State v. Gapen, ___ Ohio St. 3d ___ (OH 12/15/2004)
| Citation | ___ Ohio St. 3d ___,2004 Ohio 6548 |
| Decision Date | 15 December 2004 |
| Docket Number | Case No. 2001-1518. |
| Parties | The State of Ohio, appellee, v. Gapen, appellant. |
| Court | United States State Supreme Court of Ohio |
APPEAL from the Court of Common Pleas of Montgomery County, No. 2000 CR 02945.
Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, Kirsten Brandt and R. Lynn Nothstine, Assistant Prosecuting Attorneys, for appellee.
David H. Bodiker, State Public Defender, Stephen A. Ferrell, Jane P. Perry, and Robert K. Lowe, Assistant Public Defenders, for appellant.
{¶ 1} In this death-penalty appeal, defendant-appellant, Larry James Gapen, raises 14 propositions of law. We find one proposition to be meritorious and dismiss Gapen's convictions for breaking detention and the R.C. 2929.04(A)(4) specifications that allege murder in the course of breaking detention. We find that none of his other propositions of law has merit and affirm Gapen's remaining convictions. We have also independently weighed the aggravating circumstances against the mitigating factors and have compared Gapen's sentence of death to those imposed in similar cases, as R.C. 2929.05(A) requires. As a result, we affirm Gapen's sentence of death.
{¶ 2} Larry James Gapen was distraught over the recent dissolution of his marriage to Martha Madewell. Around 1:00 a.m. on September 18, 2000, Gapen entered Madewell's home in Dayton. Gapen found Madewell and Nathan Marshall, a former husband of Madewell, lying on a couch. Gapen killed them by repeatedly striking them with a maul. Gapen then went upstairs and struck 13year-old Jesica Young with the maul as she slept in her bed. Jesica later died of her injuries.
{¶ 3} Gapen was convicted of the aggravated murders of Madewell, Marshall, and Jesica and was sentenced to death for Jesica's murder. To establish Gapen's guilt, the state introduced Gapen's statements to the police, DNA evidence that Gapen's sperm was found on Madewell's right leg, abdomen, and rectum, testimony from two children in the house at the time of the murders, and evidence that Madewell's purse was found in Gapen's car at the time of his arrest.
{¶ 4} During the fall of 1999, Gapen and Madewell separated, and Gapen and his son, Jimmy, moved out of the family home in Huber Heights. In March 2000, Gapen and Jimmy moved to the apartment of Charity, his daughter, who lived on Brusman Drive in Vandalia. Around June or July 2000, Madewell and her children, Jesica Young, Daniel Marshall, Billy Madewell, and Brooke Madewell, moved to Pheasant Hill Road in Dayton.
{¶ 5} On July 5, 2000, Gapen was indicted for the abduction of Madewell. According to Gapen, this incident occurred because he "wanted to talk to [Madewell] one time about the whole situation," and "he was afraid she would just walk out on him so he tied her legs up so she couldn't leave."
{¶ 6} Two days before, Gapen had been released from jail on a cash bond of $10,000 and under supervision from an electronic home detention program (EHDP). On July 3, 2000, Gapen received an ankle bracelet and started electronic home detention at his daughter's apartment. On July 19, 2000, Gapen was granted work-release privileges to continue working as a truck driver for Federal Express.
{¶ 7} During August and September, Gapen remained in contact with Madewell. Gapen took Madewell and her children to the Ohio State Fair in August, 2000, attended a cookout at Madewell's home over the Labor Day weekend, both violations of his home detention, and Madewell visited Gapen at his residence.
{¶ 8} On September 14, 2000, the marriage of Gapen and Madewell was dissolved. At dinner on Saturday, September 16, Gapen told Heather Morgan, a friend, that he was divorced but indicated that he did not want to discuss the matter. He was wearing his wedding ring. Gapen expressed hope that "after Martha had been out for a while * * * she would see that [he] was really a good thing for her and * * * they could get back together." Around 3:00 p.m. on Sunday, September 17, Gapen mentioned to Morgan on the telephone that he still loved Madewell, did not understand why Madewell "didn't want to talk" with him, and felt "she had someone else in her life."
{¶ 9} According to Gapen, around 7:30 p.m. on September 17, he drove to Madewell's home, entered through an unlocked back door, and announced his presence. After failing to get a response, Gapen walked through the residence and saw Madewell and an unknown man lying on a couch. Gapen said, "I didn't let them know I was there" and "I just walked out the same way I came in."
{¶ 10} Around 8 or 9 p.m. on September 17, Gapen met Jimmy, his son, and Kacee Miller, Jimmy's girlfriend, at a Huber Heights restaurant. Gapen was sitting at the bar drinking a "beer and a shot of something." According to Miller, Gapen talked about Madewell and mentioned that "he knew that Martha had a boyfriend, but he was okay with it."
{¶ 11} Gapen returned to Madewell's home around 12:30 a.m. on September 18, parked behind the garage, and entered through the unlocked back door. He brought a maul (also referred to as an "axe-maul") and a pair of work gloves with him. Gapen found Madewell and Marshall "passed out on the couch" in the basement. Gapen then repeatedly struck Madewell and Marshall with the maul, and after he finished hitting them, he "had sex with Martha."
{¶ 12} At this time, eight-year-old Brooke was sleeping in a basement bedroom and was awakened by loud banging noises and her mother's cries. Brooke opened her bedroom door and saw a man with "a long stick that looked like an axe." Brooke then saw that Gapen was holding the "axe" and was hitting "something." When Gapen saw Brooke, he told her, "Go back to bed."
{¶ 13} After this attack, Gapen went to the second-floor bedroom of Jesica. While she was asleep, Gapen struck Jesica repeatedly with the maul. Before leaving the upstairs, Gapen found seven-year-old Billy sleeping in the master bedroom. Gapen woke up Billy, took him to his car, and put him in the back seat.
{¶ 14} Gapen then returned to the basement and told Brooke to get dressed because her mother had called him to take her and Billy to school, as she needed a rest. Before leaving, Brooke went upstairs to see Jesica. As Brooke approached Jesica's room, Gapen told her, "Don't go in there."
{¶ 15} Daniel, age 17, woke up at 1:51 a.m. after hearing Jesica's cries from her adjoining bedroom. While Gapen was on the second floor, Daniel opened his bedroom door, and Gapen was standing in front of it. Gapen told Daniel that his mother Gapen told Daniel to "go back to sleep," and Daniel returned to bed.
{¶ 16} Gapen then left the house with Brooke. They walked to Gapen's car, and Brooke got into the back seat with Billy. Gapen went back inside and changed into clean clothes that he had brought with him. Gapen then returned to the car and drove off with the two children.
{¶ 17} After Gapen left, Daniel went to the basement to check on Brooke and discovered the bodies of Madewell and Marshall. Daniel then went upstairs to check on Jesica and found her Daniel also discovered that Brooke and Billy were gone. Daniel notified the police.
{¶ 18} Police and emergency medical personnel responding to the 911 call entered Madewell's home and found Jesica's battered body upstairs. Jesica was still alive and was rushed to a hospital, where she later died.
{¶ 19} Police then found Madewell's and Marshall's bodies in the basement. Madewell was lying on her back underneath a coffee table. Two blankets covered her entire body up to her neck, and a rug had been placed below her face. Madewell's shirt and bra had been pulled up above her chest. Otherwise, Madewell's body was nude, and her legs had been spread open. Police found Marshall's body lying on the couch with a blanket over the top half of his body.
{¶ 20} Police secured the crime scene and collected evidence from Madewell's home. Police found a glove at the end of the basement couch that had hair intertwined in it. The matching glove was found in the kitchen.
{¶ 21} In Jesica's room, police found Jesica's bed, comforter, and sheets covered in blood. Five teeth were found in the folds of the bed sheets and on the floor. There were also multiple areas of "slow to medium velocity" blood spatter along the wall. Dayton Detective Gary Dunsky testified that the velocity of the spattering was consistent with the use of a maul or hammer to strike the victim.
{¶ 22} Police found a "splitting maul" in the upstairs bathroom next to Jesica's room. The steel part of the maul was "covered completely" with blood.
{¶ 23} The police quickly determined that Gapen was their primary suspect and broadcast his name and description, as well as information about the missing children, to law enforcement agencies. For several hours after fleeing the scene, Gapen drove around the Dayton area with the two children. Gapen disposed of his bloody clothing along Interstate 75.
{¶ 24} Around 7:00 a.m. on September 18, Deputy U.S. Marshal Michael Penland identified Gapen and the two children when Gapen showed up at his Brusman Drive residence. Shortly thereafter, Deputy Penland and Vandalia Patrolman Rodney Millhouse arrested Gapen. The two children were released unharmed.
{¶ 25} During his arrest, Gapen said, "I know what this is about, just take care of the kids." Once in the police cruiser, Gapen said to Officer Millhouse,
{¶ 26} Around 8:30 a.m. on September 18, Dayton Detectives Mark Salyer and William Elzholz advised Gapen of his Mir...
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