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Supreme Court reverses death sentence in Fremont bar killing

1999-0889. State v. Lomax, 2002-Ohio-4453.
Sandusky C.P. No. 96CR448. Judgment reversed and cause remanded.
Moyer, C.J., Douglas, F.E. Sweeney, Pfeifer and Lundberg Stratton, JJ., concur.
Cook, J., concurs in judgment.
Nader, J., dissents.
Robert A. Nader, J., of the Eleventh Appellate District, sitting for Resnick, J.
Opinion: http://www.sconet.state.oh.us/rod/newpdf/0/2002/2002-Ohio-4453.pdf

1999-1113. State v. Lomax, 2002-Ohio-4453.
Sandusky App. Nos. S-97-037 and S-99-014. Judgment reversed and cause remanded.
Moyer, C.J., Douglas, F.E. Sweeney, Pfeifer and Lundberg Stratton, JJ., concur.
Cook, J., concurs in judgment.
Nader, J., dissents.
Robert A. Nader, J., of the Eleventh Appellate District, sitting for Resnick, J.

Voting 6-1*, the Supreme Court reversed the death sentence of a Fremont man convicted for the 1996 murder of a bartender and ordered the Sandusky County Common Pleas Court to impose a life sentence instead.

Justice Andrew Douglas wrote the majority opinion, which finds that the 6^th District Court of Appeals incorrectly ordered that prosecutors be allowed to amend the state's indictment against Tazwell Lomax to make him eligible for the death penalty.

The Supreme Court ordered that Lomax be resentenced in accordance with a statute that sets the maximum penalty for his aggravated murder conviction at life imprisonment with no possibility of parole for 20 years.

Lomax became the chief suspect in the death of Deanna Jones shortly after her body was found inside Grates Silvertop Bar and Restaurant June 13, 1996. Lomax was one of two customers in the bar at closing time the night before. He was seen getting into his car but no one saw him drive out of the parking lot.

Investigators linked Lomax to the murder through a thumbprint found near, and a bite mark found on, Jones' body. They also matched bloodstains on Lomax's clothing to Jones through DNA analysis.

A three-judge panel found Lomax guilty of aggravated robbery and aggravated murder. The aggravated murder count carried a single death-penalty specification, charging that Lomax had committed the murder "during the commission of or immediately after the commission of aggravated robbery."

Lomax asserted the trial court could not sentence him to be executed because he had not also been convicted on a second death penalty specification as required by statute. The statute at issue requires an additional finding that the defendant acted as the principal offender or with prior calculation and design.

The state sought to amend its indictment against Lomax, but the trial court denied the request. The appeals court, however, reversed that decision and remanded the case to the common pleas.

Subsequently, the trial court made a finding that Lomax was the principal offender and sentenced him to death.

The Supreme Court determined that the appeals court was without jurisdiction to hear the state's appeal of the trial court's denial of the motion to amend the indictment.

The state asserted its right to appeal the decision on the basis of a statute that allows appeals of any trial court decision in a criminal case that "grants a motion to dismiss all or any part of an indictment."

That statute, the Supreme Court said, is inapplicable. "The trial court's order denying the state's motion to amend the indictment was not a dismissal of all or any part of the indictment, since the principal offender language…was never included…The trial court order was merely a ruling on the language contained in the indictment, not a dismissal of all or part of the indictment itself," Justice Douglas wrote.

Contacts
Betty D. Montgomery, James V. Canepa and Norman E. Plate, 614.728.7055, for the state of Ohio.

David H. Bodiker, Stephen A. Ferrell and Pamela Prude-Smithers, 614.466.5394, for Tazwell Lomax.

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*Judge Robert Nader of the 11^th District Court of Appeals, who sat on the case for Justice Alice Robie Resnick, was the lone dissenter.