State v. D'Ambrosio - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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The State of Ohio, Appellee, v. D'Ambrosio, Appellant.
[Cite as State v. D'Ambrosio (1995), Ohio St.3d .]
Criminal law -- Aggravated murder -- Reaffirmance of death
penalty by court of appeals after remand by Ohio Supreme
Court upheld, when.
(No. 94-103 -- Submitted May 24, 1995 -- Decided August
16, 1995.)
Appeal from the Court of Appeals for Cuyahoga County, No.
57448.
This appeal represents the second occasion on which the
case sub judice has reached this court for review. On October
6, 1988, appellant, Joe D'Ambrosio, Thomas "Mike" Keenan and
Edward Espinoza were jointly indicted on four separate counts
in connection with the murder of Anthony Klann. The indictment
charged each defendant with (1) aggravated murder with prior
calculation and design, R.C. 2903.01(A); (2) aggravated felony
murder, R.C. 2903.01(B); (3) kidnapping, R.C. 2905.01; and (4)
aggravated burglary, R.C. 2911.11. On February 9, 1989, a
three-judge panel found appellant guilty on all counts charged
in the indictment. (The verdict was announced February 21,
1989, following the conclusion of Keenan's trial.) The panel
thereafter determined that the aggravating circumstance
outweighed the mitigating factors beyond a reasonable doubt,
and sentenced appellant to death on the aggravated murder
counts.
The court of appeals affirmed the convictions and the
sentence of death. Thereafter, this court affirmed the
convictions in State v. D'Ambrosio (1993), 67 Ohio St.3d 185,
616 N.E.2d 909 (D'Ambrosio I), but remanded the case to the
court of appeals for an independent review of the death
sentence because several potentially important defense
mitigation exhibits were missing from the record.
A summarization of the facts established in D'Ambrosio I
is warranted for the instant appeal.1 On the evening of
Friday, September 23, 1988, Anthony Klann ("victim") and Paul
"Stoney" Lewis visited a Cleveland bar called "The Saloon."
While in the bar, Lewis met Thomas "Mike" Keenan, his former
employer. The two conversed, left the bar in Keenan's truck,

and drove to another bar called "Coconut Joe's." Shortly
thereafter, the victim, Edward Espinoza and appellant arrived
at Coconut Joe's. Each man eventually left Coconut Joe's at
various times throughout the evening.
At approximately 1:30 a.m., Saturday, September 24, 1988,
Espinoza and appellant encountered Keenan outside appellant's
apartment. Keenan asked the two men to help him locate Lewis
so that he could recover some drugs that he claimed Lewis had
stolen from him. Appellant and Espinoza entered appellant's
apartment, where they armed themselves, respectively, with a
knife and baseball bat. They then returned to Keenan's truck
to assist with the search for Lewis.
While driving around the Coventry and Murray Hill areas
looking for Lewis, Keenan, Espinoza and appellant observed the
victim walking beside the road on which they were traveling and
called out to him. The victim approached the vehicle and
Keenan forced him into the back seat next to appellant. The
victim was asked where Lewis was, but the victim said he did
not know. While the three men interrogated Klann, Espinoza
struck the victim on the head with a baseball bat. Klann
ultimately informed his captors where Lewis lived, and Keenan
then drove the group to the designated location. While Keenan
and Espinoza attempted to locate Lewis inside an apartment
building, appellant remained in the truck, where he held the
victim at knife-point. Keenan and Espinoza failed to locate
Lewis, so they returned to the truck and drove off.
Keenan drove the group to Doan's Creek, pulled his truck
off the road near the bank of the creek, and forced the victim
out of the vehicle. Keenan repeatedly asked Klann where Lewis
was, but the victim denied having any knowledge of Lewis'
location. Keenan ordered the victim to put his head back, at
which point Keenan took appellant's large knife, cut the
victim's throat, and pushed him into the creek. The victim
stood up and began to run. Keenan then stated, "[f]inish him
off." In response, appellant grabbed the knife from Keenan and
pursued Klann on foot. Appellant caught Klann, and despite the
latter's plea, "[p]lease don't kill me," appellant fatally
stabbed Klann several times.
On remand, the court of appeals concluded that the
aggravating circumstance in each count outweighed the
mitigation evidence and reaffirmed the sentence of death. The
appellate court further determined that the sentence of death
was not disproportionate to the penalty imposed in similar
cases.
The cause is now before this court upon an appeal as of
right.

Stephanie Tubbs Jones, Cuyahoga County Prosecuting
Attorney, and Carmen M. Marino, Assistant Prosecuting Attorney,
for appellee.
John Ghazoul, for appellant.

Alice Robie Resnick, J. Having previously considered
appellant's conviction and the issues raised on appeal in
D'Ambrosio I, this court must now complete the review required
by R.C. 2929.05(A) by independently weighing the aggravating
circumstance against the mitigating factors, and determining

whether the death sentence is appropriate.
A
We note at the outset that appellant seeks to raise
several additional issues unrelated to our independent review.
In his brief to this court, appellant sets forth seven
propositions of law. All of the asserted arguments, with the
exception of Proposition Nos. I(B), IV, VII(A) and VII(B),
address issues that were previously advanced in D'Ambrosio I.
The doctrine of res judicata establishes that "a final judgment
of conviction bars the convicted defendant from raising and
litigating in any proceeding, except an appeal from that
judgment, any defense or any claimed lack of due process that
was raised or could have been raised by the defendant at the
trial which resulted in that judgment of conviction or on an
appeal from that judgment." (Emphasis added.) State v. Perry
(1967), 10 Ohio St.2d 175, 180, 39 O.O.2d 189, 192, 226 N.E.2d
104, 108. See, also, Ashe v. Swenson (1970), 397 U.S. 436,
442, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469, 475. This court
affirmed appellant's convictions of aggravated murder,
kidnapping and aggravated burglary in D'Ambrosio I. The fact
that the case was remanded to the court of appeals for
re-evaluation of the death sentence in no way implicated the
finality of those convictions. As such, we reject without
further consideration each of appellant's propositions of law,
excluding Propositions Nos. I(B), IV, VII(A) and VII(B).
In Proposition No. IV, appellant attacks the trial court's
sentencing opinion. He argues that the opinion is too
"conclusory." This argument was asserted in and rejected by
the court of appeals in the original appeal, but appellant
chose not to pursue it before this court in D'Ambrosio I.
Appellant's failure to assert this argument in D'Ambrosio I
constitutes a waiver of any claimed error at this late date.
Where an argument could have been raised on an initial appeal,
res judicata dictates that it is inappropriate to consider that
same argument on a second appeal following remand. See State
v. Perry, supra. See, also, State v. Sneed (1992), 63 Ohio
St.3d 3, 10, 584 N.E.2d 1160, 1167; State v. Greer (1988), 39
Ohio St.3d 236, 247, 530 N.E.2d 382, 396. We accordingly
reject appellant's fourth proposition of law.
Proposition No. VII(B) was similarly raised in the initial
appeal to the court of appeals but not in D'Ambrosio I. In
this proposition, appellant attacks a provision of his
kidnapping sentence as violating Crim. R. 43(A), which requires
that all trial proceedings, including sentencing, take place in
the defendant's presence. The trial court originally sentenced
appellant in open court to "10 to 25 years on the aggravated
burglary charge and 10 to 25 years on the kidnapping charge,
and sentence to run consecutively." Thereafter, the sentencing
opinion issued by the court added that appellant's ten-year
minimum term for each conviction was "to be a term of actual
incarceration ***." Appellant's decision not to pursue this
issue in D'Ambrosio I constitutes a waiver as discussed above,
and thus precludes him from raising it at this time unless the
claimed error rises to the level of plain error. "Notice of
plain error under Crim. R. 52(B) is to be taken with the utmost
caution, under exceptional circumstances, and only to prevent a
manifest miscarriage of justice." State v. Long (1978), 53

Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph three of
the syllabus. "Plain error does not exist unless it can be
said that but for the error, the outcome of the trial would
clearly have been otherwise." State v. Moreland (1990), 50
Ohio St.3d 58, 62, 552 N.E.2d 894, 899. We find the sentencing
modification does not rise to the level of plain error, and
therefore reject Proposition No. VII(B) as waived.
Propositions No. I(B) and VII(A) each challenge the lower
court's imposition of the death penalty in light of the
evidence appellant offered in mitigation. It is well settled
that any errors that a trial court may have committed when
weighing the aggravating circumstance against the mitigating
factors may be rectified by this court's independent review.
State v. Lott (1990), 51 Ohio St.3d 160, 170, 555 N.E.2d 293,
304. We address this issue further in Part B of our opinion,
infra.
B
We now turn to an independent review of the record as
required by R.C. 2929.05(A). The three-judge panel convicted
appellant of two counts of aggravated murder, but since each
involved the same victim, the two counts merged. See State v.
Huertas (1990), 51 Ohio St.3d 22, 28, 553 N.E.2d 1058, 1068.
With respect to the aggravating circumstance of the murder, the
evidence established beyond a reasonable doubt that the murder
of Anthony Klann occurred while appellant committed the offense
of kidnapping (R.C. 2929.04[A][7]).
Against the sole aggravating circumstance, appellant urges
this court to recognize a variety of mitigating factors.
Before discussing those factors, however, we note that the
record contains the three previously missing mitigation
exhibits: appellant's high school record, a presentence
investigation report, and a psychiatric report with addendum.
The facts surrounding the offense indicate that Klann was
viciously murdered after being forced into a vehicle,
repeatedly threatened, held at knife-point, and beaten. As
such, we find that the nature and circumstances of the murder
are not mitigating.
Nothing in the record suggests that Klann induced or
facilitated the commission of his murder, thereby rendering R.
C. 2929.04(B)(1) inapplicable in this case. Defense counsel
suggested that appellant participated in Klann's murder because
appellant was afraid of Keenan. Under this theory, appellant's
fear caused him to follow Keenan's instruction to "finish
[Klann] off." R.C. 2929.04(B)(2) designates as a mitigating
factor "[w]hether it is unlikely that the offense would have
been committed, but for the fact that the offender was under
duress, coercion, or strong provocation ***." The record fails
to support a claim of duress or coercion in this case. The
knife Keenan used to slash Klann's throat was provided by
appellant. Not one witness testified that Keenan had
threatened appellant or had exerted pressure on him to harm
Klann. Appellant's acts were a result of his own free will
and, thus, R.C. 2929.04(B)(2) does not apply.
The evidence does indicate that at the time Klann was
murdered, appellant was intoxicated. Appellant testified that
by the early morning hours of September 24, 1988, he was
"pretty drunk," as a result of having consumed eight or nine

beers and four or five shots of tequila. Other witnesses
confirmed that appellant was drunk during the time in
question. In certain circumstances, voluntary intoxication can
constitute a mitigating factor, albeit a weak one. State v.
Lawson (1992), 64 Ohio St.3d 336, 352, 595 N.E.2d 902, 914;
State v. Hicks (1989), 43 Ohio St.3d 72, 80, 538 N.E.2d 1030,
1039. But, see, State v. Slagle (1992), 65 Ohio St.3d 597,
614, 605 N.E.2d 916, 931 (alcoholism, addiction and voluntary
intoxication are not mitigating factors). Appellant attempts
to argue very generally that he has a drinking problem, but
none of the evidence presented indicates that he suffers from
alcoholism. Although he had a history of binges and occasional
blackouts while in the Army, appellant adduced no medical
diagnosis of alcoholism, despite examination by two
psychiatrists who were aware of his drinking patterns.
Furthermore, neither of the psychiatrists found any evidence of
a mental disease, defect or disorder. We, therefore, assign
appellant's intoxication little or no weight under either R.C.
2929.04(B)(3) (diminished capacity due to mental disease or
defect) or 2929.04(B)(7) (any other relevant factor).
As to appellant's youth, a potential mitigating factor
under R.C. 2929.04(B)(4), he was twenty-six years old at the
time of the murder. This court has held on several occasions
that where a defendant kills at the age of eighteen or
nineteen, the element of youth is entitled to little weight.
See State v. Slagle, 65 Ohio St.3d at 613, 605 N.E.2d at 931;
State v. Hill (1992), 64 Ohio St.3d 313, 335, 595 N.E.2d 884,
901; State v. Powell (1990), 49 Ohio St.3d 255, 264, 552 N.E.2d
191, 201. Defendant's age of twenty-six clearly negates R.C.
2929.04(B)(4).
Appellant also introduced evidence at trial that prior to
the instant offense, his only previous criminal convictions
were two convictions for driving under the influence. This
fact is entitled to some weight, given the terms of R.C.
2929.04(B)(5).
Appellant urges this court to conclude that he
participated in the events leading up to Klann's death as a
follower, not as an instigator, and thus R.C. 2929.04(B)(6)
applies. The record does demonstrate that it was Keenan who
initially commenced the search for Lewis and forced Klann into
the truck. While appellant, Keenan and Espinoza each
interrogated Klann, it was Espinoza who struck the victim with
a baseball bat. Appellant did, however, confine Klann in the
truck by holding a large knife within inches of his face. It
was also appellant who, after Keenan cut Klann's throat,
voluntarily took the knife from Keenan, chased after the
victim, and ultimately inflicted several fatal stab wounds on
the victim's chest, left wrist and right arm. Appellant
clearly acted as a principal offender. The potential
mitigation factor in R.C. 2929.04(B)(6), therefore, is not
present. See State v. Landrum (1990), 53 Ohio St.3d 107, 125,
559 N.E.2d 710, 730.
Appellant further offered evidence of his military and
work records as mitigating factors under R.C. 2929.04(D)(7).
Appellant enlisted in the Army in 1981 and served until 1985,
when he was honorably discharged. While in the Army, appellant
graduated early from his training course, reached the grade of

E-5 (sergeant) in less than three years, earned the Good
Conduct and Army Achievement medals, and obtained a
commendation for providing "outstanding maintenance support" to
his brigade during a field exercise. Appellant also qualified
as an expert with the M-16 and other firearms. The Army
offered to promote appellant if he re-enlisted at the
conclusion of his initial term, but he declined. Following his
discharge from the Army, appellant was unable to secure
employment as a mechanic, given his lack of certification. He
could not afford the schooling necessary to achieve the
required certification. As a result, appellant accepted a job
as a gas station attendant, later becoming the station's night
manager. Appellant next worked at Formall Rubber Co., but was
fired after six weeks for "terrible absenteeism and
tardiness." Then, approximately one month before the murder,
appellant accepted a position with Keenan's landscaping
business. We find that both appellant's military record and
employment history are entitled to some weight as mitigating
factors.
During the mitigation hearing, appellant introduced five
witnesses -- his mother and four friends -- to testify
concerning his history, character and background. These
witnesses depicted appellant as a nonviolent person and a
"peacemaker." They further described appellant as truthful,
polite, respectful, caring and responsible. One witness called
him "eager *** motivated [and] bright," although appellant's
high school record reflects a low grade-point average (1.441)
and excessive absenteeism and tardiness. All five witnesses
shared the belief that appellant could be rehabilitated.
Appellant made an unsworn statement to the three-judge
panel in which he detailed his life, military career, job
situations and his limited involvement with the law. While he
acknowledged that the death of Klann was a tragic event,
appellant denied any involvement with the killing, thereby
raising the issue of residual doubt. Based upon the evidence
established at trial, however, we have no doubt of appellant's
guilt.
Edward Espinoza, an eyewitness to the murder, testified
against appellant pursuant to the terms of the former's plea
bargain. While Espinoza's credibility was challenged during
his testimony, the three-judge panel found his statements to be
credible as to the course of events. The weight to be given
evidence and the credibility of witnesses are issues for the
trier of fact to resolve, not an appellate court. State v.
Waddy (1992), 63 Ohio St.3d 424, 430, 588 N.E.2d 819, 825.
See, also, State v. DeHass (1967), 10 Ohio St.2d 230, 39 O.O.2d
366, 227 N.E.2d 212, paragraph one of the syllabus. We have no
reason to reject the panel's conclusion in this case,
particularly in light of appellant's own questionable
credibility. According to appellant, no one -- not Keenan,
Espinoza or himself -- had a weapon on the night that Klann was
killed. The denial covered the possession of both knives and
baseball bats. Three witnesses, other than Espinoza, testified
that they had observed appellant with a knife, and two of those
witnesses had observed Espinoza with a bat. On the whole, the
evidence of guilt is convincing, and residual doubt is not an
important mitigating factor in this case.

Having weighed the aggravating circumstance against the
evidence presented in mitigation, we find that the aggravating
circumstance outweighs the mitigating factors beyond a
reasonable doubt.
C
In order to complete our review under R.C. 2929.05(A), we
must consider whether the sentence of death imposed in this
case is excessive or disproportionate to the penalty imposed in
similar cases. This court has approved the death penalty in
several cases where the sole aggravating circumstance was
kidnapping. See, e.g., State v. Morales (1987), 32 Ohio St.3d
252, 513 N.E.2d 267; State v. Buell (1986), 22 Ohio St.3d 124,
22 OBR 203, 489 N.E.2d 795; State v. Mauer (1984), 15 Ohio
St.3d 239, 15 OBR 379, 473 N.E.2d 768.
Perhaps the most significant cases for us to consider
relative to our proportionality review in the instant action
are State v. Brewer (1990), 48 Ohio St.3d 50, 549 N.E.2d 491,
and State v. Fox (1994), 69 Ohio St.3d 183, 631 N.E.2d 124. In
those cases, the defendants introduced mitigation evidence
comparable to, but even greater than, D'Ambrosio's. Like the
appellant in this case, Brewer and Fox had clean records,
histories of legitimate and gainful employment, and several
favorable character witnesses. Unlike D'Ambrosio, however,
both Brewer and Fox demonstrated mental problems and expressed
remorse. See Brewer, 48 Ohio St.3d at 54, 549 N.E.2d at 496;
Fox, 69 Ohio St.3d at 194-195, 631 N.E.2d at 133. Fox also
showed a "relatively successful adjustment to pretrial
confinement ***." Id. at 194, 631 N.E.2d at 133. Yet, in both
of those cases, the aggravating circumstance of murder being
committed during the course of a kidnapping outweighed the
evidence offered in mitigation. We therefore find the sentence
of death to be neither excessive nor disproportionate in this
case.
Based upon the foregoing, the judgment of the court of
appeals upholding the sentence of death is affirmed.
Judgment affirmed.
Moyer, C.J., Douglas, Wolff and Cook, JJ., concur.
Wright and Pfeifer, JJ., dissent.
William H. Wolff, Jr., J., of the Second Appellate
District, sitting for F.E. Sweeney, J.

Footnote
1 A more complete recitation of the facts is presented in
D'Ambrosio I.
Wright, J., dissenting. This court, both by words and
by actions, has adopted the position that the sentence of death
is a very different kind of penalty from any other that our
state may impose. During the past ten and one-half years, I
have had the ofttimes trying duty of reviewing more than
six-score capital cases. I must say that only two or three of
these cases involved persons whom society would have any
interest in rehabilitating. Joseph D'Ambrosio, the appellant
in this case, is an exception to the general rule just stated.
During the mitigation stage of the proceedings, appellant
presented a substantial amount of testimony supporting the idea
that he is perfectly capable of making an honest living, acting
responsibly, and contributing to society after serving a

twenty- or thirty-year sentence. The circumstances of this
case indicate that this murder was much out of appellant's
character. D'Ambrosio's responsibility was limited by his
subordinate role and the fact that he was under the influence
of alcohol at the time of the crime. Voluntary intoxication
may be a mitigating factor if it either lessens the moral
culpability of a defendant for an offense or renders the death
sentence less appropriate in a given case. See State v. Sowell
(1988), 39 Ohio St.3d 322, 325, 530 N.E.2d 1294, 1300.
Furthermore, D'Ambrosio has an excellent military record.
He served in the United States Army from 1981 through 1985,
graduated early from his training course and reached the grade
of E-5 (sergeant) in less than three years. D'Ambrosio earned
the Good Conduct and Army Achievement medals and a commendation
for providing "outstanding maintenance" to his brigade during a
field exercise. Upon declining the army's offer to promote him
if he reenlisted, D'Ambrosio received an honorable discharge.
After his discharge he had difficulty finding high-skilled
work, but did remain gainfully employed through most of the
period from the time of his discharge to the time of his arrest
in September 1988. Aside from two DWIs, D'Ambrosio has no
significant prior criminal convictions and delinquency
adjudications. D'Ambrosio participated in this crime as a
follower, not as an instigator. I believe beyond any question
that the aggravating circumstance does not outweigh the
mitigating factors beyond a reasonable doubt. In point of
fact, the mitigating factors are sufficient to outweigh the
aggravating circumstance.
Accordingly, I would reverse the death sentence and remand
this cause to the trial court for further proceedings pursuant
to State v. Penix (1987), 32 Ohio St.3d 369, 513 N.E.2d 744.
Pfeifer, J., concurs in the foregoing dissenting opinion.