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State v. Chinn

Court of Appeals of Ohio, Second District, Montgomery

January 10, 2020

STATE OF OHIO Plaintiff-Appellee
v.
DAVEL V. CHINN Defendant-Appellant

          Criminal Appeal from Common Pleas Court Trial Court No. 1989-CR-768

          MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, Attorney for Plaintiff-Appellee

          MELISSA JACKSON, Atty. Reg. No. 0077833 and RACHEL TROUTMAN, Atty. Reg. No. 0076741, Office of the Ohio Public Defender, Attorneys for Defendant-Appellant

          OPINION

          TUCKER, J.

         {¶ 1} Defendant-appellant Davel Chinn appeals from an order of the Montgomery County Common Pleas Court denying his motion for a new sentencing phase of his capital trial. For the reasons set forth below, we affirm.

         I. Facts and Course of the Proceedings

         {¶ 2} In March 1989, Chinn was indicted for the aggravated murder of Brian Jones. Count One of the indictment charged Chinn with purposely causing the death of Jones during the commission of an aggravated robbery. That count also carried the following three death penalty specifications: 1) that the aggravated murder was committed for the purpose of escaping detection, apprehension, trial, or punishment for another offense (R.C. 2929.04(A)(3)), 2) that the aggravated murder occurred during the course of an aggravated robbery and either the offender was the principal offender in the commission of the aggravated murder or, if not the principal offender, committed the aggravated murder with prior calculation and design (R.C. 2929.04(A)(7)), and 3) that the offense was committed during the course of a kidnapping and either the offender was the principal offender in the commission of the aggravated murder or, if not the principal offender, committed the aggravated murder with prior calculation and design (R.C. 2929.04(A)(7)). Chinn was also indicted on three counts of aggravated robbery (Counts Two, Four, and Five), one count of kidnapping (Count Three), and one count of abduction (Count Six). Each count of the indictment carried a firearm specification, and counts two through six carried a prior felony specification.

         {¶ 3} Following the guilt phase of the trial, a jury convicted Chinn on all counts and specifications tried before it.[1] After the sentencing phase, the jury recommended the death penalty for the aggravated murder. The court accepted the recommendation and imposed the sentence of death for that count. Chinn appealed. This court affirmed the conviction, but reversed the death penalty sentence and remanded for the purpose of resentencing on the jury's recommendation of death for the aggravated murder conviction. State v. Chinn, 2d Dist. Montgomery 11835, 1991 WL 289178, *1 (Dec. 27, 1991). Specifically, we found that the trial court erred in performing its independent review because it failed to merge the three aggravating circumstances for the purpose of sentencing. Id. at *22. We also found, based upon the holding in State v. Penix, 32 Ohio St.3d 369, 512 N.E.2d 744 (1987), that the trial court erred when it relied upon both the "principal offender and "prior calculation and design" culpability factors of R.C. 2929.04(A)(7), when the statute provides that these factors apply only in the alternative. Id. at *23. We thus concluded that these two sentencing errors "impermissibly tipped the scales in favor of death." Id.

         {¶ 4} With regard to curing these errors, we stated:

The State argues that these errors may be cured by our independent reweighing of the aggravating circumstance and mitigating factors pursuant to R.C. 2929.05(A). Chinn argues that we are required to remand the case for resentencing, but that the trial court would be constrained from reimposing the death penalty. We do not agree with either party.
The State is correct in its assertion that, normally, the failure to consider certain mitigating factors or to merge multiple aggravating circumstances into one can be cured by our independent review. Our independent review may also cure the failure of the trial court to specify the reasons why the aggravating circumstances outweigh the mitigating factors. However, the Supreme Court has specifically stated that if the sentencer considered the defendant to be both the principal offender and to have committed the murder with prior calculation and design, then the error was prejudicial and "could not simply be corrected in the appellate review process pursuant to R.C. 2929.05." That is the exact error here. Thus, Chinn's death sentence must be vacated and the issue of sentencing be remanded due to this error alone.
Because the trial court must reweigh the mitigating factors and aggravating circumstances during the resentencing process, and as the procedural posture of this case has already allowed us to review these issues, justice requires the trial court be instructed as to the proper factors. Therefore, we have addressed the issues of merger and residual doubt so that Chinn's resentencing might be free of the errors that occurred in its predecessor.
In general, when a jury trial has culminated in a sentence of death a reviewing court that finds prejudicial error must remand the issue of sentencing but prohibit the trial court from reimposing capital punishment. Penix, supra, at syllabus. However, this general rule is not applicable to the instant case. The rationale for prohibiting a reimposition of the death penalty on remand is that R.C. 2929.03(D)(2) requires that "the decisions leading to a death sentence must be made by the same jury that convicted the offender in the guilt phase." However, the errors in the instant case were committed by the trial court in its independent evaluation, not by the jury. As opposed to the insurmountable problems associated with reassembling the exact same jury, there is no difficulty in the instant case in remanding this issue to the same judge who presided over Chinn's conviction.
Accordingly, we will vacate Chinn's death sentence and remand the issue of sentencing to the trial court so that it may weigh the proper mitigating factors against the single aggravating circumstance. Pursuant to this reevaluation, the trial court may impose whatever lawful punishment it ...

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