Stand and first examining them himself. The first psychiatrist, Dr. Jack Eis + i . es oa) + > Morganstern, testified that he is board certified in adult, child and Seat ray * na NS x fF ee: -2569- a Big . — ™~ F ie " a Sill all Pt ae a ‘ > & - - - : _ ee ed ee et ne 2 Sea ayy =. 2a one Xa ee lt a tate » ate": LPC Po tay ’ r vo ate an” -".. on VRE, o, - Ne, on eh, ay. > 4 . Ze eg wr 4 ro et . . ¥ ap 8 at 0 Mame 7 ’ ~, & pf? of anrec’. t* Ma” "mr J ” he ee ~ ¢, . ay aga x oe” Ae 4 * € Pe te ok - > . ere e's ; Sn wv 2 ay As ~ - ? we ae a oe ‘s a ee we y* “~~. _ Pus: - as’,.% - wet” ith ‘edb ¥ ve or wm OT OS Fe ' ? We? oS “A” he aie - a NAF, vale Mele . n* es , . — he ¢ ™Y ie SEP ang ye ‘yp a . we oe A - at a ‘we i wre . “e+ . a. — — - No. 75AP-355 : 16 aii: administrative psychiatry, and is executive director of the Columbus Area Community Mental Health Center. Dr. Morganstern testified that he —_——— found no evidence of psychosis, mental deficiency or other psychiatric disorder on the part of the defendant. The court permitted ample a Opportunity for cross-examination by both the state and the defense counsel. The second psychiatrist, Dr. Jaime Smith e Incas, who is an associate professor of psychiatry at Ohio State University College of Medicine, testified as to his examination of defendant. The only evidence of mitigating factors that he stated was that the defendant felt he had been seduced into the situation that he found himself in, to wit, convicted of aggravated murder with specifications, by “helping a friend." Dr. Smith € Incas, at the first hearing, ended up by stating that he would like a further et etait for examination before submittine a final opinion. he was given that opportunity and, after further exa mination, he was simply unable to state that the defendant was under a psychosis at the time of the murder. The chief probation officer of Franklin County also testified and stated that their investigation revealed no evidence of miti- gating factors. The only other witnesses at the mitigation hearing were the deferdant's mother and a friend of his mother's, both of whom testified that he was not a violent person and that they believed him not to be capable of the violence herein. The appellant complains that the psychiatrists who testified Should have been more definite as to their conclusions, rather than stating that they did not know whether he was a victim of psychosis or that he possibly could have been. That complaint is not well taken. -2570- 68 . : 5 —. Of eee in dn. re aka — ons he eg Bo, Sore ‘ Dh hee ee Tae TENSE a AO IOSD, oN arte ona tae: “ ae “ Tipe " d eer 4 ~ A “~* a ~ x *" . - we. S a”, *s abe a og ac Vn win 7 4 .,* . wis wr nie, “Se Ye’ CN een ee in ov. ere : - 4, ae’ “oma! oe Te oe Sie i ~~. = ee * Pete gst ye Pek a te SNe oe techn Or . ee SEN --* ° “Se. w 4. swe 2” fae Bee ee KRM fa ee Re yt ~~. . . ’ 4 i . ee ee a s.* oa ae “7 * % Ls Be ¥ a eel ¥ v7 = el . +r eS Errors ae a ’ «3 a eee «wt, MMe & ek 5 KTR id errs ~ ? * YO PAS - ia Me: IAS “ 82s hed st ree . MEAS ey “es No. 75AP-355 17 The court conducted a fair -igation hearing, completely in accord with the statute and permitted ample opportunity for all sides to cross-examine witnesses or produce testimony. There was simply no Substantial evidence of mitigating circumstances. A mere possibility is not sufficient. We presume that such possibility would exist in virtually every case of this type, as it is not likely that a "normal" person would agree to participate in the kidnapping and murder of a stranger who had never done anything tc them for the payment of $500. The defendant did not choose to make a statement, either under oath and subject to cross- examination, or not under oath. From tie state of the cvidence, it would be difficult to see how the triai court could come to any other conclusion than that mitigating circumstances had not been shown by a preponderance of the evidence. Assignment of error number fourteen is overruled The seventh assignment of crror is that the verdict of guilty is not supported by sufficient evidence ang is contrary to law. This assignuent of error requires a review of the evidence upon which the defencant was found guilty of all counts. An impressive chain of direct and circumstantial evidence was produced, linking appellant to the scene of the abduction of the victim on Morse Road and the scene of the murder in Delaware County, although there were no direct witnesses to the murder, other than the participants. Appellant was also linked with Carl E. Osborne, Jr., also found guilty of aggravated murder with specifications, case number 75AP-423. Appellant ) -257\- 69 - - "Ns = ~~ ~ i ~ " a»? pon . On” . - ’ ay re f ey eS ~ a wx xs “ AEA PT Loge 4 TS sae or ees ~~ et PRINS NS ac Rw 2. . ie ' WN . my --. : POS ORNS . “ig © fo POF Po L gn ae fo ae oe Rew eT ee PE GRA OO Bybee ON gE Sone IELTS Tn Fs es! re 2P'4 Py oe “4: oe Roan Ay ie wee 2%; Aenea”: | as a eee ™ aw > “. . «No. 75AP-355 : 18 was identified as involved in the cleaning and changing of tires of the car identified as being used for the kidnapping and transmitting of the , - victim to the scene of the murder. However, by far the most incriminating evidence was the testimony of two neighbors of appellant, who lived in the same apartment complex. Robert Boswell testified that, on the morning of the murder, around 11:00 a.m., the appellant came to his apartment and ‘told Boswell-he had something for him, giving him a box with cotton, in which there was a weapon. Boswell identified state's exhibit 20, a .25 caliber Raven Automatic, as the weapon given to him. Boswell told Michael Goins, alsa a neighbor, about the transaction. Goins came over to the apartment and told Boswell that the “gun was hot." Appellant then related to Boswell] and Goins details of the killing of Hermalee Ross earlier that morning. Boswell testified that appeliant told them that he and Car] Osborne iad abducted Mrs. Ross at the Ontario parking lot and that, during the course of the abducticn, appellant had hit the victim on the head with , a second gun when she put up a struggle. Boswell stated that: this gun was a .380 automatic and he identified state's exhibit 37 as being the same type of gun. Appellant told Boswell that, when he hit the woman, a piece of the gun broke off. At the scene of the abduction, officers coliected two piece of metal, identified as being portions of the trigger guard of a firearm. The appellant and the two neighbors then drove in appellant's 2 car to the vicinity of Alum Creek, where the appellant threw the murder weapon into the creek and from where the gun was ultimately retrieved, being the same .25 automatic pistol previously identified by Boswell, and -2572- SST er Seen gl MP Pe a ae meee ~~ oe a = ome e* ° 2°,° . ng Megat O.. —_—_ 70 SEE ee BSE, ? SP: age pairs mee Pore S Caton Ses Soe are kG SI . Sou S5 ache 4 aes ” Ea Dae pal , eee am Sets oa “ Pre om Be 3 oo MVE oe ee sis be AeA fey: f° ~ ore See 7e* “> -“ “Ne yn «7? No. 75AP-355 19 also identified as the murder weapon Ly Steve Molnar, a ballistics firearms expert. Boswell also testified that appellant had stated that he was paid $500 by Alberta Osborne, also convicted of aggravated murder with specifications, case number 7SAP-327, for his part in the kidnapping and murder. In summary, there was overwhelming evidence, both direct and circumstantial, of appellant's participation in the planned kidnapping and murder for hire of Hermalee Ross. Assignment of error number seven is overruled. In his first assignment of oreuy: appellant complains of abuse Oi discretion in overruling appellant's motion for a continuance. On January 28, 1975, appellant filed a motion and memorandum in support, including a request to continue the case set for February 18, 1975. The reasons set forth were primarily that the prosecution had not yet provided full discovery and the defense needed time to research legal issues. On February 4, 1975, the prosecution filed their discovery in the case, which was followed by appellant's Supplemental memorandum in support of a motion for a continuance. Granting of a continuance is within the discretion of the trial court. There are the competing interests of Speedy disposition of criminal] matters and providing a reasonable Opportunity to prepare an adequate defense. The Ohio Supreme Court has discussed the test to be used in ruling on this assignment of error, as follows: -2573- es - bien: > ‘ A SO aes “Bs 9 «->? 4 - - on: aden Ps —_ OPoe NE bo 4+ 4) Ss" ‘. ering a Sst. 00 NN aw oon tae —— eo eed a 7a! wee es” eo Fins Me 8 Fue ee eh = WO Peds Mma y ene . . 7 a *. _, Pu ~ - Sacenenas So TPA, - ere a Se Ne fac? ’ - “Se ~~ ee a e°., :” ~~ ~. ’ gf. eRe 2 Ie ~~ 8 OO i q cape St, Sy”. . }, . ~ Ry 7 hs No. 75AP-355 20 / - "Has the defendant, in light of the record, received zealous and earnest counsel, and has appointed counsel performed its ful] duty , “intelligently and well," . : State v. Price (1973), 34 Ohio St. 2d 43(at 47), A review of the entire record indicates that the defense represented appellant as effectively as permitted by the facts of the case, and that the trial court did not abuse its discretion in refusing to grant a continuance requested approximately three weeks before the date that the trial was scheduled to commence. It is further noted that defense counsel did not renew the request for continuance at the time of the commencement of. the trial, but, instead, sta‘ed that he was ready to proceed. Assignment of error number One is overruled. The second assignment of error is that appellant was denied fundamental fairness, inherent with his constitutional right to due process Of law and a fair trial, when discoverable information requested and moved for earlier by counsel for defenddnt was not so provided. . Appellant cites two occasions when he claims that discovery was not provided in a timely manner. The first relates to the testimony of Mr. Molnar, the chief firearms examiner for the Ohio State Bureau of Criminal Investigation, who testified that the two pieces of metal found in the Ontario parking lot were from the trigger guard of a hand gun, similar to State's exhibit 37. The second complaint is that the prosecution failed to provide a current address for Robert Boswell who had changed his address Since the time that his address was provided to appellant in response to - discovery. r ~2574- . ow a Se “ese * : p ma, Sr at alg © Sap “OTs SNES a ea OPT ge ieee SY NAPA ON ASA PRS o Net 19 af Se * or ita « - *% ae ow . . . >| ay rs » eG Wat sgh Ge LO ERA Sp lin SD eb ft SOIC at NC RE EG EGET Pat .* . . y om 7?" ti yx - . " . * No. 75AP-355 2) Crim. R. 16 (D) provides as :ollows: a "If subsequent to compliance with a request . or order pursuant to this rule, and prior to or during trial, a party discovers additional matter which would have been subject to discovery or inspection under the original request or erder, he shall promptly make such matter available for discovery or in- spection, or notify the other party or his attorney or the court of the existence of the additional matter, in order to allow the court to modify its previous order, or to allow the other party to make an appropriate request for additional discovery or inspection." In essence, the complaint herein is not that the original discovery provided appellant was inadequate, but that during the course of the investioation and after initial discovery further information came to the attention of the prosecution, who failed to timely supplement its discovery under its continuing duty to disclose pursuant to Crim. R. 16 (D). An examination of the recard discloses that the original discovery ? material totaled twenty-one pages, including a list of the names and addresses of prospective-witnesses, one of whom was Robert Boswell. At the trial, Robert Boswell was produced by the prosecution as an important witness and appellant's counsel objected to his testimony, complaining that appellant had been unable to contact Boswell prior to the trial because he had changed his address. The record also indicates that the prosecution became aware of the change of the address approximately ten days prior to the trial and did not supplement its discovery by informing defense counsel of Boswell's new address. However, the record also supports a finding that defense counsel did not inform the prosecution that he was unable to contact Boswell because of the change of address until Boswell was called as a witness. . -2575- » * .* i P © “ * “tr - 2 ww" 4 Re ** or" LVS eet ~~; vse , faeSPn . Mn wes welors 2 pa aa a baa ae ¢ Hale ar Tin NNN. ad ae "- No. 75AP-355 22 While there is a continuing duty to supplement previous discovery, including the changed address of a witness, the trial court is vested with discretion as to Sanctions, if any, considering al] aspects and consequences thereof. Upon a failure to supplement discovery being brought to the attention of the trial judge, he must consider Sanctions in the interest of justice, as set forth in Crim. R, 16 (E)(3), as follows: "If at any time during the course of the pro- eedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from intro- ducing in evidence the material not disclosed, or it may make such other order as it deems just under the circumstances. " The court, within its discretion, permitted Boswell to testify, as the record did not indicate that defendant contacted the prosecution tu try to ascertain an up-to-date address prior to trial. The efforts of defense counsel may be considered in exercising the court's discretion, as well as the duty of the prosecution to supplement its discovery. An over- Sight of the prosecution cannot be used unconscionably to prevent important testimony from being heard. _Moreover, the record does not indicate that a continuance was requested by defendant in order to prepare for Boswell's testimony or that Boswell's testimony would have been any different or the cross-examination any more effective had Boswell's address been timely supplemented. -2576- a * ~ . . . rae RI re FS PN we TE ie PP TAN ee eke Me 74 gia is “~, % i i «A . _ . “wet 4 . Veree . POPS DG gO NERS OE PENNY og q ah or om = Sar « ’ ‘—-* , -\ oe » y a,* > 4 SE SEIN EIEN IN EN OS rt v . a A vee . - * Ae . ,¢ Seas ane a Potente 7 No. 75AP-355 23 As to the location of the weapon that matched the pieces of metal in the parking lot, the record shows that such weapon was not located until February 18, 1975, the day that the trial commenced. Hence, this testimony was not available to the prosecution until the day of the trial. The prosecution need not discontinue its quest for evidence because discovery has been supplied or the trial is comnencing. There was no request for a continuance and the defense Vearned of ~ testimony fairly promptly. The trial court acted within its discretion in over- ruling defense counsel's objections to that evidence. Assignment of error number two is overruled. The third assignment of error is that the trial court improperly Overruled the defendant's motion for a mistrial, claiming that the trial court failed to protect jury nembers against prejudicial trial publicity. The record shows that defense counsel, at the commencement of the procecdings, the morning after the jury was impaneled, brought to the court's atiention a news article, which appeared in a Columbus newspaper the previous evening, referring to the case. At that time, the trial court asked each of the jury members individually whether they had read any news article which was published in the previous day's papers and all answered in the negative. Again, on the fourth day of trial, defense counsel stated that the morning edition of a Columbus newspaper had an article on the case, concerning tapes. A legal intern working for the defense counsel indicated to the trial court that he had seen two jurors reading the paper, but that he could not see which article. He also saw a third juror walk into the -2577- * No. 75AP-355 24 courtroom with a newspaper under his arm. Once again, the court indicated to the jury that they were not to read any articles on the { case, as they had been previously informed on more than one occasion, and then questioned the jury individually as to whether they had seen any article dealing with the case. Once again, the record indicates a negative response. The procedure of the trial court was proper. The trial court determined to his satisfaction that his instructions concerning news accounts of the case had not been violated. No request was made by defense counsel for further inquiry or instructions. Assignment of error number three is overruled. The fourth assignment of error is in regard to the testimony ~~ of Michael Goins. The court called Michael Goins as the court's witness, telling the jury that anything Mr. Goins testified to in the Weind tria} o Will not be used as evidence against him in any trial in the future. Appellant complains of two matters. First, appellant complains that the trial court failed to instruct the jury on “use inmunity"; and, secondly, that the trial court should not have been permitted to call Goins as a witness of the court. The first complaint is that the trial] court failed to instruct the jury as to "use immunity." The record Shows that the trial court, in effect, gave this instruction by telling the jury that any testimony that Goins gave could not be used as evidence against him in any other action. There was no objection to this statement or request for a more specific -2578- 76 -_, ae ‘aah - BOE wea ee ee ae, Anat tae + 50 OS ee” re yet fee tint tet s wae — why Pe ated ~~ > fre "we “ip! aN a aon. wt, ar li we ee we oy -- ee Ve. . se ‘ _* 2. ss @., © 7S", .., ? -_ e Pa rpetn oe Pasi “Nat Poe pM ast Beets Getln goo teh “0.4 Seen W>,. 0° Sut sw Pg Sandy Sen affect No. 75AP-355 25 “use immunity" instruction. Crim. R. 92 (A) requires this court to disregard any error, defect, irregularity or variance which does not Substantial rights. Crim. R. 52 (B) permits only plain errors or defects affecting substantial rights to be noticed when not brought to the ; , } ; attention of the trial court. The error herein does not affect Substantial rights and must be disregarded. The second objection is to the trial court's calling Goins as its own witness. While the trial court may not take the role of an advoca te, it is certainly within the tria] court's prerogative to cal] a person as a court witness when that individual possesses knowledge material to a just determination. Frequently, both parties have reasons for not wanting to call a witnes » although the testimony is important. As indicated in an authoritative annotation: “The authority of a trial judge to call a witnes in a criminal prosecution as the court's witness on its own motion or at the request of one of the parties has been recognized in all jurisdictions in which the question has been considered. " see 67 A.L.R. 2d 538, “Courts witnesses (other than expert) in criminal prosecution." The fifth assignment of error is that the trial court failed t 0 instruct the jury to disregard all testimony regarding alleged tape recordings between witness Boswell] and witness Goins, would not be admitted into evidence. rn OS Ng ange tng, Pl te ON Sy OTN, ee Ye Mi # . ‘ om oe ata®*> *& ~* ag tO Dnt dg on Og, army HNO, 8 te eR yee as ae a ee ee ee ee NS Me CTR i eet FO a owen gt IRIE wee fh we>:, ern . yi. - 2 ~ > eet: = a - , ae ee ce “~ oe Mey stem, . . “ wes “Ss ame 4 * S-—- ** AOS os? . . » xy ‘ty Meta aN ie ot te ed _-.,. ? ~ _ 7 va » . , e . a , “~~ “tie” * “* anh the » £9 . oP ae > oe “ > 47 ow . — .** ~* - Py Po K, - ~~ " pwd P re a ~ a, ~ toe - Now * ~ N os “ae “f A *~e.’ ra Fae, 7 om y ~~" . ’ > at oes" : No. 75AP-355 26 The record shows that the irial court ultimately sustained objections to the admissibility of the tape recording without permitting i the substance of the testimony to be heard by the jury, although there was preliminary testimony about the tapes. When the court conclusively ruled the tapes would not be admitted into evidence, there was no admonish- ment to the jury to disregard any testimony they heard about the tapes. No request was made for this instruction by defense cuunsel and no request ‘ for instruction was made at the conclusion of the trial court’ S charge to the jury. Once again, Crim. R. 52 (A) permits this court to consider errors which were not raised at the trial court by proper objection only if it is a plain error affecting the substantial rights of the defendant. The error, if any, regarding the Lapes in this case was not of that deyree. Assignment of error number five is overruled. we The sixth assignment of error is that hearsay testimony was admitted, denying defendant his right to confrontation and due process of law. Two witnesses, Kay Osborne and Zebby Zweydorff, testified that Carl Osborne (codefendant separately convicted of the same charges) came into their room the morning of the murder and said that he and appellant were going to get something to eat and were using Kay Osborne's car, the : car ultimately identified as the murder car. Defense counsel objected to this testimony and the trial court issued a written ruling, overruling the objection on the basis that there was ample evidence tu establish, prima facie that a conspiracy existed between Car] Osborne, Alberta Osborne and the defendant. um -2580- a ine sited Sh Nal a eee ‘ _ “ rod ~ Ye eter oe, wy ie 7 og ovisy,! Sra alae res Vie y. *y fee eo ON we - RS viet a ~~ “ ne one 7 . en ~~ 3° * ig tol = Ro« ~ + “A = Be - tan Sie! pane ‘ ‘ , ‘ e -. x ew * ae . . , ‘ . , vr ® ’ . ‘ . : ** - —- ~* “ “wer wa 7 em « YY ytwAs, sé ~s A New a Ce ea te Oe Pe ee ie lie is ww » ve or, y* “as fay e\ee ee te es " ae 1” me Pog Syne pre Sets - a, ancy hy Ae” 7 7 ors oy: en” veep, o hat tT . ~ . 4, a whe . ee a " ‘ ~~ a ay a. ot ee Petes i, @ Yectgh. 00'S WOR od. bit ie a eT ee ae ee ee ve NESS re een’ oe Dee ok a ee >. “T , \ No. 75AP-355 28 murder for hire and murder while c: tting a kidnapping offense. As we have previously held, in State v. Fluellen, unreported case number 74AP-138 (1974 Decisions, page 1920), it is proper to submit both of the counts to the Jury. Of course, when only one murder is involved, . the defendant can only be sentenced for a single aggravated murder Assignment of error number eight is overruled, The ninth assignient of error is that the trial court refused to charge the jury on the lesser included offense of obstruction or justice and improperly recharged the jury on aggravated murder After the jury began its deliberation it requested, on two Occasions, the rereading of testimony of certain witnesses. Thereafter, on the second day of deliberation, the jury requested the court to Clarify the charge of aggravated murder by prior calculation and design. Over objection of defense counsel » this charge was replayed, It is within the discretion of the court lo replay certain portions of the trial testimony on to repeat portions of the charge as . requested. The record does not discluse an abuse of discretion. Moreover, the trial court did not err in refusing to charge on obstruction of justice. Obstruction of justice is not a lesser included offense of the charge of aggravated murder Appellant's assignments of error are overruled and the judgment of the trial court is affirmed. STRAUSBAUGH, P.J., and REILLY, J., concur. ~2582- 80 , , wee’ » i ie hele . mA ’, ‘ ere 1 7 ‘ . - “4 hg aire ORS. mn Mis hes as we ae “108 ’ ayes a) nt. eae ee he Ne Sie . Nee ht . Fv oe, Pure se J Pe 4 eye oe ray ~ 7 gt RON - \ oe wy *> ~ "« ~ san tpl . “ poms ¢ a Pat A db daanh od ’ , of ia . Mad 9 “% “ >” ree Se ee a + Meh ve Fe yaton a ah 4g ae ’ ert \ a , rN AY - ~ ’ ° / ‘ ’ ’. wes* Sao i . ~-* yet ~ - mire! ‘ »' d + - o ’ “~« »* Meo , e sd - . ae “ e."5 . ° 4 V/ oe + . , mea TT ¥@ , . , a = ." . *. ‘ APPENUX @ Tuesday Afternoon Session February 15, 1977, WILLIAM LAZAROW Called as a witness on benalf of tne Defendant, naving been first duly sworn, testified as follows: P MR, SCHWEICKART: 1f I may, Your Honor, I think to help focus tnlings, and I'm sure for tne Prosecutor, because ne doesn't know wny I called Mr, Lazarow, to give Just a brief statement as to -- in tne way of an opening Statement, With respect to Mr. Lazarow's testimony on tnis motion, if Il may, THE COURT: Why don't you just ask nim. I tnink we'll figure it out, MK, SCHWEICKART: Okay, very good, DIRECT EXAMINATION By Mr. Scnwelickart: &. State your name, please? A. William Lazarow. Q. And wnat is your occupation, sir? A, I am an attorney, My office 1s located at 16 Kast Broad Street, Columbus, Onto, OFFICIAL COURT HEPONRTERS COLUMBUS O10 45215 need ‘o'4) 4627-3990 peAti OOF OM tree FRANKLIN COUNTY ) 82 * , . 2 one . pd wr = AON reg es. a ™ ~~ An Me - ? he _~ 4. oars wre? ; * OE phe No 7 a ‘ ~*~ Js Po Pa -, "ey . ae ‘ wate, x vada 4 ates 5 eh A a pat a tet pete tN s ey, >. i 0) ay . "ty ll - - aie rh: awe oi yc ” * | * | : ‘ PY | %. Mr, Lozarow, ve; ‘cently nave you nad an 2 , 5 . . ee z . Opportunity to be represe, 6 @nyone charged witn a capital A. Yes, I was appointed, recently, to represent ote | offense? } | | (ea) Mr. James Lockett ln Summit County, tne cause Of State of | 6 OUnlo versus James Lockett &. Now, with respect to your representation of Mr, Lockett -- this is a C4épital case in tne estate of Onio? A, Tnat is correct, V YW, Okay, NOW, were Lnonere any Cod: fendants on that | , 1] ‘ ’ } . , Ny | case? | — ‘ | 2 |} A. Maybe ] Should glve just a Little bUcKKround, | IJ A] we ai { di | | | '4 A, Mr, Janes Lockett Was one of four individuals = 1d || Chérged in a felon murder case wnicn 8rose in January of l, 0 | 16 1975 in Akron, Onlo. 7 THE COURT: Isn't that tne case tnat just came out i! 18 in tne O., bar? 19 THE WITNESS: Tnat's correct. 20 ] THE COURT: And ] "nink the Gay arter it came out l 2) | I was talking to you or tne da -- 1 remember you were «-« ? 7 J é2 MR. SCHWEICKARY: You were Valking to me, I believe, {| 23 | THE COURT: Was it you? \ | . 24 ! THE WITNESS; [ don't tnink J] nad any conversation 25 || Witn you, UPFFICIAL eFC HT REPORTERS COLUMUUS, OIG azzi6 meet eres | HANKLIN GOUNTY O14) 462.3900 fw ] 4 a | eet . ] “"; , ’ THE COURT: I ki about tne C48@; it's a reported O : case, ae ’ THE WITNESS; There were two cases reported tne 1 tel ; ' r¢ “b vo 4 Same day. James' case was reversed, He nad been convicted rv ’ 8nd given .-. Sentenced to the deatn penalty, Hig Sister, | b Sandra's case was affirmed on tne same day. She also nad i. y been sentenced to death. Sy ~~ : Uy) ° 4 . . 7 a Q. (By Mr, Scnweickart ) Okay. Now, nas tne case of James Lockett been remanded for new trija)? 10 A, Yes, it nas, oe NM Q. Now, recently, and using recently, let's take you Al's, "ye . 12 back to the events of yesterday, being February 14, 1977, | IJ | ld you nave tne occasion to engage in any plea bargaining | | 4 Witn representa tives of tne Prosecution for the Sta Le of 5 Onio on tnis case? 16 A. Yes, I did. We did nave a hearing yesterday 7 morning ln Akron. At tnat time I met Mr, Kirkwood of tne aN 18 Prosecutor's Office in Summit County wno inforned me tnat ne : | W8S tne cnief trial counsel tnere, We dig nave Some dig- 20 CuSSlons on POSSibly resolving tne Case Shiort of trial; and 2! ne did come up witn a proposal, 22 “%. Can you tell tne Court wnat tne proposal was? a3 MR. TODARO: Judge -- h r Ae 24 THE COURT: 17 don't see now it's relevant. 25 MR, SCHWEICKART: Your Honor, that's wnat I Say, if OFFICIAL ¢ OuNnT ty PONTE HG 00s. menace COLUMBUS, OMIO adais ees ain a2e0 FRANKLIN COUNTY ‘ 84 i . ' mar, Patt Hee Lien, “ C the (paver tees “pat 7) ta trons “i mn en , Ky ee MS ae Ne Raa labs . a a ee on yA entry + aa Li ete ’ Vf. . - * yb ie my 4m, notte VEN Taare tipds SEY Ke it PS alee Nhe tM Sie Me ron mow. ee Meta - by ad Lv Petee' i “\ . ~ Pale " @ads oo - bf . ’ I nad an Opportunity to - THE COURT: Take, fer the answer, l don't see now it's relevant, but answer it for tne record, P = S . Mee ‘ai ‘ | MR, TODARO: Note my objection. 5 ° } THE WITNESS; lt was suggested tnat we plead } ¢ || Mr. James Lockett, wnose case Was remanded, guilty to i im | ps 4 t', | 1 its 2 y | aggravated murder; tnat tne deatn specifications would be “° | ee S| | ‘ | oa 8 | Cropped; and tnat tne Prosecutor's Office would nave a ee | y | in Sandra's cose, it be brougnt back to tne Court Lnroughn a | 10 | post-convictlon action, nave ner conviction not reversed, but | 'L | | vacate ner conviction and nave ner also plead guilty to | * 12 | 8G66ravated murder witnout the Specifications, tnereby taking \ 3 ner off of death row where sne now lg, id 50, in effect, tney offered to nave Mr. Luckett ‘.," 15 } Plead guilty to murder witnout Specifications; tnen nis a ‘ 16 | Sister, wnose case nad been affirmed by tne Onio Supreme | i! 7 | Court, would tnus be Vaken off of deatn row and nave the | ’ 8 |) =deatn penalty removed from ner nead, i] ‘ | Pe 9 “. (By Mr, "CNwelckart) In otner words, to use the an |i | , ) | =prosecutorial Ciscretion representing tne State of Onlo, the 1] | Z| Summit County people, in *SSence, offered to not to kill | | 22 | James Lockett's sister if ne would plead guilty to aggravated | | i] , . 23 |; murder, 18 tnat correct? 24 | A, That was my unde ‘Standing. 25 | Ww. And to your knowledge, was any of this negotlation | VFPFICIAL COUNT ly PORTERS ef COLUMUUE. Oni 45215 ee | | FHANALIN COUNTY ‘@'4) 462.3300 85 . o s oe _* , 4° . » oh ew 4 ee et he de Lew et. | S.C a es glad nae aa Pee “~ tees Nr. OS pNP ig? Yoo Sony s ay; Ne A pg Pal yh ‘ “os U.P’ Ye . Ma ’ wy “im ~~ ean he. oie ot? a aA, 8, ‘eX ~ ; Z ie. ye vig) ghe ir Py “a s 4 id ~\ ~/ i as . we eed”, * we P A _* “ne P -. | ie ." *, * eT ” so tft nt net ys P ‘ie kl Wel as a tll Wael . ail ie ofa Plt ai > a‘ ¢ ote & ? *-* v a ee jaa . Subject to judicial approyvi|? Cl 2 A. Mr. Kirkwood indicated tnat, wnen I asked nim, nore 3 inquired into tne metnod by wnicn this. would be done, the yall 4 metnod by whicn Sandra's plea would be vacated or Sandra's . 5 conviction, ne indicated that ne nad nad no trouble with p 6 this in tne past, tnat tnere were different methods by ee ha 71 which tnis could be done. : f, Noe a 8 We did nave a brief conversation witn tne Judge : 9 on the case, Judge Barbuto, and he indicated in this case 10 that anytning we agreed along tnis line ne would gO along “ie