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State v. Kaiser

Supreme Court of Ohio
Oct 18, 1978
56 Ohio St. 2d 27 (Ohio 1978)

Opinion

No. 77-834

Decided October 18, 1978.

Criminal law — Aggravated murder — Conviction affirmed, when.

APPEAL from the Court of Appeals for Cuyahoga County.

The instant cause arose out of a shooting which occurred at the Wade Park Spaghetti Inn in Cleveland, on July 2, 1975, after either the appellant, Larry E. Kaiser, or his brother announced an intention to rob the establishment. The victim, an off-duty policeman, died of gunshot wounds which he received during gunfire involving himself, the appellant, and the appellant's brother.

On September 8, 1975, appellant was indicted for aggravated robbery and for aggravated murder with the specification that the murder occurred during his commission or attempted commission of aggravated robbery. Appellant pleaded not guilty to those charges.

Appellant's jury trial began on October 14, 1975. At the conclusion of the testimony, the court instructed the jury on the offenses charged against the appellant in the indictment and on aiding and abetting. The jury found the appellant guilty of aggravated robbery and of aggravated murder with the specification. At the January 1976 sentencing hearing, the court found that none of the mitigating circumstances set forth in R.C. 2929.04(B) had been established by a preponderance of the evidence and sentenced the appellant to death on the aggravated murder charge and to 7 to 25 years on the aggravated robbery charge.

Appellant appealed to the Court of Appeals for Cuyahoga County which affirmed the trial court. The cause came before this court as a matter of right.

Mr. John T. Corrigan, prosecuting attorney, and Mr. Michael E. Murman, for appellee.

Fink Greene Co., L.P.A., Mr. Jeffrey H. Olson and Mr. John H. Carson, for appellant.


Appellant raises nine propositions of law in the instant cause. Of those propositions, one challenges the sentence for being based on facts unsupported by the record. Of the remaining propositions, four challenge the procedure by which mitigation is considered under R.C. 2929.03 and 2929.04; and the four others challenge the procedure for appellate review of death penalty cases, the scope of inquiry allowed by the mitigating factors listed in R.C. 2929.04, the vagueness of R.C. 2929.04(B) (1) and the efficacy of the death penalty as a deterrent.

In Lockett v. Ohio (1978), ___ U.S. ___, 57 L. Ed. 2d 973, and Bell v. Ohio (1978), ___ U.S. ___, 57 L. Ed. 2d 1010, the United States Supreme Court held that R.C. 2929.04(B) unconstitutionally limits the range of mitigating circumstances which may be considered by a sentencing court. In accordance with that holding, this court has previously modified the judgment of the Court of Appeals by reducing appellant's sentence to life imprisonment. In light of our reduction of appellant's sentence, we find it unnecessary to address his propositions of law.

The judgment of the Court of Appeals with respect to the conviction of appellant is affirmed.

Judgment accordingly.

HERBERT, CELEBREZZE, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.

LEACH, C.J., not participating.


Summaries of

State v. Kaiser

Supreme Court of Ohio
Oct 18, 1978
56 Ohio St. 2d 27 (Ohio 1978)
Case details for

State v. Kaiser

Case Details

Full title:THE STATE OF OHIO, APPELLEE, v. KAISER, APPELLANT

Court:Supreme Court of Ohio

Date published: Oct 18, 1978

Citations

56 Ohio St. 2d 27 (Ohio 1978)
381 N.E.2d 632

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