State v. Treesh
| Decision Date | 03 January 2001 |
| Docket Number | No. 98-2542.,98-2542. |
| Citation | 90 Ohio St.3d 460,739 NE 2d 749 |
| Parties | THE STATE OF OHIO, APPELLEE, v. TREESH, APPELLANT. |
| Court | Ohio Supreme Court |
Thomas G. Lobe and John P. Keshock, for appellant.
Appellant, Frederick Treesh, and two companions, Keisha Harth and Benjamin Brooks, departed Cleveland on August 27, 1994, to smoke crack cocaine in an Ashtabula hotel room. They returned to Cleveland later that day to purchase additional drugs. While there, the group picked up another man, Anthony Washington, who agreed to assist them. After a "couple hours" of driving and smoking cocaine, the group decided to rob a business to finance the purchase of more cocaine.
Washington eventually directed the group to the Vine Street News, an adult bookstore in Eastlake, Lake County. Treesh and Brooks were armed with a nine-millimeter handgun and a sawed-off shotgun. The handgun was loaded to maximum capacity with "Hydra-Shok" bullets, designed for penetration and maximum stopping power. Before Treesh and Brooks entered the bookstore, Harth handed Treesh a roll of duct tape that Treesh planned to use to restrain the robbery victims.
Treesh and Brooks entered the Vine Street News at approximately 11:30 p.m. After glancing at a few magazines, Treesh and Brooks approached the sales counter where Louis Lauver worked. Treesh pulled out the nine-millimeter handgun, cocked it, pointed it at Lauver, and ordered him not to move or call out for help. Treesh then asked Lauver where the security guard was, and Lauver motioned toward the rear of the store. Treesh walked through swinging doors into the restricted area at the rear of the store and placed the handgun inside his pants. At this point, Lauver lost sight of Treesh. A short time later, however, Lauver heard four gunshots coming from the rear of the store.
Treesh testified that after passing through the swinging doors into the rear portion of the store, he saw two customers behind a rack, looking at magazines, and saw the store security guard, Henry Dupree, sitting in a chair, watching television. At first, neither Dupree nor the customers appeared to notice Treesh's presence. Treesh took the gun out of his pants, poked Dupree in the shoulder with the gun, and ordered Dupree to stand up. Startled, Dupree complied. Treesh testified that he originally intended to take Dupree to the front of the store and tape him up with the clerk, but then noticed handcuffs on Dupree's pants and decided to use them. According to Treesh, a struggle ensued when he reached for Dupree's handcuffs, and the handgun discharged.
While Treesh was in the rear of the store, Brooks ordered Lauver to empty the cash register. Lauver complied, and Brooks demanded that Lauver open the safe. As Lauver explained that this was impossible, shots rang out from the back of the store and Treesh came rapidly back through the swinging doors. Brooks quickly left with the money from the cash register. Lauver stood by the counter with his hands in the air as Treesh headed toward the exit. Before reaching the door, Treesh brought the handgun up, pointed it at Lauver, and fired at least two shots. Bullets struck Lauver in the jaw and forearm. Treesh later testified that he aimed these shots not at Lauver, but at the telephone on the wall behind the counter.
After Treesh left the store, Lauver temporarily lost consciousness, but awoke shortly thereafter and dialed 911. Dupree, grievously injured during his encounter with Treesh at the rear of the store, managed to make his way through the swinging doors, but collapsed on the floor behind the counter. An autopsy later confirmed that Dupree died as a result of two close-range gunshot wounds in his chest. Lauver survived and testified at trial.
Paul Forner, a witness across the street at a drive-up pay telephone, saw two men enter the Vine Street News. Minutes later, Forner heard popping sounds and saw the two men leave. Forner rushed to the store and found Lauver on the phone with the police. Because Lauver was wounded in the face and had difficulty speaking, Forner gave the dispatcher a description of the suspects and their vehicle. Dale Plunkard, a store customer who hid in a viewing booth during Treesh's encounter with Dupree, heard three or four shots in steady succession, "one right after another," and then emerged from the booth to find Dupree unconscious. Like Forner, Plunkard was able to identify the suspects' vehicle, which he had seen parked nearby before he entered the store.
Sergeant Ronald Stih of the Euclid Police Department received a dispatch concerning the armed robbery. Stih scanned traffic on Interstate 90, spotted a vehicle matching the dispatcher's description, and followed it off the interstate. Officer Frederick Stoldt of the Euclid Police Department also pursued the suspects' car. The vehicles attained speeds of over sixty miles an hour in a residential neighborhood. As Washington drove the suspects' car, Treesh shot out its rear window, and both Brooks and Treesh fired shots through the opening and over the tops of the cruisers to discourage pursuit. Eventually, however, Washington lost control of the car and crashed.
According to Sergeant Stih, Treesh assumed an "action stance" as he got out of the car and pointed his handgun at Stih. Treesh fired the weapon at Stih and Stoldt at least three times. Stih retreated and radioed for help. Treesh fired additional shots while running away with Harth. Brooks remained in the car and was immediately apprehended.
Officers Michael Janusczak and Harold Pretel of the Cleveland Police Department arrived at the scene, obtained descriptions of Treesh and Harth, and pursued the two suspects on foot. Eventually, the officers approached a garage, where Pretel saw Treesh aiming a gun at him. Pretel ordered Treesh to drop the weapon. Treesh threw the gun down, but attempted to flee over a fence. Several officers confronted Treesh as he jumped over the fence and ordered him to the ground. Officer Janusczak testified that as he handcuffed Treesh, he immediately advised Treesh of his Miranda rights.
The police transported Treesh first to Euclid, then to the Eastlake Police Department. On the way to Eastlake, Treesh heard on the police radio that Dupree had died. Treesh later testified that he was not aware prior to that time that he had even shot Dupree.
Treesh arrived at Eastlake just after 2:00 a.m. on August 28. Treesh testified that he felt "high" and "paranoid" at that time. Lieutenant Thomas Doyle of the Eastlake Police Department and Federal Bureau of Investigation Special Agent Robert Alvord conducted a series of interviews with Treesh and Brooks at Eastlake. Some of these interviews were captured on the stationhouse videotape recorder. Portions of these videotapes, which contained several inculpatory statements, were later played for the jury. At approximately 2 p.m. on August 28, Doyle confronted Treesh and Brooks with the store clerk's statement, and the suspects refused to discuss their participation in the Vine Street News robbery any further without an attorney present. Treesh and Brooks continued to discuss their involvement in other crimes.
The Lake County Grand Jury returned a seven-count indictment against Treesh on August 29. A Lake County jury found Treesh guilty of one count of aggravated murder with two aggravating circumstances, two counts of attempted aggravated murder, one count of felonious assault, and one count of aggravated robbery. Each of these five counts included a firearm specification. The court entered a nolle prosequi on count six, which had alleged that Treesh failed to comply with the order or signal of a police officer. Treesh pleaded guilty to count seven, carrying a weapon while under a disability.
At the conclusion of the penalty phase, the jury recommended that the court sentence Treesh to death. The trial court adopted the jury's recommendation and sentenced Treesh accordingly. Treesh timely appealed the decision of the trial court to the Lake County Court of Appeals, which affirmed his convictions and death sentence. In dissent, Judge O'Neill concluded that Treesh had never received proper Miranda warnings, and that absent the inferences drawn from Treesh's improperly obtained statements, the state could not prove the lack of mitigating factors beyond a reasonable doubt.
The cause is now before this court upon an appeal as of right.
Appellant presents twenty-one propositions of law for our consideration. For the reasons set forth below, we affirm the judgment of the court of appeals and uphold the sentence of death.
R.C. 2929.05 does not require this court to address and discuss in opinion form each proposition of law raised in a capital case. State v. Davis (1996), 76 Ohio St.3d 107, 110, 666 N.E.2d 1099, 1104. Accordingly, we summarily overrule those propositions of law that have been previously resolved by this court and address only those issues that warrant discussion.1 Id.
In his first proposition of law, Treesh contends that he was entitled to a change of venue because "the incident in question [was] highly publicized locally and nationally." Treesh relies on Crim.R. 18(B), which provides that "[u]pon the motion of any party or upon its own motion the court may transfer an action * * * when it appears that a fair and impartial trial cannot be held in the court in which the action is pending." Although Treesh claims to have filed a motion for change of venue, we are unable to locate any such motion in the record. Nevertheless, because the trial docket contains an entry denying a motion for change of venue, we shall address this proposition on its merits.
As this court has noted, Crim.R. 18(B) does not require a change of venue merely because of extensive pretrial publicity. State v. Landrum (1990), 53 Ohio St.3d 107, 116-117,...
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