State v. D'Ambrosio

[This opinion has been published in Ohio Official Reports at 

73 Ohio St.3d 141

.]




           THE STATE OF OHIO, APPELLEE, V. D'AMBROSIO, APPELLANT.
                   [Cite as State v. D'Ambrosio, 

1995-Ohio-129

.]
Criminal law—Aggravated murder—Reaffirmance of death penalty by court of
          appeals after remand by Ohio Supreme Court upheld, when.
       (No. 94-103—Submitted May 24, 1995—Decided August 16, 1995.)
       APPEAL from the Court of Appeals for Cuyahoga County, No. 57448.
                                  __________________
          {¶ 1} This appeal represents the second occasion on which the case sub
judice has reached this court for review. On October 6, 1988, appellant, Joe
D'Ambrosio, Thomas "Mike" Keenan and Edward Espinoza were jointly indicted
on four separate counts in connection with the murder of Anthony Klann. The
indictment charged each defendant with (1) aggravated murder with prior
calculation and design, R.C. 2903.01(A); (2) aggravated felony murder, R.C.
2903.01(B); (3) kidnapping, R.C. 2905.01; and (4) aggravated burglary, R.C.
2911.11. On February 9, 1989, a three-judge panel found appellant guilty on all
counts charged in the indictment. (The verdict was announced February 21, 1989,
following the conclusion of Keenan's trial.) The panel thereafter determined that
the aggravating circumstance outweighed the mitigating factors beyond a
reasonable doubt, and sentenced appellant to death on the aggravated murder
counts.
          {¶ 2} The court of appeals affirmed the convictions and the sentence of
death. Thereafter, this court affirmed the convictions in State v. D'Ambrosio
(1993), 

67 Ohio St.3d 185

, 

616 N.E.2d 909

 (D'Ambrosio I), but remanded the case
to the court of appeals for an independent review of the death sentence because
several potentially important defense mitigation exhibits were missing from the
record.
                                 SUPREME COURT OF OHIO




        {¶ 3} A summarization of the facts established in D'Ambrosio I is warranted
for the instant appeal.1 On the evening of Friday, September 23, 1988, Anthony
Klann ("victim") and Paul "Stoney" Lewis visited a Cleveland bar called "The
Saloon." While in the bar, Lewis met Thomas "Mike" Keenan, his former employer.
The two conversed, left the bar in Keenan's truck, and drove to another bar called
"Coconut Joe's." Shortly thereafter, the victim, Edward Espinoza and appellant
arrived at Coconut Joe's. Each man eventually left Coconut Joe's at various times
throughout the evening.
        {¶ 4} At approximately 1:30 a.m., Saturday, September 24, 1988, Espinoza
and appellant encountered Keenan outside appellant's apartment. Keenan asked the
two men to help him locate Lewis so that he could recover some drugs that he
claimed Lewis had stolen from him. Appellant and Espinoza entered appellant's
apartment, where they armed themselves, respectively, with a knife and baseball
bat. They then returned to Keenan's truck to assist with the search for Lewis.
        {¶ 5} While driving around the Coventry and Murray Hill areas looking for
Lewis, Keenan, Espinoza and appellant observed the victim walking beside the road
on which they were traveling and called out to him. The victim approached the
vehicle and Keenan forced him into the back seat next to appellant. The victim was
asked where Lewis was, but the victim said he did not know. While the three men
interrogated Klann, Espinoza struck the victim on the head with a baseball bat.
Klann ultimately informed his captors where Lewis lived, and Keenan then drove
the group to the designated location. While Keenan and Espinoza attempted to
locate Lewis inside an apartment building, appellant remained in the truck, where
he held the victim at knife-point. Keenan and Espinoza failed to locate Lewis, so
they returned to the truck and drove off.



1. A more complete recitation of the facts is presented in D'Ambrosio I.




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                                January Term, 1995




       {¶ 6} Keenan drove the group to Doan's Creek, pulled his truck off the road
near the bank of the creek, and forced the victim out of the vehicle. Keenan
repeatedly asked Klann where Lewis was, but the victim denied having any
knowledge of Lewis' location. Keenan ordered the victim to put his head back, at
which point Keenan took appellant's large knife, cut the victim's throat, and pushed
him into the creek. The victim stood up and began to run. Keenan then stated,
"[f]inish him off." In response, appellant grabbed the knife from Keenan and
pursued Klann on foot. Appellant caught Klann, and despite the latter's plea,
"[p]lease don't kill me," appellant fatally stabbed Klann several times.
       {¶ 7} On remand, the court of appeals concluded that the aggravating
circumstance in each count outweighed the mitigation evidence and reaffirmed the
sentence of death. The appellate court further determined that the sentence of death
was not disproportionate to the penalty imposed in similar cases.
       {¶ 8} The cause is now before this court upon an appeal as of right.
                               __________________
       Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and
Carmen M. Marino, Assistant Prosecuting Attorney, for appellee.
       John Ghazoul, for appellant.
                               __________________
       ALICE ROBIE RESNICK, J.
       {¶ 9} Having previously considered appellant's conviction and the issues
raised on appeal in D'Ambrosio I, this court must now complete the review required
by R.C. 2929.05(A) by independently weighing the aggravating circumstance
against the mitigating factors, and determining whether the death sentence is
appropriate.
                                          A
       {¶ 10} We note at the outset that appellant seeks to raise several additional
issues unrelated to our independent review. In his brief to this court, appellant sets




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                             SUPREME COURT OF OHIO




forth seven propositions of law. All of the asserted arguments, with the exception
of Proposition Nos. I(B), IV, VII(A) and VII(B), address issues that were
previously advanced in D'Ambrosio I. The doctrine of res judicata establishes that
"a final judgment of conviction bars the convicted defendant from raising and
litigating in any proceeding, except an appeal from that judgment, any defense or
any claimed lack of due process that was raised or could have been raised by the
defendant at the trial which resulted in that judgment of conviction or on an appeal
from that judgment." (Emphasis added.) State v. Perry (1967), 

10 Ohio St.2d 175, 180

, 

39 O.O.2d 189, 192

, 

226 N.E.2d 104, 108

. See, also, Ashe v. Swenson (1970),

397 U.S. 436, 442

, 

90 S.Ct. 1189, 1194

, 

25 L.Ed.2d 469, 475

. This court affirmed
appellant's convictions of aggravated murder, kidnapping and aggravated burglary
in D'Ambrosio I. The fact that the case was remanded to the court of appeals for
re-evaluation of the death sentence in no way implicated the finality of those
convictions. As such, we reject without further consideration each of appellant's
propositions of law, excluding Propositions Nos. I(B), IV, VII(A) and VII(B).
       {¶ 11} In Proposition No. IV, appellant attacks the trial court's sentencing
opinion. He argues that the opinion is too "conclusory." This argument was
asserted in and rejected by the court of appeals in the original appeal, but appellant
chose not to pursue it before this court in D'Ambrosio I. Appellant's failure to assert
this argument in D'Ambrosio I constitutes a waiver of any claimed error at this late
date. Where an argument could have been raised on an initial appeal, res judicata
dictates that it is inappropriate to consider that same argument on a second appeal
following remand. See State v. 

Perry, supra.

 See, also, State v. Sneed (1992), 

63 Ohio St.3d 3, 10

, 

584 N.E.2d 1160, 1167

; State v. Greer (1988), 

39 Ohio St.3d 236, 247

, 

530 N.E.2d 382, 396

. We accordingly reject appellant's fourth proposition of
law.
       {¶ 12} Proposition No. VII(B) was similarly raised in the initial appeal to
the court of appeals but not in D'Ambrosio I. In this proposition, appellant attacks




                                          4
                                January Term, 1995




a provision of his kidnapping sentence as violating Crim. R. 43(A), which requires
that all trial proceedings, including sentencing, take place in the defendant's
presence. The trial court originally sentenced appellant in open court to "10 to 25
years on the aggravated burglary charge and 10 to 25 years on the kidnapping
charge, and sentence to run consecutively." Thereafter, the sentencing opinion
issued by the court added that appellant's ten-year minimum term for each
conviction was "to be a term of actual incarceration ***." Appellant's decision not
to pursue this issue in D'Ambrosio I constitutes a waiver as discussed above, and
thus precludes him from raising it at this time unless the claimed error rises to the
level of plain error. "Notice of plain error under Crim. R. 52(B) is to be taken with
the utmost caution, under exceptional circumstances, and only to prevent a manifest
miscarriage of justice." State v. Long (1978), 

53 Ohio St.2d 91

, 

7 O.O.3d 178

, 

372 N.E.2d 804

, paragraph three of the syllabus. "Plain error does not exist unless it
can be said that but for the error, the outcome of the trial would clearly have been
otherwise." State v. Moreland (1990), 

50 Ohio St.3d 58, 62

, 

552 N.E.2d 894, 899

.
We find the sentencing modification does not rise to the level of plain error, and
therefore reject Proposition No. VII(B) as waived.
         {¶ 13} Propositions No. I(B) and VII(A) each challenge the lower court's
imposition of the death penalty in light of the evidence appellant offered in
mitigation. It is well settled that any errors that a trial court may have committed
when weighing the aggravating circumstance against the mitigating factors may be
rectified by this court's independent review. State v. Lott (1990), 

51 Ohio St.3d 160, 170

, 

555 N.E.2d 293, 304

. We address this issue further in Part B of our opinion,
infra.




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                            SUPREME COURT OF OHIO




                                        B
       {¶ 14} We now turn to an independent review of the record as required by
R.C. 2929.05(A). The three-judge panel convicted appellant of two counts of
aggravated murder, but since each involved the same victim, the two counts
merged. See State v. Huertas (1990), 

51 Ohio St.3d 22, 28

, 

553 N.E.2d 1058, 1068

.
With respect to the aggravating circumstance of the murder, the evidence
established beyond a reasonable doubt that the murder of Anthony Klann occurred
while appellant committed the offense of kidnapping (R.C. 2929.04[A][7]).
       {¶ 15} Against the sole aggravating circumstance, appellant urges this court
to recognize a variety of mitigating factors. Before discussing those factors,
however, we note that the record contains the three previously missing mitigation
exhibits: appellant's high school record, a presentence investigation report, and a
psychiatric report with addendum.
       {¶ 16} The facts surrounding the offense indicate that Klann was viciously
murdered after being forced into a vehicle, repeatedly threatened, held at knife-
point, and beaten. As such, we find that the nature and circumstances of the murder
are not mitigating.
       {¶ 17} Nothing in the record suggests that Klann induced or facilitated the
commission of his murder, thereby rendering R. C. 2929.04(B)(1) inapplicable in
this case. Defense counsel suggested that appellant participated in Klann's murder
because appellant was afraid of Keenan. Under this theory, appellant's fear caused
him to follow Keenan's instruction to "finish [Klann] off." R.C. 2929.04(B)(2)
designates as a mitigating factor "[w]hether it is unlikely that the offense would
have been committed, but for the fact that the offender was under duress, coercion,
or strong provocation ***." The record fails to support a claim of duress or
coercion in this case. The knife Keenan used to slash Klann's throat was provided
by appellant. Not one witness testified that Keenan had threatened appellant or had




                                        6
                               January Term, 1995




exerted pressure on him to harm Klann. Appellant's acts were a result of his own
free will and, thus, R.C. 2929.04(B)(2) does not apply.
       {¶ 18} The evidence does indicate that at the time Klann was murdered,
appellant was intoxicated. Appellant testified that by the early morning hours of
September 24, 1988, he was "pretty drunk," as a result of having consumed eight
or nine beers and four or five shots of tequila. Other witnesses confirmed that
appellant was drunk during the time in question.          In certain circumstances,
voluntary intoxication can constitute a mitigating factor, albeit a weak one. State
v. Lawson (1992), 

64 Ohio St.3d 336, 352

, 

595 N.E.2d 902, 914

; State v. Hicks
(1989), 

43 Ohio St.3d 72, 80

, 

538 N.E.2d 1030, 1039

. But, see, State v. Slagle
(1992), 

65 Ohio St.3d 597, 614

, 

605 N.E.2d 916, 931

 (alcoholism, addiction and
voluntary intoxication are not mitigating factors). Appellant attempts to argue very
generally that he has a drinking problem, but none of the evidence presented
indicates that he suffers from alcoholism. Although he had a history of binges and
occasional blackouts while in the Army, appellant adduced no medical diagnosis of
alcoholism, despite examination by two psychiatrists who were aware of his
drinking patterns. Furthermore, neither of the psychiatrists found any evidence of a
mental disease, defect or disorder. We, therefore, assign appellant's intoxication
little or no weight under either R.C.2929.04(B)(3) (diminished capacity due to
mental disease or defect) or 2929.04(B)(7) (any other relevant factor).
       {¶ 19} As to appellant's youth, a potential mitigating factor under R.C.
2929.04(B)(4), he was twenty-six years old at the time of the murder. This court
has held on several occasions that where a defendant kills at the age of eighteen or
nineteen, the element of youth is entitled to little weight. See State v. Slagle, 

65 Ohio St.3d at 613

, 

605 N.E.2d at 931

; State v. Hill (1992), 

64 Ohio St.3d 313, 335

,

595 N.E.2d 884, 901

; State v. Powell (1990), 

49 Ohio St.3d 255, 264

, 

552 N.E.2d 191, 201

. Defendant's age of twenty-six clearly negates R.C. 2929.04(B)(4).




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                             SUPREME COURT OF OHIO




       {¶ 20} Appellant also introduced evidence at trial that prior to the instant
offense, his only previous criminal convictions were two convictions for driving
under the influence. This fact is entitled to some weight, given the terms of R.C.
2929.04(B)(5).
       {¶ 21} Appellant urges this court to conclude that he participated in the
events leading up to Klann's death as a follower, not as an instigator, and thus R.C.
2929.04(B)(6) applies. The record does demonstrate that it was Keenan who
initially commenced the search for Lewis and forced Klann into the truck. While
appellant, Keenan and Espinoza each interrogated Klann, it was Espinoza who
struck the victim with a baseball bat. Appellant did, however, confine Klann in the
truck by holding a large knife within inches of his face. It was also appellant who,
after Keenan cut Klann's throat, voluntarily took the knife from Keenan, chased
after the victim, and ultimately inflicted several fatal stab wounds on the victim's
chest, left wrist and right arm. Appellant clearly acted as a principal offender. The
potential mitigation factor in R.C. 2929.04(B)(6), therefore, is not present. See
State v. Landrum (1990), 

53 Ohio St.3d 107, 125

, 

559 N.E.2d 710, 730

.
       {¶ 22} Appellant further offered evidence of his military and work records
as mitigating factors under R.C. 2929.04(D)(7). Appellant enlisted in the Army in
1981 and served until 1985, when he was honorably discharged. While in the
Army, appellant graduated early from his training course, reached the grade of E-5
(sergeant) in less than three years, earned the Good Conduct and Army
Achievement medals, and obtained a commendation for providing "outstanding
maintenance support" to his brigade during a field exercise.         Appellant also
qualified as an expert with the M-16 and other firearms. The Army offered to
promote appellant if he re-enlisted at the conclusion of his initial term, but he
declined. Following his discharge from the Army, appellant was unable to secure
employment as a mechanic, given his lack of certification. He could not afford the
schooling necessary to achieve the required certification. As a result, appellant




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                                January Term, 1995




accepted a job as a gas station attendant, later becoming the station's night manager.
Appellant next worked at Formall Rubber Co., but was fired after six weeks for
"terrible absenteeism and tardiness." Then, approximately one month before the
murder, appellant accepted a position with Keenan's landscaping business. We find
that both appellant's military record and employment history are entitled to some
weight as mitigating factors.
       {¶ 23} During the mitigation hearing, appellant introduced five witnesses—
his mother and four friends—to testify concerning his history, character and
background. These witnesses depicted appellant as a nonviolent person and a
"peacemaker." They further described appellant as truthful, polite, respectful,
caring and responsible. One witness called him "eager *** motivated [and] bright,"
although appellant's high school record reflects a low grade-point average (1.441)
and excessive absenteeism and tardiness. All five witnesses shared the belief that
appellant could be rehabilitated.
       {¶ 24} Appellant made an unsworn statement to the three-judge panel in
which he detailed his life, military career, job situations and his limited involvement
with the law. While he acknowledged that the death of Klann was a tragic event,
appellant denied any involvement with the killing, thereby raising the issue of
residual doubt. Based upon the evidence established at trial, however, we have no
doubt of appellant's guilt.
       {¶ 25} Edward Espinoza, an eyewitness to the murder, testified against
appellant pursuant to the terms of the former's plea bargain. While Espinoza's
credibility was challenged during his testimony, the three-judge panel found his
statements to be credible as to the course of events. The weight to be given
evidence and the credibility of witnesses are issues for the trier of fact to resolve,
not an appellate court. State v. Waddy (1992), 

63 Ohio St.3d 424, 430

, 

588 N.E.2d 819, 825

. See, also, State v. DeHass (1967), 

10 Ohio St.2d 230

, 

39 O.O.2d 366

, 

227 N.E.2d 212

, paragraph one of the syllabus. We have no reason to reject the panel's




                                          9
                             SUPREME COURT OF OHIO




conclusion in this case, particularly in light of appellant's own questionable
credibility. According to appellant, no one—not Keenan, Espinoza or himself—
had a weapon on the night that Klann was killed. The denial covered the possession
of both knives and baseball bats. Three witnesses, other than Espinoza, testified
that they had observed appellant with a knife, and two of those witnesses had
observed Espinoza with a bat. On the whole, the evidence of guilt is convincing,
and residual doubt is not an important mitigating factor in this case.
       {¶ 26} Having weighed the aggravating circumstance against the evidence
presented in mitigation, we find that the aggravating circumstance outweighs the
mitigating factors beyond a reasonable doubt.
                                         C
       {¶ 27} In order to complete our review under R.C. 2929.05(A), we must
consider whether the sentence of death imposed in this case is excessive or
disproportionate to the penalty imposed in similar cases. This court has approved
the death penalty in several cases where the sole aggravating circumstance was
kidnapping. See, e.g., State v. Morales (1987), 

32 Ohio St.3d 252

, 

513 N.E.2d 267

;
State v. Buell (1986), 

22 Ohio St.3d 124

, 22 OBR 203, 

489 N.E.2d 795

; State v.
Mauer (1984), 

15 Ohio St.3d 239

, 15 OBR 379, 

473 N.E.2d 768

.
       {¶ 28} Perhaps the most significant cases for us to consider relative to our
proportionality review in the instant action are State v. Brewer (1990), 

48 Ohio St.3d 50

, 

549 N.E.2d 491

, and State v. Fox (1994), 

69 Ohio St.3d 183

, 

631 N.E.2d 124

. In those cases, the defendants introduced mitigation evidence comparable to,
but even greater than, D'Ambrosio's. Like the appellant in this case, Brewer and
Fox had clean records, histories of legitimate and gainful employment, and several
favorable character witnesses. Unlike D'Ambrosio, however, both Brewer and Fox
demonstrated mental problems and expressed remorse. See Brewer, 

48 Ohio St.3d at 54

, 

549 N.E.2d at 496

; Fox, 

69 Ohio St.3d at 194-195

, 

631 N.E.2d at 133

. Fox
also showed a "relatively successful adjustment to pretrial confinement ***." 

Id.

                                         10
                                January Term, 1995




at 194, 

631 N.E.2d at 133

. Yet, in both of those cases, the aggravating circumstance
of murder being committed during the course of a kidnapping outweighed the
evidence offered in mitigation. We therefore find the sentence of death to be neither
excessive nor disproportionate in this case.
        {¶ 29} Based upon the foregoing, the judgment of the court of appeals
upholding the sentence of death is affirmed.
                                                                  Judgment affirmed.
        MOYER, C.J., DOUGLAS, WOLFF and COOK, JJ., concur.
        WRIGHT and PFEIFER, JJ., dissent.
        WILLIAM H. WOLFF, JR., J., of the Second Appellate District, sitting for F.E.
SWEENEY, J.
                               __________________
        WRIGHT, J., DISSENTING.
        {¶ 30} This court, both by words and by actions, has adopted the position
that the sentence of death is a very different kind of penalty from any other that our
state may impose. During the past ten and one-half years, I have had the ofttimes
trying duty of reviewing more than six-score capital cases. I must say that only two
or three of these cases involved persons whom society would have any interest in
rehabilitating. Joseph D'Ambrosio, the appellant in this case, is an exception to the
general rule just stated.
        {¶ 31} During the mitigation stage of the proceedings, appellant presented
a substantial amount of testimony supporting the idea that he is perfectly capable
of making an honest living, acting responsibly, and contributing to society after
serving a twenty- or thirty-year sentence. The circumstances of this case indicate
that this murder was much out of appellant's character. D'Ambrosio's responsibility
was limited by his subordinate role and the fact that he was under the influence of
alcohol at the time of the crime. Voluntary intoxication may be a mitigating factor
if it either lessens the moral culpability of a defendant for an offense or renders the




                                          11
                             SUPREME COURT OF OHIO




death sentence less appropriate in a given case. See State v. Sowell (1988), 

39 Ohio St.3d 322, 325

, 

530 N.E.2d 1294, 1300

.
       {¶ 32} Furthermore, D'Ambrosio has an excellent military record. He
served in the United States Army from 1981 through 1985, graduated early from
his training course and reached the grade of E-5 (sergeant) in less than three years.
D'Ambrosio earned the Good Conduct and Army Achievement medals and a
commendation for providing "outstanding maintenance" to his brigade during a
field exercise. Upon declining the army's offer to promote him if he reenlisted,
D'Ambrosio received an honorable discharge. After his discharge he had difficulty
finding high-skilled work, but did remain gainfully employed through most of the
period from the time of his discharge to the time of his arrest in September 1988.
Aside from two DWIs, D'Ambrosio has no significant prior criminal convictions
and delinquency adjudications.      D'Ambrosio participated in this crime as a
follower, not as an instigator. I believe beyond any question that the aggravating
circumstance does not outweigh the mitigating factors beyond a reasonable doubt.
In point of fact, the mitigating factors are sufficient to outweigh the aggravating
circumstance.
       {¶ 33} Accordingly, I would reverse the death sentence and remand this
cause to the trial court for further proceedings pursuant to State v. Penix (1987), 

32 Ohio St.3d 369

, 

513 N.E.2d 744

.
       PFEIFER, J., concurs in the foregoing dissenting opinion.
                               __________________




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