State v. Gary Otte
| Decision Date | 27 October 1994 |
| Docket Number | 64617,94-LW-0005 |
| Parties | STATE OF OHIO, PLAINTIFF-APPELLEE v. GARY OTTE, DEFENDANT-APPELLANT |
| Court | United States Court of Appeals (Ohio) |
Criminal appeal from Court of Common Pleas, Case No. CR-279973.
For Plaintiff-appellee: Stephanie Tubbs Jones, Cuyahoga County Prosecutor, Karen L. Johnson, Assistant County Prosecutor The Justice Center, 1200 Ontario Street, Cleveland, Ohio 44113.
For Defendant-appellant: Larry W. Zukerman, Esq., 160 Signature Square I, 25201 Chagrin Boulevard, Cleveland, Ohio 44122.
SUPPLEMENTAL JOURNAL ENTRY
SWEENEY JAMES D., J.
Pursuant to R.C. 2929.05(A), this court certifies that it has reviewed the judgment, the sentences of death, the transcript and All of the facts and other evidence in the record in this case and makes the following independent findings:
(1) The aggravating circumstances which the defendant was found guilty outweigh the mitigating factors in this case;
(2) The death sentences are not excessive or disproportionate to the penalty imposed in similar cases;
(3) The evidence supports the findings by the trial court that the defendant was guilty of two counts of aggravated murder and the aggravating circumstances charged in the indictments;
(4) The trial judges properly weighed the aggravating circumstances for which the panel found defendant guilty and the mitigating factors; and,
(5) The sentences of death are appropriate in this case.
Defendant-appellant Gary Wayne Otte ("Otte"), date of birth December 21, 1971, appeals from his three-judge panel[1] conviction of: (1) two counts of aggravated murder with felony murder and firearm specifications, R.C. 2903.01 [Counts One and Two]; (2) two counts of aggravated burglary with firearm specifications, R.C. 2911.11 [Counts Three and Twelve]; (3) two counts of aggravated murder with mass murder, firearm and felony murder specifications, R.C. 2903.01 [Counts Eight and Nine]; (4) two counts of aggravated robbery with firearm specifications, R.C. 2911.01 [Counts Five and Ten]. Two counts of receiving stolen property, R.C. 2913.51 [Counts Six and Seven], were nolled on September 16, 1992, immediately prior to the start of the trial. Otte was found not guilty at trial of two counts of kidnapping with firearm specifications, R.C. 2905.01 [Counts Four and Eleven]. Otte also appeals from the capital punishment imposed by the trial court during the sentencing phase of the trial. For the reasons adduced below, we affirm.
A review of the record on appeal indicates that the dates of the offenses named above were February 12 and 13, 1992. The victims were Robert Richard Wasikowski, age sixty-one, and Sharon Lee Kostura, age forty-five, both then living in separate apartments located at 10395 South Lake Boulevard, Parma, Ohio.
Otte was indicted, on the counts named above, on March 19, 1992.
Prior to analyzing the assignments of error, the evidence presented during the three principal phases of the trial will be summarized.
MOTION TO SUPPRESS
A further review of the record reveals that the trial court conducted an oral hearing on June 25, 1992, relative to Otte's motion to suppress physical evidence seized during thee stop and search of Otte's person and statements made by Otte to the police. At this hearing, the prosecution offered the testimony of Parma Police Detective John Bomba, who stated in pertinent part (R. 8-18): (1) he has been a police officer for fourteen years; (2) as part of his duties in investigating the death of Mr. Wasikowski, he interviewed Otte at the Parma Police Station on the evening of February 13, 1992, following Otte's arrest, for a period of approximately two hours after advising Otte of his constitutional rights; (3) Otte understood his rights and did not appear to be under the influence of drugs or alcohol at the time; (4) Otte gave an oral statement, which the witness typed and Otte signed, on that date, as represented by State's Motion Exhibit No. 2; (5) no promises or threats were made to Otte in exchange for his statement; (6) Otte appeared to be very calm at the time, and was polite and personable to the authorities; (7) Parma Police Detective Kevin P. Monnolly was also present during the interview and subsequent statement; (8) at this interview, Otte denied any
involvement in the death of Mr Wasikowski; (9) Otte did not request an attorney at the time of this interview.
The second witness for the prosecution at this hearing was Parma Police Detective Robert DeSimone, who stated in pertinent part (R. 19-51): (1) he has been a police officer for thirteen years; (2) he first met Otte in the late afternoon of February 14, 1992, at the Parma Police Station, where he questioned Otte concerning the deaths of Mr. Wasikowski and Ms. Kostura (3) Otte was advised of his constitutional rights prior to the questioning; (4) Otte appeared to understand his rights and did not appear to be under the influence of drugs or alcohol; (5) no threats or promises were made to Otte in exchange for his statement; (6) Detective Monnolly and Detective Christina Rindfleisch were also present at this questioning; (7) Otte's oral statement was tape recorded, a transcribed copy of this recording is represented by State Motion Exhibit No. 1, wherein Otte admitted that he shot and killed both of the victims; (8) he next questioned the in-custody Otte on the morning of February 16, 1992, at which time Otte, admitting his guilt for both murders, gave an eight-page written statement as represented by State Motion Exhibit No. 3; (9) upon the request of Otte, who waived his constitutional rights yet again, he smoke with Otte on February 20, 1992, accompanied by Detectives DeSimone and Monnolly; (10) Otte specifically declined to have his assigned counsel present prior to making his two-page statement, as represented by State Motion Exhibit No. 4, on February 20, 1992; (11) he never threatened or promised anything in exchange for, or to induce, Otte's implicatory statements; (12) during his stay at the Parma Police Station, Otte was taken to the Parma Community Hospital on February 15, 1992, complaining of uncontrollable shaking and abdominal pain; (13) the doctor at the hospital emergency room diagnosed the problem as substance abuse with cocaine and alcohol withdrawal [See Defendant's Motion Exhibit No. B][2]; (14) the hospital treated the symptoms with prescriptions for Librium and Thiamine; (15) the witness never observed any withdrawal symptoms by Otte.
The defendant testified on his own behalf at this hearing, stating in pertinent part (R. 53-75): (1) he was arrested on the night of February 13, 1992, by the Parma police, and was drunk and high on crack cocaine at the time; (2) on February 14, 1992, he was going through withdrawal symptoms, was "not all there" mentally (R.
56), and was experiencing blurred vision; (3) he was informed that he could possibly be sentenced to death, unless he cooperated; (4) this induced him to admit his shooting the victims; (5) he asked for medical care subsequent to making his admission of guilt; (6) he made the damaging admissions because he felt bad about what he had done and because he was told it might mitigate a death sentence (R. 62); (7) he has been abusing drugs and alcohol on a daily basis
since he was eleven-years-old; (8) he was arrested at approximately 9:00 p.m. while driving a car, after having been drinking during a three-hour period at a bar on West 25th Street in Cleveland; (9) he knowingly lied on the initial statement when he denied involvement in the murders.
At this point, the prosecution offered the testimony of four witnesses relative to the suppression of physical evidence. The first witness was Cleveland Police Patrolman Joseph Ferenec, who stated the following (R 83-91): (1) he was working a two-man zone car on the evening of February 13, 1992, and received a radio dispatch between 7:00-7:30 p.m. to proceed to the area of West 25th Street and Meyer Avenue and assist detectives of the Parma Police Department; (2) these Parma detectives had information that a murder suspect was to be at a local bar, Gypsy & Rob's; (3) the detectives were looking for a red 1962 Chevrolet Impala, with Indiana license plates, to be driven by the suspect; (4) they observed the suspect's vehicle proceeding eastbound on Meyer Avenue in the area of West 30th Street; (5) after a short pursuit, they stopped the suspect vehicle; (6) the witness secured the passenger side of the suspect vehicle while his partner secured the driver's side of that vehicle; (7) the passenger, Mike Carroll, upon being removed from the vehicle, volunteered that "the guns are in the truck" (R. 86); (8) the vehicle was towed to the Parma police garage; (9) the arrest came about five minutes after seeing the
vehicle; (10) he does not recall any inventory search of the vehicle at the scene.
The second witness for the prosecution relative to the suppression of physical evidence was Parma Police Captain Joseph Bistricky, who stated in pertinent part (R. 92-116) (1) he has been a police officer for twenty-five years; (2) he became involved in the investigation of the death of Mr. Wasikowski at 10:00 a.m. on February 13, 1992, by responding to a report of a suspicious death; (3) he interviewed the next door neighbor of Mr. Wasikowski, Miss Mary Anne Campangna, who gave Otte's description as a person she had spoken with on February 12, 1992, and seen go into the Wasikowski apartment; (4) Miss Campangna also directed the witness to the nearby apartment, within that same building, of Mike Carroll; (5) the witness finally interviewed Mike Carroll at 1:30 p.m. on February 13, 1992; (6) the apartment of Mr. Wasikowski was ransacked...
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