State v. Mapes

• Decision Date: 09 August 1985
• Docket Number: No. 84-1885,84-1885
• Citation: 19 Ohio St.3d 108,19 OBR 318,484 N.E.2d 140
• Parties: , 19 O.B.R. 318 The STATE of Ohio, Appellee, v. MAPES, Appellant.
• Court: Ohio Supreme Court

Page 108

19 Ohio St.3d 108

484 N.E.2d 140, 19 O.B.R. 318

The STATE of Ohio, Appellee, v. MAPES, Appellant.

No. 84-1885.

Supreme Court of Ohio.

Decided Aug. 9, 1985.

Syllabus by the Court

1. Crim.R. 11(B)(2) and Evid.R. 410 do not preclude admission of a conviction entered upon a no contest plea to prove a prior murder specification under R.C. 2929.04(A)(5).

2. A finding by a jury that an accused "unlawfully and purposefully caused the death" of another is sufficient to withstand challenge under Enmund v. Florida (1982), 458 U.S. 782, because R.C. 2903.01(D) requires a finding that the accused intentionally caused the death of another for a conviction of aggravated murder.

3. The determination of whether a voir dire in a capital case should be conducted in sequestration is a matter of discretion within the province of the trial judge.

On January 30, 1983 at approximately 7:50 a.m., appellant, David Mapes, and Rodney Newton entered Chap's Bar located on Prospect Avenue in Cleveland, Ohio. The bar was closed, but one of its owners, John Allen, and four employees were present. Allen, Ronald Rucci and Michael Williams were seated at the bar. John Hovekamp and David Yun were off to the side in a section of the bar known as the "pit area," asleep. A sixth man, Frank Kuhn, was upstairs in the building.

Mapes and Newton gained entrance through the rear of the building and, upon encountering the three men at the bar, Mapes aimed a sawed-off shotgun he was carrying at Rucci's head and instructed all three to put their hands on the bar. Allen began to make some gesture with his hands and Mapes shot him in the face. Allen fell to the floor, mortally wounded. At the sound of the shot, Rucci dove to the floor. Mapes ordered Williams to lie on the floor and then searched the men on the floor, including Allen, for money. Newton went first behind the bar to the cash register, and then proceeded to the video machines. While en route to the video machines, Newton spotted Yun and Hovekamp in the "pit area" and notified Mapes of their presence. Mapes ordered Rucci and Williams to crawl to the "pit area" and stood guard over the four there while Newton broke into the video games with a crowbar.

Mapes and Newton next proceeded to the back of the building where the safe was located and the liquor was stored. The two were not able to open the safe as Allen had been the only one present who knew the combination. The four men then heard a door slam and, after determining it was safe, called the police. Allen was dead when the police arrived at 8:10 a.m. The police found no one at the scene but found a broken window by the parking lot of the Town House Apartments and a garage door held open by a wooden block.

Michael Reese, upon hearing the news accounts of the murder and robbery, notified a Cleveland detective that Mapes had approached him and had attempted to recruit him for the robbery of Chap's Bar. Reese gave the police a formal written statement to this effect on February 5, 1983. On February 6, the police showed a photo array to John Hovekamp. He selected photos of three individuals whom he thought resembled the gunman. This group included a photo of appellant. On the next day, a warrant for appellant's arrest and a warrant to search his apartment were obtained. This search, conducted on February 8, 1983, revealed, among other things, a crowbar. Appellant was arrested and, when questioned, he told the police that he had merely prepared an entrance to the bar, but that Newton and a man named Red had committed the robbery. On February 11, 1983, a lineup was held at which Hovekamp positively identified appellant as the man carrying the shotgun within the premises where the robbery and murder occurred.

Newton was arrested on March 4, 1983 in Akron and was interviewed by Cleveland police on March 7. He gave a full written statement to police recounting the events at the bar consistent with the accounts of the bar employees and the police investigation. This written statement was introduced at trial and Newton testified at trial. Newton also indicated that appellant had returned to his own apartment and dropped unused shells down a drainpipe and arranged to dispose of the gun. After obtaining a warrant, the police found a shell in the hole indicated by Newton. The shell was the same type that was used to kill Allen.

Rucci positively identified appellant during trial as the man who shot Allen with the sawed-off shotgun. Hayward Chambers testified at trial that appellant had admitted to him that he had robbed Chaps and killed Allen. Appellant's wife and a neighbor, Christine Alexander, both testified that appellant owned a sawed-off shotgun.

Appellant was indicted for two counts of aggravated murder under R.C. 2903.01(B). One count charged that the murder occurred during the course of an aggravated robbery. The other count charged that the murder occurred during the course of an aggravated burglary. Each of these counts had four identical specifications as follows: Under R.C. 2929.04(A)(7), one death-penalty specification alleging the offense occurred in the course of an aggravated robbery; under R.C. 2929.04(A)(7), one death-penalty specification alleging the offense occurred in the course of an aggravated burglary; under R.C. 2929.04(A)(5), one death-penalty specification alleging a prior murder conviction; and, under R.C. 2941.141, one firearm specification. In addition to the death-penalty charges, Counts Three, Four and Five each charged aggravated robbery under R.C. 2911.01 and Count Six charged aggravated burglary under R.C. 2911.11.

The jury returned a verdict finding appellant guilty of both counts of aggravated murder under R.C. 2903.01(B), but not guilty of the death-penalty specifications charged under R.C. 2929.04(A)(7). Appellant was found guilty of the firearm specification as well as Counts Four, Five and Six. Appellant was found not guilty of Count Three.

The issue of whether appellant was guilty of the prior murder specification under R.C. 2929.04(A)(5) was tried separately to the court. The court received into evidence an indictment from Passaic County, New Jersey, charging appellant with murder. Also received was a judgment of conviction entered upon appellant's plea of non vult. The court found appellant guilty of the prior murder specification under R.C. 2929.04(A)(5).

At the sentencing phase of trial, appellant made a statement on his own behalf, but presented no other witnesses. The jury returned a recommendation that the death penalty be imposed. The trial court sentenced appellant to death on the two counts of aggravated murder and to terms of imprisonment on Counts Four, Five and Six, to run consecutively.

The court of appeals merged the conviction for aggravated murder with specifications under Count Two of the indictment with the conviction under Count One because only one homicide occurred. The court of appeals affirmed the judgment of conviction and the various sentences imposed by the trial court.

This cause is now before the court upon an appeal as of right.

John T. Corrigan, Pros. Atty., and Timothy J. McGinty, Cleveland, for appellee.

Paul F. Markstrom and Daniel Gaul, Cleveland, for appellant.

WRIGHT, Justice.

I

In his first proposition of law, appellant argues that the non vult plea is equivalent to a no contest plea and, under Crim.R. 11(B)(2) and Evid.R. 410, the New Jersey conviction entered upon a non vult plea is inadmissible to prove a prior murder specification under R.C. 2929.04(A)(5). Crim.R. 11 states in part:

"(B) Effect of guilty or no contest pleas. With reference to the offense or offenses to which the plea is entered:

" * * *

"(2) The plea of no contest is not an admission of defendant's guilt, but is an admission of the truth of the facts alleged in the indictment, information, or complaint and such plea or admission shall not be used against the defendant in any subsequent civil or criminal proceeding."

Evid.R. 410 states in part:

"Except as otherwise provided in this rule, evidence of a plea of guilty, later withdrawn, or a plea of no contest, or the equivalent plea from another jurisdiction, * * * is not admissible in any civil or criminal proceeding against the person who made the plea or offer. * * * "

R.C. 2929.04 provides, in part:

"(A) Imposition of the death penalty for aggravated murder is precluded, unless one or more of the following is specified in the indictment * * * and proved beyond a reasonable doubt:

" * * *

"(5) Prior to the offense at bar, the offender was convicted of an offense an essential element of which was the purposeful killing of or attempt to kill another, * * *."

Appellant was convicted of murder by a New Jersey court. An essential element of this crime was the purposeful killing of another. Two investigating officers from New Jersey testified at a proceeding conducted by the trial judge that appellant was convicted of the prior murder. Under New Jersey law, appellant's non vult plea to the murder indictment had the effect of insuring that appellant would not receive the death penalty. This non vult plea was made pursuant to a statute, the purpose of which was "the humane end that a guilty defendant need not run the gauntlet of a trial on capital punishment * * *." State v. Forcella (1968), 52 N.J. 263, 279, 245 A.2d 181, 189. Thus we find that the admission of the prior conviction did not violate Crim.R. 11(B)(2) or Evid.R. 410.

Crim.R. 11(B)(2) and Evid.R. 410 prohibit only the admission of a no contest plea. These rules do not prohibit the admission of a conviction entered upon that plea when such conviction is made relevant by statute. The trial court was correct in admitting the evidence of the prior conviction as it was not equivalent to the admission of the no contest plea and it was not introduced by the prosecution for any purpose other than establishing the specification. The purpose of Evid.R. 410 as...