State v. Hicks

• Decision Date: 17 May 1989
• Docket Number: No. 88-1079,88-1079
• Citation: 538 N.E.2d 1030,43 Ohio St.3d 72
• Parties: The STATE of Ohio, Appellee, v. HICKS, Appellant.
• Court: Ohio Supreme Court

Page 72

43 Ohio St.3d 72

538 N.E.2d 1030

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

No. 88-1079.

Supreme Court of Ohio.

Submitted March 14, 1989.

Decided May 17, 1989.

Syllabus by the Court

The issue of intoxication is not raised as a defense to the element of purpose in a criminal prosecution merely because the evidence suggests reduced inhibitions, impaired judgment or blurred appreciation by the defendant of the consequences of his conduct.

On August 2, 1985, Ghitana Hicks brought her five-year-old daughter, Brandy Green, to spend the night with Ghitana's mother, Maxine Armstrong. Armstrong lived at the Alms Hill Apartments in Cincinnati, Ohio. At about 10:45 p.m., Brandy fell asleep on her grandmother's couch.

The next day, Armstrong's sister entered the apartment and found Brandy, her mouth and nose covered with tape, lying dead in the bedroom. The sister searched the apartment and found Armstrong's body in the bathtub. The police were summoned. The coroner determined that Brandy had been smothered and that Armstrong had died of ligature strangulation.

On August 4, Brandy's stepfather, appellant, John R. Hicks, surrendered to police in Knoxville, Tennessee. There, appellant confessed that he had murdered Armstrong and Brandy in Cincinnati. On August 5, he was returned to Cincinnati, where he made further statements to Cincinnati homicide detectives Robert Hennekes and Joe Hoffmann.

Appellant told Knoxville detective Thomas Stiles that "just a couple of hours" before going to Armstrong's apartment, he bought some cocaine from a man named "Ray" in Walnut Hills. However, he told the Cincinnati detectives that he got the cocaine at about 4:00 p.m. from someone known as "G Man." Later that day, at an unspecified time, appellant felt a renewed craving for cocaine. He took a video cassette recorder ("VCR") from his home and gave it to Ray as security for a fifty-dollar cocaine purchase. However, appellant had no money with which to redeem the VCR. He realized that failure to get it back would cause trouble with Ghitana. Appellant decided to rob Armstrong, knowing that "if [he] robbed her he would have to kill her."

Appellant telephoned Armstrong to tell her he would "stop in." When he arrived, he found Brandy asleep on the couch, woke her, and put her to bed. He took some time to build his courage. At about 11:00 p.m., appellant said to himself: "[E]ither you go do it or you don't." He came up behind Armstrong as she stood over a bird cage and choked her with his hands. He then tried to smother her with a pillow, but doubted whether she had stopped breathing. To "make sure she was dead," he strangled her with a length of clothes line he had brought with him from his car. He then searched the bedroom, stealing approximately $300 and some credit cards.

Appellant went back to Walnut Hills, redeemed the VCR from Ray, and made another fifty-dollar cocaine purchase. At 12:30 a.m., after injecting the cocaine, appellant "got to thinking again." Knowing that Brandy could identify him as the last person to visit the Armstrong apartment that night, appellant decided to go back and kill her.

Appellant returned and tried to smother Brandy with a pillow. Because she was "bucking" and "fighting," he decided that the pillow "wasn't doing the work." He tried to choke her with his hands. She continued to make gurgling sounds, so he taped her breathing passages shut with duct tape he had brought with him.

After killing Brandy, appellant moved Armstrong's body to the bathroom. Intending to dismember the body for easier disposal, he nearly cut her leg off before abandoning the effort. He then returned to the bedroom, where he took off Brandy's underpants and inserted his finger into her vagina. He searched the apartment again, finding and taking a checkbook, a ring, a .32 caliber pistol, and a box of ammunition. At 3:00 a.m., he returned to his apartment. At 6:00 a.m., he fled Cincinnati.

Appellant was indicted for the aggravated murder of Armstrong, R.C. 2903.01(B), the aggravated murder of Brandy, R.C. 2903.01(A), and aggravated robbery. Count One, charging appellant with murdering Armstrong, carried two specifications of aggravating circumstances: murder during the commission of aggravated robbery, R.C. 2929.04(A)(7), and murder as part of a course of conduct involving the purposeful attempt to kill two or more persons, R.C. 2929.04(A)(5). Count Three, which charged appellant with murdering Brandy, also carried two specifications: murder for the purpose of escaping accountability for the murder of Armstrong, R.C. 2929.04(A)(3), and murder as part of a course of conduct.

A jury of the Court of Common Pleas of Hamilton County convicted appellant of all charges and specifications. After a mitigation hearing, the same jury sentenced appellant to life imprisonment for murdering Armstrong and recommended a sentence of death for murdering Brandy. The trial judge concurred and sentenced appellant to death. The court of appeals affirmed the convictions and sentence.

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

Arthur M. Ney, Jr., Pros. Atty., and Christian J. Schaefer, Cincinnati, for appellee.

James M. Rueger and Dominic F. Perrino, Cincinnati, for appellant.

HERBERT R. BROWN, Justice.

In his first proposition, appellant argues that he was entitled to an instruction on involuntary manslaughter as a lesser included offense of the aggravated murder of Armstrong. ¹ He contends that the jury could have found that he was so intoxicated on cocaine that he was unable to form the requisite intent to kill.

Involuntary manslaughter is a lesser included offense of aggravated murder. State v. Clark (1988), 38 Ohio St.3d 252, 255, 527 N.E.2d 844, 849. "The primary difference between involuntary manslaughter and aggravated murder is the offender's intent." State v. Jenkins (1984), 15 Ohio St.3d 164, 218, 15 OBR 311, 357, 473 N.E.2d 264, 310.

Appellant claims that the record contains abundant evidence that he was "high" on cocaine when he killed Armstrong. For this discussion, we assume that the jury could have reasonably found a degree of intoxication. But intoxication alone is not enough. The issue is whether there was a purpose to kill. Intoxication may reduce one's inhibitions. ² It may blunt one's appreciation of the long-term consequences of one's acts. It may impair one's judgment, as appellant's expert witness testified. But purpose is the culpable mental state at issue here--and intoxication, even severe intoxication, can co-exist with purpose. The issue of intoxication is not raised as a defense to the element of purpose in a criminal prosecution merely because the evidence suggests reduced inhibitions, impaired judgment or blurred appreciation by the defendant of the consequences of his conduct. And if the evidence of purpose is such that no reasonable trier of fact can find for a defendant on that element, the jury should not be instructed on involuntary manslaughter.

The evidence in this case shows that appellant acted with purpose. Appellant told Hoffmann that he went to Armstrong's apartment to rob her, knowing that, if he robbed her, he would have to kill her. Acting on this knowledge, he brought a length of rope into the apartment. Before killing Armstrong, appellant smoked a cigarette while "building up the courage to do it in order to get the money."

Appellant strangled his mother-in-law. The Hamilton County deputy coroner who performed the autopsy on Armstrong testified that it takes "about 60 pounds of pressure to occlude the blood flow from the brain." That pressure must be applied for several minutes to cause death. Appellant waited until Armstrong's back was turned, then tried to choke Armstrong three different ways--first with his hands, then with a pillow, then with the rope. Uncertain that Armstrong had stopped breathing, appellant used the rope as a failsafe to ensure her death.

Dr. Nancy Schmidtgoessling, a psychologist, testified for the defense. However, her testimony confirms that an intoxicated person may act purposefully. Despite her opinion that appellant was intoxicated, she considered his actions "goal directed" and testified that "he was able to form intentions."

The uncontradicted evidence showed that appellant thought about the crime in advance, steeled himself to begin, and made tenacious efforts to complete it. On this record, the jury could not have reasonably doubted that appellant--intoxicated or not--purposefully killed Armstrong. An instruction on involuntary manslaughter could only have tempted the jury to return a compromise verdict that " 'could not possibly be sustained by the adduced facts.' " Jenkins, supra at 218, 15 OBR at 357, 473 N.E.2d at 310. We therefore overrule appellant's first proposition of law.

In his second proposition, appellant argues that he was entitled to an instruction on the defense of voluntary intoxication as to both murders.

Voluntary intoxication is a defense to crime where specific intent is a necessary element of the crime and "the intoxication was such as to preclude the formation of such intent * * *." (Emphasis added.) State v. Fox (1981), 68 Ohio St.2d 53, 55, 22 O.O.3d 259, 260, 428 N.E.2d 410, 412. For the defendant to successfully raise this defense, "evidence of a nature and quality sufficient to raise the issue must be introduced, from whatever source * * *." State v. Robinson (1976), 47 Ohio St.2d 103, 111-112, 1 O.O.3d 61, 66, 351 N.E.2d 88, 94. Evidence is "sufficient to raise the issue" where, if believed, it would support acquittal. Robinson, supra, at 112-113, 1 O.O.3d at 66, 351 N.E.2d at 94, quoting State v. Millett (Me.1971), 273 A.2d 504, 508. Because of this court's "deep seated distrust of the reliability of such evidence," the decision to instruct is left to the trial court's discretion. Fox, supra, at 56, 22 O.O.3d at 261, 428 N.E.2d at 412.

As we said in discussing the first proposition of...