State v. Webb

• Decision Date: 21 September 1994
• Docket Number: No. 93-1374,93-1374
• Parties: The STATE of Ohio, Appellee, v. WEBB, Appellant.
• Court: Ohio Supreme Court

Page 325

70 Ohio St.3d 325

638 N.E.2d 1023

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

No. 93-1374.

Supreme Court of Ohio.

Submitted April 19, 1994.

Decided Sept. 21, 1994.

SYLLABUS BY THE COURT

1. A rule changing the quantum of proof required for conviction may be applied to trials of crimes committed before the rule was announced without violating the Ex Post Facto Clause. (State v. Jones [1981], 67 Ohio St.2d 244, 21 O.O.3d 152, 423 N.E.2d 447, overruled.)

2. A prosecutor's offer to plea bargain in a capital case is not a mitigating factor for purposes of either R.C. 2929.04(B)(7) or the Eighth Amendment. (State v. Sneed [1992], 63 Ohio St.3d 3, 584 N.E.2d 1160, approved and followed.)

On November 21, 1990, three-year-old Michael Patrick ("Mikey") Webb was killed in a fire at his home. Mikey's father, defendant-appellant Michael D. Webb, was convicted of Mikey's aggravated murder and was sentenced to death.

Webb lived in Goshen Township, Clermont County, with his wife Susan, his sons Charlie and Mikey, and the teenaged daughters of his first marriage, Tami and Amy. In 1978, Webb's first wife Linda and her mother died in a traffic accident; Amy was badly injured. Amy and Tami received a total settlement of $42,667.33 for personal injury and wrongful death, plus at least $7,567.42 from their grandmother's estate. The probate court appointed Webb guardian of Tami and Amy's estate. In 1982, Webb invested the estate funds in a twenty-six-week certificate of deposit ("CD"), face value $51,800, renewing it regularly until 1985.

From 1985 to 1988, Webb appropriated most of the estate funds for his personal use. He would redeem his daughters' CD, purchase another with a lower value, and retain the balance of the funds. Webb did this seven times between 1985 and 1988. Each time he bought a new CD, Webb instructed the bank to deposit the interest in his checking account. His authorization to spend guardianship funds had expired on July 1, 1984.

After July 1983, Webb neglected to file an account with the probate court. In February 1987, Webb came into court after receiving a notice ordering him to file an account or be removed as guardian. Webb told the probate judge "that he had spent the money" and knew he had to replace it.

In 1987, Linda Webb's father died, leaving $51,059.66 to Tami and Amy. Webb did not report these funds to the probate court as being part of the guardianship. He bought a one-year CD in his daughters' names, face value $50,000, with this money. On January 18, 1989, Webb redeemed the CD, receiving $51,825.73, and bought a new CD with a face value of $50,300. About a month later, he redeemed that CD prematurely, receiving $48,522.29. He used $35,000 to open a savings account in his own name, keeping the balance.

In 1990, Webb met Nadine Puckett. Their friendship quickly blossomed. On October 31, 1990, Nadine's ex-husband found them together. The next morning, Nadine went to stay with her sister in Dayton. Between November 1 and November 20, Webb made several trips to Dayton to see Nadine, and phone company records showed frequent calls from Webb's phone to Nadine's sister's house. During this period, Webb told Nadine he planned to leave Susan.

James Pursifull worked for Webb's bodyshop until quitting on October 23, 1990. Webb told people that he had fired Pursifull and accused Pursifull of threatening and harassing him. Webb later requested Pursifull to help with some work at his house because Webb "had to go in the hospital to get his colon removed"; Pursifull never came to appellant's home. The prosecution later argued that Webb had been trying to "set [Pursifull] up" by getting him to leave fingerprints at Webb's residence.

On the evening of November 20, 1990, Tami Webb locked the door leading outside from the basement (where she and Amy had their bedrooms) and went to bed. Early the next morning, Tami was awakened by cold air and the smell of gasoline. Webb came into her room. A frightened Tami told him she smelled gasoline. Webb said that he did too, and that he thought the house was "rigged." He ordered Tami to "get down" or "lie down" and to "get Amy." He never told her to get out of the house. Webb then went upstairs. Tami, too frightened to leave her bed, pulled the covers up and closed her eyes. She later testified that, when she opened them, she saw a man in a red sweatshirt staring at her. However, she conceded on cross-examination that her "feeling" that "someone else was in the house" was "based upon the fact that [she] could not believe" her father had set the fire.

After that, Amy heard an explosion upstairs. Tami yelled at Amy to get out of the house, and they both ran out through the basement door and around to the front of the house, where they saw Webb. Webb's hands were bloody. It was later discovered that he got out by breaking through the bathroom window. A firefighter rescued Charlie and Susan from the master bedroom. Mikey died of smoke inhalation.

Township Fire Chief Virgil E. Murphy investigated the fire scene. In the foyer, he found a plastic gasoline can that had come from Webb's garage.

A "very definite po[u]r pattern or trailer" was noted in the foyer. Murphy followed the trailer down a hallway leading to the bathroom and bedrooms. From the hallway, the trailer led into the master bedroom up to the base of the bed. (Charlie's crib stood next to that bed.) The trailer also went into Mikey's room "up the side of the bed and across the bed to the rear wall." Arson investigators took samples from the trailers for analysis. The samples contained gasoline.

After examining the house, Murphy concluded that the fire was caused by arson and had started in two places. One fire was contained in the hall closet. A second had started at the bathroom door, at the end of the hallway nearest the bedrooms, and moved from there into the bedrooms and down the hallway toward the living room.

An unignited gasoline trailer led downstairs to the basement, where Murphy found a two-liter pop bottle containing gasoline; the bottle had Webb's fingerprints on it. Gasoline had also been poured on Tami's bed, and Murphy smelled it on Amy's bedclothes. Murphy concluded: "If all the trailers * * * had ignited the chances of anybody escaping from that home [were] very, very slim."

Police found bloodstains matching Webb's blood type on the bathroom windowsill and basement door. The bathroom window had been broken from the inside. Blood trails on the ground led away from the window. A matchbook found outside bore a partial fingerprint in blood; Webb later admitted to police the print was his. Moreover, Webb had a peculiar way of holding a matchbook when he lit matches, and the print's location indicated that Webb had put it there while lighting a match.

On the morning of November 21, Webb told one of Susan's brothers that a fire bomb had been thrown through the bathroom window. Subsequently, he told Amy, Tami, and Susan's brother Larry Beck that he had broken the bathroom window to get out. He also told Amy that, when the explosion occurred, he was going into the master bedroom to get Susan, and the explosion had thrown him into the bathroom.

Webb was indicted on two counts of aggravated murder, R.C. 2903.01. Each count bore a felony-murder specification, R.C. 2929.04(A)(7), and a course-of-conduct specification, R.C. 2929.04(A)(5). Webb was also indicted on four counts of attempted aggravated murder, one count of aggravated arson under R.C. 2909.02(A)(2), five counts of aggravated arson under R.C. 2909.02(A)(1), and one count of aggravated theft.

The jury convicted Webb on all counts and, after a mitigation hearing, recommended death for the aggravated murder of Mikey Webb. The trial court sentenced Webb to death. The court of appeals affirmed.

Donald W. White, Clermont County Pros. Atty., and David Henry Hoffmann, Asst. Pros. Atty., for appellee.

H. Fred Hoefle and Kenneth J. Koenig, Cincinnati, for appellant.

ALICE ROBIE RESNICK, Justice.

In this appeal, Webb advances twenty-six propositions of law. Finding none meritorious, we affirm his convictions. We have also independently balanced the aggravating circumstances against mitigating factors, and compared the sentence to those imposed in similar cases, as R.C. 2929.05(A) requires. As a result, we affirm the sentence of death.

I. Prosecutorial Misconduct

In his first proposition of law, Webb claims that the prosecutor repeatedly commented in closing argument on Webb's refusal to testify, violating his Fifth Amendment rights. See Griffin v. California (1965), 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106. We find that the comments complained of did not violate Griffin.

In closing argument, the prosecutor said that Webb "killed his son" and "tried to kill every single person in his house." Webb interrupted the prosecutor, saying: "You're wrong." The prosecutor said: "He spoke." Webb claims that the words "He spoke" were an implied comment on the fact that Webb had not testified at trial.

We cannot agree. The prosecutor's remark, on its face, dealt with what Webb said, not what he did not say. The question is "whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." (Emphasis added.) Knowles v. United States (C.A.10, 1955), 224 F.2d 168, 170, quoted in State v. Cooper (1977), 52 Ohio St.2d 163, 173, 6 O.O.3d 377, 382, 370 N.E.2d 725, 733. From the record, we cannot conclude that the jury would naturally or necessarily interpret the words "He spoke" as a comment on Webb's failure to speak.

Webb construes many other remarks as comments on his failure to testify. Discussing Pursifull's testimony, the prosecutor said: "You will see in [Webb's] hospital records * * * he was in good health before the fire. * * * This is uncontradicted." The defense objected. The prosecutor added: "Pursi...