State v. Satta, Unpublished Decision (9-25-2002), CASE No. 9-01-38. (Ohio Ct. App. 2002)
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Ohio Court of Appeals
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{¶ 2} On appeal, Satta raises eight assignments of error alleging that his trial was inherently unfair and that he was denied his constitutionally protected right of due process. On cross-appeal, the State asserts that the trial court erred when it failed to assess the cost of prosecution against the Appellant. Because we find no error amounting to a due process violation, we reject each of Satta's arguments and affirm the trial court's judgment entry of conviction and sentence. Furthermore, we find State's argument on cross-appeal to be well taken and reverse the trial court's decision to waive the cost of prosecution based on the Appellant's status as an indigent.
{¶ 3} The record presents the following facts. In the early morning hours of August 27, 2000, seven-year old Bobbie Jo Barry was abducted from her bedroom at 817 N. State Street, Marion, Ohio. Bobbie Jo's siblings, with whom Bobbie Jo shared a room, discovered that she was missing at approximately 7a.m. and immediately alerted their father, Max Barry. Upon learning that Bobbie Jo was not in her bed, Barry conducted a quick search of the house and found muddy footprints on the downstairs bathroom floor just below an unlocked window. Barry looked outside of the window and observed muddy impressions in the ground below. Convinced that someone had taken his daughter, Barry ran to a nearby gas station and called the police. Upon arrival, police immediately began to comb 817 N. State Street for evidence. Barry informed police that he last saw Bobbie Jo at approximately 4 a.m. that morning when he looked in on her before going to bed. Meanwhile police and local volunteers initiated a massive countywide search for Bobbie Jo.
{¶ 4} On Monday August 28, a private citizen called the Marion Police to report a suspicious sleeping bag in the woods off to the side of Burris Drive in Marion. Police arrived on the scene and found the dead body of a young girl inside of the sleeping bag. The young girl was naked from the waist down and her head was covered with a plastic grocery bag. Further examination of the body revealed numerous bruises, lacerations and evidence of sexual abuse. A necktie and speaker wire were found wrapped around the young girl's neck. Within a few hours of discovery, Bobbie Jo's parents identified the body as belonging to their missing daughter.
{¶ 5} The defendant-appellant became a primary suspect in Bobbie Jo's abduction and murder after police found the name 'Barry S' printed inside of the sleeping bag in which Bobbie Jo was found. Barry Satta was a long time friend of Max Barry, Bobbie Jo's father. Barry told police that Satta and another friend, John Daniels, had stopped by 817 N. State Street at approximately 12:30 a.m. on August 27, 2000, the morning of Bobby Jo's abduction. At trial, Barry testified that he, Satta and Daniels snorted crushed Ritalin in Barry's upstairs bedroom and that Satta and Daniels left approximately five minutes after their arrival. Additionally, Barry testified that at approximately 4:30 am that same morning, as he sat on his bed smoking a cigarette, he saw a black Lincoln drive down the alleyway next to his house. Barry stated that he recognized the car as belonging to Satta and figured that Satta had probably been out with somebody and was trying to establish an alibi for his girlfriend Phyllis. Consequently, he thought nothing of Satta's presence and soon thereafter went to sleep.
{¶ 6} When questioned, Satta told police that after he and Daniels left Max Barry's house the morning of August 27, they went to various bars until closing time. Satta stated that he took Daniels home and then went to the residence of his friend, Lori Cassell. After leaving Cassell's, Satta said that he called home to find that Phyllis McCoy, with whom he lived at 1921 Harris Drive, had become ill and had gone to her Mothers. At that point, Satta stated that he went to McCoy's mother's house, left a note on McCoy's car, and then at approximately 7a.m. went to the cemetery to visit his deceased parents gravesite.
{¶ 7} McCoy testified that at 3:40 a.m. on August 27, she telephoned John Daniels in search of Satta. Daniels told her that Satta was not with him and had dropped him off. Phyllis testified that she subsequently started to feel ill so she awakened her daughter and went to her mother's house. According to Phyllis, she drove by the Barry house on the way to her mother's in the hopes of spotting Satta. Phyllis testified that she observed the 817 N. State Street house from a little after 4a.m. until approximately 4:50 a.m. and did not see any cars coming or going. Phyllis McCoy testified that at 9 a.m. that same morning, she found Satta sleeping in a vacant house he owned at 795 W. Center Street.
{¶ 8} Police obtained a search warrant for 795 W. Center Street and during the search of an upstairs bedroom found a pair of child-sized shorts and panties, later identified as Bobbie Jo's. Police also found speaker wire, knotted rope, cut neckties with knots, sexual lotions and sexually explicit magazines. Additionally, police found an abundance of orange foam material consistent with material found both in the sleeping bag and on Bobbie Jo's body. Several neighbor's on W. Center Street told police that they observed Satta either approaching or departing 795 W. Center Street at various times on Sunday, August 27. One witness, who lived two doors down from 795 W. Center Street, testified that sometime between 4a.m. and 5:30 a.m. on August 27, she heard a little girl scream followed by a man's voice telling her to shut up and that she'd only make things worse for herself.
{¶ 9} Meanwhile, a forensic examination of four fingerprints lifted from the bathroom windowsill at 817 N. State Street, conducted by the State Bureau of Criminal Investigation (BCI), concluded that the prints belonged to Satta. Additionally, BCI concluded that the DNA profile of semen taken from Bobbie Jo's vagina matched Satta's DNA profile, excluding all but one in twelve million Caucasians. Furthermore, a semen sample lifted from the sleeping bag contained a partial DNA profile matching Satta's to the exclusion of all but 1 in 127 persons. Finally, police found pubic hair, later determined to match Satta's pubic hair on Bobbie Jo's body and inside of the sleeping bag in which she was found.
{¶ 10} Consequently, Barry Satta was indicted for two counts of aggravated murder with death penalty specifications, burglary, kidnapping, and rape on August 31, 2000. After numerous pre-trial hearings and motions, the case proceeded to a jury trial commencing on May 9, 2001. On June 2, 2001 the jury found Satta guilty of all counts and all specifications. On June 7, 2001 that same jury rejected the death penalty and recommended that Satta serve life in prison without the possibility of parole. On June 13, 2001 the trial court entered judgment accordingly. Over the State's objections, the trial court waived the assessment of prosecutorial costs against Satta based on his status as an indigent. It is from these June 13, 2001 judgments that both the Appellant/Cross-Appellee and Appellee/Cross-Appellant appeal.
{¶ 12} In his first assignment of error, Appellant argues the trial court committed reversible error when it overruled his motion to exclude juror Kimlyn Nicole Queen for cause. According to Appellant, Queen demonstrated bias in favor of police officers and medical professionals and repeatedly declared that she could not promise to set aside her emotions and judge the case solely on the facts.
{¶ 13} In support of his position, Appellant relies on State v.Nields,
{¶ 14} In the matter sub judice, prior to ruling on Appellant's motion to exclude Queen for cause, the trial court posed the following questions to Queen:
{¶ 15} 'The Court: * * * [D]o you think that you could view the situation and the circumstances and the evidence against Mr. Satta with an open mind?'
{¶ 16} KNQ: Yes.
{¶ 17} * * *
{¶ 18} The Court: Do you think just because an officer has a uniform on and they are under oath, they absolutely are going to tell the truth?'
{¶ 19} KLQ: No'
{¶ 20} Moreover, at the outset of the voir dire of prospective juror Queen, the trial court posed the following question:
{¶ 21} 'The Court: Upon the conclusion of the evidence, the Court would instruct the jury on the law that applies to this case. Is there any reason why you would be unable or unwilling to follow the law as its given to you by the court?
{¶ 22} KNQ: No, sir.'
{¶ 23} Based on the above questions and responses, we are unable to conclude that trial court abused its discretion when it overruled the Appellant's motion to exclude for cause. Juror Queen unambiguously expressed an ability to view the evidence with an open mind and to then apply the law as the court instructs. Accordingly, Appellant's first assignment of error is overruled.
{¶ 25} In his second assignment of error Appellant raises allegations of prosecutorial misconduct based on remarks made during the State's final argument in rebuttal. Specifically, Appellant alleges that the prosecutor accused defense counsel of 'slanting' the facts, 'misstating' facts and 'changing' the facts.
{¶ 26} Initially, we note that Appellant's trial counsel failed to object to the remarks raised on appeal and therefore pursuant to Crim.R. 52(B) all but plain error is waived. To reverse a conviction based on plain error, we must conclude that but for the error, the outcome of the trial clearly would have been otherwise. State v. Long (1978),
{¶ 27} A prosecutor is at liberty to prosecute with earnestness and vigor, striking hard blows, but may not strike foul ones. State v.Smith (1984),
{¶ 28} The issue now before this court is the propriety of the terms 'misstatement' and 'slant' and whether their use amounts to an improper accusation of lying or fabricating1 and if so, whether without those terms the outcome of the trial would have been otherwise. When examined in the context of the prosecution's entire argument on rebuttal, we are unable to conclude that the remarks rendered by the prosecution amount to an accusation of lying or fabrication. 'Prosecutors are entitled to latitude as to what the evidence has shown and what inferences can be drawn there from.' State v. Richey (1992),
{¶ 29} Even if we were to determine otherwise, plain error is absent here. None of the cited remarks, even if arguably inappropriate, were so prejudicial and 'outcome-determinative so as to constitute plain error' and deny appellant a fair trial. State v.Ballew,
{¶ 31} In his third assignment of error, Appellant argues that the trial court admitted certain pieces of inadmissible character evidence in violation of Evid.R.404. Specifically, Appellant argues that drugs, drug paraphernalia, sexual lotions, pornographic magazines, pornographic videotapes and a photograph of these items collected from the upstairs bedroom of 725. W. Center Street were admitted for the purpose of demonstrating Appellant's character rather than to prove any material issue in the case. At trial, Appellant objected to the admissibility of these items as in violation of Evid.R. 403 but did not raise an objection pursuant to Evid.R.404. Therefore pursuant to Crim.R. 52(B) all but plain error is waived on the issue of character evidence in violation of Evid.R.404.
{¶ 32} Generally, evidence which tends to show that the accused has committed other crimes or acts independent of the crime for which he is on trial is not admissible to show that the defendant acted in conformity with his bad character. State v. Mann (1985),
{¶ 33} 'Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.'
{¶ 34} Further exceptions are found in R.C.
{¶ 35} Because R.C.
{¶ 36} Inherent in the analysis of other acts testimony is the understanding that Evid.R.404 is a rule of relevancy; a rule that states that a person's character is always irrelevant to the issue of guilt. In order to qualify under an exception pursuant to Evid.R.404(B), evidence tending to show bad character must be relevant to prove some other issue at trial such as motive, intent, identity, or the absence of accident or mistake. Evidence of other acts will be admissible 'not because it shows that the defendant is crime prone, or even that he has committed an offense similar to the one in question, but in spite of such facts.'State v. DeMarco (1987),
{¶ 37} Here, the prosecution claims that the sexually explicit items and various drug related items were offered to rebut Appellant's claim that other people had access to the home on 795 W. Center Street. The prosecution further claimed that the evidence in question rebutted the defense position that that the condition of 795 W. Center Street was such that no one would want to sexually molest a child at that location and that the home was used as a storage facility rather than a place for sexual activity. According to the prosecution's brief on appeal, 'The evidence of drug paraphernalia in the upstairs bedroom at 795 W. Center Street helped demonstrate that this was not just a storage facility.'
{¶ 38} While we question the ability of the evidence in question to prove the matters the state cites, the overlying issue is that the state may not circumvent Evid.R.404 by anticipating a defense in its case in chief. Any rebuttal evidence offered by the prosecution must be reserved until the defendant has raised the issue. Columbus v. Corne(1982),
{¶ 39} The trial court admitted into evidence five items relating to illegal drugs found on Appellant's property; two wooden pipes, a glass vial filled with marijuana seeds, a baggie of seeds and capsule, and a pair of pincer scissors also known as a 'roach clip.' Because these items tend to show Appellant's bad character and are not relevant to prove some other issue at trial such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, the trial court erred by admitting them during the state's case in chief. Nevertheless, in light of the overwhelming physical evidence in this case, we cannot conclude that but for this error the outcome of the trial would have been different. Therefore, we do not find plain error and Appellant's third assignment of error is overruled.
{¶ 41} In his fourth assignment of error Appellant argues that the testimony of two expert witnesses, proffered by the prosecution, was irrelevant and therefore inadmissible. Specifically, Appellant argues that DNA evidence from a 'rape kit' collected from Bobbie Jo's body was not properly sealed and therefore testimony concerning this evidence is inadmissible. Additionally, Appellant claims that testimony regarding a comparison of hair samples taken from Bobbie Jo's body and 795 W. Center Street to hairs from Appellant's body was irrelevant because it failed to describe the shared features as uncommon, common or even universal. Defense counsel did not raise objections at trial to the status of either witness as an expert or to the relevance of their subsequent testimony. Therefore pursuant to Crim.R. 52(B), all but plain error is waived.
{¶ 42} Expert testimony is permissible when (1) the witness is properly qualified as an expert, and (2) the testimony is helpful to the trier of fact for purposes of understanding other evidence or making a determination of a fact in issue. State v. Martens (1993),
{¶ 43} Appellant's argument clearly confuses the concepts of relevance and reliability. 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Evid.R. 401; Brown v. City of Cleveland (1981)
{¶ 44} The trial court in this matter did not commit error when it determined that the testimony regarding DNA testing and a hair sample analysis was relevant and admissible. Obviously, the existence of Appellant's DNA and hair on Bobbie Jo's body has the tendency to make his identity as her killer more probable or less probable than it would be without such evidence. DNA testing has been found to be reliable to the degree that it is admissible in criminal prosecutions, while the credibility of the D.N.A testing itself is a matter to determined by the trier of fact. State v. Pierce (1992),
{¶ 45} Here, the prosecution established a chain of evidence for both the DNA and hair samples, sufficiently indicating their reliability. Thereafter, the integrity of the seals on the 'rape kit' delivered for DNA testing and the thoroughness of Yezzo's testimony regarding her analysis were matters to be argued to and ultimately reconciled by the jury. Appellant had every opportunity to point out to the jury any perceived weaknesses in the DNA evidence and the hair analysis. We find no error in the trial court's admission of the expert testimony and no prejudice to the Appellant. Accordingly, Appellant's fourth assignment of error is overruled.
{¶ 47} In his fifth assignment of error, Appellant maintains that the jury instruction regarding the standard for 'beyond a reasonable doubt' was incorrect and therefore deprived him of a fair trial. A reviewing court will not reverse a conviction in a criminal case due to jury instructions unless it is found that the jury instructions amount to prejudicial error. State v. DeHass (1967),
{¶ 48} With respect to criminal prosecutions, R.C.
{¶ 49} '`Reasonable doubt' is present when the jurors, after they have carefully considered and compared all the evidence, cannot say they are firmly convinced of the truth of the charge. It is a doubt based on reason and common sense. Reasonable doubt is not mere possible doubt, because everything relating to human affairs or depending on moral evidence is open to some possible or imaginary doubt. `Proof beyond a reasonable doubt' is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of his own affairs.'
{¶ 50} In the matter sub judice, Appellant concedes that the trial court read the statutory definition verbatim, but argues that the statute itself is unconstitutional since it does not adequately convey a proper standard. Appellant argues that the statutory instruction is 'too lenient' and sounds more like an instruction on the 'clear and convincing' standard. The Ohio Supreme Court entertained this very argument in State v. Frazier (1995),
{¶ 52} In his sixth assignment of error, Appellant contends that drawing the jury venire solely from registered voters deprived him of his
{¶ 53} According to R.C. §
{¶ 54} The Ohio Supreme Court has consistently upheld the calling of venires from voter registration lists as in conformity with the
{¶ 55} Accordingly, we find Appellant's argument to be contrary to well established law and furthermore fails to allege any prejudiced sustained as a result of the venire. In order to secure reversal of a judgment, an appellant must not only show some error but must also show that that error was prejudicial to him. Smith v. Flesher (1967),
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{¶ 57} In his seventh assignment of error, Appellant asserts that the trial court should have granted his motion to dismiss, filed prior to trial, since Ohio's death penalty statute is rendered unconstitutional by its failure to narrow the class of death-eligible defendants. Appellant lacks standing to attack the constitutionality of Ohio's death penalty statute where he was not sentenced to death. State v. Huertas (1990),
{¶ 59} In his final assignment of error Appellant generally avers that the trial court made errors which prejudiced him. Appellant fails to submit case law or anything resembling an argument as required by Ohio Rule of Appellate Procedure 16(A)(7). For this reason and because we have found no errors thus far, we decline to address Appellant's final assignment of error.
{¶ 61} In its sole assignment of error on cross appeal, the state argues that the trial court committed reversible error when it failed to assess the cost of prosecution against Appellant. We find the state's argument to be well taken.
{¶ 62} R.C. 2924.12 states: 'In all criminal cases, including violations of ordinances, the judge or magistrate shall include in the sentence the costs of prosecution and render a judgment against the defendant for such costs. If a jury has been sworn at the trial of a case, the fees of the jurors shall be included in the costs, which shall be paid to the public treasury from which the jurors were paid.' (emphasis added) 'It is axiomatic that when it is used in a statute, the word 'shall' denotes that compliance with the commands of that statute ismandatory.' Ohio Dept. of Liquor Control v. Sons of Italy Lodge 0917,
{¶ 63} Appellant/Cross-Appellee argues that the trial court had the authority to waive the cost of prosecution pursuant to R.C.
{¶ 64} Appellant/Cross-Appellee misinterprets R.C.
{¶ 65} For the reasons stated, it is the order of this Court that the judgment of the Court of Common Pleas, Marion County is herebyAFFIRMED in part, REVERSED in part, and REMANDED to that court for further proceedings in accordance with this opinion.
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Judgment reversed in part, affirmed in part and cause remanded.HADLEY and WALTERS, JJ., concur.