State v. Apanovitch, 86-1746

CourtUnited States State Supreme Court of Ohio
Citation514 N.E.2d 394,33 Ohio St.3d 19
Docket NumberNo. 86-1746,86-1746
PartiesThe STATE of Ohio, Appellee, v. APANOVITCH, Appellant.
Decision Date07 October 1987

Syllabus by the Court

On August 23, 1984, after visiting family members, Mary Ann Flynn left to return home. At approximately 10:00 p.m., a neighbor saw Flynn get out of her car and walk toward the back door of her residence. Flynn owned a duplex on Archwood Road in Cleveland, Ohio, and was living in one portion of the unit while renting the other.

Within minutes of Flynn's exiting her car, her tenants and their guests heard a door slam in Flynn's half of the unit. At midnight, they heard a loud bang or thud. One person heard a high pitched noise between 11:30 p.m. and midnight. Thereafter, everything was quiet.

The following day a co-worker and friend, Christine Schenk, became concerned when Flynn failed to report for work at 4:00 p.m. at the Cleveland Metropolitan General Hospital, where she was employed as a nurse and midwife. Schenk telephoned Flynn's brother and together they gained access to Flynn's apartment through the tenants' side of the basement. Martin Flynn discovered the body of his sister in her second floor bedroom. Schenk, who was also a nurse, checked to see if Flynn was alive, and when it was determined that she was not, the police were summoned.

The decedent was discovered lying face down on a mattress with her hands bound behind her back. What appeared to be a rolled-up bedsheet was tied around her neck and also tied to the headboard of the bed.

The cause of death was determined to be asphyxia by cervical compression. Sperm was found in the victim's mouth and vagina. There were wood chips and slivers on the body consistent with pieces of wood found in the bedroom. A laceration was discovered on the back of the neck and slivers of wood were found in this wound. The body was badly beaten and bruised. The time of death was fixed between midnight and 6:00 a.m.

The police investigation quickly focused on appellant, Anthony Apanovitch. Apanovitch had painted portions of the exterior of the victim's home, and a copy of the contract for the painting was found on Flynn's kitchen table. He indicated to police that he was familiar with the apartment.

Six witnesses testified that Flynn was fearful of Apanovitch, although most of them could only describe him as "the painter" or "a big man" with a "wife that was pregnant." There was conflicting testimony as to what appellant said about the victim. A co-worker, Dawson D. Goetchius, allegedly told detectives that Apanovitch remarked that he would like to have sexual relations with Flynn. However, Goetchius claimed that he only reported that Apanovitch said that she was a nice lady. Appellant apparently asked out many women.

At the time of his arrest, appellant had a scratch on his face consistent with a scratch caused by fingernails. However, there was nothing of significance found in the scrapings taken from the victim's fingernails. Appellant gave conflicting stories as to how he received the scratch, first claiming that a bottle broke and glass flew up and scratched his face. Later, he stated that he was in a fight, although a police investigation failed to establish a fight having taken place where appellant claimed to have received the scratch.

Apanovitch claimed that he was at several bars throughout the evening during various time frames. Some witnesses testified that they did not see him at all at these bars. Others testified that Apanovitch was not in a particular bar or that they did not see him during the time frames he asserted. Appellant was dropped off at the Comet Bar at about 7:00 p.m., the night of the murder. The bartender at the Brookside Inn remembered seeing him at 5:30 p.m. the day of the murder. Appellant left the Brookside Inn between 9:15 and 10:00 p.m., returning to the Inn at approximately 12:45 a.m. the next morning. Apparently he then went to the Escape Lounge, where he arrived at 1:45 a.m.

Appellant's blood group was consistent with the blood group found on the oral and vaginal swabs taken from the victim.

Appellant was indicted on October 2, 1984, by the Cuyahoga County Grand Jury for aggravated murder pursuant to R.C. 2903.01, with two aggravating circumstances (rape and burglary), aggravated burglary pursuant to R.C. 2911.11 with an aggravated felony specification, and two counts of rape pursuant to R.C. 2907.02 with an aggravated felony specification.

A jury trial was conducted and appellant was found guilty on all counts. During the penalty phase, appellant did not present any mitigating factors listed in R.C. 2929.04(B) or otherwise. Rather, appellant presented further testimony in an attempt to raise a reasonable doubt as to whether he committed the crime. The jury recommended the imposition of the death sentence, and the trial court concurred.

The court of appeals reviewed the entire proceedings, affirmed the aggravated murder conviction, and concluded that the penalty of death was appropriate.

The cause is now before this court pursuant to an appeal as of right.

John T. Corrigan, Pros. Atty., and Jack H. Hudson, Cleveland, for appellee.

Charles R. Laurie, Jr., Cleveland, for appellant.

PER CURIAM.

We review this case pursuant to R.C. 2929.05(A) as in other cases. We must independently weigh the aggravating circumstances against any mitigating factors. We must also independently consider whether appellant's death sentence is disproportionate to the penalty in similar cases. For the reasons set forth below, we affirm the judgment of the court of appeals and uphold the sentence of death.

I

In his first proposition of law, appellant contends that the trial court erred by admitting "state of mind" witnesses to offer hearsay testimony. Appellant also urges that it was error to permit one witness to testify when the trial court had knowledge that the witness would not offer any probative or substantive evidence.

Six witnesses testified as to the victim's state of mind. In general, these witnesses testified that the victim was fearful or apprehensive about "the person who was painting the house" who had a "pregnant wife," "the painter," "a big man" with a "wife that was pregnant," and "the painter." Only one witness, a neighbor to whom appellant also made "passes," could identify appellant by his full name.

Appellant contends these witnesses offered hearsay testimony which was improperly admitted by the trial court.

Ohio Evid.R. 803 provides the following hearsay exception, in pertinent part:

"(3) A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will."

In United States v. Cohen 1 (C.A. 5, 1980), 631 F.2d 1223, the defendant offered the testimony of state-of-mind witnesses to demonstrate that he acted out of fear of his codefendants. In discussing Fed.Evid.R. 803(3), the court noted that the rule permitted the witnesses to relate any out-of-court statements Cohen had made to the effect that he was scared, anxious, or in any other state reflecting his then existing mental or emotional condition. However, the court also observed that the state-of-mind exception does not permit witnesses to relate any of the declarant's statements as to why he held a particular state of mind. Accordingly, the witnesses were allowed to offer testimony that Cohen said, "I'm scared," but not "I'm scared because Galkin threatened me." Cohen, supra, at 1225.

Finally, the testimony sought to be introduced must point towards the future rather than the past. When the state of mind is relevant it may be proved by contemporaneous declarations of feeling or intent. Shepard v. United States (1933), 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196.

Accordingly, the testimony of state-of-mind witnesses, that the victim was fearful and apprehensive, was not inadmissible hearsay and was properly admitted.

In the second portion of his initial proposition of law, appellant challenges the testimony of Howard Hammon, claiming this witness did not offer probative or substantive testimony.

After Hammon informed prosecutors that he overheard appellant and another prisoner talking, the state attempted to call him as a witness. Apparently, Hammon had indicated to the prosecutor that appellant said that he might have committed the homicide but the state could never prove it. During voir dire, Hammon changed his testimony, stating that appellant had said to him, "Jeez, they are trying to convict me on circumstantial evidence."

The trial court initially refused to allow Hammon to testify. Nevertheless, the court subsequently determined that, in the interest of justice, the jury should hear his testimony. The court called Hammon as its own witness and allowed both parties to cross-examine him. The court did so by granting the state's motion to re-open its case for newly discovered evidence.

Appellant contends the trial court erred to his prejudice by allowing Hammon to testify when it was known that he would repudiate his prior statement, a statement not yet made to the jury.

In State v. Adams (1980), 62 Ohio St.2d 151, 16 O.O.3d 169, 404 N.E.2d 144, paragraph four of the syllabus, we held that "a trial court possesses the authority in the exercise of sound discretion to call individuals as witnesses of the court." Evid.R. 614 also provides that a court may call witnesses on its own motion and allow each party to then cross-examine those witnesses. The state need not demonstrate surprise in order to cross-examine such a witness. State v. Dacons (1982), 5 Ohio App.3d 112, 5 OBR 227, 449 N.E.2d 507.

Our inquiry thus narrows as to whether the trial court abused its discretion when Hammon was...

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