State v. John R. Dougherty
| Decision Date | 12 September 1996 |
| Docket Number | 96-LW-3266,5-94-2 |
| Parties | STATE OF OHIO, PLAINTIFF-APPELLEE v. JOHN R. DOUGHERTY, DEFENDANT-APPELLANT CASE NUMBER 5-94-2 |
| Court | Ohio Court of Appeals |
Criminal Appeal from Common Pleas Court.
DAVID H. BODIKER, Ohio Public Defender, Reg. #0016590, Kathleen A McGarry, Reg. #0038707, Michael J. Benza, Reg. #0061454, John B. Heasley, Reg. #0059914, Ohio Public Defender Commission, 8 East Long Street-llth Floor, Columbus, OH 43266-0587, For Appellant.
ROBERT A. FRY, Prosecuting Attorney, Reg. #0020664, 116 West Lima Street, Findlay, OH 45840, For Appellee.
This is an appeal by the defendant, John R. Dougherty, from a judgment of conviction and sentence of death rendered upon a jury verdict and recommendation in the Court of Common Pleas of Hancock County for the aggravated murder of Rose Marohn.
Appellant and his brother Mark Dougherty devised a plan to commit an armed robbery of the Wal-mart store in Napoleon Ohio. To facilitate this robbery, they planned to steal two vehicles from appellant's former employer, Basol Maintenance and Service. The vehicles were to be used as getaway cars after the robbery of Wal-mart.
On July 17, 1992, appellant, his wife Brenda, and his brother drove to Basol to steal the getaway cars. Wearing disguise clothing and carrying handguns, John and Mark entered the Basol building. They attempted to steal two vehicles, a 1988 GMC Ventura van and a 1992 red Ford Escort, but were interrupted when the night supervisor, Rose Marohn arrived. When they noticed Marohn's presence, appellant and his brother left the building undetected.
Marohn noticed that the motor of one of the Basol vehicles had been left running. When Marohn left the premises to contact her supervisor, John and Mark re-entered Basol to complete the automobile theft. After stealing the van and Escort, the Dougherty brothers drove towards Napoleon, Ohio. Approximately two miles from the Basol property, the van appellant was operating malfunctioned causing him to drive it into a ditch. Mark Dougherty then retrieved appellant and they decided to return to Basol to steal a third vehicle.
When they arrived at Basol they noticed Rose Marohn's vehicle in the parking lot. Appellant and his brother drove the red Escort into the lot and as Rose Marohn exited her vehicle, appellant told her to get down and fired shots from a .22 Auto-Mag firearm towards her. Marohn was struck several times. The fatal wound, however, was inflicted by a bullet entering her skull behind her right ear. During trial, evidence of gun powder burns and residue established that this fatal shot was fired from a distance of twelve to sixteen inches from Rose Marohn's body, a closer range than the initial shots.
After killing Marohn, appellant entered Basol and stole a third vehicle. The brothers left Findlay and, en route to Napoleon, one of the stolen vehicles ran out of gas. The brothers abandoned that vehicle and returned to Napoleon in the stolen red Escort. They concealed the Escort in Leitner's U-lock storage facility for a short time then ultimately disposed of the vehicle near the Maumee River in Henry County.
One month after the Basol incident, Detective Richard Alvord, while investigating the robbery of a pawn shop, discovered that a .22 Automag firearm had been stolen. The police were aware that this type of weapon was used in the shooting death of Rose Maron. After further investigation, Detective Alvord learned that appellant's brother, Mark, had been arrested on a parole violation in which a .22 Automag may have been involved. While in police custody, Mark Dougherty gave a statement to Detective Alford and Investigator Dunbar that himself, his brother, John Dougherty, and his brother's wife, Brenda Dougherty were involved in the Marohn murder at Basol Maintenance. He further stated that the murder weapon, a .22 Automag, could be found in John Dougherty's apartment. From this statement, the police were able to obtain a search warrant for appellant's residence.
When the police arrived at the home of John Dougherty, they arrested him for the murder of Rose Marohn and recovered the .22 Automag from the trunk of his car. After receiving his Miranda rights, appellant was questioned at the scene and confessed both to the armed robbery of Basol and the murder of the security guard, Rose Marohn.
On August 25, 1992, the Grand Jury of Hancock County, Ohio returned a four count indictment against John Dougherty. Count one of the indictment charged that appellant killed Rose Marohn during the course of an aggravated robbery in violation of R.C. 2903.01(B). This count contained a death penalty specification pursuant to R.C. 2929.04(A)(3) and (A)(7). Appellant was also indicted for two counts of aggravated robbery in violation of R.C. 2911.01(A) and one count of receiving stolen property in violation of R.C. 2913.51. The first three counts also contained gun specifications pursuant to R.C. 2941.141.
Prior to trial, the Court of Common Pleas of Hancock County conducted several hearings to address the numerous motions filed by both parties. In addition, the court held a hearing regarding jury venire and excuses submitted by prospective jurors. After a lengthy voir dire, the trial began on November 15, 1993. At the conclusion of the state's case, the defense made a motion for acquittal which was denied by the trial court. The defense presented its evidence and concluded on November 20, 1993. Three days later, the jury returned a verdict of guilty on all counts and specifications in the indictment.
The penalty phase of appellant's trial began on December 8, 1993. The defense presented mitigation evidence relating to appellant's age, family background, lack of substantial criminal record, education, and psychological history. The state presented no rebuttal evidence. On December 10, 1993, the jury recommended to the trial court that appellant be sentenced to death. After independent review, the trial court accepted this recommendation and, on December 21, 1993, filed its opinion pursuant to R.C. 2929.03(F). It is from this conviction and sentence that appellant, John Dougherty appeals to this court citing thirty-six assignments of error.
After a thorough review of the record, and for the reasons stated below, we find appellant's assignments of error to be without merit. Accordingly, we affirm appellant's conviction and death sentence.
1. The trial court erred in not suppressing the evidence obtained after the arrest of John Dougherty as the warrantless arrest and the defective search warrant violated the Fourth and Fourteenth Amendments to the Constitution of the United States and Article I, Section 14 of the Constitution of Ohio, and the failure of the trial court to allow Mr. Dougherty to Testify at the suppression hearing violated the Fourth, Fifth, and Fourteenth Amendments of the Constitution of the United States.
On August 19, 1992, law enforcement officials from Henry and Hancock Counties interviewed Mark Dougherty, appellant's brother. During this interview, Mark gave a statement implicating himself, appellant, and Brenda Dougherty in the shooting death of Rose Marohn. Based on this information, a search warrant was issued for appellant's residence. That same evening, the search warrant was executed by members of the Hancock and Henry County Sheriff's Departments.
The executing officers arrived at appellant's apartment and knocked on his door. When appellant answered his door, Deputy Alvord advised appellant that he was under arrest for the murder of Rose Marohn. Deputy Smith handcuffed and patted down appellant and Deputy Alvord orally advised Appellant of his Miranda rights. Further, Alvord served the search warrant upon appellant and advised him regarding its contents. Detective Alvord then asked appellant where the gun was located and appellant directed the officers to the trunk of his car. Appellant was then escorted outside to the car where he gave his written consent for a search of the vehicle. The officers located the gun and ammunition in the car's trunk.
In his argument for suppression, appellant claims that his warrantless arrest inside his residence violated the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution. We find appellant's argument to be without merit.
Appellant first argues that a warrantless seizure inside a home is presumptively unreasonable. In support of this argument, appellant relies on the case of Payton v. New York (1980), 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639. In this case, the Supreme Court reasoned that an individual's interest in the privacy of his own home is violated both when there is a warrantless entry for the purpose of arresting a resident of the home and a warrantless entry to search for weapons or contraband. Consequently, the Court held that an arrest warrant is necessary, absent exigent circumstances to justify a warrantless, unconsented entry, to enter a private dwelling and arrest a resident.
Payton, however, does not apply to the present facts. The entry into John Dougherty's residence was not warrantless. The law enforcement officials of Henry and Hancock Counties served a search warrant upon appellant which permitted their entry and eventual search for, inter alia, the weapon used in the shooting of Rose Marohn.
Appellant argues, however, that the search warrant was deficient because it was premised upon stale information obtained from an unreliable source and therefore not supported by probable cause. In State v. George (1989), 45 Ohio St. 3d 325, 544 N.E.2d 640, the Ohio Supreme Court examined the duty of a reviewing court in determining the sufficiency of probable cause. ...
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