605 N.E.2d 916 (Ohio 1992), 90-1815, State v. Slagle

Docket Nº:90-1815.
Citation:605 N.E.2d 916, 65 Ohio St.3d 597
Opinion Judge:HOLMES, J.
Party Name:The STATE of Ohio, Appellee, v. SLAGLE, Appellant.
Attorney:Defendant-appellant Billy Joe Slagle, Jr. was convicted in Cuyahoga County Common Pleas Court of aggravated murder, aggravated burglary, and aggravated robbery. After finding Slagle guilty of these crimes, the jury recommended the death sentence. The trial judge accepted this recommendation and s...
Judge Panel:MOYER, C.J., and SWEENEY and RESNICK, JJ., concur. WRIGHT and HERBERT R. BROWN, JJ., dissent. WRIGHT, Justice, dissenting.
Case Date:December 31, 1992
Court:Supreme Court of Ohio
 
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Page 916

605 N.E.2d 916 (Ohio 1992)

65 Ohio St.3d 597

The STATE of Ohio, Appellee,

v.

SLAGLE, Appellant.

No. 90-1815.

Supreme Court of Ohio.

December 31, 1992

Submitted Sept. 23, 1992.

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Defendant-appellant Billy Joe Slagle, Jr. was convicted in Cuyahoga County Common Pleas Court of aggravated murder, aggravated burglary, and aggravated robbery. After finding Slagle guilty of these crimes, the jury recommended the death sentence. The trial judge accepted this recommendation and sentenced Slagle to death. The court of appeals affirmed. Slagle now seeks review of his convictions and his death sentence. [65 Ohio St.3d 598]

In the early morning hours of August 13, 1987, the victim Mari Anne Pope was awakened in her home by appellant. Two children, who she had agreed to watch for her neighbors, were also awakened. The children awoke to the voice of Mari Anne inquiring as to who this person was that had entered her home. A man's voice angrily threatened her and ordered her to roll onto her stomach. The man asked if there were others in the house, to which she replied that there were two children upstairs. The man told the victim not to move and that he had a knife at her back. The children then heard Mari Anne begin to pray. The man responded by ordering her to stop praying.

The children recognized the voice and knew the man as Billy Slagle, who lived next door. They first sought to hide, and then to escape. They scurried through the hall and out the back door. One of the children looked into the bedroom and observed

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Slagle sitting on top of the victim, who was lying upon her stomach. Slagle had on only his underwear. As the children exited, the victim could be heard screaming.

The children were admitted into a neighbor's home and police were called. Police officers arrived momentarily and as they moved around the house, shining a flashlight into the windows, one officer observed a man standing in the rear bedroom. The officer entered and observed appellant attempting to hide in the dining room, armed with blood-covered scissors. After ordering appellant to discard the scissors and lie face down on the floor, the officer placed handcuffs on him.

The officer then went into the bedroom. He observed Mari Anne Pope lying across the middle of the bed. Her nightgown was pulled up around her neck. She was drenched in blood with large holes in her body. On the floor lay Mari Anne's broken rosary, and appellant's tank-top T-shirt.

The officer called to his companion, telling him to call for medical treatment and to take custody of the handcuffed man on the dining room floor. The other officer responded that there was no one on the dining room floor and both officers began to search. Appellant had gotten up and hidden himself in a hallway closet. When the officer passed the closet door in this as yet darkened home, appellant burst from the closet and sought to escape. The first officer to react testified that appellant was very quick and agile. The officer was unable to subdue appellant until two other officers entered the fray. Appellant was observed to have blood on his hands and clothing. He also had a number of superficial scratches and bruises.

Despite efforts to save her, Mari Anne Pope was pronounced dead at 6:00 a.m. The coroner reported that she had been stabbed seventeen times, with many of the stab wounds having been inflicted in and around her chest area. There were four stab wounds in her abdomen, five in the upper and lower [65 Ohio St.3d 599] extremities, with eight to the chest area, including wounds to the right atrium, pulmonary artery and right lung. She had also been severely beaten about her head and face.

At 10:00 a.m. the same day, Detective John J. McKibben interviewed appellant, after having first advised him of his Fifth Amendment rights. At first, appellant claimed to have no knowledge of the events of that morning. After being reminded that he had been arrested in the victim's home, appellant described his actions on the night of August 12 and the morning of August 13 in some detail.

The jury convicted appellant of aggravated murder with two death penalty specifications of committing murder in the course of aggravated burglary and aggravated robbery. The jury also found appellant guilty of separate counts of aggravated burglary and aggravated robbery, but acquitted him of attempted rape.

The jury recommended the death penalty. The trial court agreed and sentenced appellant to death for the aggravated murder of Mari Anne Pope. Appellant also was sentenced to concurrent terms of imprisonment for aggravated robbery and aggravated burglary. The court of appeals affirmed.

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

Stephanie Tubbs Jones, Pros. Atty., Karen L. Johnson, William R. Caine, and Elaine Welsh, Asst. Pros. Attys., for appellee.

David L. Doughten and Albert Sammon, Cleveland, for appellant.

HOLMES, Justice.

Billy Joe Slagle appeals his convictions and sentence of death. We have independently balanced the aggravating circumstances against the mitigating factors. For the reasons that follow, we affirm.

I

We first consider whether reversible error occurred during the guilt phase of appellant's trial. He asserts thirteen propositions of law relating to this phase.

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A

Appellant first asserts that his Fifth Amendment rights were violated when he was questioned at the city jail approximately six hours after his arrest. He asserts that he was intoxicated and was unable to knowingly, intelligently and voluntarily waive his rights to remain silent and to obtain legal counsel. [65 Ohio St.3d 600]

The trial court held a hearing to consider Slagle's pretrial motion to suppress statements he made to the police. After his arrest Slagle made two statements: one at the time of his arrest, a second approximately six hours later at the city jail. The trial court suppressed the first statement; that ruling has not been challenged. As to the second statement, the court heard evidence that Detective McKibben interviewed Slagle approximately 10:00 a.m. at the jail and fully advised him of his constitutional rights. According to McKibben, Slagle was alert, agreed to waive his rights, answered questions, and did not ask for an attorney. At the suppression hearing, Slagle testified that he had consumed alcohol and marijuana and that he only faintly remembered being arrested. He said that he remembered neither the questions he was asked, nor being advised of his rights. After hearing this evidence, the trial court declined to suppress the statements Slagle made at the city jail to Detective McKibben.

Whether a confession is involuntary depends upon "the totality of the circumstances, including the age, mentality, and prior criminal experience of the accused; the length, intensity, and frequency of interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement." State v. Edwards (1976), 49 Ohio St.2d 31, 3 O.O.3d 18, 358 N.E.2d 1051, paragraph two of the syllabus. At a suppression hearing, the strength of the evidence and the credibility of the witnesses are to be determined by the trial court.

The evidence presented to the trial court supports its decision to allow appellant's voluntary confession into evidence. A review of such evidence fully supports the trial court's finding, indicating, as it does, that appellant was neither intoxicated nor impaired. Appellant's first proposition of law lacks merit.

B

In his second proposition of law, appellant argues that he was unconstitutionally denied a fair and impartial jury because the state exercised its peremptory challenges so as to exclude prospective jurors opposed to the death penalty. We have held that the state may exercise its peremptory challenges to remove jurors who oppose the death penalty. See State v. Seiber (1990), 56 Ohio St.3d 4, 13, 564 N.E.2d 408, 419 (citing Lockhart v. McCree [1986], 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137, which held that removing prospective jurors because they oppose the death penalty does not violate the federal Constitution). Therefore, appellant's second proposition of law is without merit. See, also, State v. Poindexter (1988), 36 Ohio St.3d 1, 520 N.E.2d 568, syllabus (issues of law that have been decided by this court in [65 Ohio St.3d 601] prior capital cases need not be reconsidered every time they are raised in a capital case).

C

In his third proposition of law, appellant argues that the trial judge violated R.C. 2929.03(B). R.C. 2929.03(B) provides that, in a capital case, the trial court's instructions to the jury " * * * shall not mention the penalty which may be the consequence of a guilty or not guilty verdict on any charge or specification."

During the individual voir dire of those jurors not immediately excused, the trial judge gave this, or a similar, instruction:

"Then if the defendant is found guilty of the charge of aggravated murder and of any one of the aggravating specifications, felony murder specifications, that is, the rape, the aggravated robbery or the aggravated burglary, by evidence beyond a reasonable doubt, the case will proceed to the penalty phase."

Appellant argues that this instruction caused the jurors to know "that in order

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for the death penalty to be levied against Mr. Slagle, they would have to find him guilty of the specification." We do not see how this instruction informed the jurors of the particular penalty which could be the consequence of a particular verdict. A similar argument was rejected in State v....

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