State v. Sowell

• Decision Date: 16 November 1988
• Docket Number: No. 86-1499,86-1499
• Parties: The STATE of Ohio, Appellee, v. SOWELL, Appellant.
• Court: Ohio Supreme Court

Page 322

39 Ohio St.3d 322

530 N.E.2d 1294

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

No. 86-1499.

Supreme Court of Ohio.

Submitted May 3, 1988.

Decided Nov. 16, 1988.

Syllabus by the Court

1. Upon independent review of a sentence of death, a determination by a majority of the members of the reviewing court that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors beyond a reasonable doubt and that the death sentence is appropriate is sufficient to affirm the sentence of death. Unanimity is not required.

2. If one purposely causes the death of another and the death is the result of a scheme designed to implement the calculated decision to kill someone other than the victim, the offender is guilty of aggravated murder in violation of R.C. 2903.01(A). (State v. Solomon [1981], 66 Ohio St.2d 214, 20 O.O.3d 213, 421 N.E.2d 139, paragraph one of the syllabus, approved and followed.)

On May 1, 1983, appellant, Billy Joe Sowell, visited the apartment of his friend, Calvert Graham, who lived down the hall from appellant in a Cincinnati apartment building. Appellant later left the apartment in the company of Pamela Jean Billups, who had been visiting Graham and his friend Donna Edwards. Appellant took Billups to dinner and, afterwards, they went to a hotel and rented a room. There was conflicting testimony as to what transpired there, but it is undisputed that appellant eventually passed out under the influence of marijuana and alcohol that he had consumed that evening. Appellant bought breakfast for Billups the following morning and went home.

Three days later, on May 4, appellant saw Billups as they passed each other in a store doorway. Neither person acknowledged the other. On his way home that evening, appellant claims he drank at least one double shot of vodka at each of five taverns. He then proceeded to Graham's apartment where he allegedly consumed more alcohol and a marijuana cigarette with Graham, Billups, and Edwards.

Appellant testified that he then fell asleep for a short time only to awaken and find $190 missing from his pocket. He became enraged when Graham, Billups, and Edwards claimed ignorance of the funds. Billups testified that appellant also accused her of stealing money from him on the night they were at the hotel. Graham subsequently ordered appellant to leave his apartment. Appellant then announced his intention to get his gun to shoot Billups, and he returned to his own apartment for several minutes, where he instructed his alleged common-law wife, Lenora Waugh, to bring him his .38 caliber pistol. He and Waugh then walked down the hall to Graham's apartment. Appellant told Waugh to knock on the door and identify herself as someone named "Portia."

Billups and Edwards testified that when Graham opened the door, appellant forced his way into the apartment. He then fired a shot into the ceiling and said that he intended to shoot Billups. Graham managed to calm appellant down somewhat and began escorting him to the door. At this time, appellant suddenly turned and shot Graham in the abdomen. As Graham fell, appellant fired another shot into Graham's head, killing him. Appellant claimed that he did not draw and shoot his gun until Graham threatened him with a knife.

Appellant then searched for Billups and found her hiding in a closet. He shot her three times and then put the gun to her head and pulled the trigger. However, the gun failed to fire because he had expended all its ammunition. Appellant returned to his apartment, ordered Waugh to hide the gun and give him some money, and then left the premises. As he left the building he threatened to shoot Edwards if she fled before he did. Appellant was subsequently arrested at a nearby tavern.

Appellant was indicted for aggravated murder with a death penalty specification pursuant to R.C. 2929.04(A)(5), that the killing of Graham was part of a course of conduct involving the purposeful killing of Graham and the attempt to kill Billups. He was also indicted for the attempted aggravated murder of Pam Billups. Appellant entered pleas of not guilty and not guilty by reason of insanity, and was subsequently found competent to stand trial. He then waived his right to a jury trial.

A three-judge panel found appellant guilty as charged and sentenced him to death for the aggravated murder of Graham, and to a term of seven to twenty-five years for the attempted aggravated murder of Billups. The court of appeals affirmed the convictions and sentences with one judge dissenting only with respect to the court's approval of the death sentence.

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

Arthur M. Ney, Jr., Pros. Atty., Christian J. Schaefer, Cincinnati, and John P. Valentine, for appellee.

H. Fred Hoefle and Raymond T. Faller, Cincinnati, for appellant.

LOCHER, Justice.

We are confronted today by issues concerning the convictions and death sentence of appellant. For the reasons set forth below, we affirm the judgment of the court of appeals and uphold the sentence of death.

I

In his first proposition of law, appellant contends that his death sentence must be set aside because the court of appeals refused to consider his voluntary intoxication at the time of the offense to be a mitigating factor.

The trial court considered appellant's intoxication and drug use as factors relevant to the issue of whether appellant should receive the death sentence, but gave these factors little weight since appellant presented no evidence of intoxication or drug use at the sentencing hearing.

The court of appeals held that voluntary intoxication is not a mitigating factor because it does not constitute a valid defense in this state. Judge Shannon, concurring separately, found that voluntary intoxication should be considered a relevant mitigating factor, but that in view of the majority's conclusion that appellant purposely and intentionally killed Graham, the factor should be given little weight.

R.C. 2929.04(B) contains a nonexclusive list of mitigating factors to be weighed against the aggravating circumstance(s) in capital cases. Of these enumerated factors, a defendant's voluntary intoxication would most logically be categorized under R.C. 2929.04(B)(7), which requires the sentencing body to consider "[a]ny other factors that are relevant to the issue of whether the offender should be sentenced to death." In this regard, we note that R.C. 2929.04(C) provides, in relevant part, that "[t]he defendant shall be given great latitude in the presentation of evidence of the factors listed in division (B) of this section and of any other factors in mitigation of the imposition of the sentence of death. * * * "

These statutory provisions are in conformity with the pronouncements of the United States Supreme Court on the subject. In Lockett v. Ohio (1978), 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-2965, 57 L.Ed.2d 973, the court held that " * * * the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." (Emphasis sic.) The court reiterated this holding in Eddings v. Oklahoma (1982), 455 U.S. 104, 113-114, 102 S.Ct. 869, 876-877, 71 L.Ed.2d 1 stating that "[j]ust as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence. * * * " (Emphasis sic.) See, also, State v. Jenkins (1984), 15 Ohio St.3d 164, 189, 15 OBR 311, 332, 473 N.E.2d 264, 288.

Paragraph two of the syllabus in State v. Steffen (1987), 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d 383, reads as follows:

"While R.C. 2929.04(B)(7) evinces the legislature's intent that a defendant in a capital case be given wide latitude to introduce any evidence the defendant considers to be mitigating, this does not mean that the court is necessarily required to accept as mitigating everything offered by the defendant and admitted. The fact that an item of evidence is admissible under R.C. 2929.04(B)(7) does not automatically mean that it must be given any weight."

Thus, if a defendant wishes to introduce evidence in support of the existence of a mitigating factor, such evidence must be considered in the weighing process if it is admissible. However, " * * * the jury, or the court in its own independent weighing process, may properly choose to assign absolutely no weight to this evidence if it considers it to be non-mitigating." State v. Steffen, supra, at 129, 31 OBR at 289, 509 N.E.2d at 399.

Appellant contends that the voluntary intoxication of a defendant at the time of the offense may be considered a mitigating circumstance. We agree. "Mitigating circumstances" are defined as "those which 'do not constitute a justification or excuse of the offense in question, but which, in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability. * * * ' " State v. Steffen, supra, at 128, 31 OBR at 288, 509 N.E.2d at 398, fn. 18, citing Black's Law Dictionary (5 Ed.1979) 903. Generally, however, "[o]nly that evidence which lessens the moral culpability of the offender or diminishes the appropriateness of death as the penalty can truly be considered mitigating." Id. at 129, 31 OBR at 289, 509 N.E.2d at 399.

As was correctly pointed out by the court of appeals, voluntary intoxication is not a valid defense to a crime in this state, Long v. State (1923), 109 Ohio St. 77, 141 N.E. 691, although it is relevant to show that the defendant was incapable of forming the requisite specific intent. State v. Fox (1981), 68 Ohio St.2d 53, 22 O.O.3d 259, 428 N.E.2d 410, syllabus. Nevertheless, voluntary intoxication may be...