State v. Shelton

• Citation: 5 O.O.3d 42,51 Ohio St.2d 68,364 N.E.2d 1152
• Parties: , 5 O.O.3d 42 The STATE of Ohio, Appellee, v. SHELTON, Appellant.
• Decision Date: 13 July 1977
• Court: United States State Supreme Court of Ohio

Page 68

51 Ohio St.2d 68

364 N.E.2d 1152, 5 O.O.3d 42

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

Supreme Court of Ohio.

July 13, 1977.

Syllabus by the Court

1. A conspiracy to commit a crime does not necessarily end with the commission of the crime.

2. A declaration of a conspirator, made subsequent to the actual commission of the crime, may be admissible against any co-conspirator if it was made while the conspirators were still concerned with the concealment of their criminal conduct or their identity. (State v. DeRighter, 145 Ohio St. 552, 62 N.E.2d 332, approved and followed.)

On January 24, 1975, the Hamilton County grand jury returned a two-count indictment, with a specification. The first count charged Leroy Bates and the defendant, Ellis Shelton, with purposely causing the death of Lloyd Adkins while attempting to commit aggravated robbery in violation of R.C. 2903.01.

The specification to the first count stated that the offense contained in the first count was committed while Bates and Shelton were attempting to commit aggravated robbery.

The second count charged the pair with attempted aggravated robbery, as defined by R.C. 2911.01 and in violation of R.C. 2923.02.

In a separate trial, Shelton was found guilty on each count and the specification. Following a psychiatric examination and a presentence probation report, a mitigation hearing was conducted. The court found an absence of any mitigating factors, and on October 8, 1975, Shelton was sentenced to death on the first count and the specification thereto. On the second count, he received a sentence for a term of years.

The Court of Appeals affirmed the conviction and sentence.

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

Simon L. Leis, Jr., Pros. Atty., Thomas P. Longano and Robert R. Hastings, Jr., Cincinnati, for appellee.

Donald L. Weber and Daniel Reif, Cincinnati, for appellant.

C. WILLIAM O'NEILL, Chief Justice.

On November 25, 1974, the defendant and Bates apparently agreed to rob the Warner Tavern in Cincinnati, Ohio. After deciding that a gun was necessary, Shelton purchased a .12 gauge J. Stevens single barrel shotgun from Kenneth Carter. Shortly after midnight on the morning of November 26, the defendant and Bates entered the Warner Tavern. Both men were wearing stocking masks. Shelton was armed with the shotgun.

Mrs. Lois J. Wells was tending bar and talking to Robert Schultheis who was seated at the bar in the rear part of the barroom. Lloyd Adkins, an off-duty Pinkerton guard, was seated at the bar near the front entrance. Adkins and Schultheis were approximately 18 feet apart.

Leroy Bates proceeded to the rear of the tavern where Schultheis was seated. The defendant approached the center portion of the bar. Mrs. Wells asked the man what he wanted, whereupon Shelton raised the shotgun over the bar and pointed it at her. Mrs. Wells responded, "All right, I know what you want."

When Bates started to move around to Mrs. Wells' side of the bar it was her intention to let him take the money. As Mrs. Wells moved to the rear of the bar, she heard Adkins say to Shelton, "Oh, no you don't." She then turned and looked toward the front of the tavern where Shelton and Adkins were struggling. Shelton knocked Adkins off balance, stepped back, and fired a fatal shot. Both Bates and Shelton then fled the tavern.

At approximately 1:30 A.M. on November 26, 1974, Kenneth Carter received a telephone call from Leroy Bates. Bates asked Carter to "Come and get that shotgun," and said that Shelton had shot a man with it. Carter refused to take the gun.

The record reflects that when Bates was unsuccessful in his attempt to convince Carter to reclaim the murder weapon, he wrapped the shotgun in a towel and attempted to dispose of it in an area near Mr. Airy Forest. The gun and towel were later found.

Both Bates and Shelton were arrested soon after the killing. During the trial of the defendant, the state presented an overwhelming amount of evidence pointing to the defendant's involvement in the commission of the aggravated robbery and murder.

I.

Appellant advances three propositions of law; the first two are summarized as follows:

1. The trial court substantially erred to the prejudice of appellant in denying his motion to dismiss for the reason that the provisions of R.C. 2903.01, 2929.02, 2929.03 and 2929.04 unconstitutionally permit arbitrary imposition of the death penalty in violation of the Eighth and Fourteenth Amendments to the United States Constitution.

2. The trial court substantially erred to the prejudice of appellant in denying his motion to dismiss for the reason that the death penalty imposed by R.C. 2929.04 constitutes cruel and unusual punishment prohibited by the Eighth Amendment to the United States Constitution and Section 9, Article I of the Ohio Constitution.

These propositions of law were rejected by this court in State v. Bayless (1976), 48 Ohio St.2d 73, 357 N.E.2d 1035. See, also, State v. Black (1976), 48 Ohio St.2d 262, 358 N.E.2d 551, and State v. Downs (1977), 51 Ohio St.2d 47, 364 N.E.2d 1140.

II.

Appellant's third proposition of law states:

The trial court erred in allowing in evidence, over defendant's timely objection, testimony by a state's witness regarding an alleged telephone conversation between the witness and a co-conspirator, which testimony constituted an extrajudicial declaration of the co-conspirator, made in the absence of the defendant, out of the defendant's presence, without the defendant's knowledge, after the termination of the conspiracy and which tended to prove the guilt of the defendant.

After the shooting, the defendant and Leroy Bates fled from the Warner Tavern. They ran through the Fairview School yard and then back to Connie Bates' apartment on Wheeler Street. Connie Bates saw the defendant in her bathroom washing blood from his hands. He also had blood on his fatigue jacket and on his pants.

At approximately 1:30 A.M., Carter received a telephone call from Leroy Bates. In recalling the conversation during the trial, Carter's testimony proceeded as follows:

"Q. Later on that evening did anything happen to bring your attention back to this particular gun?

"A. About 1:30 or something, I received a call from Leroy Bates; and he told me, 'Come and get the shotgun.'

"Mr. Weber: Objection as to any conversation.

"The Court: Overruled.

"Q. What did he say to you on the phone call?

"A. He told me 'Come and get the shotgun,' that Ellis had shot a man with it.

"Q. What did you say to him?

"A. I told him to keep the gun, I didn't want it."

Appellant claims the court's ruling as error. As a general rule, he contends, the incriminating, inculpatory, extrajudicial declarations of a conspirator, after termination of the common purpose and in the absence of or without the knowledge of his fellow conspirators, do not bind the nondeclarants and such statements are inadmissible to prove the participation of co-conspirators in the crime charged. Applying this rule to the case at bar, appellant continues, Carter's testimony was inadmissible. Appellant argues that at the time of the alleged telephone conversation, the conspiracy to rob had terminated and the conspiracy was, therefore, at an end; and that the alleged conversation took place out of the presence of the defendant, and was sufficiently remote in time from the commission of the criminal act charged as to not be appropriately considered as part of the res gestae. Consequently, appellant contends the admission of such testimony requires that his conviction be reversed.

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