State v. Sheppard

• Decision Date: 30 December 1998
• Docket Number: No. 97-1474,97-1474
• Citation: 703 N.E.2d 286,84 Ohio St.3d 230
• Parties: The STATE of Ohio, Appellee, v. SHEPPARD, Appellant.
• Court: Ohio Supreme Court

Page 230

84 Ohio St.3d 230

703 N.E.2d 286

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

No. 97-1474.

Supreme Court of Ohio.

Submitted Sept. 15, 1998.

Decided Dec. 30, 1998.

[703 N.E.2d 288] On August 27, 1994, Bobby T. Sheppard, defendant-appellant, was indicted for the August 19, 1994 aggravated robbery and murder of fifty-six-year-old Dennis Willhide.

Willhide owned the C & D Drive-thru beverage store, located in Cincinnati. On August 19, 1994, Willhide and an employee, Darren Cromwell, were working at the store. Approximately one-half hour before closing time, appellant and his fourteen-year-old accomplice, Antwan (Cory) Little, ran into the front entrance. Appellant wore dark clothing and a dark mask and had a gun. Little wore a white t-shirt pulled over his head. Little went to the cash register and tried to open it. Appellant grabbed Willhide and forced him down to the floor by the cash register. Little removed the money from the register then ran out the door. Appellant remained a few seconds longer and fired a single gunshot to the back of Willhide's head. He, too, then ran out the exit door.

In the meantime, Cromwell had escaped out the back door. He ran down the street and tried to flag down some cars. He managed to stop a taxicab. He entered the cab and asked the driver to call the police. The driver called his dispatcher and drove Cromwell back to the drive-through. While in the cab, Cromwell heard one gunshot and then saw appellant and Little run from the store.

Cromwell went back into the drive-through. He walked behind the register and saw Willhide lying face down on the floor. He ordered people out of the store (several cars had entered while Cromwell was gone). Cromwell called the police.

Police officer Daniel M. Nickum and his tracking dog, Luke, were summoned to the scene. Luke was taken to the area where Cromwell had last observed appellant and Little. He picked up their scent and followed it to appellant's nearby house. Nickum contacted more police cars, and appellant and Little were immediately arrested. The residence was secured, and a search warrant was obtained.

Inside appellant's home, the police found $114 (three $20 bills, two $5 bills, one $2 bill, and forty-one $1 bills) partly stuffed into a plastic bag and partly lying The next day, with the assistance of Deangelo Graham, a fifteen-year-old friend of appellant and Little, the police uncovered $390 in currency and a chrome-plated .22 caliber semiautomatic pistol containing six bullets from a neighbor's bush next to appellant's house.

loose on a kitchen closet floor. In a bedroom near the kitchen, the police uncovered a dark blue hooded sweatshirt and a black mask under a bed.

The gun was test-fired and found to be operable. An expert testified that a cartridge casing found on the drive-through floor had been fired from this weapon. In addition, it was determined that the bullet retrieved from Willhide's brain was consistent with the bullets test-fired from the gun.

Appellant made several statements. Shortly after he was arrested and read his Miranda rights, but before he was told the reason for the arrest, he announced that he "didn't do a robbery." The second statement was made at the police station. In this version, appellant explained that Little and he had gone to the drive-through to purchase a forty-ounce bottle of beer. Willhide would not sell it to him because he was too young. Willhide then pulled out "something." Appellant thought it might be a gun, so he shot Willhide once in the head as Willhide turned away.

Appellant changed his story when challenged by police. He gave an accurate account of what had occurred as evidenced on the surveillance tape. In his confession, he said that he "did not mean to shoot" Willhide and that he wasn't "in [his] right mind." But appellant admitted that he shot Willhide because he did not want Willhide to identify him. Appellant gave police $89, hidden in his shoe, which he said was proceeds from the robbery. Thus, together with the $114 from appellant's kitchen and the $390 from the neighbor's bush, the police recovered a total of $593.

The fifteen-year-old acquaintance, Deangelo Graham, related three conversations that he had with appellant. The first conversation took place approximately two to three months before August 19. The second occurred just a few days before the robbery and murder. The last conversation happened just minutes before the tragedy. Appellant related his intent to rob the drive-through and a BP station. Appellant wondered what it would feel like to shoot someone. In the second conversation, appellant stated that he might have to kill the man if he did not cooperate. In the last conversation, appellant was convincing a reluctant Little to go through with the plan. After the last conversation, Graham saw appellant and Little walk into the store and saw appellant grab Willhide and force him to the ground. Graham then walked away. Graham also described the gun appellant had purchased just a few days before on the streets. The description matched the gun offered into evidence.

The jury found appellant guilty as charged of aggravated robbery and aggravated murder with gun specifications. He was also convicted of death penalty specifications for murder to escape detection or apprehension for another offense, R.C. 2929.04(A)(3), and murder in the course of a robbery, R.C. 2929.04(A)(7). The jury recommended death. The trial court sentenced appellant to imprisonment for the aggravated robbery and the gun specifications, and to death for the aggravated murder. The court of appeals affirmed.

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

Joseph T. Deters, Hamilton County Prosecuting Attorney, and William E. Breyer, Assistant Prosecuting Attorney, for appellee.

H. Fred Hoefle and Chuck R. Stidham, Cincinnati, for appellant.

FRANCIS E. SWEENEY, Sr., Justice.

Appellant presents twenty-seven propositions of law for our consideration. (See Appendix, infra.) We have independently considered each proposition and have reviewed the death penalty sentence for appropriateness and proportionality. However, we summarily reject arguments that either have not been preserved, involve settled issues, or are cured by our independent review. See, e.g., State v. Poindexter (1988), 36 Ohio St.3d 1, 520 N.E.2d 568, syllabus; State v. Henness (1997), 79 Ohio St.3d 53, 56, 679 N.E.2d 686, 691. Thus, we address only those issues that warrant discussion. Accordingly, upon review, and for the following reasons, we uphold appellant's convictions and sentences, including the death sentence.

Juror Misconduct

In Proposition of Law No. 1, appellant argues that he is entitled to reversal of the death sentence and imposition of a life sentence because of the misconduct of one juror during the penalty phase. In Proposition of Law No. 2, appellant contends that the trial court improperly considered a psychologist's affidavit in considering this issue. We reject both arguments.

After the jury had recommended the death penalty and had been discharged, the state learned that one juror had independently contacted a psychologist for a definition of paranoid schizophrenia. The contact was made before jury deliberations in the penalty phase. The court conducted a brief hearing and examined the juror. The juror testified that the psychologist gave him a "very, boiled down, short" definition that "those kind of people [paranoid schizophrenics] just are not really in touch with real[i]ty." The juror testified that this definition did not differ from what he had heard at trial, and it did not affect the deliberations in any way. The juror did not share this information with other jurors.

Following appellant's motion for a new trial based upon juror misconduct, the state submitted an affidavit from the psychologist in question, stating that the brief definition she had given to the juror was totally consistent with defense testimony.

The juror's decision to ask his psychologist friend for an outside opinion constitutes juror misconduct. "Due process means a jury capable and willing to decide the case solely on the evidence before it[.]" Smith v. Phillips (1982), 455 U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78, 86. "In a criminal case, any private communication, contact, or tampering * * * with a juror during a trial about the matter pending before the jury is * * * deemed presumptively prejudicial[.]" Remmer v. United States (1954), 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654, 656. But "[t]he presumption is not conclusive." Id. In fact, Smith v. Phillips modified the concept of presumed prejudice and required the party complaining about juror misconduct to prove prejudice. 455 U.S. at 215-217, 102 S.Ct. at 945, 71 L.Ed.2d at 85-86. See United States v. Zelinka (C.A.6, 1988), 862 F.2d 92, 95; United States v. Sylvester (C.A.5, 1998), 143 F.3d 923, 933-934.

Additionally, Ohio courts have a long-standing rule "not [to] reverse a judgment because of the misconduct of a juror unless prejudice to the complaining party is shown." State v. Hipkins (1982), 69 Ohio St.2d 80, 83, 23 O.O.3d 123, 125, 430 N.E.2d 943, 946. Accord State v. Keith (1997), 79 Ohio St.3d 514, 526, 684 N.E.2d 47, 60. The defense must establish that an outside communication "biased the juror." Id., citing State v. Phillips (1995), 74 Ohio St.3d 72, 88-89, 656 N.E.2d 643, 661. Under Crim.R. 33(A)(2), juror misconduct must materially affect an accused's substantial rights to justify a new trial. See, also, R.C. 2945.79(B).

Here the trial court determined that appellant suffered no harm or prejudice as a result of the juror's brief conversation with the psychologist. A court may determine that a juror's impartiality has remained unaffected based upon that juror's testimony. Smith v. Phillips, 455 U.S. at 215, 102 S.Ct. at 945, 71 L.Ed.2d at 85. In fact, the juror's brief conversation clearly...