564 N.E.2d 408 (Ohio 1990), 89-1391, State v. Seiber

Docket Nº:89-1391.
Citation:564 N.E.2d 408, 56 Ohio St.3d 4
Opinion Judge:ALICE ROBIE RESNICK, J.
Party Name:The STATE of Ohio, Appellee, v. SEIBER, Appellant.
Attorney:Michael Miller, Pros. Atty., and Alan C. Travis, for appellee. Michael Miller, prosecuting attorney, and Alan C. Travis, for appellee., James Kura, county public defender, Paul Skendelas and Allen V. Adair, for appellant.
Judge Panel:MOYER, C.J. and SWEENEY, HOLMES, DOUGLAS, WRIGHT and HERBERT R. BROWN, JJ., concur.
Case Date:December 05, 1990
Court:Supreme Court of Ohio
 
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Page 408

564 N.E.2d 408 (Ohio 1990)

56 Ohio St.3d 4

The STATE of Ohio, Appellee,

v.

SEIBER, Appellant.

No. 89-1391.

Supreme Court of Ohio.

December 5, 1990

Submitted Sept. 18, 1990.

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On May 21, 1985, the appellant, Lee Edward Seiber, shot and [56 Ohio St.3d 4] killed Stanton Norris. Seiber, who called himself "Crazy Horse," shot Norris in the back around 11:50 p.m. at the Village Lounge, a bar located in south Columbus.

The murder of Norris followed earlier events. Sometime after 8:30 p.m. that evening, appellant approached Sherry Urdarevich, an eighteen-year-old girlfriend of Alvie Schoenberger. Appellant made lewd remarks to Urdarevich and to Brenda Sullivan, a nineteen-year-old patron. Louis Schoenberger, Alvie's brother, heard Seiber's remarks to Urdarevich and told appellant, "I don't think she wants to hear that kind of talk." In the course of their conversation, appellant told Louis "Crazy Horse will hurt you" and walked away.

Appellant also talked with Alvie, who arrived at the Village Lounge shortly after appellant talked with Louis. Louis had complained to Alvie about appellant's lewd remarks. After a brief conversation, appellant eventually walked to the other end of the bar. Later, as appellant was leaving the bar, he told Alvie his name was "Horse," and they shook hands. According to witnesses, appellant also talked with Norris that evening and they drank a beer together. Appellant's conversations with Alvie and Norris did not involve confrontations, threats, or an altercation. However, appellant did complain to the barmaid, Ruby Price, that Alvie told him to leave the girls alone and that he, Alvie, would take care of the girls and see that they got home.

At approximately 10:30 p.m., prior to appellant's leaving the bar, he approached James Roe, an acquaintance. He asked Roe to back him up because he was "having trouble with a couple of these punks." Roe told appellant he was just there to party; appellant responded that he should find another bar in which to party. Appellant then left with Kathy Davis, who did Price a favor by getting appellant out of the bar. When appellant left, he was smiling and told Price that he had too much to drink and would see her tomorrow.

Around 11:10 or 11:30 p.m., appellant returned to the Village Lounge with an armed accomplice. When appellant reentered the bar, he held a loaded, cocked .38 caliber revolver in his hand. Appellant's accomplice stood at the closed front door, shotgun in hand, barring anyone from leaving. Appellant told the barmaid to hang up the phone, and indicated that he meant it. He ordered the two Schoenberger brothers,

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Alvie and Louis, to lie down on the floor at the back of the bar. Louis testified that, "If I didn't lay down he was going to blow my * * * brains out where I stood." Appellant shoved the pistol in Louis' eye, bruising the eye socket. Appellant told Alvie twice to lie down, saying the second time, "I said lay down. I'll blow your * * * head off." After Alvie was on the ground, appellant shoved the gun in his eye, asked Alvie if he wanted to die, and told him he was going to kill him. Appellant then pointed the gun at [56 Ohio St.3d 5] Alvie's temple and then "done the same thing to * * * [Alvie's] brother." Appellant continued to threaten them, and both brothers begged for their lives.

Appellant spent several minutes roaming the bar, armed with the cocked pistol, making threats, and trying to find out who were the friends of the Schoenbergers. When he came to Ernie White, White denied being a friend of the Schoenbergers. Appellant then knocked White's hat off his head. Appellant told Roe, "Jimmie, don't try to be no hero."

Next, appellant approached Norris, who was drinking beer at the bar. He asked Norris "if he was friends with those * * * down at the end of the bar?" Norris admitted that he was a friend of the Schoenbergers. Appellant demanded several times, "Well, go lay down with them. * * * I said lay on the floor with them." Norris refused, saying he was going to drink his beer and not to mess with him. Norris proceeded to turn his back on appellant and reached for his beer. In doing so, Norris may have knocked over two empty beer bottles on the bar. Appellant grabbed Norris by the shoulder and shot him in the back.

After appellant shot Norris, he continued to wave his revolver and began shouting: "Horse left his mark"; "Crazy Horse will shoot. See what I meant? I'll shoot you"; "Now you know who Horse is. Horse will kill you."

Alvie and others in the bar begged appellant to allow them to go help Norris. Appellant refused. Appellant kept claiming that Norris would be all right. After the shooting, three female patrons hid underneath the pool table a few feet from Norris. Appellant's accomplice, who was armed with a shotgun, left the lounge. Louis got up from the floor, tried to escape, and scrambled back and forth behind the bar trying to keep away from appellant. Appellant kept chasing Louis, aiming his revolver at him, and telling Louis, "You. Come out or I'll blow your brother away." At times, appellant held the revolver at Alvie's head or aimed it at him.

Appellant told everyone in the bar several times to tell the police that an unknown black man had shot Norris. Appellant said he knew everyone in the bar, and "If you don't tell them that I'll come back and I'll kill you all."

Around 11:50 p.m., police officer John McDaniel looked into the lounge and saw appellant waving his gun. McDaniel stuck his gun through the doorway and shouted twice, "Police officer, drop the gun." Appellant lowered the gun, took two steps back, turned toward the front door, took another step back, then raised the gun at McDaniel. McDaniel fired two quick shots striking appellant once. Police found appellant's loaded and cocked revolver lying under him and containing five live rounds and one spent shell.

Appellant recovered from his gunshot wound after treatment. Norris died from a gunshot wound to his back with perforation of his aorta, his pancreas and liver, and subsequent internal hemorrhaging.

A grand jury indicted appellant for aggravated murder and multiple other felonies. On June 10, 1986, a Franklin County jury convicted appellant of aggravated murder with three death penalty specifications alleging murder in the course of kidnapping (Stanton Norris; Alvie and Louis Schoenberger), Count I; three kidnapping offenses, Counts II, III and IV; and three felonious assault offenses against Alvie and Louis Schoenberger and police officer McDaniel, Counts V, VI and VII. Counts II through VII contained specifications alleging possession [56 Ohio St.3d 6] of a firearm. The trial judge separately found appellant guilty of having a weapon under disability with a

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specification alleging possession of a firearm, Count VIII, and guilty of seven additional specifications in Counts II through VIII, alleging a previous 1976 manslaughter conviction.

At the mitigation hearing, appellant presented voluminous medical and hospital records detailing his lifelong mental problems. Appellant's mother and two mental health professionals also testified on his behalf. The jury recommended death and by entry filed July 17, 1986, the trial judge sentenced appellant to death and to terms of imprisonment for the other felony convictions. On June 9, 1989, the court of appeals affirmed the convictions and death sentence.

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

Michael Miller, Pros. Atty., and Alan C. Travis, for appellee.

James Kura, County Public Defender, Paul Skendelas and Allen V. Adair, for appellant.

ALICE ROBIE RESNICK, Justice.

We have reviewed appellant's twenty-one propositions of law, independently assessed the evidence relating to the death sentence, balanced the aggravating circumstances against the mitigating factors, and reviewed the proportionality of the sentence to those imposed in similar cases. As a result, we affirm the convictions and sentence of death.

I

Appropriateness of Death Penalty

In his initial proposition of law, appellant argues that the death penalty is not appropriate in his case. Appellant asserts that we should conclude, after independently assessing the case under R.C. 2929.05, that the aggravating circumstances do not outweigh the mitigating factors.

The evidence supports the aggravating circumstances the jury found appellant guilty of committing, i.e., the kidnapping of Alvie and Louis Schoenberger and Stanton Norris. Appellant deliberately returned to the bar, approximately forty minutes to an hour after he had left, but now armed and in the company of a person armed with a shotgun; prevented anyone from leaving; and repeatedly threatened to kill the Schoenbergers, forcing them to lie on the floor. Appellant then roamed the bar looking for their friends. He terrorized the Schoenbergers and others for approximately twenty to forty minutes and shot Norris when Norris refused to obey his order to get on the floor. Appellant continued his rampage by chasing Louis and generally threatening everyone. The ordeal ended only after a policeman, after warning appellant to drop his gun, shot him. This evidence proved a calculated, prolonged, and unprovoked kidnapping of at least three persons, together with continued threats of violence and death, in the course of which appellant purposefully killed Norris.

Appellant established in mitigation that he had lifelong health, mental and adjustment problems. When appellant was eleven years old, a truck hit him and he suffered a "cerebral contusion," spending five days in a hospital. In April to June 1963, and from November 1964 to September 1965...

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