State v. Wickline

• Decision Date: 11 April 1990
• Docket Number: No. 89-310,89-310
• Citation: 552 N.E.2d 913,50 Ohio St.3d 114
• Parties: The STATE of Ohio, Appellee, v. WICKLINE, Appellant.
• Court: Ohio Supreme Court

Page 114

50 Ohio St.3d 114

552 N.E.2d 913

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

No. 89-310.

Supreme Court of Ohio.

Submitted Feb. 21, 1990.

Decided April 11, 1990.

One evening in August 1982, Teresa Kemp and William Wickline, appellant herein, went to the home of Peggy and Christopher Lerch where Teresa, appellant, Peggy and Christopher ingested drugs. Early the next morning, the parties moved to an apartment which Teresa and appellant occasionally shared.

At the apartment, an argument ensued between appellant and Christopher regarding $6,000 that Christopher owed to appellant. Appellant then instructed Teresa to accompany Peggy to the Lerches' home in order to obtain the money. As Teresa and Peggy were leaving the apartment, appellant handed Teresa a rifle and said to her, "[n]ow, you make sure that you get that money."

Teresa and Peggy arrived at the Lerches' home in an automobile belonging to Peggy and Christopher. Upon arrival, Peggy stated that her marriage to Christopher was at an end and that she was going to leave him. Peggy, with Teresa's aid, removed Peggy's clothes and other items from the Lerches' home. Before departing the Lerches' home, a "young man" helped Teresa find the key to Peggy's automobile.

When Teresa and Peggy returned to the apartment, appellant instructed Teresa to count the money. As Teresa was counting the money, Christopher reached for a gun which was on the kitchen counter. Appellant grabbed the gun and hit Christopher on the head with it "real hard." Appellant then handcuffed Christopher to a table and continued to hit him with the gun. Sometime later, after the argument had apparently ended, appellant calmly walked upstairs. A few minutes later, appellant called for Christopher, stating: "Chris, come and help me with the toilet." In the meantime, Peggy, who was downstairs, "passed out, or fell asleep." Appellant then returned downstairs unaccompanied by Christopher. Teresa inquired as to Christopher's whereabouts and appellant stated, "I took him out."

Teresa ran upstairs and discovered Christopher's body in the bathtub. Christopher's throat was cut. Teresa ran downstairs and attempted to leave the apartment. Appellant then made the following statements: "We have to take care of Peggy. We have to." "Hold her legs now before she wakes up." "Now, before she wakes up."

Teresa knelt down and held Peggy's legs while appellant strangled Peggy to death with a rope. The rope had previously been wrapped with white tape and the rope also had handles on it "like * * * [appellant] had planned [the murder] or something * * *." Appellant then took Peggy's body upstairs. Sometime later, appellant instructed Teresa to come upstairs and Teresa complied. Appellant had severed Christopher's head from the body and appellant held the head in his hands. Appellant stated, "[l]ook what I've done." Inn another room upstairs, Teresa saw Peggy's legs. Appellant stated, " * * * this is what happens to people that cross me."

Appellant then cut the bodies into small pieces and placed the dismembered bodies into garbage bags. Next, according to Teresa, appellant, with the help of Tom Dillon, disposed of the bodies by placing the garbage bags in various dumpsters so that the bodies would never be found. Appellant instructed Teresa to clean the bathroom while appellant and Dillon disposed of the bodies. Teresa, once again, complied. Appellant also instructed Teresa to caulk around the bathtub to conceal the bloodstains. Teresa failed to comply with this request.

In 1984, appellant was serving a jail sentence unrelated to the murders of Peggy and Christopher. Pursuant to appellant's instructions, Teresa took appellant's handcuffs, knife and boots and caused these articles to be placed in a storage room. Also, Teresa placed the Lerches' jewelry in a safe deposit box. The handcuffs, knife and boots, as well as the Lerches' jewelry, were subsequently recovered by the police.

Appellant was tried before a three-judge panel ("the panel") for the aggravated murders of Peggy and Christopher Lerch. Appellant was found guilty of purposely, and with prior calculation and design, causing the death of Christopher Lerch. Appellant was also found guilty of purposely, and with prior calculation and design, causing the death of Peggy Lerch. Additionally, regarding Peggy's murder, appellant was found guilty of two death penalty specifications.

For Christopher's murder, appellant was sentenced to a term of life imprisonment with twenty years before parole eligibility. For Peggy's murder, appellant was given the death sentence. The court of appeals affirmed.

The cause is now before this court on an appeal as of right.

Michael Miller, Pros. Atty., and Joyce S. Anderson, for appellee.

Randall M. Dana, Public Defender, Randall L. Porter, Joann Bour-Stokes, Jane P. Perry and Kathleen A. McGarry, Columbus, for appellant.

DOUGLAS, Justice.

The bodies of Peggy and Christopher have never been found. Prior to trial, appellant moved for the disclosure of all evidence favorable to him. Subsequently, appellant also moved to compel the discovery of "all evidence favorable to * * * appellant, including but not limited to all evidence the police have concerning the whereabouts of Christopher M. Lerch and his wife, Peggy Ann Lerch which may have been gathered by various police departments pursuant to missing persons reports filed on August 25, 1982."

During appellant's trial, and after Teresa Kemp testified, appellant became aware of certain information which was not provided to appellant prior to trial. Specifically, appellant became aware of certain records maintained by the Blendon Township Police Department ("Blendon records"). Appellant moved for a mistrial. The panel then conducted a hearing to determine what relief, if any, appellant was entitled to receive in light of the mid-trial discovery. All the alleged exculpatory materials were admitted into evidence and appellant's motion was overruled. No continuance was granted as appellant specifically stated that he did not want a continuance.

I

Appellant, in his first proposition of law, contends that the Blendon records were material, favorable and exculpatory as to the issue of his guilt. Appellant argues that the state's failure to provide the records to appellant prior to trial requires a new trial. We reject appellant's contention for three reasons.

First, in Brady v. Maryland (1963), 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215, the United States Supreme Court held that:

" * * * The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."

However, in United States v. Agurs (1976), 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342, it was stated:

"The rule of Brady * * * arguably applies in three quite different situations. Each involves the discovery, after trial, of information which had been known to the prosecution but unknown to the defense." (Emphasis added.)

As the alleged exculpatory records were presented during the trial, there exists no Brady violation requiring a new trial.

Second, Crim.R. 16(E) regulates discovery. Crim.R. 16(E)(3) provides:

"If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may make such other order as it deems just under the circumstances." (Emphasis added.)

We find that there were means available to appellant which were less drastic than the panel ordering a new trial. Pursuant to Crim.R. 16(E)(3), the panel's discretion to make just orders under the circumstances, and the power to order a continuance, were remedies that could have been sought by appellant, but he apparently declined to do so. These remedial powers were sufficient under the circumstances to ensure appellant was fairly tried. Appellant essentially argues that no remedial order could have ensured his fair trial since Kemp had already testified. However, pursuant to Crim R. 16(E)(3), the court was empowered to order Kemp's return and make her available for continued cross-examination.

Third, in State v. Johnston (1988), 39 Ohio St.3d 48, 529 N.E.2d 898, paragraph five of the syllabus, we held that:

"In determining whether the prosecution improperly suppressed evidence favorable to an accused, such evidence shall be deemed material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome. This standard of materiality applies regardless of whether the evidence is specifically, generally or not at all requested by the defense. (United States v. Bagley * * * [1985], 473 U.S. 667 [105 S.Ct. 3375, 87 L.Ed.2d 481], followed.)"

We have reviewed the Blendon records and, for the most part, the materials consist of hearsay, speculation and "anonymous tips." Most of appellant's contentions are unsupported by the records themselves. In any event, we fail to see how the outcome of appellant's trial could have been different had the Blendon records been disclosed prior to trial. Further, the Blendon records were admitted into evidence and reviewed by the panel.

Finally, appellant contends that he would not have waived his right to trial by jury had the Blendon records been available to him prior to trial. Appellant argues that he was denied the opportunity to make an "informed choice" between being tried by a panel or by a jury. Therefore, appellant asks us to grant a...