State v. Toth

• Decision Date: 28 December 1977
• Docket Number: No. 77-217,77-217
• Citation: State v. Toth, 52 Ohio St.2d 206, 371 N.E.2d 831 (Ohio 1977)
• Parties: , 6 O.O.3d 461 The STATE of Ohio, Appellee, v. TOTH, Appellant.
• Court: Ohio Supreme Court

Page 206

52 Ohio St.2d 206

371 N.E.2d 831, 6 O.O.3d 461

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

No. 77-217.

Supreme Court of Ohio.

Dec. 28, 1977.

On June 24, 1975, Donald Steven Toth, appellant herein, was indicted by the Licking County Grand Jury for the crime of aggravated murder, with the specification that he" * * * did unlawfully and purposely and with prior calculation and design, cause the death of Terri Singleton * * *," in violation of R.C. 2903.01(A).

Appellant plead not guilty and not guilty by reason of insanity to the charges in the indictment.Following a sanity hearing, the court found, on July 21, 1975, that Toth was sane and competent to be tried.

On the evening of June 4, 1975, Patricia J. Zinck, age 19, Terri L. Singleton, age 20, and Kathy Roseculp, age 20, decided to visit the Toy Box Bar, located in Union Township, Licking County, Ohio.They arrived there around 10:00 p. m. Upon entering the bar, Patricia left the group to go to the restroom, and upon rejoining her friends, saw the appellant sitting at the bar next to Terri.The girls left the bar around 10:30 p. m. because the appellant was bothering Terri.

The girls then set out by car to the Rock Palace, located about one mile away from the Toy Box Bar, only to again encounter the appellant.While Kathy and Patricia were standing near the juke box, the defendant was seen approaching Terri, who continued to ignore him.The girls thereupon left the Rock Palace and returned to the Toy Box Bar.They arrived there around 1:00 a. m. on the morning of June 5, 1975.

Meanwhile, shortly before 1:00 a. m. that same morning, Orin G. Noyes saw the appellant trying to repair his car on the corner of the parking lot next to the Rock Palace and the main road.Noyes, in assisting the appellant, found that the car's headlights were connected to the wrong terminals, and repaired them.Noyes heard the appellant say that he would "waste" those responsible for "messing" with his headlights.

The appellant then returned to the Toy Box Bar and began to argue with the three girls concerning his headlights.Patricia denied that the girls did anything to his car, and asked that the appellant leave them alone.

Shortly thereafter, the appellant reached into his pants and pulled out a gun.The gun fell to the floor.The appellant picked up the gun, fired and missed.He then grabbed Patricia by the hair, held the gun to her jaw, and fired.Taking two more steps he shot Terri, and from two to four more steps shot Kathy.

Terri Singleton later died in a Columbus hospital on June 9, 1975.Doctor George A. Gressle, the coroner for Licking County, testified at the trial that Terri died of a pulmonary embolism directly caused by the gunshot wound.

Laura Jean Toth, one of the two witnesses for the defense, who was apparently the common-law wife of the appellant, testified on direct examination that she had been in the company of the defendant on the afternoon of June 4, 1975.She stated that, despite the fact that the appellant had drunk about a fifth of bacardi rum (less two shots) that afternoon, he was not drunk when he left their trailer home around 10:00 p. m. that night.She stated, however, that upon his return home between the hours of 1:00 and 1:30 a. m. the next morning, the defendant was " * * * staggering all over the place, falling over furniture * * * mumbling and not making any sense * * *."She stated that when the appellant entered the trailer he told her not to ask any questions, that he did not want to hurt her and that he wanted to park his car somewhere away from the trailer.He also had a gun and loaded it.According to Mrs. Toth, the appellant then undressed himself and went to bed.

Upon cross-examination of Mrs. Toth, it was learned that the Toth trailer was located about 8 or 9 miles from the Toy Box Bar (a one-way trip took 25 minutes to complete over five separate routes); that upon the defendant's returning home early on the morning of June 5, 1975, he stated to her that if anyone asked about him, she should reply that she had not seen him for two weeks; that, before retiring for the night, the defendant placed a gun under his pillow; and that, about a week and a half before the crime, the defendant had hit her on the face during an argument.

The following medical opinions were rendered concerning the issue of whether the appellant was insane at the time of the commission of the crime.

Doctor Allen Sherrow, a psychiatrist, called as a witness for the defense, testified in answer to a hypothetical question, that in his opinion, the appellant was temporarily insane at the time of the crime, which condition was induced by a combination of drugs and alcohol.He testified further in response to this question, that at the time of the crime, the appellant was severely impaired in terms of judgment, that he had major problems in terms of thinking, and in terms of being able to negotiate, that in his condition he was extremely paranoid and suspicious, that he was unconscious to the extent that his judgment would be severely clouded, and that he suffered a black out, in terms of remembering as opposed to functioning.

On the other hand, Doctor Dwight D. Palmer, the court-appointed psychiatrist, testified that at the time of the crime the appellant was sane, and testified further in answer to a similar hypothetical question as given to Doctor Sherrow, that in his opinion, at the time of the crime, the appellant was not blacked out, that he knew what he was doing, and that he suffered from a personality disorder of the anti-social type.

The following, additional evidence was provided the jury on the issue of whether the appellant was intoxicated at the time of the crime.

Orin G. Noyes testified that while assisting the appellant with his headlights minutes before the appellant returned to the Toy Box Bar, he noticed that the appellant was logical in his speech, and not staggering or "falling all over himself."Noyes noted that the appellant was angry about his headlights.

Steven H. Eichorn, the owner of the Toy Box Bar, testified that the appellant ordered a drink when he was in the bar around 4:30 p. m. on June 4, 1975, that he remained there about 45 minutes, and that upon his return to the bar early in the morning of June 5, 1975, he showed no signs of intoxication, such as a staggered walk.

Alfred C. Mazalic, who witnessed both the altercation between the girls and the appellant, and the ensuing shots of fire, observed that the appellant demonstrated no physical difficulties either in his speech or walk.

Sergeant Gerald Eddington testified that upon apprehending the appellant at home around 4:08 a. m. on June 5, 1975, he observed that there was no odor of alcohol whatsoever about the appellant's person, that his speech was clear, and that his ability to walk was very good.Sergeant John Swick also observed that at 5:00 a. m. the appellant spoke very plainly.

Trial before a twelve-member jury commenced on August 21, 1975.In its instructions to the jury, the court, in effect, directed that the appellant had the burden of proving the defense of insanity and of establishing his claim of disabling intoxication by a preponderance of the evidence.On August 27, 1975, the jury rendered a guilty verdict as to the charge and specification made in the indictment.

A mitigation hearing was conducted on November 17, 1975, whereupon the court found that the appellant failed to establish any of the mitigating factors set forth in R.C. 2929.04 by a preponderance of the evidence, and imposed the sentence of death upon the appellant.

The trial court granted appellant a hearing on his motion for new trial, and found that the jury verdict as rendered on August 27, 1975, was sustained by sufficient evidence and not contrary to law.

The Court of Appeals affirmed the judgment of conviction and sentence.

The appeal is now before this court as a matter of right.

David E. Lighttiser, Pros.Atty., and Robert L. Becker, Newark, for appellee.

John I. Peters, Columbus, for appellant.

I.

PER CURIAM.

In his first proposition of law, the appellant contends that: (1)the trial court erred in instructing the jury that the appellant had the burden of proving insanity and disabling intoxication by a preponderance of the evidence; (2)the appellant's failure to object to such instruction did not automatically prevent him from raising the error on appeal, where the error critically affected his substantial rights; and (3) the charge to the jury imposing upon the appellant the burden of proving insanity and intoxication or drug influence by a preponderance of the evidence deprived him of due process of law as guaranteed by the United States Constitution.

The Court of Appeals, although finding that the trial court had improperly placed upon the defendant a higher degree of proof than necessary to successfully raise the issues of intoxication and insanity under R.C. 2901.05, held that there was no prejudicial error, since there was insufficient evidence to even raise those questions.We affirm the judgment.

It is a well-established rule in Ohio that the defense of insanity cannot be successfully established simply on the basis that the condition resulted from the use of intoxicants or drugs, where such use is not shown to be habitual or chronic.Paragraph three of the syllabus in Rucker v. State(1928), 119 Ohio St. 189, 162 N.E. 802.See, generally, Annotation8 A.L.R.3d 1236, Section 6(b).In the instant cause, the record reveals that the only evidence supporting the claim of insanity was the testimony provided by Doctor Allen Sherrow, who stated that at the time of the crime the appellant suffered from a condition of temporary insanity induced by a combination of drugs and alcohol.

The record includes the following exchange on cross-examination of Doctor Sherrow:

"Q.* * * you had to accept as fact that he was extremely intoxicated and...