State v. Theodore P. Sinks, 90-LW-2006

• Decision Date: 13 June 1990
• Docket Number: 90-LW-2006,11428
• Citation: State v. Theodore P. Sinks, 11428, 90-LW-2006 (Ohio App. Jun 13, 1990)
• Parties: STATE of Ohio, Plaintiff-Appellee, v. Theodore P. SINKS, Defendant-Appellant.
• Court: Ohio Court of Appeals

STATE of Ohio, Plaintiff-Appellee, v. Theodore P. SINKS, Defendant-Appellant.

No. 11428.

90-LW-2006 (2nd)

Court of Appeals of Ohio, Second District Montgomery

June 13, 1990

Ted E Millspaugh, Assistant Prosecuting Attorney, Dayton, for plaintiff-appellee.

Dennis L. Bailey, Dayton, for defendant-appellant.

OPINION

GRADY Judge.,

Defendant-Appellant, Theodore P. Sinks, was convicted after trial by jury of a violation of R.C. 2903.02, Murder, in connection with the death of his wife, Judy Sinks.Defendant-Appellant has set forth six assignments of error concerning procedures of the court prior to and during trial of the case.For reasons more fully set forth below, we will overrule Defendant-Appellant's assignments of error and affirm the decision and judgment of the trial court.

Factual Posture

Theodore P. Sinks and his wife, Judy Sinks, resided at 1765 King Avenue, Dayton, Ohio.Theodore Sinks was employed by Dayton Newspapers, Inc., and in 1987 was supervisor of the plumbing and heating maintenance facilities of that company.Three employees were assigned to him, including Kenneth Rice.

On Monday, November 23, 1987, Theodore Sinks contacted the Dayton Police Division and reported that his wife, Judy, was missing.The following day, November 24, 1987, Judy Sinks' purse was found in a mailbox at Main and Helena Streets in Dayton, Ohio, by a postal employee.On November 25, 1987, Dayton Police Detective David Lantz was assigned to investigate the missing person complaint concerning Judy Sinks.

Theodore Sinks told Detective Lantz that he first discovered his wife was missing on Monday, November 23, 1987, at about 2:30 p.m.He stated that he had talked to his neighbors and searched the surrounding area, but was unable to his wife.Sinks told Detective Lantz that Judy Sinks was suicidal and that he suspected that she had killed herself.In talking to his neighbors, Sinks made similar statements to them.

During the early part of 1988, Sinks told various people at social events that Judy Sinks died a few months earlier.

On April 25, 1988, Detective Lantz, based on an anonymous tip delivered through Commissioner Abner Orick, interviewed Kenneth Rice.Rice told Lantz that on November 20, 1987, he assisted his supervisor, Sinks, in moving a large barrel from Sinks home garage to the seventh floor to the newspaper building.He did so at Sinks request.The barrel was heavy and Sinks was concerned about the lid coming off.Sinks told Rice the barrel contained asbestos and that he was going to pour the contents of the barrel into a newly dug pit or opening in the floor of the newspaper building.Rice left, but returned to the seventh floor penthouse early the following day and discovered that the pit had been cemented over.Sinks asked Rice and some other employees to install a heavy water purifying machine on top of the freshly poured concrete slab, which they did.

The following day, April 26, 1988, Sinks called Detective Lantz and told Lantz that he was aware of the conversation between Lantz and Kenneth Rice.Sinks told Lantz that the barrel contained only asbestos and that Sinks poured the contents into the pit and concreted it over.Later that day, Detective Lantz obtained and executed a search warrant for the seventh floor area at the Dayton Newspaper building.When the freshly poured concrete slab covering the pit area was excavated, a body was found in the pit.Detective Lantz then arrested Defendant that same day.

The day following, April 27, 1988, Detective Lantz obtained and executed a search warrant of Defendant's residence.Among the material seized was a length and quantity of rope, fibers of which later matched fibers on the neck of the body.An autopsy performed on April 27, 1988, determined that the cause of death was strangulation and blunt force trauma to the head.The body was later identified as that of Judy Sinks.

On May 5, 1988, Theodore Sinks was indicted on one count of Murder in violation of R.C. 2903.02.Defendant-Appellant subsequently filed motions for change of venue and a motion to suppress statements and physical evidence.He also filed a plea of Not Guilty By Reason of Insanity and a request for a medical examination as to his competency to stand trial.He also moved for a bifurcated trial on the issues of guilty and sanity.

On December 14, 1988, Defendant-Appellant filed an additional motion to suppress physical evidence recovered from the Dayton Newspaper's building.

On January 3, 1989, Metropolitan Clinic of Counseling filed a motion to quash a subpoena issued to that organization at Sinks' request to produce medical and/or psychological records concerning treatment of Judy Sinks.

The trial court denied the motions for change of venue, suppression of evidence, and a bifurcated trial.Psychiatric or psychological examinations were ordered, but were not used as Defendant-Appellant withdrew his insanity plea prior to trial.

Trial of the charges against Defendant-Appellant commenced on January 4, 1989.On January 13, 1989, a jury returned a verdict of guilty to the charge of murder.Defendant-Appellant was sentenced to from fifteen years to life imprisonment and was fined $15,000.A timely notice of appeal was thereafter filed by Defendant-Appellant.

FIRST ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED BY PERMITTING THE TESTIMONY OF MICHAEL NOLAN DUE TO THE UNFAIR SURPRISE OF HIS TESTIMONY.

The list of witnesses to be called on behalf of the State, which was furnished to Defendant-Appellant pursuant to Crim.R. 16, did not bear the name of Michael Nolan, whom the State later requested to call as a witness during trial.Defendant-Appellant objected, arguing that he was unfairly surprised and that the State's failure to include Nolan's name on its list of witnesses prejudiced his right to a fair trial.

A hearing was held by the court to consider Nolan's testimony and Defendant-Appellant's objection to it.Evidence presented at the hearing showed that Nolan, a "detention specialist" at the Montgomery County Jail, would testify concerning a possibly incriminating admission made to him by Sinks while the latter was incarcerated.Nolan learned of this statement on or about August 13, 1988, but failed to report it to anyone at the time.Nolan related it to several co-workers at the jail in the course of a lunch conversation in early January, 1989.The co-workers reported it through channels to the County Prosecutor's office, which immediately reported Nolan's name to counsel for Defendant-Appellant as a prospective witness for the State on January 10, 1989.Nolan then testified at trial two days later.

The record is clear that the State had no advance notice of the existence of Michael Nolan or his testimony and that the State, upon learning of those matters, disclosed them to the defense immediately.Crim.R. 16(B)(1)(e) only requires the State to report the names of all witnesses it "reasonably anticipates" it is likely to call at trial.There is a continuing duty to disclose such matters.Imposition of sanctions for violations of that duty or of Crim.R. 16 rests with the sound discretion of the trial court.State v. Finnerty(1989), 45 Ohio St.3d 104.

The trial court had ample grounds upon which to find that the State acted reasonably and responsibly in immediately advising Defendant-Appellant of the identity of Michael Nolan upon learning of his prospective testimony.There is no evidence that the State withheld his name.We see no bad faith or purpose on the part of the State and we see no error on the part of the trial court.

Our decision is limited to the error alleged, i.e., "surprise".We have not considered whether Nolan's conversation with Sinks constituted surreptitious interrogation in violation of Sinks' Sixth Amendment rights under the rules United States v. Henry(1980), 447 U.S. 264, Kuhlmann v. Wilson(1986), 447 U.S. 436, andMassiah v. United States(1964), 377 U.S. 201.The trial court considered the issue and found no violation, and we see no error apparent in that determination.However, we view the practice of jailhouse "conversations" with an accused by investigating officers or others acting on their behalf to be constitutionally suspect.SeeState v. Willison(May 1, 1990), Miami App.No. 89 CA 18, unreported.Under other circumstances the practice may jeopardize prosecutions and it should be discouraged.

Appellant's first assignment of error is overruled.

SECOND ASSIGNMENT OF ERROR

THE APPELLANT WAS DENIED A FAIR TRIAL AS A RESULT OF INEFFECTIVE ASSISTANCE OF COUNSEL.

The claim that a criminal accused has been denied the effective assistance of counsel argues deprivations of the rights to which he is entitled under the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States as well as Section 10, Article I, of the Constitution of Ohio.The test to be applied to those allegations is whether the accused, under all the circumstances, had a fair trial and substantial justice was done.State v. Hester(1976), 45 Ohio St.2d 71.

Our Supreme Court has recently had occasion to affirm and refine the rules concerning ineffective assistance of counsel in State v. Bradley(1989), 42 Ohio St.3d 136.At pages 141 to 142, the Court stated:

"When considering an allegation of ineffective assistance of counsel, a two-step process is usually employed.First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client.Next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness."State v. Lytle(1976), 48...