THE STATE OF OHIO, APPELLEE, v. LOMAX, APPELLANT.
Nos. 1999-0889 and 1999-1113
SUPREME COURT OF OHIO
September 11, 2002
96 Ohio St.3d 318 | 2002-Ohio-4453
DOUGLAS, J.
Submitted May 7, 2002
APPEALS from the Court of Appeals for Sandusky County, Nos. S-99-014 and S-97-037, and from the Sandusky County Court of Common Pleas, No. 96 CR 448.
DOUGLAS, J.
{¶1} On June 21, 1996, the grand jury indicted appellant, Tazwell Lomax, on six counts relating to a murder and robbery that took place on June 13, 1996, in Fremont, Ohio. Count One alleged aggravated murder with prior calculation and design in violation of
{¶2} Prior to trial, the state dismissed Count Two and all of its specifications, Count Five, and the rape specifications from Counts One and Three. Based upon the remaining allegations in Count One of the indictment, appellant would have been, if found guilty, subject to the death penalty. The case then proceeded to trial, where appellant waived his right to a trial by jury and requested, pursuant to
{¶3} On May 7, 1997, based upon the evidence presented at trial, the three-judge panel found appellant guilty of aggravated murder under Count Three and guilty of committing aggravated murder while committing or immediately after committing aggravated robbery under the second specification to Count Three. Appellant was also found guilty of aggravated robbery under Count Six. The three-judge panel found appellant not guilty of aggravated murder with prior calculation and design under Count One, not guilty of voluntary manslaughter under Count Four, and not guilty of the first specification to Count Three.
{¶4} Following the court‘s May 7, 1997 written decision denominated by the three-judge panel as “verdicts,” and immediately prior to the penalty phase of the trial, appellant moved the court to sentence him in accordance with
{¶5} The pertinent portion of
{¶6} “(A) Imposition of the death penalty for aggravated murder is precluded, unless one or more of the following is specified in the * * * count in the indictment * * *:
{¶7} “* * *
{¶8} “(7) The offense was committed while the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit kidnapping, rape, aggravated arson, aggravated robbery, or aggravated
{¶9} Appellant argued that he was found guilty of Count Three but not guilty of Count One. Since Count Three failed to charge a required element of
{¶10} On May 8, 1997, the court entered a judgment granting appellant‘s motion to be sentenced in accordance with
{¶11} On May 14, 1997, the state appealed the trial court‘s denial of the motion to amend Count Three of the indictment. The state claimed to have an appeal as of right pursuant to
{¶12} Over a year later, on June 26, 1998, the court of appeals reversed the trial court‘s denial of the state‘s motion to amend the indictment, remanded the
{¶13} On March 25, 1999, the three-judge panel, pursuant to the order of the court of appeals, amended specification two of Count Three of the indictment so as to include the “principal offender” language of
{¶14} On April 20, 1999, appellant appealed his aggravated murder conviction and death sentence to the Sandusky County Court of Appeals. The court of appeals dismissed that appeal as well as the appellant‘s previously stayed appeal of the aggravated robbery conviction, finding that, pursuant to Section 2(B)(2), Article IV, Ohio Constitution, it did not have jurisdiction to accept an appeal in a death-penalty case.
{¶15} On May 7, 1999, appellant filed a notice of appeal in case No. 1999-0889 to this court, appealing from the trial court‘s judgment entry and opinion convicting him of aggravated murder and aggravated robbery and sentencing him to death. On June 15, 1999, appellant filed a notice of appeal in case No. 1999-1113 from the court of appeals’ dismissal of his appeal to that court of his convictions and death sentence. Case Nos. 1999-0889 and 1999-1113 have been consolidated for this appeal. Appellant now appeals to this court as a matter of right.
{¶16} Appellant has presented fifteen propositions of law for our consideration. While not presented as a proposition of law, the threshold issue in this case is whether, in light of the requirements of
{¶17} Since subject-matter jurisdiction cannot be waived and may be raised by this court sua sponte, appellant‘s failure to raise this argument on appeal does
{¶18} In order to determine whether the court of appeals had subject-matter jurisdiction to accept the state‘s May 14, 1997 appeal, we must review the requirements of
{¶19}
{¶20} “A prosecuting attorney * * * may appeal as a matter of right any decision of a trial court in a criminal case * * * which decision grants a motion to dismiss all or any part of an indictment, complaint, or information, a motion to suppress evidence, or a motion for the return of seized property or grants post conviction relief * * * and may appeal by leave of the court to which the appeal is taken any other decision, except the final verdict, of the trial court in a criminal case * * *.” (Emphasis added.)
{¶21} Initially, we agree with the court of appeals’ finding that the state did not, pursuant to
{¶22} Turning now to the other pertinent part of
{¶23} Obviously, the key word for us to consider in the case at bar is “verdict.” “Verdict” is defined as “1. A jury‘s finding or decision on the factual issues of a case. 2. Loosely, in a nonjury trial, a judge‘s resolution of the issues of a case.” Black‘s Law Dictionary (7th Ed.Rev.1999) 1554. The three-judge panel styled its findings and order of May 7, 1997, “verdicts.” It did so because that is exactly what its findings were—the resolution of the issues of guilt. When the highly competent panel found appellant guilty of two counts and not guilty of the remaining two counts in the indictment, that was the final verdict in the case.
{¶24} In its May 14, 1997 appeal, the state asked the court of appeals to allow it to amend the indictment so that appellant would be eligible for a death sentence. When the court of appeals ordered the panel to conduct a mitigation hearing on remand, it in effect ordered the panel to make a factual finding that
{¶25} For the foregoing reasons, we remand this case to the trial court for sentencing, with instructions to sentence appellant pursuant to
Judgment reversed and cause remanded.
MOYER, C.J., F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON, JJ., concur.
COOK, J., concurs in judgment.
NADER, J., dissents.
ROBERT A. NADER, J., of the Eleventh Appellate District, sitting for RESNICK, J.
COOK, J., concurring in judgment.
{¶26} I remain unconvinced that the state appealed “the final verdict” within the meaning of
{¶27} Despite my disagreement with the majority over the nature of the state‘s interlocutory appeal, I agree that Lomax is ineligible for the death penalty.
{¶28} Whatever the correctness of the trial court‘s ruling on the state‘s posttrial motion to amend the indictment, the court of appeals should not have reversed and remanded for capital sentencing proceedings that would run afoul of double jeopardy principles. See State v. Edmondson (2001), 92 Ohio St.3d 393, 395-396, 750 N.E.2d 587; see, also, Smalis v. Pennsylvania (1986), 476 U.S. 140, 145, 106 S.Ct. 1745, 90 L.Ed.2d 116 (“When a successful postacquittal appeal by the prosecution would lead to proceedings that violate the Double Jeopardy Clause, the appeal itself has no proper purpose“). I would accordingly sustain Lomax‘s second proposition of law and reverse the judgment on that basis.
ROBERT A. NADER, J., dissenting.
{¶29} Consistent with the concurring opinion of Justice Cook, I conclude that the majority opinion has mischaracterized the nature of the initial appeal brought by the state in this matter. Instead of challenging the factual findings upon which the trial court‘s final verdict was based, the state limited the scope of its appeal to the issue of whether the trial court had properly denied the motion to amend the death-penalty specification under the third count of aggravated murder. As the opening paragraph of the concurring opinion aptly notes, the case law of this court supports the conclusion that the denial of a motion to amend is the type of judgment the state can appeal under
{¶30} However, in regard to the double jeopardy analysis in the concurring opinion, I cannot agree that the trial court was constitutionality prohibited from conducting a mitigation proceeding after the appellate court remanded the case for further proceedings. In Arizona v. Rumsey (1984), 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164, the trial judge expressly found, after conducting a full sentencing hearing, that the state had failed to prove the existence of an aggravating circumstance. After the trial judge imposed a life sentence on the first-degree murder charge, the Supreme Court of Arizona reversed the trial judge‘s determination and held that the state‘s evidence had been legally sufficient to establish the aggravating circumstance. Upon remand, the trial judge conducted a new sentencing hearing and imposed the death penalty upon the defendant.
{¶31} Rumsey ultimately appealed his sentence to the United States Supreme Court. Upon reviewing the nature of a sentencing hearing under the Arizona death-penalty law, the court held that the defendant could not be subjected to a second sentencing hearing once the trial judge had entered a judgment of
{¶32} Under Rumsey, the sentencing hearing in a death-penalty action is viewed as a separate proceeding for purposes of double jeopardy, i.e., the wording of the opinion supports the conclusion that jeopardy does not attach in regard to the imposition of the death penalty until the sentencing hearing begins. Accordingly, the basic principles of double jeopardy would apply in this instance, one of which is that jeopardy does not attach in a nonjury criminal proceeding until the first witness is sworn to testify. Crist v. Bretz (1978), 437 U.S. 28, 37, 98 S.Ct. 2156, 57 L. Ed.2d 24, fn. 15.
{¶33} In the instant case, the three-judge panel granted Lomax‘s motion to be sentenced under
{¶34} In addition to the foregoing, I would further hold that the Sixth District Court of Appeals did not err in reversing the trial court‘s decision concerning Lomax‘s sentencing motion. Regarding the issue of whether an indictment can be amended after a verdict, I note that a number of Ohio courts have addressed scenarios similar to that discussed in Lomax‘s first proposition of law. For example, in State v. Esparza (May 29, 1992), 6th Dist. No. L-90-235, 1992 WL 113827, the defendant argued that the trial court had lacked the authority to impose the death penalty because the wording of a death-penalty specification in the indictment had been deficient. Specifically, the defendant noted that the specification under
{¶35} “Under
{¶36} A similar situation occurred in State v. Biros (1997), 78 Ohio St.3d 426, 678 N.E.2d 891. In Biros, the indictment contained two death-penalty specifications under
{¶37} “However, notwithstanding that omission, the indictment clearly provided appellant with adequate notice of the death penalty specifications with which he was being charged. The record clearly demonstrates that at all stages of the proceedings, appellant understood that he was being prosecuted for having personally killed Tami Engstrom during the course of an aggravated robbery and attempted rape. * * * Moreover, appellant was indicted and tried on the basis that he had acted alone in the killing, without any accomplices. He was the only individual accused of killing Tami Engstrom and, as the only offender, appellant was, ipso facto, the ‘principal offender.’ Based upon the rationale and holdings in [State v.] Joseph [(1995), 73 Ohio St.3d 450, 653 N.E.2d 285], we reject appellant‘s arguments concerning the sufficiency of the indictment.” Id., 78 Ohio St.3d at 438, 678 N.E.2d 891.
{¶38} The Biros analysis would clearly be applicable to the facts of the instant case. The record before us shows that Lomax never objected to the sufficiency of the indictment until his motion for sentencing under
{¶39} Given these circumstances, I conclude that the omission of the “principal-offender” language in the
{¶40} Finally, I would further hold that Lomax was not prejudiced by the fact that the three-judge panel did not make a specific finding on the “principal-offender” issue during the guilt phase of his trial. In Biros, the defendant contended
{¶41} Even though the three-judge panel in this case, like the jury in Biros, did not make a finding on the “principal-offender” issue, the evidence was such that the panel could only have found that Lomax had been the principal offender in the underlying crimes. I would emphasize that, as part of its verdict during the guilt phase, the three-judge panel found Lomax not guilty of the first aggravated murder count, under which it was alleged that he had committed the murder with prior calculation and design. Despite this determination, the panel concluded that Lomax was guilty of aggravated murder. As a result, the three-judge panel must have found him to be the principal offender in the commission of the aggravated murder, since there simply was no evidence or suggestion that another offender was involved.
{¶42} Under these circumstances, the Sixth District Court of Appeals did not err in concluding that all of the requirements for the imposition of the death penalty had been satisfied by the state during the guilt phase. Thus, I would hold that Lomax‘s first proposition of law is without merit.
{¶43} In regard to the other propositions of law raised by Lomax, I further conclude that he has failed to demonstrate that any prejudicial error occurred in the trial proceedings. Moreover, I would uphold the imposition of the death penalty under the facts of this case. Because I would affirm both the appellate court‘s original judgment and the trial court‘s final judgment in all respects, I respectfully dissent from the opinion of the majority.
John E. Meyers, Sandusky County Prosecuting Attorney, Norman P. Solze and Ronald Mayle, Assistant Prosecuting Attorneys, for appellee.
Betty D. Montgomery, Attorney General, James V. Canepa and Norman E. Plate, Assistant Attorneys General, for appellee.
David H. Bodiker, Ohio Public Defender, Stephen A. Ferrell and Pamela J. Prude-Smithers, Assistant Public Defenders, for appellant.