State v. Bell
| Citation | 358 N.E.2d 556,48 Ohio St.2d 270 |
| Decision Date | 22 December 1976 |
| Docket Number | No. 76-499,76-499 |
| Parties | , 2 O.O.3d 427 The STATE of Ohio, Appellee, v. BELL, Appellant. |
| Court | United States State Supreme Court of Ohio |
Syllabus by the Court
1. A defendant is not coerced or impelled to waive his constitutional right to jury trial by R.C. 2929.03(C)(1), (2) and (E), under the provisions of which an offender who waives a jury trial need persuade only one member of the three-judge panel at the mitigation hearing to avoid imposition of the death penalty.
2. Relevant factors such as the age of the defendant and prior criminal record are among those to be considered by the trial judge or three-judge panel in determining whether the existence of a mitigating circumstance pursuant to R.C. 2929.04(B)(2) and (3) was established by a preponderance of the evidence.
On October 16, 1974, at about 11:00 p. m., police discovered Julius Graber lying in the woods in Spring Grove Cemetery in Hamilton County critically injured from a shotgun wound to the back of his head. He was pronounced dead on arrival at the hospital.
Approximately one week thereafter, Willie Lee Bell, defendant-appellant, was arrested for the murder of Julius Graber. Samuel Hall, Bell's companion, was arrested the day after Graber's body was discovered. Bell was then a minor of 16 years of age, and Hall was an adult. Following proceedings in the Juvenile Division of the Court of Common Pleas, Bell was bound over to the Hamilton County Grand Jury and was indicted jointly with Hall on two counts of aggravated murder, under R.C. 2903.01, with specifications of aggravated robbery and of kidnapping pursuant to R.C. 2929.04(A)(7). Bell entered pleas of not guilty and not guilty by reason of insanity.
Bell and Hall were tried separately. The trial court found Bell to be sane and competent to stand trial, overruled a motion to suppress any inculpatory statements, and accepted Bell's waiver of trial by jury and request to be tried by a three-judge panel.
The record tends to reveal the following series of events. On October 16, 1974, Bell and Hall went to a community center in Cincinnati, following which they went to Hall's home to borrow his brother's Grand Prix Pontiac automobile. In that car, Bell and Hall proceeded to Victory Parkway, where they observed a 1974 blue Chevrolet. When the Chevrolet turned into a parking garage, Hall, driving his brother's car, did the same, and followed it to the second level of the garage. After the Chevrolet was parked, Hall got out of the Pontiac with a 20-gauge 'sawed-off' shotgun and accosted the Chevrolet's driver, 64-year-old Julius Graber. Graber was forced into the trunk of his own vehicle, and Hall drove that car, with Bell following in the Pontiac, and parked it near his home. Bell parked the Pontiac at Hall's home, and then drove Graber's Chevrolet toward Spring Grove Cemetery. After driving past the cemetery, Bell stopped, reversed direction, and then backed the car into a lane that went inside the cemetery premises.
At this point, Robert Pierce, Jr., a resident of an apartment building near the cemetery, had just returned from work and was sitting in the parking lot of the building listening to his car radio. Pierce observed a vehicle stopped in the cemetery with its parking lights on. He heard two car doors close, one after the other, turned his radio down to listen, and then heard a voice plead Pierce turned his radio off, and shortly thereafter heard one shot, followed, after an interval, by a second shot. He then saw the interior light of the car go on, and a man enter the parked car on the passenger side and move behind the wheel. Pierce heard two car doors close, saw the interior light go off, and then watched the car leave the cemetery, without any lights on. Pierce called the police, around 10:50 p. m., who subsequently discovered Graber.
Hall and Bell drove to Dayton, where they spent the night in the Graber Chevrolet. The following morning, Bell driving, they stopped at a service station to ask directions for finding work. After questioning the attendant, Bell and Hall left, but shortly returned. Hall then thrust a shotgun at the attendant, Kenneth B. Hardin, took the keys to Hardin's automobile, forced him into the trunk of his car, and drove it away from the station. Bell followed in Graber's Chevrolet. The Hardin car, however, was stopped by a State Highway Partrolman, and when Hardin pounded on the trunk lid, he was discovered and released by the officer. Hall was arrested, and the shotgun was found and removed from the car's interior. Meanwhile, Bell who was still following, proceeded back to Cincinnati, abandoned the Chevrolet on Beatrice Avenue, and returned to his residence on Preston Avenue.
Approximately one week later, following the interrogation of Hall and other investigative effort, Cincinnati police appeared at the Bell residence. Bell was taken to police headquarters to answer questions in connection with the Hall investigation and was given his Miranda warnings. When the answers to preliminary questions indicated a possible connection with Hall, Bell was again given his Miranda warnings. Approximately one hour later, Bell was given his Miranda warnings a third time on a printed 'Notification of Rights' form, whereupon he signed the 'Waiver of Rights' portion. Bell was asked to make a recorded statement, and was advised that he could have his mother present. Although Bell indicated that he did not want his mother present, the officer called Bell's mother to tell her that her son was involved in a homicide, a kidnapping and an armed robbery, and that he was going to be charged with the offenses. An offer was made to transport her to headquarters to be with her son when he made his statement, but she declined.
A recorded statement was taken from Bell which was eventually received in evidence. It confirmed most of the above factual details, but denied any intention of Bell to take part in a homicide. Bell conceded his presence during the kidnapping of Graber, but claimed he was not aware of the shotgun until Hall got out of the Pontiac in the parking garage to threaten Graber with it. Bell conceded driving Graber's car to the cemetery and backing into the cemetery lane, but insisted that it was Hall who removed Graber from the trunk, and that it was Hall who took Graber into the bushes. Bell said he then heard a shot and Graber pleading for his life. After the first shot, according to Bell's recorded statement, Hall ran back to the vehicle to get another shotgun shell and then returned to the bushes, whereupon Bell heard the second shot. Hall then drove Bell to Dayton where the incident with the service station attendant occurred. In his statement, Bell attributed the active part of the incident to Hall, but admitted following Hall in Graber's Chevrolet for some 20 minutes before Hall was stopped by the highway patrolman.
Additional expert testimony identified a shall casing found at the scene of the homicide as having been fired from the shotgun found in the car Hall was driving at the time of his arrest in Dayton, and also identified a latent fingerprint from the outside window on the driver's side of the Graber car as being that of Bell's.
After Graber had been pronounced dead at the hospital, where attendants discovered that he had secreted money and other valuables in his shoes, his body was taken to the morgue. A post-mortem examination revealed that death had resulted from a wound to the rear of the head inflicted by a shotgun shell at near-contact range. Testimony established that the head and hand wounds Graber received were consistent with the theory that the fatal shot was fired while Graber's hands were clasped behind his head.
The defense offered only one witness, a Columbus police officer who had interrogated and taken several statements from Hall. The statements were not, however, offered in evidence at the trial, and the case went to the panel on the basis of the evidence presented by the prosecution.
At the conclusion of trial, the panel unanimously found Bell guilty of aggravated murder as charged on the second court of the indictment, and guilty of the specification to the second count, that the aggravated murder was committed during a kidnapping. Bell was also found guilty of the third and fourth counts of aggravated robbery and of kidnapping, respectively.
Following pre-sentence and psychiatric examination, a mitigation hearing was held pursuant to R.C. 2929.03, et seq. The panel found that none of the mitigating circumstances specified in R.C. 2929.04(B) had been established by a preponderance of the evidence. Bell was sentenced to 7 to 25 years on the kidnapping charge; to 7 to 25 years on the aggravated robbery charge, to run consecutively with the first sentence; and to death by electrocution on the aggravated murder charge.
The Court of Appeals affirmed the judgment of the trial court, and the cause is now before this court as a matter of right.
Simon L. Leis, Jr., Pros. Atty., Robert Hastings, Jr., and William P. Whalen, Jr., Cincinnati, for appellee.
H. Fred Hoefle and Thomas A. Luken, Cincinnati, for appellant.
Appellant Bell raises ten propositions of law. The first three of these assert that Ohio's statutory scheme for the imposition of the death penalty is unconstitutional. That issue was decided by this court in State v. Bayless (1976), 48 Ohio St.2d 73, 357 N.E.2d 1035, and need not be reconsidered here. Those propositions of law are overruled.
Appellant asserts in his fourth proposition of law that he was unconstitutionally coerced into waiving his right to trial by jury by the provisions of R.C. 2929.03(C)(1), (2) and (E) which provide that if a defendant is tried by jury and convicted, then the trier of fact at the mitigation hearing is the one trial judge who presided over the jury trial; but, if the defendant is tried by a...
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