State v. Heinish

• Decision Date: 25 April 1990
• Docket Number: No. 88-1817,88-1817
• Citation: 553 N.E.2d 1026,50 Ohio St.3d 231
• Parties: The STATE of Ohio, Appellee, v. HEINISH, Appellant.
• Court: Ohio Supreme Court

Page 231

50 Ohio St.3d 231

553 N.E.2d 1026

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

No. 88-1817.

Supreme Court of Ohio.

Submitted Nov. 7, 1989.

Decided April 25, 1990.

Syllabus by the Court

In the event the state withholds the name and address of a witness, Crim.R. 16(E)(3) provides for the admissibility of the testimony of the witness if it can be shown that the failure to provide discovery was not willful, foreknowledge of the statement would not have benefited the defendant in the preparation of the defense, and the defendant was not prejudiced by the admission of the evidence.

On Saturday, March 28, 1987 at approximately 12:35 p.m. a woman visitor to the Rocky River Metropolitan Park women's restroom found the dead and partially burned body of Vicki Patterson, a fifteen-year-old girl who had been reported missing by her mother, Lila J. Heinish, since the late evening hours of Friday, March 27, 1987.

The victim had agreed to accompany her stepfather, defendant-appellant, Wayne E. Heinish, to work on the house the family was scheduled to move into located in North Ridgeville, Ohio. Appellant was to remove plaster from the ceiling and the victim was to remove glue and contact paper and to paint the kitchen cupboards. Appellant brought a pot for boiling water, kerosene, and a kerosene heater because the house was cold. According to statements of appellant, he and the victim drove to the new house in his 1982 maroon Dodge Omni and arrived there at approximately 4:30 p.m.

Appellant advised the police that they worked at the house until approximately 10:00 p.m., although he took a break to go to a fast-food restaurant between 6:30 and 7:00 p.m. He also stated that he drove the victim to the apartment of her boyfriend, Thomas Grimm, at West 117th Street, Cleveland, Ohio.

Appellant made several inconsistent statements concerning the circumstances of how he dropped the victim off. He told Sgt. Hutchinson of the Cleveland Police Department that he and the victim pulled into a small shopping center adjacent to Thomas Grimm's apartment and that he watched her walk into the courtyard of the apartment complex and he then drove off. However, on cross-examination, appellant's wife testified that appellant told her that he watched Vicki walk up to the apartment door and reach out her hand for the door before he drove away. It was out of the ordinary for appellant to drop the victim off at her boyfriend's apartment at about 10:30 p.m. because he knew she had an 11:00 p.m. curfew.

When appellant arrived home he informed his wife, Lily Heinish, that he had dropped Vicki off at Thomas Grimm's apartment. Mrs. Heinish immediately called Thomas's home and was told by Thomas's brother, Robert Price, Jr., that Vicki had never arrived and that his brother, Thomas, was not home. Mrs. Heinish called the apartment several times and eventually reached Thomas's stepfather, who was able to reach Thomas at a bar. Later, when Thomas received a call from Mrs. Heinish, he left the bar and assisted in the search for the victim. Her mother called the Metroparks police after hearing that a body had been found in the park.

The autopsy of the victim revealed that her face, neck, upper chest, and arms were charred as the result of being burned by a heavy petroleum distillate similar to K-1 kerosene, diesel fuel No. 1, or heating oil No. 1. Her left upper and lower eyelids and cheek were swollen and discolored from the impact of a blunt object. She had abrasions on her knees and on an elbow. Her internal injuries included a hemorrhage in her throat muscles.

The coroner ruled the cause of death to be "homicidal violence." Because of the burning of the body, the coroner was unable to determine the precise cause of death. He testified that the death could have been caused by a blow to the head, by strangulation, or by burning in a flash fire as the accelerant ignited.

The victim's body was found with the victim's jeans partially unzipped and pulled down from her hips several inches. Missing were her shoes, jacket, and watch. No underwear was found on the victim's body. Also, no identification was found on her body.

A saliva stain was found on the outside of the victim's jeans near the crotch area. Her blouse was partially pulled up toward her chest. Through laboratory analysis of the saliva stain, it was determined that it could have come from the appellant, although it was also determined that thirty-two percent of the Caucasian population could have deposited this particular saliva stain. No evidence of semen was produced at trial.

Appellant's automobile was searched by the police, but no relevant evidence was found. There was testimony that the search revealed that the automobile's interior and the cargo area had recently been vacuumed. A five-gallon can of kerosene was found in a closet in appellant's home. He admitted that he had a kerosene space heater in the North Ridgeville house.

Thomas Grimm submitted to a blood test which disclosed that he could not have deposited the saliva stain. Also, coroner's tests demonstrated that the saliva stain could not have come from the victim. Even though bruises were found on one of Grimm's hands, a police investigation concluded that he was not with the victim at the time of her death.

To travel from the new house in North Ridgeville to the present apartment in Cleveland takes approximately thirty minutes. The upper part of the new house was occupied, and during the time that appellant stated he and the victim were working there, the people upstairs were having a birthday party. Several of the guests noticed appellant's car parked in the driveway. One guest, Jennifer Yesenko, testified that she noticed the car in the driveway when she arrived at about 8:15 p.m., but she did not see it there when she left the party at approximately 9:35 p.m. She remembered the time because she had to meet some people in Cleveland at 10:00 p.m., and she knew that it would take about twenty minutes to make the trip.

Appellant told the police that he had been removing plaster from the ceiling of the apartment, and the people above him at the party testified that they heard pounding coming from the floor below during the course of the evening. During the investigation appellant voluntarily gave to the police the clothes he said he was wearing while he was removing plaster. The clothes, however, did not contain any plaster dust particles.

On March 30, 1987, the victim's mother and appellant asked the Metroparks police to take them to the place where the body had been found. Even though the facility had been cleaned and repainted, the appellant, without being told where the body had been found, stared at the exact location.

Appellant was tried and found guilty of aggravated murder with the death specifications of attempted rape and kidnapping. Appellant was also tried and found guilty of separate counts of attempted rape and kidnapping.

In the course of the mitigation hearing appellant presented four witnesses: his mother, who testified that he was a hard worker; his father, who testified that appellant was a good worker and a family man; his sister, who testified that she and her brother got along well; and a friend of the family, who testified that the appellant got along well with his family and would sometimes help him with chores. The appellant did not testify at the guilt phase or the penalty phase. The jury recommended the death penalty, and the trial court accepted the recommendation and sentenced appellant to death.

The court of appeals reversed the conviction for kidnapping, stating that there was no evidence of asportation, but affirmed the conviction for aggravated murder along with the death specification of attempted rape. The death sentence was affirmed. The attempted rape conviction was affirmed because the court of appeals reasoned that the disarray of the victim's clothing and the saliva stain indicated an attempt to perform oral sex on the victim.

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

John T. Corrigan, Pros. Atty., and Carmen M. Marino, Cleveland, for appellee.

J. William Petro and Thomas S. Hudson, Cleveland, for appellant.

WRIGHT, Justice.

I

Appellant asserts in his first two propositions of law that the trial court erred in allowing the coroner to testify to the fact that the victim's body was burned when it could not be determined that the burning of the body caused the victim's death. Appellant also claims that the court's denial of a voir dire of the coroner prior to the coroner's testimony deprived appellant of a fair trial.

Appellant argues that since the condition of the body of the victim precluded the coroner from finding a single purposeful manner of death, any testimony that the body was burned would prejudice the jury against the defendant because of the cruel nature of a death caused by a burning. This argument is unpersuasive. The coroner testified that death could have resulted from any of three possible causes: a blunt impact to the head, strangulation, or the flames from the flash fire that burned the victim's body. In regard to the burning, the coroner also testified that the burning could have occurred either before or after death.

Evid.R. 401 states:

"Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."

Thus, the testimony concerning the burning of the body was relevant since the body was burned by an accelerant that was either K-1 kerosene, diesel fuel No. 1, or heating oil No. 1. As well, the defendant had K-1 kerosene in his home and the evidence showed that he was using it to heat the house in North Ridgeville. The victim was burned primarily about the face, which would tend to show an attempt to conceal her identity and is an act that could have been done by...