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State v. Roberts

Supreme Court of Ohio

May 30, 2017

The State of Ohio, Appellee,
Roberts, Appellant.

          Submitted February 7, 2017

         Appeal from the Court of Common Pleas of Trumbull County, No. 2001 CR 793.

          Dennis Watkins, Trumbull County Prosecuting Attorney, and LuWayne Annos and Ashleigh Musick, Assistant Prosecuting Attorneys, for appellee.

          David L. Doughten and Robert A. Dixon, for appellant.

          O'Donnell, J.

         {¶ 1} This is the third time this case has been appealed to this court. After our review of the first appeal, we affirmed convictions for aggravated murder, aggravated burglary, and aggravated robbery but vacated the death sentence imposed on Donna Roberts and remanded the matter to the trial court for resentencing because the trial court had engaged in an ex parte communication with the prosecuting attorney and allowed the prosecutor to participate in drafting the sentencing opinion. On remand, the trial court again imposed capital punishment.

         {¶ 2} On the second appeal, we again vacated the death sentence and remanded the case, this time because we concluded that the trial court had failed to consider the defendant's allocution, since it was not referenced in the sentencing opinion.

         {¶ 3} Pending our appeal, the trial judge retired and subsequently died, and therefore a different judge presided over the third resentencing and imposed a sentence of death.

         {¶ 4} Roberts now appeals from that third sentence and presents four propositions of law. For the following reasons, we affirm the judgment of the trial court.

         Facts and Procedural History

         {¶ 5} Previous opinions in this case have set forth the facts of the killing in detail. See State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168 ("Roberts I "), ¶ 1-86; State v. Roberts, 137 Ohio St.3d 230, 2013-Ohio-4580, 998 N.E.2d 1100 ("Roberts II "), ¶ 1-7. For purposes of this opinion, we summarize the facts as follows.

         {¶ 6} On December 12, 2001, Roberts reported the shooting death of Robert Fingerhut at their home in Howland Township, located in Trumbull County. After a week-long investigation, police arrested Roberts and Nathaniel Jackson, [1] a man she had been dating for two years and with whom she had been having an affair. Roberts was separately indicted and tried for the aggravated murder of Fingerhut. A jury found her guilty of aggravated murder with death penalty specifications and recommended a sentence of death, and at sentencing, the trial court imposed that sentence.

         {¶ 7} The evidence presented at that trial reveals that although she and Fingerhut were divorced, they lived together and were regarded as husband and wife. Fingerhut owned two insurance policies on his life with a total benefit amount of $550, 000, both of which named Roberts as the sole beneficiary.

         {¶ 8} Roberts began an affair with Nathaniel Jackson, who later went to prison on convictions unrelated to this case. During his incarceration, he and Roberts exchanged numerous letters, which police recovered from her house and the trunk of her car. Prison authorities also recorded 18 of their telephone conversations.

         {¶ 9} The letters and conversations included extensive discussion of how they intended to deal with Fingerhut upon Jackson's release from prison. Jackson repeatedly avowed that when he obtained his release, he would kill Fingerhut. In one letter, Roberts complained about Fingerhut's control of her finances and urged Jackson to "[d]o whatever you want to him ASAP." At Jackson's request, Roberts bought a ski mask and a pair of gloves for Jackson to use during the murder.

         {¶ 10} On December 9, 2001, upon Jackson's release, Roberts picked him up at the prison and spent that night and much of the next two days with him.

         {¶ 11} On December 11, Fingerhut left work around 9:00 p.m. A witness saw Roberts in her car around 9:30 p.m. She had given her cell phone to Jackson, and telephone records show six calls from her cell phone to the phone in her car between 9:45 and 10:00 p.m., and two more at 11:01 and 11:44 p.m. One call had been placed from her car phone to her cell phone at 10:03 p.m.

         {¶ 12} That night, Roberts went to the Days Inn in Boardman, Ohio, and reserved a room for a week. Police later found Jackson's fingerprints in that room.

          {¶ 13} After midnight on December 12, Roberts called 9-1-1 from her residence and told the operator that something was wrong with her husband. When police arrived, they found Fingerhut's body on the kitchen floor. An autopsy revealed that he had been shot and died from multiple gunshot wounds.

         {¶ 14} At 3:38 a.m., while officers were processing the crime scene, the telephone rang. Howland Township Detective Sergeant Paul Monroe answered, but after a pause, the caller hung up without speaking. At trial, the state established that this call originated from Roberts's cell phone. Roberts later admitted to detectives that "Nate [Jackson] must have had the phone. He's always borrowing it."

         {¶ 15} On the afternoon of December 12, Monroe and Detective Sergeant Frank Dillon interviewed Roberts at Howland Township police headquarters. Roberts described her relationship with Fingerhut as "loving, " but claimed that sexually, Fingerhut "did his thing [and] she did hers." She also told the detectives that she had been in a sexual relationship for six months with someone named Carlos. When Monroe asked Roberts if she had relationships with anyone else, Roberts replied, "No, there's nobody else. I told you everybody." Monroe then asked about Jackson, and Roberts claimed she had forgotten about him.

         {¶ 16} She then admitted that she had been dating Jackson for two years, that he had phoned her from prison, and that they had corresponded. She also stated that she had last seen Jackson on December 9, when she picked him up at the prison, but she added that she had last spoken to him over the telephone on the morning of December 11.

         Indictment, Trial, and Verdict

         {¶ 17} A grand jury indicted Roberts on two counts of aggravated murder, R.C. 2903.01(A) (purposely causing death with prior calculation and design) and (B) (felony murder). Both counts contained two death specifications pursuant to R.C. 2929.04(A)(7): one charging aggravated murder during the commission of aggravated burglary and one charging aggravated murder during the commission of aggravated robbery, with each alleging prior calculation and design and/or that Roberts was the principal offender. The indictment also charged her with aggravated burglary, R.C. 2911.11, with a firearm specification, R.C. 2941.145, and aggravated robbery, R.C. 2913.01, with a firearm specification. The jury found Roberts guilty of all counts and specifications. At sentencing, the state elected to proceed on Count One (prior calculation and design), and the trial court dismissed Count Two (felony murder) and its specifications.


         {¶ 18} Before the mitigation hearing, Roberts informed her counsel that she did not wish to present any mitigating evidence except an unsworn statement. As a result, the court conducted an Ashworth hearing and found her competent to make that decision. See generally State v. Ashworth, 85 Ohio St.3d 56, 706 N.E.2d 1231 (1999), paragraph one of the syllabus. At the mitigation hearing, Roberts exercised her right pursuant to R.C. 2929.03(D)(1) to make an unsworn statement to the jury and declined to present any other evidence. The jury recommended a death sentence, and the trial court sentenced Roberts to death.

         First Appeal

         {¶ 19} On direct appeal, we affirmed her convictions for aggravated murder, aggravated burglary, and aggravated robbery, but we vacated the death sentence and remanded the case to the trial court because the judge had improperly allowed the prosecutor to participate in drafting the sentencing opinion, and in doing so had engaged in ex parte communication with the prosecutor. Roberts I, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1186, ¶ 153-164. We ordered the trial judge on remand to "afford Roberts her right to allocute" provided by Crim.R. 32(A)(1), to "personally review and evaluate the evidence, weigh the aggravating circumstances against any relevant mitigating evidence, and determine anew the appropriateness of the death penalty, " and to prepare "an entirely new penalty opinion." Roberts I at ¶ 167.

         {¶ 20} On remand, the trial court afforded Roberts her right to allocution, and one week later, after asking her if she had anything further to say and hearing argument from defense counsel, the court sentenced her to death and filed its sentencing opinion pursuant to R.C. 2929.03(F).

         Second Appeal

         {¶ 21} Roberts appealed as of right from the second judgment imposing the death sentence. On that appeal, we sustained the second proposition of law, concluding that the court had failed to consider her allocution in determining her sentence during the proceeding on remand. Roberts II, 137 Ohio St.3d 230, 2013-Ohio-4580, 998 N.E.2d 1100, ¶ 51-76. For the second time, we vacated the death sentence and remanded the case for resentencing. We directed the trial court as follows:

On remand, the trial court is to review the entire record, including Roberts's allocution of October 22, 2007. The trial court shall consider the entire record-again, including the allocution-in determining whether the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt. The trial court shall then write and file a sentencing opinion pursuant to R.C. 2929.03(F) reflecting that it has complied with these instructions.
In accordance with our holding as to Roberts's first proposition of law, Roberts is not entitled to present any further evidence on remand. Moreover, because Roberts has been given her opportunity to make allocution pursuant to Crim.R. 32, she is not entitled to make another one.
Finally, while the trial court must consider Roberts's allocution, nothing in today's opinion should be interpreted as a determination that the matters discussed in her allocution are true or that the trial court must afford them any particular weight. It is for the trial court to determine in the first instance what mitigating factors, if any, are present in the case, and what weight, if any, they should be given.

Id. at ¶ 73-75. We further specified that "the trial court must make an independent determination of whether a death sentence is appropriate and may not give deference to the sentences previously entered." Id. at ¶ 96.

         {¶ 22} The original trial judge in this case retired and subsequently died during the pendency of the second appeal. Id. at ¶ 78. On remand, Judge Ronald Rice presided over the resentencing.

         {¶ 23} Roberts filed a motion in the trial court to preclude a death sentence, or in the alternative, to order a full penalty-phase hearing. In this motion, Roberts argued that because Judge Rice had neither presided over the trial nor personally heard her allocution, he could not properly weigh the aggravating circumstances against the mitigating factors and sentence her to death.

         {¶ 24} On April 30, 2014, Judge Rice heard arguments on the defense motion. He denied the motion on the grounds that (1) our instructions in Roberts II regarding the proceedings on remand precluded granting the motion and (2) this court in Roberts II had "already considered and rejected [Roberts's] arguments" with regard to the presentation of additional evidence.

         {¶ 25} Judge Rice then imposed sentence. He stated that he had carefully reviewed the entire record, including the guilt and penalty phases of Roberts's trial, the record of proceedings on remand, including Roberts's allocution, and all exhibits. He also announced that he had "given no deference to the prior decisions of the original trial judge. Finally, he announced his finding that "the aggravating circumstances outweigh the mitigating factors by proof beyond a reasonable doubt" and that death was an appropriate sentence. He incorporated those findings into a sentencing opinion that was later reissued nunc pro tunc to correct "editing inconsistencies" in the original version. At the hearing, he also reimposed sentences on the noncapital counts and notified Roberts about postrelease control.

         {¶ 26} On this appeal, Roberts presents four propositions of law. Finding merit in none, we overrule them all and affirm the judgment of the trial court.

         Substitute Judge

         {¶ 27} Roberts's first and fourth propositions of law are related and will be discussed together.

         {¶ 28} Roberts contends that when a capital case is remanded for resentencing before a judge other than the one who originally imposed sentence, capital punishment is precluded because no statutory provision specifically permits such a procedure. She further argues that the Eighth Amendment precludes a death sentence in these circumstances unless the substitute judge at least permits the defendant to make a new allocution. In her fourth proposition, Roberts contends that, if a death sentence is permissible in such a situation, R.C. 2929.06(B) requires that the substitute judge empanel a new jury and conduct a new mitigation hearing before imposing a death sentence.

         {¶ 29} We begin by examining the statutory arguments presented.

         Statutory Arguments

         {¶ 30} In the first proposition of law, Roberts argues that "[t]he sentencing option of death should have been precluded" on remand because "Ohio's statutory scheme does not provide a procedure for a * * * rewriting of the R.C. 2929.03(F) opinion where the original judge is no longer available to write the opinion."

         {¶ 31} Roberts bases this argument on State v. Penix, 32 Ohio St.3d 369, 513 N.E.2d 744 (1987). In Penix, a capital defendant appealed his conviction of aggravated murder and sentence of death. The court of appeals affirmed the conviction, but vacated the death sentence due to erroneous penalty-phase jury instructions and remanded the case for resentencing. We affirmed the judgment of the court of appeals. Id. . at 370-372.

         {¶ 32} We then considered "the procedure to be employed, and the penalties which may be imposed, upon resentencing." Id. at 372. We held that a death sentence could not be imposed on resentencing, because R.C. 2929.03(C)(2)(b) specifically provided that "the trial jury and the trial judge shall sentence a defendant who has been tried by jury and convicted of aggravated murder and one or more [death] specifications." (Emphasis sic.) Id. Further, we noted that R.C. 2929.03(D)(2) makes repeated reference to "the trial jury" weighing mitigating factors against aggravating circumstances and making a sentencing recommendation. Id. at 372-373. "Thus, the decisions leading to a death sentence must be made by the same jury that convicted the offender in the guilt phase. There are simply no statutory provisions for another jury to make these crucial determinations." Id. at 373. Absent statutory authority, we declined to "create such a procedure out of whole cloth." Id.

         {¶ 33} In 1996, the General Assembly enacted legislation abrogating the specific holding of Penix. See State v. White,132 Ohio St.3d 344, 2012-Ohio-2583, 972 N.E.2d 534, ΒΆ 6, 21, and paragraph one of the ...

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