State v. Cooey

• Decision Date: 11 October 1989
• Docket Number: No. 88-351,88-351
• Citation: 46 Ohio St.3d 20,544 N.E.2d 895
• Parties: The STATE of Ohio, Appellee, v. COOEY, Appellant.
• Court: Ohio Supreme Court

Page 20

46 Ohio St.3d 20

544 N.E.2d 895

The STATE of Ohio, Appellee, v. COOEY, Appellant.

No. 88-351.

Supreme Court of Ohio.

Submitted June 6, 1989.

Decided Oct. 11, 1989.

Syllabus by the Court

1. Except in the mitigation phase of the trial, a defendant may not offer expert psychiatric testimony, unrelated to the insanity defense, to show that he lacked the mental capacity to form the specific mental state required for a particular crime or degree of crime. (State v. Wilcox [1982], 70 Ohio St.2d 182, 24 O.O.3d 284, 436 N.E.2d 523, approved and followed.)

2. A defendant's statements made in the course of a court-ordered psychological examination may be used to refute his assertion of mental incapacity, but may not be used to show that he committed the acts constituting the offense. (R.C. 2945.39[D], construed.)

3. When a capital defendant is convicted of more than one count of aggravated murder, the penalty for each individual count must be assessed separately. Only the aggravating circumstances related to a given count may be considered in assessing the penalty for that count.

4. Sentencing courts may distinguish between defendants of the same age on the basis of relative experience and maturity.

On the night of August 31, 1986, Wendy Offredo, twenty-one, and Dawn McCreery, twenty, finished their shift at the Brown Derby Restaurant in Montrose, Ohio. Sometime after midnight on September 1, they left for the Harbor Inn, located in Portage Lakes. They never arrived.

Their course of travel along Interstate Route 77 took them underneath the Stoner Street Bridge in Akron. Appellant, Richard Wade Cooey II, on leave from the United States Army, was standing on the bridge with two friends, Clint Dickens and Kenneth Horonetz. They were amusing themselves by throwing things off the bridge. Just as Wendy and Dawn passed below, Dickens threw a large chunk of concrete over the side. The concrete hit Wendy's car, forcing her to pull over.

Cooey and his two friends went to offer assistance to Wendy and Dawn. All five of them got into Cooey's car, and Cooey drove to a shopping mall where they found a pay telephone on which Wendy called her mother.

While Wendy was talking to her mother, Dickens saw money in her purse. He suggested to Cooey and Horonetz that the three of them rob Wendy and Dawn. Cooey replied, "I'm game if you're game."

Everyone got back into the car, and the group left the mall. When they realized Cooey was not returning to the site of the "accident," the women asked Cooey where he was going. He pulled out a knife and ordered them to "shut up." He then gave the knife to Dickens, who opened it and held it on the women. Dawn gave up her purse, while she and Wendy asked their assailants not to hurt them. Cooey told Horonetz to tie Dawn's hands, whereupon Horonetz demanded to be let out of the car, and Cooey let him out.

After letting Horonetz out, Cooey drove to an isolated wooded area in Norton, Ohio, where Dickens raped Wendy. Cooey later admitted to police that he tried to have sex with Dawn, but claimed that he stopped. However, the coroner's examination indicated that Dawn had oral and vaginal intercourse before death.

After he was finished with Dawn, Cooey had oral and vaginal sex with Wendy. While he was with Wendy, Cooey said, "Hey, Clint, put on the Bad Company tape." After Cooey was finished with Wendy, he and Dickens put the women back into the car. Dickens then told Cooey that he had not been "really worried," although the women knew what he and Cooey looked like; however, now that they knew Dickens' first name, they would have to be killed.

Dickens and Cooey brought the women back outside. Dickens began to beat Dawn with a nightstick belonging to Cooey. Meanwhile, Cooey grabbed Wendy in a choke hold, rendering her unconscious. He tied his bandanna around her ankles to keep her from kicking him. Dickens then tossed Cooey a shoelace, and Cooey strangled Wendy with it while Dickens strangled Dawn with his other shoelace. Cooey also beat both women with the nightstick.

Cooey and Dickens then stole Wendy's jewelry, dragged the bodies away from the road, and hid them in the weeds. After brushing away their tire tracks with branches, they went to a car wash to get rid of the bloodstains on themselves and the car. Finally, they discarded the purses.

The bodies were found later on September 1. The Summit County Coroner concluded that Wendy and Dawn had died of multiple blows to the head--Wendy received at least three blows and Dawn at least eleven--with strangulation also contributing to Wendy's death. He also concluded that both women had had oral and vaginal intercourse.

The day the bodies were found, Cooey visited David Jones. He tried to sell Jones two watches (one made of black plastic), and other jewelry that was stained with blood. Cooey explained to Jones how he had acquired them: " * * * He said one of his buddies dropped * * * a rock off of a bridge onto the girl's car and that they * * * robbed them and raped them and then dumped them off behind Rolling Acres [Mall]." Cooey also boasted that Jones "should see a billy club now that it wasn't the original color."

That evening, Cooey had a visit from Terry Grant. He confided to Grant that he had killed the women, describing "how he beated [sic ] them three times and * * * strangled them with shoelaces * * *." Cooey then showed Grant the nightstick, telling him "this was the stick that he beated [sic ] the girls with * * *." The stick was wrapped in black electrical tape. The tape had blood on it.

On September 2, Cooey retrieved the purses and brought them to his house. When Terry Grant came to visit that day, he found Cooey, Dickens, and Horonetz burning the purses and a pair of Cooey's gym shorts.

On the evening of September 2, Akron detectives arrested Cooey at home. Cooey was wearing a watch later identified as Wendy's. He asked the arresting officers if he could take it off and leave it with his grandmother. They refused permission. Other officers then obtained a warrant to search Cooey's house and car. They found the nightstick in his room and several pieces of Wendy's jewelry in the pockets of a jacket in the car.

While the officers were searching, Cooey was being interrogated by an Akron police officer and a police detective. They questioned him from 10:00 p.m. to 12:34 a.m. (during which time Cooey guided them to Dickens' house), from 1:55 to 2:14 a.m., and from 2:45 to 3:16 a.m. There was also some conversation, of indeterminate length, between 2:14 and 2:45.

The Summit County Grand Jury indicted Cooey for the aggravated murder of Wendy Offredo, charging him with violating R.C. 2903.01(A) and (B). Each aggravated murder count carried three specifications of aggravating circumstances: R.C. 2929.04(A)(3), R.C. 2929.04(A)(5), and R.C. 2929.04(A)(7). The indictment also charged Cooey with kidnapping Wendy with purpose to engage in sexual activity with her against her will, R.C. 2905.01(A)(4); vaginal and oral rape, R.C. 2907.02(A); and aggravated robbery, R.C. 2911.01(A)(1) and (2). Cooey was also charged with an identical array of crimes against Dawn McCreery. Finally, he was charged with felonious assault, R.C. 2903.11(A)(2), with regard to dropping the chunk of concrete on Wendy's car.

Cooey was tried by a three-judge panel of the Summit County Court of Common Pleas, which convicted him of all charges and specifications. After Cooey was convicted, the two convictions of aggravated murder under R.C. 2903.01(A) were merged into the two convictions under R.C. 2903.01(B). After the mitigation hearing, Cooey was sentenced to death for each murder. The Court of Appeals for Summit County affirmed the convictions and sentence.

The cause is before us on appeal as of right.

Lynn Slaby, Pros. Atty., and Marc R. Wolff, Akron, for appellee.

Randall M. Dana, public defender, S. Adele Shank and Stephen P. Deffet, Columbus, for appellant.

MOYER, Chief Justice.

Cooey advances thirty-three propositions of law in this appeal. For the reasons set forth below, we affirm the convictions and sentence of death.

I

Our analysis begins with those issues primarily affecting the convictions.

A

Cooey's nineteenth proposition of law is divided into nine parts in which he attacks the sufficiency of the evidence adduced to prove each count of the indictment (except those charging aggravated robbery) and each specification.

Cooey argues that the state failed to prove the prior calculation and design necessary to obtain convictions for aggravated murder under R.C. 2903.01(A). He claims that the murders were "conceived and executed on the spur of the moment[,]" see Committee Comment to R.C. 2903.01, when Cooey used Clint Dickens' name in front of the victims.

We reject this contention. Cooey said in his taped confession that he addressed Dickens by name "in the middle of when I was with Wendy * * *." Cooey stated that after he was finished with Wendy, "the two girls got back in the car, [while] me and Clint was outside talking." During this conversation, Dickens told Cooey "that they knew his name. And then he said that he had to knock them off." The women then got out of the car, at which point Cooey began to choke Wendy. This sequence of events, especially in light of the use of strangulation and repeated bludgeoning to kill the victims, supports a finding that Cooey engaged in more than momentary deliberation.

In any case, Cooey was not sentenced on the counts charging murder with prior calculation and design, since these were merged into the felony murder counts.

Cooey argues that his felony murder convictions under R.C. 2903.01(B) must be reversed because the state failed to prove that the murders were committed at precisely the same time as the rapes or kidnappings. He points to the statutory language providing: "No person shall purposely cause the death of another while committing * * * kidnapping, rape * * * [or] aggravated...