State v. Tinch
| Decision Date | 30 November 1992 |
| Docket Number | No. CA91-10-074,CA91-10-074 |
| Citation | 84 Ohio App.3d 111,616 N.E.2d 529 |
| Parties | The STATE of Ohio, Appellee, v. TINCH, Appellant. * |
| Court | Ohio Court of Appeals |
Timothy A. Oliver, Warren County Pros. Atty., Joan G. Robinson and Joanne Hash, Asst. Pros. Attys., Lebanon, for appellee.
Fowler & Cole and William G. Fowler, and Patrick D. Long, Franklin, for appellant.
In the early morning hours on August 10, 1990, the body of Phyllis Elam was discovered in a remote, wooded area in Warren County, Ohio. An autopsy conducted around noontime revealed she had bled to death from multiple stab and incised wounds. According to the coroner who conducted the autopsy, Elam had been dead for approximately twelve to eighteen hours, possibly a little longer, at the time of the autopsy.
Elam and defendant-appellant, Warren V. Tinch, met in December 1987 when Elam's son purchased an automobile at a Fairfield, Ohio dealership where appellant worked as a salesman. They thereafter began to date each other, but by late 1989, Elam had started dating another individual and decided to break off her relationship with appellant. Following the breakup, appellant repeatedly phoned Elam's residence and banged on the door to her residence, mostly late in the evening. Frightened by appellant's actions, Elam expressed concern to a fellow employee that appellant was following her and would often ask the employee to walk with her to her vehicle when she got out of work. Although Elam and appellant did go out together as late as one month prior to her death, there is evidence to suggest that Elam did so only to collect money appellant had borrowed from her.
Appellant, who shared an apartment with a female roommate after the break-up with Elam, notified the roommate that he had rented his own apartment. When appellant vacated the old apartment at mid-morning on August 7, 1990, he took with him only his clothes, leaving behind several items in the basement. Appellant proceeded to go to the automobile dealership where he worked. Sometime around 3:00 or 4:00 p.m. that afternoon, appellant informed his manager that he had a doctor's appointment. Prior to leaving work to go to the doctor, appellant cleaned out his desk. Approximately three hours later, appellant telephoned the manager and told him he (appellant) was being admitted to a hospital in Fairfield for pneumonia.
That same day, Elam, alone, entered a restaurant in Franklin, Ohio, between 5:00 and 6:00 p.m. to eat dinner. Elam left the restaurant approximately one-half hour later, never to be seen again. Her vehicle was later found locked and intact by the police in the restaurant's parking lot.
At approximately 2:00 a.m. on August 8, 1990, an employee at a hotel in Middletown, Ohio, observed a smear of blood on the mirror in the hotel's restroom and found a rolled up paper towel soaked in blood behind the commode. Bewildered, the employee then went to the garbage receptacle on the wall and discovered a bloodied shirt, handkerchief, pants, socks, undershorts and sports jacket. It was later learned that the handkerchief contained a monogram with the letter "T" and was given to appellant by his mother. Forensic tests subsequently performed on the clothes indicated that the blood found on the items was consistent with Elam's blood type.
Appellant was never admitted to the hospital as he told his manager. Instead, he checked into a hotel in Careyville, Tennessee, at 1:08 a.m. on August 8, 1990, using the alias "Blair Leroy." He later rented a room in a house in Goodlettsville, Tennessee, with the same alias and remained there until February 24, 1991. Appellant then moved to the Houston, Texas area, where he worked as a car salesman at two different dealerships under the alias "Jay Victor Hurtz."
On April 15, 1991, a vehicle belonging to appellant's son was recovered from a parking lot at the Greater Cincinnati International Airport following a routine check performed by airport police on vehicles remaining in the lot for more than thirty days. The check revealed that the vehicle was the subject of an investigation concerning appellant. Elam's purse and wallet were recovered from the vehicle's trunk and glove compartment, respectively. Both the purse and a piece of carpeting taken from the vehicle were subsequently analyzed and found to contain blood which was consistent with Elam's blood type.
Appellant was eventually apprehended in Louisville, Kentucky, on May 18, 1991 and extradited to Ohio. On May 28, 1991, the Warren County Grand Jury indicted him on one count of aggravated murder with prior calculation and design in violation of R.C. 2903.01(A) and three counts of aggravated murder in violation of R.C. 2903.01(B)--one each for purposely causing Elam's death while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit rape, kidnapping and aggravated robbery. Each aggravated murder count also contained three R.C. 2929.04(A)(7) death penalty specifications--that the offense was committed while appellant was committing, attempting to commit, or fleeing immediately after committing or attempting to commit rape, kidnapping, and aggravated robbery. Each count additionally contained a death penalty specification that appellant committed the offense for the purpose of escaping detection, apprehension, trial or punishment for another offense in violation of R.C. 2929.04(A)(3).
A plea of not guilty was entered to the charges and trial commenced on September 16, 1991 before a three-judge panel. At that time, the aggravated murder count based on rape was dismissed, as was the rape specification that accompanied each of the other three counts. During the trial, the court permitted into evidence test results from a deoxyribonucleic acid ("DNA") analysis performed on the clothing found in the hotel restroom and the carpeting from the vehicle that indicated the DNA banding patterns obtained from these two exhibits matched the DNA banding patterns secured from Elam.
In an entry issued September 25, 1991, the three-judge panel found appellant guilty of aggravated murder with prior calculation and design with the kidnapping specification and aggravated murder based on kidnapping with the kidnapping specification and acquitted him on the remaining specifications and aggravated murder count. During the penalty phase, the court found the aggravating circumstance of Elam's kidnapping did not outweigh the mitigating factors beyond a reasonable doubt and accordingly sentenced appellant to life imprisonment without eligibility for parole for a period of thirty years. This appeal followed.
Appellant's seven assignments of error are as follows:
Assignment of Error No. 1:
"The court erred in failing to require the Warren County Prosecuting Attorney and the Warren County Sheriff to turn over to appellant pursuant to Ohio Revised Code 149.13 all records of the investigation of the instant case relating to other suspects."
Assignment of Error No. 2:
"The trial court erred in refusing to grant appellant's motion for acquittal pursuant to Criminal Rule 29 at the end of the state's evidence when the state was not required to prove the venue of the alleged crime with proof beyond a reasonable doubt pursuant to Article One, Section 10 of the Constitution of the State of Ohio."
Assignment of Error No. 3:
"The trial court erred in failing to grant the appellant's motion to suppress evidence seized from the automobile he was driving in Louisville, Kentucky, when the consent to search signed by the appellant was not voluntary and was in violation of his rights under the Fourth and Fifth Amendments to the United States Constitution and applicable state constitutional provisions."
Assignment of Error No. 4:
"The trial court erred to the prejudice of the appellant in the convicting of the appellant of aggravated murder with the death specification when such finding was against the manifest weight of the evidence and was contrary to law." Assignment of Error No. 5:
"The trial court erred to the prejudice of appellant in refusing to dismiss the kidnapping specification."
Assignment of Error No. 6:
"Appellant's conviction for aggravated murder with the specification of kidnapping was due to incompetence of trial counsel for appellant."
Assignment of Error No. 7:
"The trial court erred in admitting into evidence the results of the DNA testing."
In his first assignment of error, appellant argues that the court erred in denying his motion to order both the prosecutor and sheriff to release to him all investigatory records that pertained to other suspects in the case pursuant to R.C. 149.43.
R.C. 149.43, also known as the "Public Records Act," is the codification of the public's right of access to government records in Ohio and holds that "[a]ll public records shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours." R.C. 149.43(B). Originally, law enforcement investigatory records, such as those sought by appellant, were not subject to the compulsory disclosure provision of R.C. 149.43. See Wooster Republican Printing Co. v. Wooster (1978), 56 Ohio St.2d 126, 10 O.O.3d 312, 383 N.E.2d 124, paragraph four of the syllabus. However, the language in the statute has been amended over time to the point that the Supreme Court has recognized that the disclosure of such investigatory records is permissible under certain circumstances. State ex rel. Natl. Broadcasting Co. v. Cleveland (1988), 38 Ohio St.3d 79, 82, 526 N.E.2d 786, 789; State ex rel. Beacon Journal Publishing Co. v. Univ. of Akron (1980), 64 Ohio St.2d 392, 394, 18 O.O.3d 534, 536, 415 N.E.2d 310, 312.
In the instant action, appellant moved the court for an order directing the prosecutor and sheriff to turn over to him information as to the name of every person to whom the police...
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