Caption.

Inmate Donna Roberts is the only woman on Ohio's death row.

The Ohio Supreme Court affirmed imposition of the death penalty on Donna Roberts, who conspired with Nathaniel Jackson to kill her ex-husband, Robert Fingerhut, with whom she had been living.

Writing for the Court majority, Justice Terrence O’Donnell explained that Roberts helped Jackson plan Fingerhut’s murder in a series of letters and phone calls while Jackson was in prison on an unrelated charge, and she actively participated with Jackson in the killing by purchasing a mask and gloves for him and allowing him into the home, evidencing prior calculation and design.

Justices Sharon L. Kennedy, Judith L. French, Patrick F. Fischer and R. Patrick DeWine, joined Justice O’Donnell’s opinion. Chief Justice Maureen O’Connor concurred in judgment only. Justice William M. O’Neill concurred in part and dissented in part, citing his view that the death penalty is unconstitutional.

Roberts Denied Involvement
Although they were divorced, Roberts and Fingerhut lived together in Howland Township, and Fingerhut owned two insurance policies worth $550,000, naming Roberts as the sole beneficiary.

Roberts began an affair with Jackson, who later went to prison on convictions unrelated to this case. During his incarceration, he and Roberts exchanged numerous letters and phone calls, in which Jackson repeatedly avowed that he would kill Fingerhut when he obtained his release. Roberts, complaining about Fingerhut’s control of her finances, wrote to Jackson to “[d]o whatever you want to him ASAP.”

On December 9, 2001, upon Jackson’s release, Roberts picked up Jackson at the prison, obtained a hotel room, and spent that night and much of the next two days with him. Then, on the evening of the murder on December 11, Jackson had Robert’s cell phone, and they were in near-constant communication between 9:45 and 11:45 p.m. Roberts went to the Days Inn in Boardman, Ohio, and reserved a room for a week, where Jackson’s fingerprints were found. She returned home and called police, who found Fingerhut on the kitchen floor dead from multiple gunshot wounds. There were no signs of forced entry.

The next day, Roberts told police that she had been in a relationship for six months with a man named Carlos, but she did not mention Jackson. When asked about Jackson, she said she had forgotten about him, but then claimed that she had last seen him when she picked him up from prison and had last spoken to him on the morning of the murder. Investigators then recovered the letters and phone conversations revealing Roberts and Jackson’s plan to kill Fingerhut.

A grand jury indicted Roberts on counts of aggravated murder with death penalty specifications, aggravated robbery, and aggravated burglary. Each death specification alleged prior calculation and design. The jury convicted her of all charges.

During the mitigation hearing in the penalty phase of the trial, Roberts elected not to present any mitigating evidence other than her unsworn statement. The jury recommended a death sentence, which the trial court imposed.

Court Twice Vacates Sentence
On the first direct appeal, the Supreme Court affirmed her convictions for aggravated murder, aggravated burglary, and aggravated robbery. But it vacated the death sentence because the trial judge had engaged in ex parte communication with the prosecuting attorney and allowed the prosecutor to participate in drafting the judge’s sentencing opinion.

On remand, the trial judge re-imposed the death sentence, and Roberts again appealed. The Supreme Court again vacated the sentence and remanded for resentencing after concluding that the trial court failed to consider her allocution because it was not referenced in the sentencing opinion.

The Supreme Court directed the trial court to review the entire record, including Roberts’ 2007 allocution, and determine if the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt. The Court stated that Roberts was not entitled to present any new evidence and was not entitled to make another unsworn statement. It further ordered the trial court to make an “independent determination of whether a death sentence is appropriate and may not give deference to the sentences previously entered.”

Because the original trial judge had retired and subsequently died, Judge Ronald Rice presided over the resentencing. Roberts filed a motion seeking to prevent him from sentencing her to death or to require a new full penalty phase hearing. She argued that since the new judge did not preside over the case or personally hear her 2007 allocution, he could not properly weigh the aggravating and mitigating circumstances.

The trial judge rejected Roberts’ arguments, stated that he had carefully reviewed the entire record, including Roberts’ statements and all exhibits, and announced that he had not given any deference to the prior sentences. He then sentenced Roberts to death.

Penalty is Cruel and Unusual Punishment, Roberts Asserts
Roberts appealed to the Supreme Court for a third time, asserting that the substitute judge’s imposition of a death sentence based solely on the transcripts and exhibits presented at trial violates the U.S. Constitution’s Eighth Amendment ban on cruel and unusual punishment, because the judge needed to personally observe the presentations in court to accurately weigh the aggravating circumstances against the mitigating factors. She also contends that if imposing the death penalty in this case is constitutional, R.C. 2929.06(B) requires the substitute judge to empanel a new jury and conduct another mitigation hearing before imposing a sentence.

Writing for the court, Justice O’Donnell noted precedent from the U.S. Supreme Court barring the sentencer from excluding or refusing to consider relevant mitigating evidence in a death penalty case. But that case law did not apply here, he explained, because having a substitute judge did not deny Roberts the ability to present mitigating evidence or to have it considered by the sentencer. Rather, Roberts elected not to present mitigating evidence, and the trial judge reviewed and considered her unsworn statement, her allocution, and the evidence in the trial record before imposing sentence.

The Court rejected the claim that the judge needed to personally observe the presentations in court to accurately weigh the facts, relying on two cases from the Supreme Court of California holding that it does not violate the Constitution for a substitute judge to impose a death sentence after reviewing the written transcript of the case.

The Court also decided that R.C. 2929.06(B) permits a resentencing before a substitute judge without empaneling a new jury.  Roberts relies on the Court’s 1987 decision in State v. Penix, which construed a statute to preclude the imposition of the death sentence after it had been vacated on appeal, because only the original “trial jury” could make the findings required to impose capital punishment. The Court rejected an analogy to Penix, because the General Assembly amended the law and it now provides that if a death sentence is set aside due to sentencing error, then “the trial court that sentenced the offender shall conduct a new hearing to resentence the offender.”  Justice O’Donnell noted that “The General Assembly’s use of the term ‘trial court’ in R.C. 2929.06(B) suggests that it did not intend to require that the ‘trial judge,’ i.e., the individual who presided over the capital defendant’s trial, necessarily must also preside over that defendant’s resentencing.”

The Court further rejected the argument that R.C. 2929.06(B) requires a new mitigation hearing before a new jury, explaining that the error in Roberts’ resentencing, the failure to consider her allocution, occurred after the jury had already been dismissed. Noting the general rule that on remand a trial court proceeds from the point where the error occurred, not from an earlier point in the sentencing proceedings, the opinion stated that “[b]ecause a legally valid penalty-phase jury verdict has already been rendered in this case, there is no reason to empanel a jury and retry the evidentiary portion of either the guilt or penalty phases of the proceeding.” 

After reviewing the trial judge’s sentencing opinion, the Court independently reviewed and weighed the aggravating and mitigating factors. The Court explained that the state presented proof beyond a reasonable doubt to support the jury’s finding that Roberts, with prior calculation and design, aided and abetted the aggravated murder of Fingerhut during the course of an aggravated robbery and an aggravated burglary. The Court also pointed out that although Roberts expressed sadness for Fingerhut’s murder, she never accepted responsibility for it and denied her scheme to kill Fingerhut, “notwithstanding overwhelming evidence to the contrary.”

The Court concluded the death penalty was appropriate and proportionate to the death sentence imposed on Jackson.

2014-0989. State v. Roberts, Slip Opinion No. 2017-Ohio-2998.

View oral argument video of this case.

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