State v. Lawson

• Decision Date: 12 August 1992
• Docket Number: No. 90-1342,90-1342
• Citation: 64 Ohio St.3d 336,595 N.E.2d 902
• Parties: The STATE of Ohio, Appellee, v. LAWSON, Appellant.
• Court: Ohio Supreme Court

Page 336

64 Ohio St.3d 336

595 N.E.2d 902

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

No. 90-1342.

Supreme Court of Ohio.

Submitted May 19, 1992.

Decided Aug. 12, 1992.

On or about January 13, 1987, Cheryl Titus returned to her Clermont County home at around 5:00 p.m. to discover that burglars had broken in through her porch door. A microwave oven, VCR, checkbook and camera were stolen. Titus immediately contacted the police, who responded to the scene and took a report. An initial investigation disclosed no suspects. Later that same year, on June 1, 1987, the Titus residence was again burglarized. On this occasion, the intruders stole the same kind of items as before, which Titus and her husband had replaced with insurance proceeds.

Detective Randy Harvey, during the course of his investigation of the June 1, 1987 burglary, came into contact with Timothy Martin. Martin had on several prior occasions assisted the Clermont County Sheriff's Office as a confidential informant. After notifying Harvey that Tim Lawson and his brother, appellant Jerry R. Lawson, were involved in the Titus burglaries, Harvey arranged for a phone conversation between Tim Lawson and Martin to be recorded. Martin succeeded in obtaining a taped conversation wherein Tim Lawson discussed sale prices for items he and appellant had burglarized from the Titus residence. Subsequently, Detective Harvey sought an aggravated burglary indictment against Tim Lawson. Martin was later subpoenaed to appear before the grand jury on August 5, 1987, although it is not certain that he testified. The grand jury returned an indictment charging Tim Lawson with two counts of aggravated burglary. Tim Lawson was subsequently arrested and released on bond.

After Tim Lawson's release in late August or early September 1987, his brother, appellant, came to Tim's home. Tim Lawson's live-in girlfriend, Desiree Henson, testified that she overheard their conversation in which they discussed how "Tim Martin needed to be taken care of" and how they "had to get rid of him" in order to prevent his testimony against them. Henson also overheard the brothers indicate their intention of "taking him somewhere and whooping his butt * * *." In addition, they discussed how hard it would be "to get him [Martin] to go anywhere with Jerry."

During the morning of September 23, 1987, appellant arrived at the home of Tim Lawson, ostensibly to drive his brother to work. The two traveled instead to the New Richmond, Ohio home of Billy and Sue Payton, siblings who were acquainted with Martin and the Lawsons. There, the parties discussed their mutual hatred of Tim Martin "because of all the things he'd done to both of our families." Supposedly, Martin had tried to kill Sue, his former girlfriend. Martin, according to one witness, tried to "set up" Tim and his sister on criminal charges and had even threatened to "rip [the head] off" Desiree Henson's infant child. During the course of this conversation, appellant grew angrier and angrier.

Knowing that Martin would be reluctant to go anywhere alone with appellant, the group decided to employ deception in order to lure Martin to a secluded area and give him a severe beating. Billy suggested: "I can say I know where a pot field is * * *." Billy believed that this subterfuge would cause Martin to "get dollar signs in his eyes" and thereby lose his caution. Billy phoned Martin, told him the agreed-upon story, and Martin was persuaded to meet with them.

At approximately 10:30 a.m. on that day, appellant, Tim, and Billy met with Martin and the four set off for the fictitious marijuana field. Appellant drove the group through a number of back roads to a secluded spot in Highland County. Once at the location, Martin was told that the marijuana was in a wooded area behind a nearby cornfield. The four exited the vehicle and proceeded toward the wooded area, Martin still expecting to find a field of marijuana. They arrived at a dry creekbed and all stopped to urinate. After they finished, appellant, shaking badly, pulled a gun, pointed it at Martin and fired a shot from approximately nine feet behind, striking Martin. The bullet perforated Martin's kidney, liver, and pancreas. Appellant fired three more shots, all of which missed.

It took thirty to forty-five minutes for Martin to die of his wounds. During this time, Martin asked appellant, "Why are you doing this to me?" Appellant, enraged, cursed at Martin and screamed in response, "Why did you turn me in, why did you make tapes of me * * * [?]" Appellant also ranted about Martin's informing on Tim and Martin's behavior toward the Lawson family. Martin continued to plead for help and begged appellant to take him to a hospital. At one point, appellant went berserk and kicked Martin eight to ten times. Additionally, appellant took Billy Payton's knife and offered it to Martin, saying, "Put yourself out of your own misery." After Martin refused, appellant then offered the knife to Billy Payton and Tim Lawson, who declined to use the knife as suggested.

When Martin appeared to have stopped breathing, the group decided that he was dead. Appellant ordered Tim and Billy to drag the body from the creekbed and hide it in a shallow hole made by the roots of a fallen tree. He then directed the two to cover Martin's body with debris and ordered the area searched for potential evidence. Before leaving the scene, appellant threw Payton on the ground, put the gun into his face and said, "You tell anybody and you're dead."

On September 26, 1987, Payton phoned FBI Special Agent Larry Watson and informed him that he had something "very important he had to get off his chest." Earlier that month, Payton had agreed to assist Agent Watson as an informant regarding an investigation of narcotics activity in the Clermont and Brown County areas. After hearing Payton's story, Watson took a detailed statement from him and also interviewed Payton's girlfriend and his sister Sue. Watson then enlisted the cooperation of Billy and Sue to secure a taped admission from appellant. Three days later, on September 29, Sue secured a taped conversation between herself and appellant. During this conversation, only a portion of which was played before the jury at appellant's trial, appellant complained about Martin "snitching" on people and threatening women and children. He also said he purposely shot Martin in the side so Martin would bleed internally and "die a slow death." Billy Payton later recorded a conversation with appellant in which appellant admitted to shooting Martin before he kicked and taunted him. Appellant also discussed going back to the burial site in order to "cut off his [Martin's] hands" and moving the body to a more secluded location. Appellant further said: "I've killed before, man, but everytime I've killed, man, you seen how I looked, man, I turned fuckin white, man, fuckin start sweating and shit, felt sick." Billy replied, "No, you turn into a wild man." Appellant said, "Hey, I can psych myself out now."

On October 6, 1987, appellant was indicted on two counts of aggravated murder, three counts of kidnapping, two counts of intimidation, aggravated robbery, aggravated burglary, and gross abuse of a corpse. All counts with the exception of the gross abuse of a corpse carried specifications. He entered pleas of not guilty and not guilty by reason of insanity. On April 26, 1988, a jury convicted appellant of both aggravated murder counts and of three specifications as to each count: murder during kidnapping, R.C. 2929.04(A)(7); murder for the purpose of escaping accountability for another offense, R.C. 2929.04(A)(3); and murder of a witness, R.C. 2929.04(A)(8). Appellant was also found guilty of two counts of kidnapping, two counts of intimidation, and one count of aggravated burglary. Appellant was found to have had a firearm on or about his person while committing the offenses.

After the conclusion of the mitigation phase of the trial, the jury found that the aggravating circumstances outweighed any mitigating factors and, therefore, recommended the sentence of death. The trial court adopted the jury's recommendation and imposed a sentence of death as to the aggravated murder charges. The court of appeals affirmed appellant's conviction and the death penalty.

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

Donald W. White, Pros. Atty., and David Henry Hoffmann, Batavia, for appellee.

H. Fred Hoefle and Kenneth J. Koenig, Cincinnati, for appellant.

HOLMES, Justice.

Appellant has raised twelve propositions of law. Each has been thoroughly reviewed and for the reasons stated below we find them without merit, and uphold the appellant's convictions and death sentence.

I

Appellant's second, third and fourth propositions of law are interrelated. They stem from the admission into evidence of a tape-recorded conversation between appellant and Billy Payton. The portion played to the jury contained the following passage:

"Lawson: Number one is this, * * * he fucked you around, your sister around, the kids around, a lot of people around him he fucked, my little brother around, my sister, he tried * * * to fuck me around, * * * that shit don't go, not with me, you know. I've killed before man, but everytime I've killed, man, you seen how I looked, man, I turned fuckin white, man, fuckin start sweating and shit, felt sick.

"Payton: No, you turn into a wild man.

"(Laughter)

"Lawson: Hey, I can psych myself out now. I can psych myself out, man, that's I've been down that road a few times, like this here. * * * " (Emphasis added.)

Before the tape was played to the jury, defense counsel and the prosecutor met with the trial judge in chambers to discuss its admissibility. Initially, defense counsel asked that the above emphasized language be redacted as unfairly prejudicial. Defense counsel later maintained that only the words "I've killed before, man, but everytime I've killed,...