State v. DePew, No. 87-1334

• Court: United States State Supreme Court of Ohio
• Writing for the Court: DOUGLAS; MOYER; HOLMES; WRIGHT; HERBERT R. BROWN
• Citation: 38 Ohio St.3d 275,528 N.E.2d 542
• Parties: The STATE of Ohio, Appellee, v. DePEW, Appellant.
• Decision Date: 31 August 1988
• Docket Number: No. 87-1334

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38 Ohio St.3d 275 528 N.E.2d 542 The STATE of Ohio, Appellee,
v.
DePEW, Appellant. No. 87-1334. Supreme Court of Ohio. Submitted June 14, 1988.
Decided Aug. 31, 1988. Syllabus by the Court

1. Pursuant to R.C. 2929.03(D)(1), the prosecutor, at the penalty stage of a capital trial, may introduce " * * * any evidence raised at trial that is relevant to the aggravating circumstances the offender was found guilty of committing * * *."

2. Where the defendant chooses to make an unsworn statement in the penalty stage of a capital trial, the prosecution may comment that the defendant's statement has not been made under oath or affirmation, but such comment must be limited to reminding the jury that the defendant's statement was not made under oath, in contrast to the testimony of all other witnesses. (State v. Mapes [1985], 19 Ohio St.3d 108, 19 OBR 318, 484 N.E.2d 140, modified in part.)

3. The prosecutor, in the penalty stage of a capital trial, may rebut false or incomplete statements regarding the defendant's criminal record. This right is limited, however, to those instances where the defense offers a specific assertion, by a mitigation witness or by the defendant, that misrepresents the defendant's prior criminal history.

Late in the evening of November 23, 1984, Tony Jones returned from work to find his home in flames. In the course of battling the blaze, firefighters discovered three bodies inside the house. They were subsequently identified as those of Tony Jones' wife, Theresa, age twenty-seven, their daughter, Aubrey, seven, and Theresa's sister, Elizabeth Burton, twelve. Autopsies revealed that Theresa had died from at least fourteen stab wounds, that Aubrey had perished as the result of twenty-one stab wounds, and that Elizabeth had died from a combination of five stab [528 N.E.2d 546] wounds, burns and carbon monoxide poisoning.

On April 3, 1985, Detective Sergeant Rick Sizemore questioned Deborah Sowers about the homicides. During the course of the interview, Sowers implicated defendant-appellant, Rhett DePew. Based on this information, Sizemore and Detective Joe Rooks located appellant and arrested him on an outstanding, unrelated warrant. Appellant was taken to the prosecuting attorney's office in Hamilton, where he was questioned for several hours about the murders. Appellant eventually confessed to the crimes, giving the following account.

On the evening of the murders, appellant and his girlfriend, Deborah Sowers, drove to the Joneses' residence

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to "get some money." Appellant was armed with a large knife. Once he believed the house to be empty, he approached it alone, entered through a back door, and began searching the house. As he approached a bedroom, he was confronted by the victims, who began screaming. He "freaked out" and "just started swinging" with his knife, stabbing the three repeatedly. He then set fire to some clothing in Theresa's closet. Before leaving, he discovered a baby crying in a back bedroom. He wrapped the child in a blanket and left her on the porch of the house next door. Sowers then picked appellant up and they went home.

Appellant was indicted on three counts of aggravated murder in violation of R.C. 2903.01(B). Each murder count contained the following death penalty specifications: the offense was committed while the offender was committing aggravated burglary (R.C. 2929.04[A] ), the offense was committed while the offender was committing aggravated arson (R.C. 2929.04[A] ), and the offense was part of a course of conduct involving the purposeful killing of two or more persons (R.C. 2929.04[A] ). Appellant pleaded not guilty to all counts.

Before trial, appellant moved to suppress his confession. He also filed a motion in limine to prevent Sowers from testifying against him on the basis that she was his common-law wife. These motions, after a hearing, were denied.

Jury trial commenced on June 17, 1985. Appellant offered no evidence. The jury returned a verdict of guilty on all counts and on the accompanying specifications.

During the penalty phase, appellant presented twenty witnesses and his own unsworn statement. The jury found that the aggravating circumstances outweighed the mitigating factors beyond a reasonable doubt, and recommended a sentence of death. The trial court, upon making its own required independent determination, adopted the recommendation and imposed a penalty of death.

The court of appeals affirmed.

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

John F. Holcomb, Prosecuting Atty., and Daniel G. Eichel, Hamilton, for appellee.

Randall M. Dana, Public Defender, Randall L. Porter, Joann Bour-Stokes, Scott Jelen, Columbus, and John A. Garretson, Hamilton, for appellant.

DOUGLAS, Justice.

The instant case presents this court with numerous issues for our review and determination. For the reasons that follow, we uphold appellant's convictions and affirm the sentence of death.

In Propositions of Law I, II and III, appellant challenges the admission of his confession into evidence on the grounds that the confession was not voluntarily given, that he was denied his right to counsel, and that he had not waived his rights under Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 Ohio Misc. 9, 36 O.O.2d 237.

In his argument on the issue of voluntariness, appellant recites the following sequence of events. He was arrested around 5:00 p.m. on April 3, 1985. Interrogation commenced at about 6:00 p.m., resulting in a confession beginning at approximately 12:45 a.m. and ending at 1:30 a.m. At 5:50 a.m., appellant signed a transcript of his oral statement. Appellant was isolated at the county prosecutor's office where those trying to assist him could not locate him. [528 N.E.2d 547] As a result of the prolonged interrogation, appellant claims he was deprived of food and sleep. Appellant further claims he was threatened that if he did not confess,

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his girlfriend, Sowers, would go to prison, where "they do terrible things to young pretty girls." All these factors, appellant argues, combined to render his confession involuntary and inadmissible.

The trial court found that appellant confessed voluntarily, after he was orally advised of his Miranda rights. Specifically, the court found that the isolation of appellant had no unconstitutional coercive effect; that appellant's confession, as reflected in the tape recording thereof, was "casual" and "unemotional"; that appellant was told twice on the tape recording that he did not have to talk if he did not want to; that appellant sounded alert and in control on the tape, and appeared to the interrogator to be alert at the time of questioning; that appellant received food and drink during the interview; that he availed himself of restroom facilities and other accommodations; that while his confession was being typed, appellant watched television; that appellant was a thirty-one-year-old man with a high school education and possessing normal intelligence; that appellant was no novice to the criminal justice system; and that appellant had voluntarily made statements to Detective Sizemore on a prior occasion.

"In deciding whether a defendant's confession is involuntarily induced, the court should consider 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.

Clearly, the trial court was careful to consider the totality of the circumstances in its determination that appellant's confession was voluntarily given. Appellant's testimony concerning the details surrounding his confession differed substantially from the testimony of other witnesses. The record contains ample evidence supporting the factual findings by the trial court. Appellant's testimony to the contrary was obviously not believed. In reviewing a ruling on a motion to suppress, an appellate court must bear in mind that the weight of the evidence and the credibility of witnesses are for the trier of fact. State v. Fanning (1982), 1 Ohio St.3d 19, 20, 1 OBR 57, 58, 437 N.E.2d 583, 584. Thus, the trial court's ruling that appellant confessed voluntarily will not be disturbed.

The same conclusion must be drawn with respect to appellant's contentions that he was never advised of his Miranda rights and that he repeatedly, to no avail, requested a lawyer. Appellant and other witnesses testified that at the time of appellant's arrest, he told the arresting officer that he would not talk to him without a lawyer. The trial court did not accept this testimony, finding that appellant never communicated a request for a lawyer to any law enforcement officer on the day of his confession, and that if such a request was ever made, it was directed to appellant's relatives at the scene of the arrest, and the officers were not aware of the request. These findings are clearly supported by the evidence adduced at the suppression hearing.

The fact that appellant's relatives and the attorney they had contacted could not determine appellant's whereabouts after his arrest is irrelevant to the admissibility of appellant's confession. The dispositive issue is whether appellant's statement was voluntarily given with knowledge of his right to remain silent and to have an attorney

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present. "The determinative factor in these cases is the desire of the accused to consult with counsel, not the desire of counsel to consult with the accused." (Emphasis sic.) State v. Carder (1966), 9 Ohio St.2d 1, 7, 38 O.O.2d 1, 4, 222 N.E.2d 620, 625. Events occurring without the knowledge of the suspect can have no bearing on his capacity to understand and knowingly relinquish a constitutional...