State v. Wesson

• Citation: 999 N.E.2d 557,137 Ohio St.3d 309
• Decision Date: 23 October 2013
• Docket Number: No. 2009–0739.,2009–0739.
• Parties: The STATE of Ohio, Appellee, v. WESSON, Appellant.
• Court: United States State Supreme Court of Ohio

137 Ohio St.3d 309
999 N.E.2d 557

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

No. 2009–0739.

Supreme Court of Ohio.

Submitted June 11, 2013
Decided Oct. 23, 2013

Affirmed.

French, J., concurred in part and dissented in part and issued opinion.

Lanzinger, J., issued dissenting opinion.

O'Neill, J., dissented.

[999 N.E.2d 563]

Syllabus of the Court

When a person charged with a capital offense waives a jury, the panel hearing the case shall be composed of three judges, two of whom shall be designated by the presiding judge or chief justice of the common pleas court, and if no one holds either position, then they shall be designated by the chief justice of the Supreme Court. ( State v. Eley, 77 Ohio St.3d 174, 672 N.E.2d 640 (1996), clarified.)

Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Richard S. Kasay, Assistant Prosecuting Attorney, for appellee.

David L. Doughten, Cleveland, and George C. Pappas, for appellant.

O'DONNELL, J.

{¶ 1} Hersie R. Wesson appeals from a judgment of a three-judge panel that convicted him of two counts of aggravated murder with death penalty specifications in connection with the death of Emil Varhola, two counts of attempted murder in connection with the stabbing of Mary Varhola, two counts of aggravated robbery, and one count each of having a weapon while under a disability and tampering with evidence. The court merged allied offenses, imposed capital punishment for the aggravated murder of Emil Varhola while committing an aggravated robbery, and sentenced Wesson to an aggregate term of 26 years' imprisonment for the noncapital offenses.

{¶ 2} Count Three, aggravated murder, and one specification associated with Count Two, the other aggravated murder charge, required proof that Wesson was under detention at the time of the murder; but because the original sentencing entry that imposed postrelease control on Wesson placing him under detention is void, we reverse the convictions for Count Three, the specifications related to that count, and Specification One related to Count Two.

{¶ 3} However, we affirm the remaining convictions, including the aggravated murder conviction related to Count Two and its death penalty specification, the imposition of capital punishment, and the consecutive aggregate sentence of 26 years as imposed by the three-judge panel.

Facts and Procedural History

{¶ 4} On February 25, 2008, Wesson's girlfriend, Mildrian Ford, filed a police report against him following a dispute. Because Wesson was serving a three-year term of postrelease control following his release from prison in 2007, Ford also notified his parole officer, Julie Clark, of the incident. Clark, together with another parole officer and members of Akron's fugitive task force, began searching for Wesson.

{¶ 5} That evening, Wesson went to the home of 81–year–old Emil Varhola and his 77–year–old wife, Mary, who lived near Ford and knew Wesson from the neighborhood. Wesson sometimes talked to Emil, who occasionally gave him money or hired him to do odd jobs. Wesson knocked on their door and asked if he could come inside while he waited for Ford's bus to arrive, and they accommodated him. Emil, who used a portable oxygen tank to breathe, offered Wesson coffee, and the two sat together at the kitchen table. Mary returned to the living room.

{¶ 6} Mary then heard a whistling sound coming from the kitchen. When she returned to the kitchen, she saw Emil lying on the floor in a pool of blood with the whistling sound coming from his windpipe and Wesson rifling through Emil's pockets. Mary confronted him, and he admitted that he killed Emil, and then he attacked her. He demanded “the gun,” explaining

[999 N.E.2d 564]

that he needed it to kill his girlfriend. Mary refused to tell him where Emil kept his handgun, even as Wesson beat and stabbed her. According to Mary, he stopped assaulting her only when he thought she was dead.

{¶ 7} Wesson fled the home, taking a rifle and the cup from which he had drunk and throwing them in a bush in the front yard. He also took Mary's jewelry and Emil's wallet containing approximately $800.

{¶ 8} When he left, Mary contacted her son, Paul, who called 9–1–1 to report the incident. When officers arrived, they found Emil dead in the kitchen and Mary hardly able to stand or speak, but she was able to show police where Emil kept his pistol, in a hollowed-out book in the living room. She had multiple stab wounds on her chest and upper abdomen, bruises, and lacerations on her hands and fingers. Her right cheek had a large gash in it with the skin peeled back, exposing bone. Emergency personnel transported Mary to the hospital, where she lost consciousness and remained unconscious and on a respirator for more than a month before awaking.

{¶ 9} Officers found blood pooled on the kitchen floor, splattered on the curtains, smeared on the refrigerator, and splashed on the dining room wall and carpet. They noted other signs of a struggle, including objects strewn about and a set of dentures on the floor. The gun cabinet stood open, and one long gun appeared to be missing. Investigators did not find any weapon near Emil's body.

{¶ 10} Police followed a trail of bloody footprints leading to a bush in the front yard of the home, where they discovered Emil's long gun and the cup. They subsequently located Emil's wallet—which had no money in it—under the porch of a home several blocks away.

{¶ 11} Based on Mary's statements, the police began to look for Wesson. With Ford's assistance, officers located him at the Akron home of Christopher Conley, his cousin, in the early morning hours of February 26, 2008. On a dresser in the room where the police found Wesson, they discovered a straight-edged steak knife with what appeared to be dried blood on it. When they arrested Wesson, they observed blood-soaked bandages on his hands and what appeared to be blood on his sneakers and pants and on a jacket found in the room.

{¶ 12} At the police station, Wesson waived his Miranda rights, and two detectives interviewed him. He admitted stabbing Emil and Mary, but claimed that he acted in self-defense. He related that he and Mary had an ongoing sexual relationship and that Emil usually watched, but on this occasion he became upset watching them have unprotected sex on the kitchen floor. According to Wesson, Emil threatened him with a long gun and attacked him with a knife, but Wesson was able to disarm and stab Emil. Then, he claimed, he stabbed Mary after she hit him on the head with her cane. Based on Wesson's assertion that he had engaged in intercourse with Mary, investigators had the hospital perform a rape-kit examination on her, but samples tested negative for semen.

{¶ 13} An autopsy revealed that Emil had been stabbed eight times—four times in the torso, once in the neck, and three times in the back—and it revealed defensive wounds on his hands. Dorothy Dean, a deputy medical examiner for the Summit County Medical Examiner's Office, concluded that the stab wounds in Emil's neck and torso caused his death, and she testified that Emil's injuries could have been

[999 N.E.2d 565]

caused by the knife seized at the time of Wesson's arrest.

{¶ 14} A grand jury indicted Wesson for three counts of aggravated murder: aggravated murder with prior calculation and design, R.C. 2903.01(A); aggravated murder while committing aggravated robbery, R.C. 2903.01(B); and aggravated murder while under detention, R.C. 2903.01(D). Each count carried three capital specifications: aggravated murder while under detention, R.C. 2929.04(A)(4)(b); aggravated murder as “part of a course of conduct involving the purposeful killing of or attempt to kill two or more persons by the offender,” R.C. 2929.04(A)(5); and aggravated murder while committing aggravated robbery, R.C. 2929.04(A)(7). The indictment also charged Wesson with three counts of attempted aggravated murder, two counts of attempted murder, three counts of aggravated robbery, one count of having weapons while under a disability, and one count of tampering with evidence.

{¶ 15} Wesson pled not guilty to all charges, waived his right to trial by jury, and elected to be tried by a three-judge panel. Notably, he did not object when the judge presiding over the trial appointed the other two members of the three-judge panel.

{¶ 16} Prior to trial, Wesson moved to suppress his statement to police, alleging that his intoxication at the time of questioning rendered his Miranda waiver invalid, that the warnings had not been properly given, and that police had coerced his statement. The court found, however, that he knowingly, intelligently, and voluntarily had waived his constitutional rights. Also, the state filed a motion in limine to exclude an audio recording that Wesson made retracting his statements to police; the trial court granted that motion and excluded the recording as hearsay.

{¶ 17} At trial, the state argued that Wesson came to the Varholas' home looking for a gun to kill his girlfriend and then murdered Emil and attempted to murder Mary. In contrast, the defense presented a theory of a friendly encounter that turned bad, stating that the Varholas had invited Wesson into their home so he would not have to wait for a bus in the cold, but that Emil began to behave erratically, and Wesson, who knew that Emil owned guns, thought Emil had threatened him. Thus, the defense asserted that Wesson stabbed Emil in self-defense and assaulted Mary only when she attacked him with her cane.

{¶ 18} At the close of the state's case, the panel acquitted Wesson of aggravated murder with prior calculation and design.

{¶ 19} In Wesson's case-in-chief, the defense called a single witness, Akron Police Detective Joseph Urbank, who testified that he had interviewed a woman named Linda Fields about her observations of Wesson on February 25, the date of the murder. Fields died before trial, and by agreement of the parties, the defense played an audio...