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Murderer’s Convictions, Death Sentence Upheld; Resentencing Ordered on Non-Capital Offenses
2004-0041. State v. Elmore, 2006-Ohio-6207.
Licking C.P. No. 02 CR 275. Judgment affirmed, but cause remanded for resentencing on non-capital offenses.
Moyer, C.J., Resnick, Pfeifer, Lundberg Stratton, O'Connor, O'Donnell and Lanzinger, JJ., concur.
Opinion: http://www.supremecourtofohio.gov/rod/newpdf/0/2006/2006-Ohio-6207.pdf
(Dec. 13, 2006) A unanimous Supreme Court of Ohio today upheld the convictions and death sentence of a Newark killer who bludgeoned to death his ex-girlfriend, Pamela Annarino, on her son's wedding day in June 2002.
“We find that the sentence of death imposed in this case was appropriate, and we therefore affirm it,” wrote Justice Evelyn Lundberg Stratton, who authored the 7-0 decision for the Court.
The Court rejected more than a dozen allegations of legal and procedural error by the trial court that were advanced by Phillip E. Elmore as grounds to overturn his aggravated murder conviction or reduce his death sentence. Those claims included the assertion that the trial court violated Elmore's fair trial rights by denying a request from the jury to allow smoke breaks during deliberations.
“The record indicates that there was only one smoker on this jury,” Justice Stratton wrote. “Elmore's claim that this juror suffered nicotine withdrawal is totally speculative. The simple request, “can we smoke” does not indicate any type of emergency. There is no support in the record for Elmore's claim that the juror who wished to smoke was under any additional stress occasioned by “mentally wanting, and physically needing to smoke tobacco.” Nor is there any evidence that this juror rushed the other jurors during their deliberations. There is also no protected class of jurors who have the right to smoke during a trial,” wrote Justice Stratton.
The Court found that the trial judge did commit a procedural error in sentencing Elmore to maximum and consecutive sentences for convictions on five non-capital offenses of murder, kidnapping, aggravated robbery, aggravated burglary, and grand theft for fleeing the crime scene in Annarino's car after killing her. Today's decision ordered the trial court to give Elmore a new sentencing hearing on the non-capital convictions based on a Supreme Court of Ohio decision announced earlier this year, State v. Foster. Foster invalidated portions of Ohio's criminal sentencing statutes that had previously allowed judges to impose enhanced sentences on an offender based on judicial findings of fact that went beyond the facts determined by the jury or admitted by the defendant.
“[T]he trial court's factfinding in support of maximum and consecutive sentences violated Foster,” Justice Stratton wrote. “The trial court's reliance on unconstitutional sentencing statutes when imposing maximum and consecutive sentences on the non-capital offenses violated Elmore's constitutional rights and must be corrected.”
According to taped statements given by Elmore to police, he admitted breaking into Annarino's home while she was attending her son's wedding and confronting her with a shotgun when she returned home. Elmore told officers that he tied Annarino's hands and feet and partially strangled her with his hands and a pair of stretch pants that were found knotted around her throat, but intended to leave her alive until she “flared off” on him verbally, at which point he found a length of lead pipe and bludgeoned her to death with several blows to the head.
Family members found Annarino's body several days later. A neighbor who knew Elmore told police she saw him leave the victim's house on the afternoon of the wedding and drive off in Annarino's gold Toyota Camry, which remained missing. A statewide alert was broadcast for the vehicle. Police in Columbus spotted the car and placed Elmore in custody. When Newark officers came to question him about the Annarino killing, Elmore admitted his guilt and later gave two recorded statements providing details of the crime that were replayed for jurors during his trial. DNA and other physical evidence corroborated Elmore's confession and connected him to Annarino's murder.
Following a jury trial at which Elmore's attorneys made an unsuccessful motion for a directed verdict of acquittal at the close of the state's case but called no defense witnesses, the jury found Elmore guilty on all charges, including the death penalty specifications that he had killed Annarino during the commission of the felony offenses of kidnapping, aggravated robbery and aggravated burglary.
Contacts
Kenneth W. Oswalt, 740.670.5255, for the
State of Ohio and Licking County prosecutor's office.
W. Joseph Edwards, 614.228.0523, for Phillip Elmore.
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