State v. Billy Wayne Penix Aka, Bill Davis
| Decision Date | 18 August 1986 |
| Docket Number | 86-LW-4695,1835 |
| Parties | STATE OF OHIO, Plaintiff-Appellee v. BILLY WAYNE PENIX aka, Bill Davis, Defendant-Appellant |
| Court | Ohio Court of Appeals |
Stephen A. Schumaker, Clark County Prosecutor, By: David E. Smith Assistant Prosecuting Attorney, Springfield, Ohio, Attorneys for Plaintiff-Appellee.
Randall M. Dana, Ohio Public Defender, By: David C. Stebbins and S Adele Shank, Assistant Public Defenders, Columbus, Ohio, Attorneys for Defendant-Appellant.
OPINION
On August 21, 1982 Stephen Barker died as a result of massive head injuries. On the same day appellant, Billy Penix, was arrested and subsequently indicted by the Clark County Grand Jury for aggravated murder with specifications, aggravated robbery, robbery, tampering with evidence, and abuse of a corpse.
After several pretrial motions were ruled upon, Billy Penix was tried by a jury and convicted of all charges, except robbery which had been dismissed by the court. At the conclusion of the mitigation hearing, the jury recommended the death sentence be imposed which recommendation was approved by the trial court. In addition to receiving the death sentence, the defendant was sentenced to 7-25 years in the Ohio Penitentiary on the aggravated robbery charge, 3-10 years on the tampering with evidence charge, and 2-5 years on the abuse of corpse charge. Appellant has appealed and has asserted thirty-five assignments of error.
On the evening of August 20, 1982, appellant set out with a group of friends, Jeff Finney, Kevin Foland, Tom Shaw, and Ron Adams "riding around." During the course of the evening they met the victim Stephen Barker when Barker sought directions to a local bar in Springfield, Ohio. Upon arrival at the bar, Barker entered leaving appellant and his friends outside. It was at this time that appellant observed a money bag lying on the front seat of the victim's car. Appellant then entered the bar with Shaw, Finney and Adams. Foland remained outside in his car.
Later, Barker, appellant and his friends went to Crybaby Bridge where they drank beer purchased by the appellant. When Barker complained of being tired, appellant drove the victim to appellant's home in the victim's car. Appellant's friends joined them at appellant's house, with Foland leaving shortly thereafter.
After Barker fell asleep on a couch, appellant struck him on his head several times with a baseball bat. (Tr. 1804-05). Finney, Shaw, and Adams immediately ran from the scene, with Finney taking money from Barker's wallet. (Tr. 1934-1935). They later returned to appellant's house to discover that appellant had placed the victim in his own car trunk. He was lying face down and was dead. Appellant told Shaw that after they left, the victim got up from the couch and appellant struck him again. Finney, Shaw, and Adams then assisted the appellant in pushing the victim's car into appellant's garage. Finney, Adam, and Shaw then reported the murder to the police later that day.
Andy Baird, a twelve year old neighbor who delivers appellant's newspaper, stated he was asked by the appellant on the morning of August 21st to help him clean up blood in the appellant's house as a result of a "big fist fight" which appellant had told him had occurred. Baird said blood was found on the floor and walls of the appellant's living room. (Tr. 1425-26).
The Springfield Police after conferring with Finney and Shaw then went to appellant's home where they discovered Barker's body in his car trunk and arrested appellant. Penix's palmprint was found on the trunk of the victim's car. (Tr. 1506-28). Dr. Robert Stewart, a pathologist, testified he performed the post-mortem examination of Stephen Barker and determined he died of multiple blunt trauma to his head consistent with five^ten blows from a baseball bat. (Tr. 1709-36). A blood covered aluminum baseball bat was recovered behind boxes in appellant's home. Blood found on the bat was the same general blood type as the victim's. Also discovered by the police near the bat was the victim's wallet. (Tr. 1511).
Detective Richard Ruef of the Springfield Police Department interviewed the appellant on August 21, 1982 and obtained a taped confession from him. In his confession, appellant stated that the previous night he and his friends met Stephen Barker when he hailed their car asking for directions to a local bar. He stated they directed Barker to the bar, and that while Barker was in the bar, Jeff Finney noticed a money box with money underneath the seat of Barker's car. He stated Finney wanted him to take the money, but the idea was initially dropped. Later, appellant stated he drove Barker to his house where Barker fell asleep on a living room couch. He stated Jeff and another friend brought up the idea of "rolling" Barker for his money.
Appellant stated he "went out to the porch and picked up a ball bat and stated "if you are going to do it, do it right." He said he was not "intending to kill but just to knock him out." (Tr. 2024).
Appellant said he went into his living room and hit Barker on the forehead four times, and then got the victim's keys and wallet out of his pocket. Jeff Finney then asked him for the wallet, which appellant gave to him. Appellant said he saw money in the wallet, but didn't see anyone remove it. Penix said the other boys left his house, and then Barker got up and then collapsed. Penix stated he then dragged the victim outside and placed him in the trunk of his car. He said his friends then returned and helped him push the victim's car into appellant's garage. Appellant said he then went to sleep, and when he awoke he obtained the help of his neighbors in cleaning up the blood in the living room. He said he told them the blood was from a fight the night before in his house. He said he received no money from the attack on the victim.
Penix stated no one else hit the victim with the ball bat, and the purpose of using the ball bat was to rob the victim. (Tr. 2028). Penix stated when he awoke he discovered the wallet on an end table, and he placed it beside the freezer where it was later found. He stated he used both hands on the ball bat when hitting the victim, but only intended to knock him out. (Tr. 2029).
THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT WHEN IT OVERRULED APPELLANT'S MOTION FOR JUDGMENT OF ACQUITTAL WHICH WAS BASED ON THE INADEQUACY OF THE INDICTMENT WHICH RESULTED IN A DENIAL OF THE APPELLANT'S RIGHT TO DUE PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SEC. 10 AND 16 OF THE OHIO CONSTITUTION.
The indictment at bar read,
THE JURORS OF THE GRAND JURY of the State of Ohio, within and for the body of the County aforesaid, on their oaths, in the name and by the authority of the State of Ohio, do find and present that on or about the 21st day of August, 1982, at Clark County, Ohio, Bill Wayne Penix, aka Bill Davis did purposely and with prior calculation and design, cause the death of another, to-wit: Stephen Forrest Barker and/or did purposely cause the death of another, to-wit: Stephen Forrest Barker while committing or attempting to commit or while fleeing immediately after committing or attempting to commit aggravated robbery or robbery in violation of Ohio Revised Code Section 2903.01. SPECIFICATION^The Grand Jurors further find and specify that the offense was committed while the offender was committing, attempting to commit or fleeing immediately after committing or attempting to commit aggravated robbery, and either the said Bill Wayne Penix, aka Bill Davis was the principal offender in the commission of the aggravated murder or, if not the principal offender, committed the aggravated murder with prior calculation and design as listed in Ohio Revised Code Section 2929.04(A)(7).
Appellant contends the indictment was challenged at trial. Appellant refers to the transcript at 2180-87. Counsel contended after the State rested its case:
MR CAYWOOD: Your Honor, at this time the defense would move for a judgment of acquittal regarding the indictment against Mr. Penix. And if the Court will allow, I will address each count individually.
Regarding Count I, it's our contention, Your Honor, that Count I is a faulty indictment in that it is really two counts. Count I charges Mr. Penix in the alternative with aggravated murder and aggravated on the felony murder rule in Ohio. Because it does charge in the alternative, it charges under both (A) and (B) of 2903.01.
Along that line, Your Honor, we would maintain the specifications in Count I do not meet the requirements of Ohio Revised Code 2941.14. That section requires that each specification be separately numbered; and since the indictment, as we have it, has not been separately numbered, the specifications, the indictment as it stands is not identifying as to which specification under Section 2903.01(A) or (B) the State intends to charge Mr. Penix under.
The repetition in the specifications of the allegations in which should be Count II, the felony murder rule, are prejudicial to the Defendant for the following reasons: Ohio Revised Code 2941.14 is very specific in that the indictment requires for a specificity in the indictment regarding each specification. The indictment fails to charge an offense for which the death penalty may be imposed. And, further, the specifications are faulty because they fail to specify that the offense was purposely committed, thus allowing consideration of the specifications with less than the proof of purpose as required under Section 2903.01(B).
R.C. 2941.04 provides in pertinent part:
An indictment or information may charge two or more different offenses connected together in their...
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