State v. Fautenberry

• Decision Date: 05 July 1995
• Docket Number: No. 94-722,94-722
• Citation: 650 N.E.2d 878,72 Ohio St.3d 435
• Parties: The STATE of Ohio, Appellee, v. FAUTENBERRY, Appellant.
• Court: Ohio Supreme Court

Page 435

72 Ohio St.3d 435

650 N.E.2d 878

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

No. 94-722.

Supreme Court of Ohio.

Submitted March 22, 1995.

Decided July 5, 1995.

On March 27, 1991, the Grand Jury of Hamilton County, Ohio, returned a five-count indictment against appellant, John Fautenberry. Count One charged Fautenberry with the aggravated murder of Joseph Daron pursuant to R.C. 2903.01, and included two specifications: first, that the murder of Daron was committed while Fautenberry was committing, attempting to commit, or fleeing immediately after committing or attempting to commit the offense of aggravated robbery; and second, that Fautenberry possessed a firearm when he committed the murder. Count Two contained a second charge of aggravated murder involving the same victim and included two specifications, namely, that the murder was part of a course of conduct involving the purposeful killing of or attempt to kill two or more persons, and that Fautenberry possessed a firearm while committing the offense. The remaining counts charged Fautenberry with aggravated robbery, theft of a motor vehicle, and theft of a credit card.

On July 23, 1992, a three-judge panel accepted appellant's pleas of no contest to each of the five charges. The panel then considered the admitted facts and evidence, and found appellant guilty as to all counts. The evidence, including the transcripts of several confessions appellant made to the police, established the following.

During 1990, appellant worked as a cross-country truck driver for a company based in Portland, Oregon. In the early part of November 1990, appellant informed one of his supervisors that he was quitting his job because of the long hours that were required of him as a truck driver. Thereafter, appellant spent a few days at the Flying J Truck Stop in Portland loading and unloading trucks for money. It was at that time that appellant met Donald Nutley. On one occasion, Nutley, who possessed several firearms, invited appellant to go target shooting with him. The two drove to an area near Mt. Hood, Oregon, where they proceeded to fire at bottles until approximately sunset. As they walked back to Nutley's vehicle, appellant fired a single, fatal .38 caliber round into the right side of Nutley's head. Appellant then stole approximately $10,000 in cash from his victim and dumped the body somewhere in the Mt. Hood area. Nutley's body was not located until April 1991.

In early February 1991, appellant was traveling from Rhode Island to Ohio when he arrived at the Pilot Truck Plaza in Hunterdon County, New Jersey. Appellant, out of money and in need of gasoline in order to continue his trip, met Gary Farmer, who allegedly offered to provide appellant with food and money in exchange for sex. Upon entering Farmer's truck, appellant fatally shot Farmer once in the head with a .22 caliber handgun. Appellant left the body in the truck, stole the victim's wallet, and completed his trip to Cincinnati, Ohio.

After spending some time in Cincinnati, appellant left his sister's home on February 17, 1991, with no money, no transportation, and, it appears, a desire to travel to Oregon. Appellant began hitchhiking on Interstate 275 when Joseph William Daron, a father of two young children, stopped his vehicle and offered appellant a ride. Appellant explained that he was trying to reach Columbus. Daron offered to drive appellant approximately twenty miles out of his way to a restaurant near the junction of Interstate 71, where appellant believed he might better be able to find a ride to Columbus. Upon reaching the restaurant appellant exited Daron's vehicle, reached back into the car and shot Daron twice in the right side of his chest with the same .22 caliber handgun that he had used to kill Farmer. After the shooting, appellant drove to a wooded area on the north bank of the Ohio River, where he threw Daron's body. Appellant then used Daron's vehicle, credit cards, and cash to return to Oregon.

Appellant arrived in Portland, Oregon, on February 24, 1991, and went to a local bar to meet a friend, Wes Halbrook. Several people, including Christine Guthrie, were invited to join the two men at Halbrook's apartment for a private party. The following day, appellant and Guthrie traveled to Rockaway, Oregon, where they spent a few days at the Silver Sands Motel. On the return trip to Portland, appellant drove Guthrie to a wooded area, where appellant claimed they would find something of interest. The two walked into the woods on foot and appellant fired three shots from his Jennings J 22 pistol into the back of Christine Guthrie's head. Appellant then took the victim's bank credit card and address book containing the personal identification number for the credit card, left the body in the woods, and returned to Portland, where he used the credit card to make cash withdrawals. Guthrie's body was not discovered until April 1991.

In early March 1991, appellant traveled to Juneau, Alaska. While there he spent his time working on a fishing boat and consuming large quantities of alcohol. Appellant met Jefferson Diffee at some point during this period. On March 13, 1991, appellant accompanied Diffee to the latter's apartment, where appellant beat, handcuffed and fatally stabbed Diffee seventeen times. Shortly thereafter, appellant was arrested by the Alaska police. He ultimately pled guilty to the charge of first-degree murder in connection with Diffee's death, and received the maximum sentence available under Alaska state law: ninety-nine years' confinement without parole eligibility.

Shortly after his arrest by the Alaska police, appellant made four separate statements to various law enforcement officers concerning his involvement with the five murders. Appellant spoke to the police in detail concerning the sites of the murders, the manner in which he had carried out the killings, and the locations where the police could find the victims' bodies.

After finding appellant guilty of all counts and specifications in connection with Daron's murder, the Hamilton County three-judge panel conducted a mitigation hearing on September 14, 1992. The panel unanimously sentenced Fautenberry to death. Consecutive sentences were imposed for the other offenses, except those which were merged. The court of appeals affirmed appellant's convictions and sentence of death.

This cause is before the court upon an appeal as of right.

Joseph T. Deters, Hamilton County Pros. Atty., and Christian J. Schaefer, Asst. Pros. Atty., for appellee.

H. Fred Hoefle and Peter Pandilidis, Cincinnati, for appellant.

ALICE ROBIE RESNICK, Justice.

In accordance with R.C. 2929.05(A), we are required to undertake a three-part review of appellant's convictions and sentence of death. First, we must review the judgment and consider the issues raised on appeal as we do in all cases. Second, we must independently weigh the evidence disclosed in the record and determine whether the aggravating circumstances the appellant was found guilty of committing outweigh the mitigating factors beyond a reasonable doubt. Finally, we must decide whether the sentence of death is appropriate after considering whether the sentence is excessive or disproportionate to the penalty imposed in similar cases. For the reasons which follow, we affirm the judgments of conviction and uphold the sentence of death.

A

I

Appellant alleges in his first proposition of law that the three-judge panel committed reversible error by considering victim-impact statements during the penalty phase of the proceedings. The statements included expressions from the victim's family, the victim's employer and the arresting officer concerning the impact of Daron's death on his survivors and the appropriate sentence that should be imposed. Specifically, the victim-impact evidence indicated that each individual who was interviewed wanted appellant to receive "the maximum sentence" available under the law. Appellant argues that these statements make the sentence of death "the product, not of law and reason, but of passion and bias," as prohibited by State v. Huertas (1990), 51 Ohio St.3d 22, 553 N.E.2d 1058.

In Huertas, this court concluded that "[e]xpressions of opinion by a witness as to the appropriateness of a particular sentence in a capital case violate the defendant's constitutional right to have the sentencing decision made by the jury and judge." Id. at syllabus. The conclusion in Huertas hinged upon the holdings of two United States Supreme Court decisions which prohibited the introduction of victim-impact evidence not directly related to the circumstances of the crime. Booth v. Maryland (1987), 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440, and South Carolina v. Gathers (1989), 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876. Booth and Gathers were eventually overruled in Payne v. Tennessee (1991), 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720, where the Supreme Court determined, "if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar. A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim's family is relevant to the jury's decision as to whether or not the death penalty should be imposed." Id. at 827, 111 S.Ct. at 2609, 115 L.Ed.2d at 736.

Those statements which describe the tragic impact of Daron's murder on his family and friends clearly fall within the scope of victim evidence contemplated by Payne. The expressions of opinion relating to the appropriate sentence to be imposed against appellant, however, reach beyond Payne. ¹ As a result, we find error in the admission of that part of the victim-impact statements which relate to sentencing recommendations. Nevertheless, we are not persuaded that such error warrants reversal.

A review of the three-judge panel's decision in the...