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The State of Ohio, Appellee, v. Green, Appellant.
[Cite as State v. Green (1993), Ohio St.3d .]
Criminal law -- Aggravated murder -- Death penalty upheld, when.
(No. 90-1673 -- Submitted January 5, 1993 -- Decided April
Appeal from the Court of Appeals for Hamilton County, No.
On January 4, 1988, defendant-appellant, Elizabeth Green,
visited her friend Belinda Coulter at her apartment and asked
if Coulter could help her sell food stamps so Green could buy
drugs. Coulter went across the street to see the victim,
Thomas Willis, because he usually bought and sold food stamps.
He also sold "after-hours liquor" to his acquaintances. On
Green's behalf, Coulter sold a forty-dollar book of stamps to
Willis for twenty-five dollars. At Green's request, Coulter
then bought some cocaine on the street, which Green and Coulter
Over the next several hours, Coulter and Green returned to
Willis' apartment several times, either together or
separately. They used various pretexts to gain entrance, such
as asking to use Willis' phone or seeking to sell him sex.
Some discussion involved a five-dollar stamp missing from the
food stamp book. Before their last visit, a plan was
formulated to rob and kill Willis.
Green and Coulter told conflicting versions as to what
According to Coulter, Green came up with the idea to rob
Willis, and Coulter simply gave three dollars to Green to show
Willis that she wanted to buy some liquor. Green then went
alone to Willis' apartment, taking socks for her hands to
prevent fingerprints from being left at the scene. After a
long time, Coulter joined her. When Coulter arrived, she heard
a noise like something falling and saw blood on the living room
floor. Coulter went into the kitchen, and there "I screamed[,]
[a]nd then she [Green] was standing over him [Willis] with a
pillow over his face and there was blood everywhere." Coulter
did not see Green go there with a knife, but she knew Green had
a knife "because we used it to cut cocaine that we had
smoked." Coulter asserted, "I didn't stab. I had nothing to
do with killing that man at all."
On cross-examination, Coulter admitted she had talked to
the police five times after the murder, that she originally
denied knowing anything about the crime, and that she then made
conflicting statements about the details of the robbery and
murder. She was unsure of what she had told police. Coulter
also admitted that Willis had previously given her clothes for
her two children and had loaned her money.
In a pretrial statement given to police, Green asserts
that it was Coulter who planned to rob and kill Willis because
Coulter saw Willis with a lot of money when he paid her the
twenty-five dollars for the food stamps. Both Coulter and
Green went to Willis' apartment with children's socks on their
hands. At the time of the murder, Coulter and Green told
Willis they wanted to buy some liquor. Green followed Willis
into the kitchen where he went to get the liquor. According to
Green, Willis became suspicious, took out a knife, and said
they were trying to rob him. Green grabbed for the knife, a
struggle ensued, both Green and Willis wrestled on the floor,
and Green's finger got cut. Willis got the knife and lunged at
her, and Green retrieved the knife and "plunged" at him several
times. While they were struggling, Green says she yelled for
Coulter to come and assist her. Green claimed that Coulter
also stuck the knife into Willis' legs. (There were no stab
wounds in his legs.)
Green asserts that Coulter went through Willis' pockets
and kept his money, except for $125 which she gave to Green.
Before they left, they took a half pint of liquor. Back at
Coulter's apartment, Green washed the blood out of her pants in
the kitchen sink, and Coulter threw her clothing into the
trash. In her pretrial statement, Green agreed she normally
carried a knife, but she denied carrying a knife that day.
On January 4, 1988, around 7:00 p.m., James R. Cody,
Coulter's live-in boyfriend and the father of her two children,
arrived home from work and saw Green and Coulter smoking
cocaine. He left around 9:30 p.m. When he came back an hour
or so later, "things seemed suspicious." Green was wearing
Coulter's clothes, and was washing her clothing in the kitchen
sink. Cody asked them, "Who did you rob?" Neither Coulter nor
Green responded. Later, Green asked Cody to buy some cocaine
for her, but Cody refused. Green left the apartment around
12:30 a.m. in a taxicab.
On January 5, 1988, Sammy Gentry, who lived in the
apartment below Willis', did not hear Willis upstairs and
became concerned. Around 1:30 p.m., Gentry went into Willis'
unlocked apartment, saw Willis on the kitchen floor, and called
paramedics. Fire department personnel responded and found
Willis dead; his body was very rigid, lying face up in a large
pool of blood. The police were called.
Dr. Harry J. Bonnell, a forensic pathologist, examined
Willis' body at the scene and supervised the autopsy. Willis,
age sixty-eight, was five feet, eight and one-half inches tall,
weighed one hundred thirteen pounds and was in poor health. He
suffered from severe coronary artery disease, severe
arteriosclerosis, and severe emphysema. Willis died as a
result of "blood loss caused by multiple stab wounds and
incised wounds of his body."
Dr. Bonnell counted thirty-eight neck wounds, forty-six
wounds to the torso, ten to the left arm, and fifteen on the
right arm and hand. One neck wound involved a cut jugular
vein, which also severed the nerve controlling the heart and
breathing; another struck the side of the liver; one wound
perforated the lung; and another could have collapsed a lung.
However, many wounds were superficial cuts, some were difficult
to distinguish as separate wounds, and some could have been
exit wounds. Almost all the arm wounds could have been
defensive wounds. The knife used was single edged, no more
than one inch in width, and two and one-half to three inches in
Police investigators at the scene found a number of
clues. A bloodstained pillow lay on the floor next to Willis'
head, and a bloodstained child's sock also lay on the floor
near the entrance to the apartment. In addition to a large
quantity of blood on the kitchen floor, police also found a few
blood stains on the living-room floor and on the bedspread in
the bedroom. Some of the stains were blood type O, the same
blood type as Willis'; but other stains were blood type B, the
same as Green's.
Police also determined from a bloody shoeprint that the
perpetrator wore a size seven or seven and one-half shoe, and
that the shoe was probably a woman's shoe. A visitor to the
apartment had smoked Salem cigarettes. Although Willis had
been stabbed to death, police found no weapon at the scene.
Police investigation revealed that Willis, a retired city
employee, cashed his retirement check for $514 on January 4,
1988. Police also established that Willis was very careful
about whom he let into his apartment, allowing in only people
he knew and trusted.
Police initially interviewed Coulter as a part of a
neighborhood canvass, and eventually talked with her a total of
five times. Police learned that Coulter had sold food stamps
to Willis previously, that she wore a size seven shoe, and that
she smoked Salem cigarettes. She had been seen recently with
one one hundred dollar bill and two fifty dollar bills.
Eventually, Coulter admitted she knew how Willis had died, and
she told the police about Green's involvement in the murder.
The defense argued that Green was unable because of
extensive drug and alcohol use to form the specific intent to
kill Willis. Coley Turner, Green's ex-fiancee, testified that
Green smoked marijuana and cocaine daily, took pills and drank
heavily. Michael J. Ratto, a substance abuse and mental health
counselor, determined that Green was chemically dependent on
alcohol, marijuana, and cocaine. On the afternoon of the
offense, Green had smoked five or six marijuana cigarettes,
drunk four large shots of gin, and smoked crack cocaine. She
would have had a blood-alcohol level of at least .162 that
afternoon and possibly even .22.
Dr. Nancy Schmidtgoessling, a clinical psychologist, found
that Green functioned intellectually in the bottom one percent
of the population and had an IQ of 66. She termed Green
grossly intellectually deficient except in simple everyday
activities. Green also suffered from a deficit disorder since
she was easily distracted by sounds. Green's problem-solving
ability was slow, rigid, and laborious, and she was unable to
discern her feelings. Green's long-term marijuana and cocaine
use together could have affected her thinking processes, memory
and judgment. At the time of the offense, Green could have
been suffering from an intense craving for more cocaine. The
marijuana and alcohol she ingested caused her thinking to be
less critical and impaired her concentration and memory,
thereby affecting her behavior. Schmidtgoessling testified
that Green "consistently told me that she only plunged [the
knife] at him [Willis] maybe three times. That's what she told
me each time." Green also said that Coulter went through
Willis' pockets and took his money but later gave some to Green.
Coulter and Green were both indicted for aggravated murder
and aggravated robbery. The death-penalty specification
alleged that the murder occurred in the course of aggravated
robbery, was committed with prior calculation and design, and
both Coulter and Green were principal offenders. Coulter pled
guilty to aggravated robbery and to involuntary manslaughter,
was convicted of these crimes and later was subpoenaed to
testify against Green. Before a panel of three judges, Green
was tried and convicted, as charged, of aggravated robbery and
Thomas Green, the defendant's father, testified that Green
had had a terrible childhood. When Green was three years old,
her mother tried to kill her sister and her by tying them to
chairs and setting their house on fire. Thomas took custody of
Green and remarried. Her stepmother, Rosetta, and father had a
rocky and violent relationship with excessive drinking and
turbulence. At times, Rosetta would draw a knife on Thomas and
almost killed him once. Thomas believed that Green's friend,
Coulter, was a bad influence on Green.
Coley Turner, Green's former boyfriend, lived with Green
for several years. Green was jealous, insecure, and had low
self-esteem, and she remained too dependent on Turner when they
were together. Green had serious problems with alcohol,
marijuana, and cocaine. Lisa Green, Green's half-sister,
affirmed the family's violent and turbulent history. Rosetta
often forced Green to remove her clothing and beat her with a
belt. In a rage, Thomas would throw furniture, and Rosetta
would defend herself with a knife. Green tried to break up the
weekly fights. At one time, Joseph Green, Green's
half-brother, pulled a knife on Lisa, and Green tried to take
it away from him. Thomas hated Green because she reminded him
of her mother whom he hated. Green regularly carried a knife
for protection. Joseph supported Lisa's testimony about the
fights and turbulence in the family.
Linda Werner, a volunteer chaplain at the Justice Center
where Green was incarcerated, conducted regular Bible studies
and ministerial visits. She described Green as very quiet,
reserved and grieving over the effect the murder would have on
her family. Although inmates were often insincere, she found
Green sincere, consistent in her conversations, and truthful.
Gloria Ross, a former social worker, had helped Green about ten
or eleven years previously when Green had been in a juvenile
facility. Ross built a strong mother-daughter relationship
with Green because Green's stepmother wanted nothing to do with
her. Ross found Green to be "warm, affectionate, loving, and
need[ing] a great deal of nurturing." Green adjusted to this
juvenile facility, and she spent most of her time there since
her family would not accept her at home. Green left the
facility when she became pregnant. Though she desperately
wanted the baby, she suffered a miscarriage. Ross was shocked
that Green had committed any crimes.
Dr. Schmidtgoessling testified that Green showed no signs
of schizophrenia, but that she was intense, preoccupied and
hyperactive. Green displayed a high level of distractibility
and had deep dependency needs. Green felt worthless because
even her own mother had tried to kill her, and her father, an
alcoholic, had beat her and constantly told her she was bizarre
like her mother. Ultimately, Green became the family scapegoat
of her strongly dysfunctional family. She only developed to
the emotional level of a seven or eight-year-old and to the
intellectual level of a ten to twelve-year-old. Green suffered
from "a personality disorder marked by dependency, avoidance
and intense, often depressive, mood states." Prior to
incarceration, Green had been using marijuana and alcohol
extensively for five or six years and cocaine for two years.
"At the time of the offense, her behavior and psychological
functioning were most likely effected [sic] by her cognitive
status, intoxicated state, and drive for more cocaine."
In an unsworn statement, Green said she was very sorry for
this crime and asked forgiveness from the victim's family. She
had been taking drugs for nine years, but she now had a clear
head since she had been in jail. She was twenty-four years
old, afraid to die, and asked that her life be spared. She
outlined the circumstances of the offense similar to those she
described in her pretrial statement. Coulter first suggested
robbing Willis, but Green put socks on her hands at Coulter's
urging. Green claimed Willis pulled a knife because he
suspected they were going to rob him. Green and Willis
wrestled, and Green managed to take the knife from Willis and
"cut" him three or four times.
After the sentencing hearing, the three-judge panel
sentenced Green to death and to a consecutive term of ten to
twenty-five years for aggravated robbery. The court of appeals
affirmed the conviction and death penalty.1
Arthur M. Ney, Jr., Prosecuting Attorney, and William E.
Breyer, Assistant Prosecuting Attorney, for appellee.
Timothy A. Smith and D. Shannon Smith, for appellant.
Francis E. Sweeney, Sr., J.
GUILT PHASE ISSUES
Cross-examination of Coaccused
In her Proposition of Law No. 1, Green argues that the
three-judge panel erred in limiting the defense's cross-
examination of Coulter. After direct examination, Green's
counsel cross-examined Coulter about the specifics of her
pretrial statements to the police. After a cross-examination
three times longer than direct, the panel asked if the parties
could stipulate that Coulter had made certain prior
statements. The parties so stipulated, and the prior
statements were then admitted into evidence so the panel could
examine them for inconsistencies.
Cross-examination of a witness is a matter of right, but
the "extent of cross-examination with respect to an appropriate
subject of inquiry is within the sound discretion of the trial
court." Alford v. United States (1931), 282 U.S. 687, 691,
694, 51 S.Ct. 218, 219-220, 75 L.E. 624, 627, 629. The right
of cross-examination includes the right to impeach a witness'
In this case, Green clearly had the right to impeach
Coulter by cross-examining her about prior statements.
However, the defense cross-examination on that point had become
tedious and repetitive; counsel simply repeatedly asked if
Coulter remembered making certain statements. No dispute
existed that Coulter had made these prior statements, which
were partially inconsistent with each other and with her in-
court testimony. In fact, Coulter admitted she had told the
police "a lot of different things" and that she had "lied" to
them. These admissions rendered pointless any further
questioning as to whether she had made the statements.
A trial judge has broad discretion "to preclude repetitive
and unduly harassing interrogation[.]" Davis v. Alaska (1974),
415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347, 353.
As stated in Delaware v. Van Arsdall (1986), 475 U.S. 673, 679,
106 S.Ct. 1431, 1435, 89 L.Ed.2d 674, 683, "trial judges retain
wide latitude * * * to impose reasonable limits on such
cross-examination based on concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness'
safety, or interrogation that is repetitive or only marginally
In this case, the trial panel acted within its discretion
in finding the defense questioning tedious and repetitive, and
suggesting that counsel stipulate the prior statements.
Defense counsel attempted to impeach Coulter by questioning her
about her plea bargain, and her refusal to speak to defense
counsel. Further, defense counsel did cross-examine her about
her prior statements. In fact, all the evidence of the prior
inconsistent statements went to the panel for its consideration.
Additionally, the panel's suggestion of a stipulation did
not prejudice Green. With the prior statements admitted,
Green's counsel could freely point out and argue any
inconsistencies that did exist. Moreover, Coulter's brief
direct testimony did not provide the crucial evidence against
Green. Green's own confession in which she admitted there was
a plan to rob and kill Willis, and admitted stabbing him,
together with other evidence constituted overwhelming evidence
of guilt even without Coulter's testimony. Lack of an
opportunity to fully cross-examine is harmless error when
there is overwhelming, untainted evidence supporting a
conviction. Harrington v. California (1969), 395 U.S. 250,
253-254, 89 S.Ct. 1726, 1728-1729, 23 L.Ed.2d 284, 287-288.
Most crucially, the panel's findings demonstrate the lack
of prejudice because the panel rejected Coulter's version of
the events. Coulter tried to minimize her participation in the
murder to that of an accessory, mostly an accessory after-the-
fact. However, the panel found both Green and Coulter to be
principal offenders. Thus, Proposition of Law No. 1 is
Ineffective Assistance of Counsel
In Proposition of Law No. 2, Green argues that her
counsel's acceptance of the panel's suggestion of a stipulation
covering Coulter's prior statements amounted to a denial of
Green's right to the effective assistance of counsel. In
addition, Green argues that her counsel made a grievous error
by allowing the admission of Coulter's pretrial statements.
Reversal of a conviction or sentence based on the
ineffective assistance of counsel requires satisfying the two-
prong standard of Strickland v. Washington (1984), 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Strickland requires (a)
deficient performance--"errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the
Sixth Amendment"; and (b) prejudice--"errors * * * so serious
as to deprive the defendant of a fair trial, a trial whose
result is reliable." Id. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d
However, defense counsel's decision to allow the prior
statements into evidence instead of further cross-examining
Coulter was a reasonable tactical decision. Since the prior
statements were admitted into evidence, counsel could freely
argue all inconsistencies without a further belabored
cross-examination. The tactical decision to agree to the
stipulation fell "within the wide range of reasonable
professional assistance." Id. at 689, 104 S.Ct. at 2065, 80
L.Ed.2d at 694. Thus, counsel did not perform deficiently.
Green also failed to satisfy the second Strickland
requirement of prejudice. No reasonable probability exists
that, but for counsel's unprofessional errors, the result of
the proceeding would have been different. Strickland at 695,
104 S.Ct. at 2069, 80 L.Ed.2d at 699. Coulter's testimony was
not crucial; Green's conviction rested upon other compelling,
convincing evidence of guilt, which included her confession.
Also, the panel essentially accepted Green's version and found
Coulter equally responsible for the robbery and murder.
Moreover, no evidence exists that the court considered
Coulter's pretrial statements other than to compare
inconsistencies. The three-judge panel must be presumed not to
have improperly used these statements. See State v. White
(1968), 15 Ohio St.2d 146, 151, 44 O.O.2d 132, 136, 239 N.E.2d
65, 70, quoted in State v. Post (1987), 32 Ohio St.3d 380, 384,
513 N.E.2d 754, 759. Thus, Proposition of Law No. 2 lacks
SENTENCING PHASE ISSUES
Circumstances of Offense
In Proposition of Law No. 3, Green argues the trial
panel's sentencing decision failed to specify the aggravating
circumstance and improperly relied upon the nature and
circumstances of the offense as aggravating circumstances.
Admittedly, the panel's opinion inaccurately asserted: "The
nature and circumstances of this savage act far outweigh any
However, perusal of the entire panel opinion demonstrates
that the panel correctly identified the aggravating
circumstance to be that the aggravated murder occurred in the
course of an aggravated robbery. When a trial court correctly
identifies a statutory aggravating circumstance, "this court
will infer that the trial court 'understood the difference
between statutory aggravating circumstances and facts
describing the nature and circumstances of the offense.'"
State v. Wiles (1991), 59 Ohio St.3d 71, 90, 571 N.E.2d 97,
120, quoting State v. Sowell (1988), 39 Ohio St.3d 322, 328,
530 N.E.2d 1294, 1302. Moreover, the panel correctly evaluated
the nature and circumstances of the offense when it stated,
"there was nothing mitigating about the nature and
circumstances of the offense. This was a brutal, purposeful,
cold and calculated act that culminated in [aggravated murder]."
Thus, the trial panel did not err. In fact, a trial court
or three-judge panel "may rely upon and cite the nature and
circumstances of the offense as reasons supporting its finding
that the aggravating circumstances were sufficient to outweigh
the mitigating factors." State v. Stumpf (1987), 32 Ohio St.3d
95, 512 N.E.2d 598, paragraph one of the syllabus. See, also,
State v. Steffen (1987), 31 Ohio St.3d 111, 117, 31 OBR 273,
278, 509 N.E.2d 383, 390. State v. Davis (1988), 38 Ohio St.3d
361, 528 N.E.2d 925, is distinguishable, since the trial panel
in that case improperly delineated four circumstances
surrounding the offense as specific aggravating circumstances.
Additionally, this court's independent assessment of the
sentence would cure any deficiency in the trial panel's
sentencing decision. See Clemons v. Mississippi (1990), 494
U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725; State v. Landrum
(1990), 53 Ohio St.3d 107, 124, 559 N.E.2d 710, 729; State v.
Lott (1990), 51 Ohio St.3d 160, 170, 555 N.E.2d 293, 304.
Thus, Proposition of Law No. 3 lacks merit.
Disparity of Sentences
In Proposition of Law No. 4, Green argues the court of
appeals erred by not finding the disparity of treatment between
Coulter and Green to be a mitigating factor. Pursuant to
guilty pleas, it is undisputed that Coulter was sentenced to
seven to twenty-five years for involuntary manslaughter and to
five to twenty-five years for aggravated robbery, the sentences
to run consecutively. Green argues that since the trial panel
found the sentence disparity to be a mitigating factor, the
court of appeals is equally required to find that disparity to
be a mitigating factor.
The state responds to Green's argument by asserting
waiver. But waiver is inapplicable here. Green cannot be
expected to raise, in advance, an issue about the court of
appeals' sentencing decision before that court issues its
Nonetheless, Green's argument that the court of appeals
erred lacks merit. R.C. 2929.05(A) contemplates a separate and
independent assessment of the sentence. See State v. Maurer
(1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768,
paragraph four of the syllabus. Neither the court of appeals
nor this court need be bound by a lower court's opinion as to
whether a factor is mitigating. If a higher court were so
bound, the review would not be independent. In fact, R.C.
2929.05(A) specifies that:
"The court of appeals and the supreme court * * * shall
review and independently weigh all of the facts and other
evidence disclosed in the record in the case and consider the
offense and the offender to determine whether the aggravating
circumstances * * * outweigh the mitigating factors in the
case, and whether the sentence of death is appropriate."
In a comparable situation, this court has recognized that
the individual weighing of mitigating factors is a matter
within a decision-maker's discretion. R.C. 2929.04(B) requires
the court to consider an offender's history, background and
character, but the court need not give mitigating weight to
that factor if it finds it not mitigating. State v. Stumpf,
supra, at paragraph two of the syllabus. See State v. Steffen,
supra, at paragraph two of the syllabus ("* * * The fact that
an item of evidence is admissible under R.C. 2929.04(B)(7) does
not automatically mean that it must be given any weight.").
Moreover, this court's independent sentence assessment
would cure any defect in the court of appeals' sentencing
decision. State v. Lott, supra; State v. Landrum, supra. The
question as to what weight, if any, should be given to the
sentence disparity will be addressed in the independent
sentence assessment. Proposition of Law No. 4 is rejected.
In Proposition of Law No. 5, Green argues that her death
sentence must be set aside, pursuant to the statutory
proportionality review, because of the disparity between her
sentence and Coulter's sentence.
We have held that "[t]he proportionality review required
by R.C. 2929.05(A) is satisfied by a review of those cases
already decided by the reviewing court in which the death
penalty has been imposed." State v. Steffen, supra, at
paragraph one of the syllabus. See State v. Stumpf, supra, at
107, 512 N.E.2d at 610.
Additionally, we have ruled that disparity of sentence
does not justify reversal of a death sentence when the sentence
is neither illegal nor an abuse of discretion. State v.
Jamison (1990), 49 Ohio St.3d 182, 191, 552 N.E.2d 180, 188.
Proposition of Law No. 5 lacks merit.
Significance of Mitigation
In Proposition of Law No. 6, Green argues that the state
failed to prove beyond a reasonable doubt that the aggravating
circumstance outweighs the mitigating factors. Green points
out that she had a horrible life and that she is mentally and
emotionally retarded. She argues: "Willis was killed by a
mentally retarded, emotionally disturbed, doped-up child, who
was induced to commit the crime by her drug supplier, who
received a 7-25 year sentence as payment for her testimony."
Green cites no legal authority as to why the aggravating
circumstance does not outweigh the mitigating factors, so this
issue will be examined in the context of the court's
independent sentence review. Proposition of Law No. 6 is
Constitutionality of Death-Penalty Statute
In Proposition of Law No. 7, Green argues that Ohio's
death-penalty statute is unconstitutional because it fails to
provide for adequate appellate review. Specifically, she
contends a proper proportionality review should encompass not
only cases where the death penalty was sought but also cases
where the death penalty was not sought but could have been
sought. Although Green raised this issue in the court of
appeals, she did not raise the issue at trial. See State v.
Awan (1986), 22 Ohio St.3d 120, 22 OBR 199, 489 N.E.2d 277,
syllabus. Moreover, the current system of appellate review has
been ruled constitutional. State v. Steffen, supra, at
122-124, 31 OBR at 283-284, 509 N.E.2d at 394-395; State v.
Jenkins (1984), 15 Ohio St.3d 164, 209, 15 OBR 311, 350, 473
N.E.2d 264, 304. This proposition of law is overruled.
In Proposition of Law No. 8, Green further challenges the
constitutionality of Ohio's death-penalty statute. However,
Green neither argues nor provides authority for her
challenges. Green also waived these issues by not raising them
before the trial court. State v. Awan, supra. Additionally,
this court has consistently upheld the statute's
constitutionality. State v. Buell (1986), 22 Ohio St.3d 124,
136, 22 OBR 203, 213, 489 N.E.2d 795, 806; State v. Jenkins,
supra. Summary disposal is appropriate. State v. Poindexter
(1988), 36 Ohio St.3d 1, 520 N.E.2d 568, syllabus. Proposition
of Law No. 8 lacks merit.
INDEPENDENT SENTENCE ASSESSMENT
Pursuant to our duties imposed by R.C. 2929.05(A), we now
independently review the death-penalty sentence for
appropriateness and proportionality.
The evidence establishes beyond a reasonable doubt the
aggravating circumstance that Green killed Willis during an
aggravated robbery and that she was a principal actor in the
murder. Because Green and Coulter planned to rob and kill
Willis, which is evidenced by the fact that the victim knew
Green and Coulter and both perpetrators put socks on their
hands to prevent fingerprints at the scene, the trial panel
reasonably found prior calculation and design.
The nature and circumstances of the offense provide few
mitigating features. Green and Coulter planned and carried out
the deliberate and calculated robbery and murder of an elderly,
frail, citizen in his own home. Their motive was simply a
desire for more money to buy cocaine. Even assuming that
Willis pulled a knife when he suspected a robbery, that fact
would scarcely be mitigating. A citizen's choice to defend
himself against an unlawful assault does not lessen the moral
culpability of the assault. See State v. Clark (1988), 38 Ohio
St.3d 252, 263, 527 N.E.2d 844, 856. However, the cut that
Green suffered on her hand in that initial struggle with Willis
probably explains the frenzy of her ensuing attack.
Green's "history, character, and background" do provide
mitigating features. Green suffered a terrible childhood: her
mother tried to kill her when she was three years old, her
alcoholic father beat her frequently, and her stepmother
neither loved nor nurtured her. Family fights in which her
stepmother pulled a knife to defend herself were frequent.
Green became the family scapegoat, and at age thirteen or
fourteen, she went into a juvenile facility. At age fifteen,
she became pregnant and suffered a miscarriage. Ultimately,
she transferred her deep dependency needs from her boyfriend,
Turner, and social worker, Ross, to drugs and alcohol. The
evidence clearly established she was chemically dependent on
marijuana, cocaine, and alcohol and had been so dependent for
years. With an IQ of 66, she functioned only very marginally.
Dr. Schmidtgoessling described Green as intellectually "ten,
eleven, twelve; emotionally, much younger than that, more like
seven or eight."
In our review of any statutory mitigating factors, Willis
arguably "induced or facilitated" the offense because he
illegally bought food stamps and sold liquor. See R.C.
2929.04(B)(1). However, even if true, no significant
mitigating weight need be assigned to this factor. The moral
culpability of a murder is not lessened because the frail,
elderly victim operated on the fringe of the law. Green did
not act under "duress, coercion, or strong provocation," within
the meaning of R.C. 2929.04(B)(2). While Green may have been
shocked by the cut on her hand, she brought that upon herself
with her plan to rob and kill Willis. Since Green was a
principal actor in the offense, R.C. 2929.04(B)(6) is
Green's very limited intelligence, an IQ of 66, would
qualify as a mental defect within R.C. 2929.04(B)(3), although
she suffered no mental disease. However, evidence is lacking
that her mental defect caused Green to lack "substantial
capacity to appreciate the criminality" of her conduct or
conform that conduct to law. Nonetheless, Green's limited
intelligence would be a mitigating "other factor" under R.C.
2929.04(B)(7). Green's age of twenty-four only nominally
satisfies the mitigating factor of "youth of the offender,"
R.C. 2929.04(B)(4), and is entitled to only slight weight.
As to R.C. 2929.04(B)(5), the trial panel found, as a
fact, that Green had three prior adjudications as a juvenile
and four adult misdemeanor convictions. The court of appeals
agreed that Green's "history of criminal convictions and
delinquency adjudications, does not weigh in Green's favor
because she has previously been convicted of several criminal
acts, including theft, drug abuse and resisting arrest." This
finding apparently rests upon a presentence investigation not
forwarded as a part of the record of trial. Since Green does
not claim the absence of a criminal record, as a mitigating
factor, the absence of formal documentation of her record can
be considered as harmless error. R.C. 2929.04(B)(5) is thus
Under R.C. 2929.04(B)(7), as mitigating "other factors,"
we consider the different treatment accorded to Coulter,
Green's remorse, the circumstances of her upbringing, her
alcoholism and drug addiction, and her limited intelligence.
Coulter was convicted and sentenced for involuntary
manslaughter and aggravated robbery. We determine the possible
significance of this mitigating factor is diminished because
Coulter pled guilty and Green stabbed the victim.
In weighing the aggravating circumstance against
mitigating factors, we find that the aggravating circumstance
does outweigh the mitigating factors beyond a reasonable
doubt. Collectively, Green's lack of intelligence, family
upbringing, and alcohol and drug addiction are entitled to
modest weight. In contrast, Green planned and carried out a
calculated robbery and murder of a frail, elderly man in his
own home. The number and manner of the stab wounds
convincingly demonstrate an intention to commit murder. The
manner of death and the prior calculation and design tend to
negate Green's later claims of remorse.
The death penalty in this case is neither excessive nor
disproportionate, but is appropriate, when compared with other
felony-murder cases. See State v. Smith (1991), 61 Ohio St.3d
284, 574 N.E.2d 510; State v. Wiles, supra; State v. Jackson
(1991), 57 Ohio St.3d 29, 565 N.E.2d 549; State v. Landrum,
supra; State v. Lott, supra; State v. Johnson (1989), 46 Ohio
St.3d 96, 545 N.E.2d 636; State v. Van Hook (1988), 39 Ohio
St.3d 256, 530 N.E.2d 883; State v. Greer (1988), 39 Ohio St.3d
236, 530 N.E.2d 382; State v. Holloway (1988), 38 Ohio St.3d
239, 527 N.E.2d 831.
Accordingly, the judgment of the court of appeals is
Moyer, C.J., A.W. Sweeney, Douglas and Resnick, JJ.,
Wright, J., concurs separately.
Pfeifer, J., dissents.
1 In January 1991, the Governor of Ohio commuted Green's
death sentence to life imprisonment. However, in Wilson v.
Maurer, case No. 91 CVH01-763, the Franklin County Court of
Common Pleas set aside that commutation. An appeal in that
case is now pending before the Franklin County Court of
Appeals. In State ex rel. Maurer v. Sheward, case No. 92-1350,
the sentenced defendants filed a prohibition action in the
court of appeals asserting that the trial judge lacked
jurisdiction to consider the Governor's commutation. That case
is now on appeal here. See, also, State ex rel. Ney v.
Governor (1991), 58 Ohio St.3d 602, 567 N.E.2d 986. We express
no judgment as to the merits of the underlying commutation case
or case No. 92-1350 by our decision today.
Wright, J., concurring. While I concur without
reservation with the vast majority of the court's opinion, I
write briefly to articulate my position on the weight of the
mitigating factors presented by Green.
Justice Sweeney fully and accurately discusses Green's
extremely low intelligence, her advanced alcoholism and drug
addiction, and her limited intellectual and emotional
development. I disagree, however, with the conclusion that
these factors are entitled only to "modest weight." I believe
that together they carry considerable weight.
Although in past cases the existence of such factors has
led me to dissent from the imposition of the death penalty,2
the aggravating circumstance present in this case is very
strong; in my view it outweighs the mitigating factors beyond a
reasonable doubt. The evidence showed that Green and Coulter
coldly formulated a plan to rob and kill an elderly victim in
his home and that Green carried the plan into action. In a
case in which an offender committed a premeditated felony
murder, evidence of low intellect, advanced chemical
dependency, and limited emotional development should not be
sufficient to warrant vacating the death penalty on appeal.
However, in a different case -- one that does not involve
prior calculation and design -- these same strong mitigating
factors could lead me to vote to vacate the death penalty
pursuant to R.C. 2929.05. In short, I respectfully disagree
with the majority's allotment of only "modest weight" to these
2 See, e.g., State v. Slagle (1992), 65 Ohio St.3d 597,
615, 605 N.E.2d 916, 932 (Wright, J., dissenting); State v.
Rogers (1985), 17 Ohio St.3d 174, 188, 17 OBR 414, 426, 478
N.E.2d 984, 997 (Wright, J., dissenting).
Pfeifer, J., dissenting. I dissent from the majority's
decision to uphold Elizabeth Green's death sentence. This
court's statutorily mandated proportionality review should
include a consideration of the disproportionate sentence given
to her co-defendant, Belinda Coulter. Also, the aggravating
circumstance of Green's crime fails to outweigh the mitigating
factors present in this case.
The trial panel in this case stated in its opinion that
Belinda Coulter "also was a principal offender and both Green
and Coulter actively participated in the offense and the acts
that led to the death of Thomas Willis." The panel determined
that "both Green and Coulter [were] equally responsible for the
Aggravated Murder and Aggravated Robbery of Thomas Willis
* * *." While there is some question in the record as to
whether Coulter inflicted any stab wounds, the record does show
that she planned the murder of Willis with prior calculation
According to the evidence in the record, including Green's
confession and Coulter's statements to police, it was Coulter
who had the ongoing relationship with Willis. Coulter was the
intermediary in Green's sale of her food stamps to Willis. It
was Coulter who noticed that he was carrying a large amount of
cash on the day of the murder. It was she who had already
spent $100 that day on cocaine, and it was she who craved
more. It was she who engineered the women's entry into Willis'
home, asking Willis to sell her some liquor. She, too, was
wearing socks on her hands to avoid leaving fingerprints. She
took Willis' wallet. She ended up with about two-thirds of the
stolen cash. She disposed of what she thought was evidence of
the crime. One of the socks she wore on her hands was found
bloody at the murder scene.
However, Coulter pleaded guilty to a reduced charge of one
count of involuntary manslaughter and one count of aggravated
robbery. Her combined sentence was for a period of twelve to
In reviewing a death sentence, we are required by R.C.
2929.05(A) to "consider whether the sentence is excessive or
disproportionate to the penalty imposed in similar cases."
This court has resisted considering a co-defendant's sentence
in its proportionality review. State v. Stumpf (1987), 32 Ohio
St. 3d 95, 108, 512 N.E.2d 598, 611. However, the statute does
not prohibit such a consideration, and a logical reading of the
statute requires it.
The obvious purpose of the statute's proportionality
language is to ensure that a death sentence is fair in
comparison to the penalty received by other persons committing
like crimes. In most cases, there are not two principals
involved in a particular crime, and it thus becomes necessary
to look at how the death penalty has been applied in cases with
Proportionality is most accurately determined when
comparing the sentences of two persons involved in the same
crime. No other case could be more similar, or more relevant.
R.C. 2929.05(A) has little meaning if the defendant's sentence
cannot be compared to the most relevant sentence possible --
that of her co-defendant.
In this case, Green's sentence is astonishingly
disproportionate to the sentence received by Coulter. Granted,
the sentence imposed upon Coulter was for nominally different
crimes than those with which Green was charged, but both
sentences arose from the same set of operative facts and are
based upon acts for which the trier of fact found Green and
Coulter equally responsible. The only difference between the
two is that Coulter was able to plea bargain. The effect of
that plea bargain was negligible given Green's own confession.
While plea bargains may be a necessary evil, prosecutors
should avoid situations where a plea bargain will result in the
death penalty for one defendant, as opposed to a greatly
reduced charge for another principal in the same crime. This
state's statutory safeguards require that the death penalty not
be arbitrarily administered.
In this case, the prosecutor determined who was to live
and who was to die. That result is disquieting given the
General Assembly's attempt to ensure proportional
administration of capital punishment.
The plain reading of R.C. 2929.05(A) requires that
proportionality review include the sentences of co-defendants.
In this case, Green's death sentence should be overturned. It
is clearly disproportionate to Coulter's reduced charge and
twelve-to-fifty-year combined sentence.
If Coulter's sentence is not considered in this court's
proportionality review, it should at least be considered as a
strong mitigating factor. Another strong mitigating factor is
the fact that the victim in this case basically had a welcome
mat out for attack. Willis was a known illegal dealer in food
stamps and also sold liquor out of his home. He was involved
in criminal activity and invited the risk of meeting a violent
These mitigating factors, together with Green's
extraordinarily low IQ, relatively young age, chemical
dependency, and terrible childhood and adolescence, are not
outweighed by the aggravating circumstance present in this
case. For that reason as well, Green's death sentence should
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