The Akron Legal News

Man who killed co-worker execution-style loses appeal

ANNIE YAMSON
Special to the Legal News
Published: February 18, 2016

A unanimous 5th District Court of Appeals recently affirmed the aggravated murder conviction of Peter Ortiz, an Alliance man who carried out an execution-style killing of his co-worker.

Appealing from the judgment of the Stark County Court of Common Pleas, which sentenced him to life in prison without parole, Ortiz argued that the jury at his trial should have been instructed on lesser offenses because there was no evidence that the murder was premeditated.

He also claimed that his counsel was ineffective and that he was denied due process and equal protection of the law by not being offered an interpreter.

According to the facts of the case, on Oct. 1, 2014, Ortiz and the victim, A.K. Kirksey, were both employed as dishwashers at the Blue Fig Bar & Grill in Alliance.

Around noon, the two men began to argue about who was going to help the bartender, Amber Fletcher, with bussing the bar in exchange for a cut of the tips.

The argument became heated, drawing the attention of a server in the restaurant, Mary Beth Fails, who told the men to stop arguing and get back to work.

Eventually, Ortiz left the restaurant and many of his co-workers thought he went to cool off.

In fact, Ortiz drove to his apartment and retrieved a fully loaded handgun before returning to the restaurant to confront Kirksey.

Once inside the establishment, Ortiz found Kirksey loading a bus tub. Another server, Michelle Grimes, heard Ortiz dare Kirksey to call him something again but Kirksey refused and said they could settle the matter after work.

When Kirksey turned to walk away, Ortiz pulled out his gun and fired three shots.

One shot hit Kirksey in the back of the arm but the other two were both independently fatal: One bullet entered Kirksey’s back right shoulder while the other hit the back of his head.

Ortiz proceeded to go the bar, grab a bottle of tequila and pour himself a drink. Case summary states that he told Fletcher she “had better call 911.”

Fletcher testified that she took her cellphone and went to check on Kirksey, whom she found lifeless and laying in a pool of blood. While she was calling 911 and checking for a pulse, Ortiz returned with his firearm.

Fletcher begged Ortiz not to shoot because she was pregnant but Ortiz walked up to them, put the gun to Kirksey’s chin and fired one more shot. He then left the restaurant and waited in the parking lot for the police to arrive.

When first responding officer Aaron Perkins arrived Ortiz threw down his gun and submitted to his arrest. As Perkins was advising Ortiz of his rights, Ortiz blurted out, “I shot him, I shot him.”

Ortiz also admitted his guilt to an investigating detective during a conversation that was recorded and later played for the jury.

Ortiz never denied shooting Kirksey. At his trial he testified about their strained relationship and threats that had been made between the two of them but he again admitted that he shot Kirksey when his back was turned.

Ortiz also told the jury that he did not hate his victim after he fired the initial shots but he said that he began hating Kirksey as he sat at the bar drinking his tequila, prompting him to go back and shoot him a fourth time.

After hearing the evidence, the jury returned guilty verdicts on one count of aggravated murder with a firearm specification, having weapons under disability and possession of a firearm in a liquor permit premises, as charged in the indictment.

In his first assignment of error on appeal to the 5th District court, Ortiz argued that the trial court should have instructed the jury on the lesser included offenses of murder and voluntary manslaughter. According to him, there was evidence that he acted spontaneously and not with prior calculation and design.

Writing on behalf of the court of appeals, Judge Scott Gwin held that the trial court “should have given an instruction on voluntary manslaughter if the evidence presented at trial demonstrated that Ortiz had killed Kirksey while under the influence of a sudden passion or fit of rage caused by provocation from Kirksey that was serious enough to incite him into using deadly force.”

The appellant panel ruled that the evidence did not demonstrate that Ortiz experienced a sudden episode. Instead, he drove to his home about 10 minutes away from the restaurant, loaded a gun and then drove back — a time period of at least 20 to 25 minutes, though his coworkers testified that it was more like 45 minutes.

Ortiz even testified that he stopped to get gas and cigarettes before reaching his apartment. The appellate panel also pointed out that Ortiz’s statement that “after I shot him I hated him” indicated that, if anything, Ortiz demonstrated a lack of emotion.

The fact that Ortiz’s relationship with Kirksey was tense was not enough to persuade the district judges that the murder was unplanned.

“Past incidents or verbal threats do not satisfy the test for reasonably sufficient provocation when there is sufficient time for cooling off,” Gwin wrote.

Likewise, the reviewing court held that an instruction on murder was not warranted.

“Ortiz was entitled to a murder instruction only if the state’s evidence was ambiguous on the element of prior calculation and design,” Gwin wrote.

The court of appeals held that the state upheld its burden of proof when it showed that Ortiz had sufficient time to plan Kirksey’s death.

“In the instant case, the evidence established that Ortiz conceived a plan to kill and acted on that plan with brutal composure,” Gwin wrote. “If the victim is killed in a cold blooded, execution-style manner, the killing bespeaks aforethought and a jury may infer prior calculation and design.”

Considering the evidence, the appellate panel concluded that Ortiz was not entitled to a lesser-included-offense instruction and it overruled his first assignment of error.

The panel went on to find that Ortiz was provided effective assistance of counsel and that his rights were not violated by the fact that he was not provided with an interpreter.

Court transcripts indicate that Ortiz never requested an interpreter and that he had no difficulty understanding or expressing himself in English.

Gwin concluded his opinion by affirming the judgment of the Stark County court. Presiding Judge Sheila Farmer and Judge John Wise concurred joined him to form the majority.

The case is cited State v. Ortiz, 2016-Ohio-354.

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