State v. Moreland

• Decision Date: 04 April 1990
• Docket Number: No. 88-1982,88-1982
• Citation: 50 Ohio St.3d 58,552 N.E.2d 894
• Parties: The STATE of Ohio, Appellee, v. MORELAND, Appellant.
• Court: Ohio Supreme Court

Page 58

50 Ohio St.3d 58

552 N.E.2d 894

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

No. 88-1982.

Supreme Court of Ohio.

Submitted Jan. 23, 1990.

Decided April 4, 1990.

Syllabus by the Court

An expert may not testify as to the expert's opinion of the truth or falsity, or accuracy or inaccuracy, of the statements of a child declarant. (State v. Boston [1989], 46 Ohio St.3d 108, 545 N.E.2d 1220, approved, applied and followed.)

On November 1, 1985, Tia Talbott resided at 35 S. Ardmore, Dayton, Ohio, with her five children: Dayron Talbott, age eleven, Daytrin Talbott, age seven, Datwan Talbott, age six, Daniel Talbott, age four, and Glenna Talbott, age three. Also residing at 35 S. Ardmore at this time were Tia Talbott's mother, Glenna Green, Glenna Green's boyfriend, Samuel Moreland, appellant, and Thurston Jones, Tia Talbott's boyfriend. Additionally, on November 1, 1985, Tia Talbott's sister Lana Green and Lana's three children, Violana Green, Gregory Green and Tia Green, were spending the night at Tia Talbott's residence.

At approximately 10:30 p.m. on the evening of November 1, 1985, Tia Talbott, Thurston Jones and Gregory Green left the residence at 35 S. Ardmore to go to the grocery store. When Tia Talbott departed from the house, appellant was in Glenna Green's bedroom. At about the time of, or shortly after, Tia Talbott's departure, Glenna Green and appellant had an argument concerning appellant's need for some money to purchase beer or wine. Glenna Green refused to give appellant any money.

Appellant left Glenna Green's bedroom and went to his own room in the house. Appellant then returned to Green's bedroom where the argument continued until appellant again departed from Green's bedroom and absented himself for one-half hour. When appellant returned, the argument continued. Again, appellant left the bedroom and was gone for approximately ten minutes. Upon his final return, appellant was armed with a rifle. Without any exchange of words, appellant pointed the gun at Glenna Green and shot her. Appellant then shot Dayron Talbott's hand which was positioned in front of Dayron's face. Appellant then shot Dayron in the face, began laughing, and hit Dayron in the face with the end of the rifle.

Upon returning home from the grocery store, Thurston Jones and Tia Talbott discovered the bodies of Lana Green, Violana Green, Glenna Green, Datwan Talbott and Daytrin Talbott. Glenna Green died as a result of a gunshot wound to the head, as did Lana and Violana Green. Daytrin and Datwan Talbott each died as a result of multiple severe blunt force trauma to the head. Also discovered in the home was Tia Green, who had been injured as a result of a gunshot wound to the face; Glenna Talbott, who suffered numerous abrasions and contusions to her face and upper torso; and Dayron Talbott, who suffered an injury wound to his face and hand and a significant number of fractures to his skull.

In the early morning of November 2, 1985, a man was seen and was heard shouting that he had killed his family. Later that morning, this man was seen with Samuel Thomas. The unidentified individual was wearing a black jacket.

Thomas and appellant were together following the murders. After purchasing some alcohol, Thomas and appellant went back to Thomas' house. Subsequently, a car passed Thomas' home and appellant said, "I bet it was a cruiser pass." Thomas looked out of the window and saw a police cruiser passing by. Appellant also commented that he had shot a gun and the bullet hole went in small and came out big. Thomas did not know to what appellant was referring. Later, Thomas drove appellant home to the residence at 35 S. Ardmore and appellant was arrested. Appellant was wearing blue jeans and a black jacket.

While appellant was being read his Miranda ¹ rights, he told the arresting officer that the officer was "too late." Appellant was uncooperative when the police attempted to swab his hands in order to perform an atomic absorption test used to detect the presence or absence of gunshot residue. Appellant stated during this time, "I have Fifth Amendment rights." "In fact, the Constitution is written for guys like me." "You don't have any evidence against me, and I'll be damned if I'll help you." When the test was finally being conducted, appellant stated, "[t]his isn't going to do any good anyway. I've been firing three to four hundred rounds at a range in Vandalia." Appellant was then asked if he signed in and out at the range. At this point, appellant changed his story and stated that he had been firing the shots along a river bank.

A blood-alcohol test was performed on appellant. The test results showed .225 grams per 220 liters of breath alcohol. Further, appellant had been seen by Bruce Shackleford at approximately 11:00 p.m. on November 1, 1985. Shackleford testified that appellant did not appear to be drunk nor did appellant have difficulty walking or talking. Also, Richard Cunningham saw appellant on November 1, 1985, and at that time appellant did not seem to have difficulty walking.

The police subsequently recovered a .22 caliber rifle. Bullets found in some of the victims' bodies were .22 caliber. Fired and misfired casings found at the murder scene were also .22 caliber. Imprints from the butt of the rifle matched indentations on Datwan Talbott's forehead. The rifle, found by the police, was test-fired and the test bullets were compared to the bullets found in the victims' bodies. The test bullets and the bullets retrieved from the victims' bodies had the same characteristics. The test cartridges matched the fired and misfired cartridge casings found at the murder scene. With the exception of one unfired cartridge casing, all the cartridge casings found at the murder scene had been fired or misfired from a gun which was of the same make as that recovered by the police. Dayron testified that after he was shot and beaten by appellant, Dayron saw appellant with " * * * this long little thing that * * * [appellant] was putting through the barrel of the gun. And then * * * [appellant] pulled it out and took some kind of rag and wiped it off." The rifle recovered by police has a "magazine tube" positioned below the barrel of the gun. A rod used to compress the cartridge casings, and which causes the cartridges to feed into the chamber of the rifle, moves in and out of the magazine tube.

In April 1986, a three-judge panel (the "panel") found that appellant purposely, and with prior calculation and design, caused the deaths of Glenna, Lana and Violana Green, and Daytrin and Datwan Talbott. Appellant was also found guilty of death penalty specifications in connection with each of these five aggravated murders. For these crimes, the panel imposed a sentence of death. Further, appellant was found guilty of the attempted aggravated murders of Tia Green, Glenna Talbott and Dayron Talbott, and was sentenced accordingly. The court of appeals affirmed the convictions and the sentence of death.

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

Lee C. Falke, Pros. Atty., Ted E. Millspaugh, Dayton, and Walter F. Ruf, for appellee.

Randall M. Dana, Ohio Public Defender, and Jane P. Perry, Columbus, for appellant.

DOUGLAS, Justice.

Dayron Talbott was the state's only eyewitness to the crimes committed on November 1, 1985. Prior to Dayron's testifying, defense counsel requested, and was denied, an opportunity to inquire of the witness and the opportunity to present other witnesses concerning the ability of Dayron to testify truthfully.

Additionally, appellant moved for an independent psychiatric examination of Dayron to assist the panel in its competency determination. This motion was also denied.

The panel then conducted a short interview with Dayron. This interview took place in chambers and appellant and all counsel were present. The panel concluded that Dayron was competent to testify.

I

Appellant, in his first proposition of law, contends that since Dayron was subject to repeated pretrial questioning by the police and the prosecution, Dayron was rendered incompetent to testify. Further, appellant cites to portions of the record to suggest that Dayron was subjected to "improper influences" by family members. Finally, appellant relies on the fact that Dayron made inconsistent statements in support of the argument that "improper influences" came to bear on Dayron's ability to accurately receive just impressions of the facts, or to relate those facts truthfully. According to appellant, the evidence he sought to present at a competency hearing related to Dayron's competency as a witness and, thus, to the admissibility of Dayron's testimony. Hence, reasons appellant, a full evidentiary hearing on Dayron's competency should have been held and an independent mental examination of Dayron should have been allowed. Appellant argues that the failure to conduct the hearing and allow the mental examination requires a reversal of his capital convictions.

We do not agree. Evid.R. 601 provides in relevant part:

"Every person is competent to be a witness except:

"(A) Those of unsound mind, and children under ten (10) years of age, who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly * * * [.]"

Judge Kessler, a member of the three-judge panel which tried appellant, responded to appellant's contentions regarding the requested competency hearing as follows:

"Well, the Court feels that under the Rules of Evidence, specifically Rule 601 * * * that every person is competent to be a witness except those of unsound mind and children under ten years of age who appear incapable of receiving just impressions from facts.

"Here we have a child who was in fact eleven years old when the events occurred and will soon be twelve. He appeared to me to be alert, bright, intelligent. The other matters that you bring in we feel do...