Caption.

Death-row Inmate Gregory C. Osie.

The Supreme Court of Ohio today affirmed a West Chester man’s convictions and death sentence for the 2009 murder of a Butler County man.

In an opinion authored by Justice Sharon L. Kennedy, the Supreme Court upheld the decision of the Butler County Court of Common Pleas and overruled more than a dozen claims of legal and procedural error presented by Gregory C. Osie.

In August 2008, David Williams, Robin Patterson, and Nicholas Wiskur partnered in a contracting business. Osie was Patterson’s boyfriend.

Concerns were raised about certain checks issued by the business, and in February 2009 Wiskur looked into one for $375. Dated in December 2008, it appeared to be signed by Patterson and was made out to and endorsed by Osie. Wiskur concluded that the check was forged and brought it to Williams’s attention.

On February 13, 2009, Wiskur and Osie talked by phone, and Wiskur informed Osie that a gas station owner had identified Osie as the person who had cashed the check and that the transaction was on video. Osie later called Williams, and Wiskur overheard the conversation. According to Wiskur, Williams told Osie he planned to file charges with police for the theft. The next day, Williams was found dead in his house.

Osie was charged with multiple offenses, including two counts of aggravated murder, each including death-penalty specifications. He pled not guilty and chose to be tried by a panel of three judges instead of a jury. The panel found him guilty of murder while committing aggravated burglary and of three death-penalty specifications – one for felony murder based on aggravated burglary, one for felony murder based on aggravated robbery, and one for murder of a witness to an offense. Osie was also found guilty of aggravated burglary, aggravated robbery, and evidence tampering. The court acquitted him of one of the aggravated murder counts and instead found him guilty of murder.

In his appeal to the Supreme Court, Osie argued that the trial court should have merged the specifications for felony murder with the specification for murder of a witness. In today’s opinion, the majority agreed.

“Osie’s object in trespassing in Williams’s home, and also his reason for killing Williams, was to prevent him from filing a criminal complaint against him or Patterson,” Justice Kennedy wrote. “Moreover, the trespass, and therefore the aggravated burglary, did not begin until Osie began to assault Williams. Consequently, Osie’s actions in killing Williams during an aggravated burglary and killing him because he was a witness appear to be ‘inextricably intertwined’ and hence ‘constituted one indivisible course of conduct.’”

The Supreme Court, however, corrected the error in its independent review of the death sentence. In the review, the court determines whether the aggravating circumstances outweigh the mitigating factors in the case. While Osie was convicted of three aggravating circumstances (the three death-penalty specifications), the Supreme Court today merged the aggravated-burglary specification with the witness-murder specification, so only two specifications remained, Justice Kennedy explained. The majority concluded that the two remaining aggravating circumstances in this case still outweigh the mitigating factors beyond a reasonable doubt and that the death sentence is appropriate and proportionate.

Justice Kennedy also discussed whether State v. Malone, a 2009 Ohio Supreme Court decision involving the witness-intimidation statute, R.C. 2921.04(B), applies in this case. The majority ruled that Malone does not apply.

“Unlike R.C. 2921.04(B), R.C. 2929.04(A)(8)[, the witness-murder specification at issue in this case,] is not limited to a witness who is ‘involved in’ a criminal proceeding,” Justice Kennedy reasoned. “Rather, R.C. 2929.04(A)(8) speaks of ‘a witness to an offense who was purposely killed to prevent the victim’s testimony in any criminal proceeding.’ (Emphasis added.) The language ‘to prevent’ indicates that the defendant’s motive is to affect a future proceeding. Moreover, R.C. 2929.04(A)(8) uses the broad, inclusive term ‘any’ criminal proceeding. Consequently, a murder committed for the purpose of preventing the victim’s testimony in a future or potential criminal proceeding is well within the statute’s reach.”

The court rejected Osie’s other arguments. 

The majority opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer and Terrence O’Donnell. Justice Judith Ann Lanzinger concurred in part with the majority and dissented in part in an opinion joined by Justice Judith L. French. Justice William M. O’Neill dissented.

In her opinion, Justice Lanzinger contended that the state did not prove Osie was guilty of the death specification for murder of a witness. The analysis used in Malone for the meaning of “criminal proceeding” should be used in this case to interpret the witness-murder specification in R.C. 2929.04(A)(8), she reasoned.

“In this case, … the question is whether Williams was a ‘witness to an offense who was purposely killed to prevent the victim’s testimony in any criminal proceeding,’” Justice Lanzinger wrote. “The  evidence showed beyond a reasonable doubt that Williams intended to press charges against both Osie and Patterson and that he was killed to prevent his filing a complaint with the police. Indeed, the majority opinion focuses on this point alone, stating that ‘[t]o prove this specification, the state had to prove that Osie killed Williams for the purpose of preventing him from filing a criminal charge.’ … That, however, is not what the statute says.”

“R.C. 2929.04(A)(8) does not mention that an offender must purposely kill to prevent either the filing of a complaint or the initiation of criminal charges, which the evidence shows was the motivation for Osie’s actions. Instead, the specification applies when the offender prevents the witness from testifying in criminal proceedings.”

Although she concurred in affirming the convictions for aggravated murder, felony murder, and the other aggravating circumstances (under R.C. 2929.04(A)(7)), Justice Lanzinger concluded that she would vacate the two convictions for the aggravating circumstance of witness murder and would send the case back to the trial court for resentencing. 

In his dissent, Justice O’Neill asserted that the Supreme Court today repeats the same error it made earlier this year in State v. Kirkland by holding that the court’s independent sentence review can cure any error made in trial court.

“I rejected this analysis in Kirkland and I reject it again,” he wrote. “It is illogical and unsupported by the law. I do not believe that Osie’s choice to have his case heard by a three-judge panel resolves the issue. If there is inarguable and prejudicial error in the imposition of a death sentence, it should be elementary that a new sentencing is required. We do not engage in post hoc justification of the result when reviewing prison sentences. … This is a death sentence, and ‘good enough’ is unacceptable.”

He also contested the majority’s suggestion that it was appropriate to adopt “the inference that Osie’s purpose in stabbing Williams was to keep him from filing charges.” 

“It is true that the factfinder may rely upon an inference to conclude that sufficient evidence of an offense has been presented,” Justice O’Neill wrote. “But it is another thing altogether to conclude that the very same ‘inference’ is also sufficient to justify the imposition of a death sentence.”

“[B]efore the state of Ohio, in the name of its citizens, can take another life, it must demonstrate beyond a reasonable doubt that the motive to silence this witness was the driving force behind the fatal act,” he continued. “Other than the death, there is no direct evidence and precious little circumstantial evidence of that intent. Accordingly, I would hold as a matter of law that the state has failed in that endeavor.” 

Justice O’Neill pointed out that before Osie’s marriage collapsed and his father died, he was productive – he held a job, raised a family, and put two kids through college. In weighing mitigating factors against aggravating ones, Justice O’Neill concluded that society gains nothing by executing this defendant.

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2010-1105. State v. Osie, Slip Opinion No. 2014-Ohio-2966.

View oral argument video of this case.

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