1996 OHIO 91 - State v. Williams

[This opinion has been published in Ohio Official Reports at

74 Ohio St.3d 569

.]




    THE STATE OF OHIO, APPELLEE AND CROSS-APPELLANT, v. WILLIAMS,
                         APPELLANT AND CROSS-APPELLEE.
                      [Cite as State v. Williams,

1996-Ohio-91

.]
Criminal law—Aggravated murder—Death penalty upheld, when.
1. Neither the felony-murder statute nor Ohio case law requires the intent to
commit felony to precede the murder in order to find a defendant guilty of
a felony-murder specification.
2. Whether a person has a “significant history of prior criminal convictions” under
R.C. 2929.04(B)(5) is a question for the jury and is specifically outside the
province of expert testimony.
(No. 94-846-Submitted—December 12, 1995—Decided February 21, 1996.)
APPEAL and CROSS-APPEAL from the Court of Appeals for Trumbull County, No.
89-T-4210.
__________________
{¶ 1} On the evening of August 15, 1988, defendant-appellant Andre R.
Williams and Christopher Daniel assaulted and robbed George and Katherine
Melnick after forcibly entering their home on Wick Street in Warren, Ohio.
Williams beat Mr. and Mrs. Melnick, killing him and leaving her for dead. He also
attempted to rape Mrs. Melnick.
{¶ 2} Between 9:00 p.m. and 10:00 p.m. on August 15, 1988, a neighbor of
the Melnicks heard glass breaking and shortly thereafter heard Mrs. Melnick
screaming “Oh, dear God,” “Help me,” “Please stop,” and “No more.” The
screaming lasted for approximately one hour. No one called the police at that time.
Two days later, another neighbor, concerned that she had not seen the Melnicks for
two days, contacted the police. The investigating officers entered the Melnick
home and found Mrs. Melnick lying under the kitchen table in a pool of her own
SUPREME COURT OF OHIO

blood. Though she had been severely beaten, she was alive. The police found Mr.
Melnick in a bedroom. He was dead, and according to the police report, had been
for some time.
{¶ 3} Mrs. Melnick suffered from blunt force injuries including facial
fractures. As a result of these injuries, surgeons removed her right eye. Her injuries
also caused blindness in her remaining eye and diminished hearing. She has no
memory of the attack. Her underpants, which she had been wearing before the
attack, were found beside her on the floor. A test for the presence of semen was
performed; the results were negative.
{¶ 4} An autopsy revealed that Mr. Melnick had been struck at least ten
times and that he died as a result of multiple skull fractures and other “multiple and
extensive blunt force injuries.” Investigators found several items in the house that
are believed to have been used in the attack on the Melnicks, including a lamp, a
brick, an ax handle, and a piece of concrete block. The investigation revealed that
several items were missing from the Melnick home, including a Magnavox VCR
and Mrs. Melnick’s purse, which had contained approximately $2,000 in $50 bills.
{¶ 5} The ensuing police investigation focused on Williams and Daniel.
Henry Daniel, Jr., Daniel’s brother, and Lisa Tobe, Henry, Jr.’s girlfriend, testified
that they saw Williams and Daniel on the night of the murder at the house of Henry
Daniel, Sr., Chris Daniel’s father. Both appeared “hyper” and spent five to fifteen
minutes together in the bathroom. Shortly thereafter, Henry, Jr. saw blood on the
bathroom wall and on Williams’s hand and Lisa noticed a rust-colored spot on
Daniel’s shirt. Williams and Daniel had in their possession a brown gym bag, a
VCR, and a “nice amount” of money.
{¶ 6} The day after the murder, Williams bought a used car. He paid with
nine $50 bills. Williams paid to have the car repainted with four $50 bills. The
manager of the auto painting shop, who accepted payment from Williams,
described him as so nervous that he needed help counting the money.

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January Term, 1996

{¶ 7} Numerous acquaintances (Jennifer Gunther, Lance Owens, Henry
Daniel, Jr., Ruben Gunther, and Mario Daniel, Chris Daniel’s brother) testified that
Williams admitted to and bragged about his involvement in an assault and robbery
on an elderly couple on Wick Street. According to the testimony of these witnesses,
Williams and Chris Daniel waited outside the couple’s home until the woman
finished a telephone call, and then broke in. Once inside, Chris hit the woman in
the head with a brick while Williams attacked the man with a stick and a lamp.
Williams said they got $1,800 (mostly in $50 bills) and a VCR from the robbery.
Another witness, Estill Peterman, testified that he overheard an argument between
Chris Daniel and Williams about which of them had used the lamp and ax handle
to kill the man.
{¶ 8} With respect to the attempted rape of Mrs. Melnick, Williams told
Lance Owens that just before he left the Melnick house, he was “on top of her” and
was “trying to get some.” Williams told Henry Daniel, Jr., “I raped the lady” and
“I got some butt from the old lady.” Ruben Gunther testified that Williams said he
“got the butt from her.” Mario Daniel heard Williams say he “tried to get some
from the lady.”
{¶ 9} During their investigation, the police found the Melnicks’ VCR (it
was identified by serial number) in a wooded area less than three-tenths of a mile
from Henry Daniel, Sr.’s house. The police also found a brown nylon gym bag
containing Mrs. Melnick’s purse at the side of a road near Henry Daniel, Sr.’s
house. Several hairs found in the purse were tested and compared to hair samples
taken from Williams and Chris Daniel. The state’s expert testified that one of the
hairs was microscopically consistent with Daniel’s hair and that another hair was
similar to Williams’s hair. The defense expert testified that he could not exclude
the possibility that some of the hair taken from the purse was from Williams.
{¶ 10} When initially interviewed by police, Williams denied involvement
in the incident and furnished an alibi. In the course of the interview, Williams asked

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detectives, “Do you talk with judges?” When a detective asked what he meant,
Williams then said, “Would it go easier on me if you talked to one?”
{¶ 11} The grand jury indicted Williams on three counts of aggravated
felony-murder; each count was based on the separate underlying felonies of
aggravated burglary, aggravated robbery, and rape. Each aggravated murder count
alleged three R.C. 2929.04(A)(7) felony-murder death penalty specifications and
one R.C. 2929.04(A)(5), “course of conduct” death penalty specification. The
grand jury also indicted Williams for attempted aggravated murder (Count Four),
aggravated burglary (Count Five), aggravated robbery (Count Six), and rape (Count
Seven).
{¶ 12} The jury found Williams guilty on each aggravated murder count
and guilty on all four death penalty specifications for each count. They also found
him guilty of attempted aggravated murder, aggravated burglary, aggravated
robbery and attempted rape. The jury found Williams not guilty of rape.
{¶ 13} During the penalty phase, the prosecution moved to dismiss the
aggravated murder charges in Counts Two and Three. Thus, only Count One,
aggravated murder based on the underlying felony of aggravated burglary, with
four capital specifications, was considered during the penalty phase.
{¶ 14} During the sentencing phase, Williams presented witnesses who
described his history and background. Frank C. Goodman, Director of Student
Services in Special Education for Warren City Schools, testified that Williams was
born on May 1, 1967, that he was placed in a developmentally handicapped
program in the fourth grade, and that he had IQ scores of seventy-six in 1973,
seventy-eight in 1978, and sixty-seven in 1983. Goodman also testified that
Williams did poorly in school, repeated three grades, and stopped attending school
when he was eighteen. According to an assistant principal from the high school
Williams attended, Williams was suspended during ninth grade for being in a fight
but otherwise had only minor disciplinary infractions.

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{¶ 15} Emma Eggleston, whose son had grown up with Williams, testified
that Williams had “always been a nice, little, young man.” Williams’s cousin
described him as a “kind-hearted, helpful person,” with a reputation as “a nice
person.” Madeline Vail, Williams’s grandmother, who raised Williams, also
testified. She stated that he was a “good and respectable” child, that he was an only
child who never had the aid or assistance of a father, that he never gave her any
particular problems with respect to discipline, respect, or control and that he was
not violent.
{¶ 16} The parties stipulated that Williams had three misdemeanor
convictions in his record: assault in February 1987, assault in December 1987, and
shoplifting in February 1988.
{¶ 17} In an unsworn statement, Williams proclaimed his innocence. He
stated that while he had done nothing to Mr. and Mrs. Melnick, he was sorry about
what had happened to them. He questioned the propriety of the jury’s determining
whether he (or any other person) should be put to death, stating, “there’s only one
person that should judge somebody’s life and that’s God, the man upstairs.”
{¶ 18} The jury recommended the death penalty, and the trial court
sentenced Williams to the death penalty and prison terms. On appeal, the court of
appeals ruled that “the evidence was insufficient to warrant a finding of guilty as to
the aggravated murder count which was predicated on the underlying felony of
rape/attempted rape,” because the state had not proven that Williams intended to
rape Mrs. Melnick at the time that he killed Mr. Melnick. The court of appeals also
found that the trial judge erred in refusing to allow an attorney to express an
opinion, as an expert, on whether Williams’s prior criminal record constituted a
“significant history of prior criminal convictions” under R.C. 2929.04(B)(5). The
court of appeals affirmed the other convictions and the sentence of death with
respect to the other three death-penalty specifications.

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{¶ 19} The cause is now before this court pursuant to an appeal as of right
and the state’s cross-appeal.
__________________
Dennis Watkins, Trumbull County Prosecuting Attorney, and Patrick F.
McCarthy, Assistant Prosecuting Attorney, for appellee and cross-appellant.
Thomas E. Zena and Gary L. Van Brocklin, for appellant and cross-appellee.
__________________
WRIGHT, J.
{¶ 20} We are required by R.C. 2929.05(A) to undertake a three-prong
analysis in all death penalty cases. First, we must review each of the nine
propositions of law raised by appellant. Second, we must independently review the
record to determine whether the aggravating circumstances outweigh the mitigating
factors. Finally, we must independently determine whether the sentence of death
is excessive or disproportionate to the penalty imposed in similar cases. For the
reasons set forth below, we reverse the court of appeals in part, and affirm the
convictions and sentence of death.
{¶ 21} In Proposition of Law II, appellant contends that the jury verdict was
improper because it did not indicate that the jury unanimously found either that he
was the principal offender in the murder or that he acted with prior calculation and
design. We first note that appellant did not timely object to the verdict forms and
thus waived all but plain error. Moreover, each of the verdict forms which the jury
used and signed contained language, conforming to the statute, stating either that
Williams was the principal offender, or that Williams had committed the murder
with prior calculation and design. See R.C. 2929.04(A)(7); see State v. Penix
(1987),