State v. Murphy, 98-1586.

• Court: United States State Supreme Court of Ohio
• Citation: 747 NE 2d 765,91 Ohio St.3d 516
• Docket Number: No. 98-1586.,98-1586.
• Parties: THE STATE OF OHIO, APPELLEE, v. MURPHY, APPELLANT.
• Decision Date: 06 June 2001

91 Ohio St.3d 516
747 NE 2d 765

THE STATE OF OHIO, APPELLEE,
v.
MURPHY, APPELLANT.

No. 98-1586.

Supreme Court of Ohio.

Submitted October 17, 2000.

Decided June 6, 2001.

Ron O'Brien, Franklin County Prosecuting Attorney, and Susan E. Day, Assistant Prosecuting Attorney, for appellee.

W. Joseph Edwards and Barbara A. Farnbacher, for appellant.

ALICE ROBIE RESNICK, J.

Defendant-appellant, Ulysses C. Murphy, was convicted of murdering Andre Brooks during an aggravated robbery and was sentenced to death.

Andre Brooks lived in Mansfield. His sister, Condrea Webber, lived in Columbus. On a weekend in May 1997, Webber went to Mansfield to visit her family. On Saturday, May 10, she drove back to Columbus with Brooks.

They went to the C&S Lounge, a bar on the East Side of Columbus. Arriving sometime before 1:00 a.m., May 11, they left around 2:00 a.m. and went to the F&H Grill.

The F&H occupied a two-story building; the second floor was an "after-hours bar," i.e., an establishment that serves liquor after the lawful closing time. Webber and Brooks stayed until about 3:30 a.m.

Murphy was also in the F&H that night. Frank Green, who frequented the F&H and knew Murphy, later testified that Murphy left "maybe a couple minutes" after Brooks and Webber. Brooks was wearing several gold chains around his neck that evening. These had attracted Murphy's notice, and he decided to rob Brooks to get them.

Brooks and Webber were near the car when Murphy told them to put their hands up and ordered Brooks "to take off his gold." Brooks asked Murphy to let Webber get into the car.

As Webber fumbled with the keys, she accidentally set off the car alarm. Brooks told her how to shut it off, while continuing to ask Murphy to give her a chance to get in. Murphy was pointing his gun at Brooks the entire time. Finally, Webber got in, started the car, and put it in drive. Brooks and Murphy were standing at the rear of the car, and Webber could see them in her rear-view

91 Ohio St.3d 517

mirror. (Although it was night, and the car's rear windshield appears to be tinted, the car was near an outdoor light.)

Brooks tried to take his gold chains off, with Murphy continually demanding that he "hurry up." Then Brooks tried to scare Murphy away by telling his sister to "reach underneath the seat." But Webber, afraid to support Brooks's bluff, opened the door and turned around to assure Murphy that she had no gun. It was then that she got her best look at Murphy.

Webber then closed the car door but continued to watch the robbery in the rear-view mirror. Murphy kept yelling at Brooks that he was "moving too slow." Webber then saw Murphy, who was standing slightly over an arm's length from Brooks, take a step back. She heard two quick shots; then her brother screamed and fell. According to Webber, Brooks was shot while still trying to take his chains off. Webber hit the gas pedal and sped to a nearby White Castle restaurant to summon a police officer.

An autopsy showed that Brooks died of two gunshot wounds. One bullet entered the inside of Brooks's upper left arm near the armpit and went into his torso, breaking a rib, which lacerated his lung and caused bleeding. The other entered his lower back and severed an artery.

Police found three spent shell casings where Brooks was shot. Mark Hardy, a Columbus police criminalist and firearms specialist, examined the casings. Based on firing-pin impressions, extractor and ejector marks, and breech marks found on each casing, Hardy concluded that all three had been ejected from the same gun. Hardy also concluded that both bullets extracted from Brooks's corpse were fired from one gun.

Police showed Webber a photographic array, and she identified Murphy as her brother's killer. She later identified him again in court.

Murphy was arrested and interrogated. At first he denied everything. Ultimately, he admitted that he had shot Brooks while trying to rob him of his chains. He claimed that the gun had accidentally gone off because Brooks tried to grab it. However, he admitted firing a second shot at Brooks when, according to Murphy, Brooks tried to run away after the first shot.

Murphy was indicted for aggravated murder, aggravated robbery, and having a weapon under disability. The aggravated murder count carried a felony-murder death specification. Each count also carried a firearm specification. He was convicted on all counts. After a penalty hearing, he was sentenced to death.

In this appeal, appellant raises twenty propositions of law attacking the validity of his convictions and death sentence. After full consideration, we overrule each proposition of law. We have also independently reviewed appellant's death sentence, as R.C. 2929.05(A) charges us to do, by reweighing the felony-murder

91 Ohio St.3d 518

aggravating circumstance against the mitigating factors and measuring the sentence in this case against sentences imposed in similar cases. Our analysis leads us to the conclusion that appellant's convictions and death sentence must be affirmed

I. Fifth Amendment Issues

In his first proposition of law, appellant contends that his videotaped confession should have been suppressed. He contends, first, that he did not waive his right to remain silent; second, that police continued to interrogate him after he invoked his right to cut off questioning. See Michigan v. Mosley (1975), 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313.

A. Waiver

At 10:38 p.m., May 11, 1997, Detective Viduya began appellant's interrogation by administering Miranda warnings. See Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Viduya then had appellant read the Miranda warnings aloud and asked, "Can you explain to me what that means to you?" Appellant stated, "That means I ain't got to say nothing right now, `til I talk to my lawyer."

After advising appellant of his rights, Viduya did not specifically ask him whether he desired to waive his rights, nor did he ask appellant to sign a waiver form. However, he did explain appellant's rights to him in simple terms. He did give appellant a waiver form, had him read the form aloud, and made sure he understood it. Only then did Viduya proceed to interrogate appellant.

The trial court, ruling on appellant's motion to suppress his ensuing confession, found that appellant understood his rights and displayed "no hesitation" in talking with Viduya. The court also found that appellant had voluntarily waived his right to remain silent.

Appellant contends that he never waived his right to remain silent at all. He stresses the fact that he never signed the waiver-of-rights form and that the trial court improperly found that he implicitly waived this right by talking with police.

It is settled law that a Miranda waiver need not be expressly made in order to be valid. North Carolina v. Butler (1979), 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286, 292. A court may infer a waiver from the suspect's behavior, viewed in light of all the surrounding circumstances. See cases cited infra.

The trial court inferred waiver from appellant's actions. In our view, the record supports that inference. Even though Viduya did not ask appellant if he wished to give up his rights, he did ask him whether he understood his rights. Not only did appellant affirm that he understood his rights, he showed his understanding of the right to remain silent: "That means I ain't got to say

91 Ohio St.3d 519

nothing right now, `til I talk to my lawyer." He also understood the concept of a waiver: "That means I can talk to you if I want to."

When Viduya questioned him, appellant spoke with no visible reluctance. His original story was exculpatory, and he evidently believed that if he told it well, he would be released. (Thus, once he had told it, he informed Viduya that he was "ready to go home.")

Where a suspect speaks freely to police after acknowledging that he understands his rights, a court may infer that the suspect implicitly waived his rights. See, e.g., United States v. Ogden (C.A.5, 1978), 572 F.2d 501, 502-503; Gorham v. Franzen (C.A.7, 1985), 760 F.2d 786, 795; United States v. Hilliker (C.A.9, 1970), 436 F.2d 101; People v. Sully (1991), 53 Cal.3d 1195, 1233, 283 Cal.Rptr. 144, 167, 812 P.2d 163, 185-186; State v. Williams (1993), 334 N.C. 440, 464-465, 434 S.E.2d 588, 602-603, vacated on other grounds, North Carolina v. Bryant (1994), 511 U.S. 1001, 114 S.Ct. 1365, 128 L.Ed.2d 42; State v. McCluskie (Me.1992), 611 A.2d 975, 977; People v. Sirno (1990), 76 N.Y.2d 967, 563 N.Y.S.2d 730, 565 N.E.2d 479. A suspect's acknowledgment that he understands his rights should not, perhaps, "inevitably carry the day," but such an acknowledgment "is especially significant when defendant's incriminating statement follows immediately thereafter," as was the case here. 2 LaFave, Israel & King, Criminal Procedure (2 Ed.1999) 592, Section 6.9(d), citing Billings v. People (1976), 171 Colo. 236, 466 P.2d 474.

The surrounding circumstances also suggest that appellant's waiver was voluntary. Viduya's manner was not threatening; there is no evidence that police used coercive tactics to obtain the waiver. Appellant told Viduya that he was sober, and this was confirmed by his appearance and demeanor in the video. Thus, the record supports the trial court's finding that appellant voluntarily waived his rights.

B. Assertion of Rights

Michigan v. Mosley, supra, holds that once a suspect invokes his right to remain silent, police must cease to question him. The invocation does not bar further questioning altogether, but police must scrupulously honor the defendant's exercise of his right to cut off questioning. Mosley, 423 U.S. at 104, 96 S.Ct. at 326, 46 L.Ed.2d at 321, citing Miranda, 384 U.S. at 479, 86 S.Ct. at 1630, 16 L.Ed.2d at 726.

In this case, appellant told Detective Viduya that he had not been involved in the crime. After telling his version, he said, "I'm ready to quit...