State v. Dunlap

652 N.E.2d 988, 73 Ohio St. 3d 308
CourtOhio Supreme Court
DecidedAugust 23, 1995
DocketNo. 94-1777
StatusPublished
Cited by406 cases

This text of 652 N.E.2d 988 (State v. Dunlap) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Dunlap, 652 N.E.2d 988, 73 Ohio St. 3d 308 (Ohio 1995).

Opinion

Pfeifer, J.

Dunlap presents fifteen propositions of law for our consideration. We have considered Dunlap’s propositions of law, independently weighed the statutory aggravating circumstances against the evidence presented in mitigation, and reviewed the death penalty for appropriateness and proportionality. Upon review, and for the reasons which follow, we affirm the judgment of the court of appeals.

[313]*313.1. Admission of Confession

In his twelfth proposition of law, Dunlap argues the trial court erred in failing to suppress his pretrial statements to the police. At a pretrial hearing, Dunlap testified that Idaho police officers manhandled and threatened him when they arrested him. He claimed he waived his Miranda rights “out of fear of what might happen” because “they were going to hurt me if I didn’t say it was me.” Dunlap also claimed that he requested counsel several times before interrogation, but the police ignored those requests. Dunlap admitted he signed waivers of rights and submitted to interviews on October 16, 17 and 19.

Of course, if Dunlap did request counsel, and police ignored the request and continued questioning him, his statements would be inadmissible. When counsel is requested, interrogation must cease until a lawyer is provided or the suspect reinitiates the interrogation. Arizona v. Roberson (1988), 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704; Edwards v. Arizona (1981), 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378.

However, the record of the suppression hearing supports a finding that Dunlap voluntarily waived his rights and never requested to consult counsel before agreeing to be interviewed by police or while being interviewed. The October 16 interview was videotaped, and the interviews on October 17 and 19 were audiotaped. The tapes show that during hours of interviews, police readvised or reminded Dunlap of his rights several times, and he signed two separate waivers of rights. At no time during these taped interviews did appellant decline to answer questions or ask to consult a lawyer before answering questions. The police never threatened appellant or promised him anything to secure his cooperation. On October 19, appellant freely talked with Cincinnati police officers after again waiving his Miranda rights.

Admittedly, at one point during the taping of Dunlap’s October 17 statement, the police chief briefly referred to the fact that the interview had been interrupted so Dunlap could sign “a document for the Court.” That document “has to do with appointing an attorney, which you [Dunlap] do not have enough funds for.” However, the context makes it clear that this request concerned the appointment of counsel for future court hearings. Dunlap did not ask to consult with a lawyer before answering questions nor did he ask for a lawyer to be present during any interviews. “The rationale underlying Edwards is that the police must respect a suspect’s wishes regarding his right to have an attorney present during custodial interrogation.” Davis v. United States (1994), 512 U.S. -, -, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362, 372. As Davis held, “the suspect must unambiguously request counsel.” Id. at -, 114 S.Ct. at 2355, 129 L.Ed.2d at 371. Dunlap made no unambiguous request to consult counsel. See Connecticut v. Barrett (1987), 479 U.S. 523, 107 S.Ct. 828, 93 L.Ed.2d 920; [314]*314United, States v. Mills (C.A.6, 1993), 1 F.3d 414. Instead, he simply took a short break to sign a document to allow the Idaho court to appoint him an attorney to represent him in future court proceedings. Thereafter, Dunlap resumed the interview with the police chief that Dunlap had himself initiated.

Moreover, that break in appellant’s taped October 17 confession occurred relatively late in the course of that interview — two thirds of the way through, in fact. After that point in the interview, the police chief and Dunlap mostly discussed the Idaho robbery, not the Ohio murder. Since abundant other evidence established appellant’s guilt of that second “course of conduct” murder, admitting the last portion of appellant’s October 17 confession or even his October 19 statement, even if error, was harmless beyond a reasonable doubt.

“[T]he weight of the evidence and credibility of witnesses are primarily for the trier of the facts. * * * This principle is applicable to suppression hearings as well as trials.” State v. Fanning (1982), 1 Ohio St.3d 19, 20, 1 OBR 57, 58, 437 N.E.2d 583, 584. Accord State v. DePew (1988), 38 Ohio St.3d 275, 277, 528 N.E.2d 542, 547.

The trial court’s decision to admit the statements rests upon substantial evidence. We find no basis to reverse the trial court’s decision and reject the interview tapes and police officers’ testimony in favor of Dunlap’s claims. We reject Dunlap’s twelfth proposition.

II. Multiple Charges and Specifications

In his first proposition of law, Dunlap correctly argues that the trial court erred by submitting two charges of aggravated murder to the jury for separate penalty determinations and in imposing two death sentences. Since both charges “involve the same victim, they merge.” State v. Lawson (1992), 64 Ohio St.3d 336, 351, 595 N.E.2d 902, 913; State v. Huertas (1990), 51 Ohio St.3d 22, 28, 553 N.E.2d 1058, 1066.

However, we find this error harmless beyond a reasonable doubt. State v. Cook (1992), 65 Ohio St.3d 516, 526-527, 605 N.E.2d 70, 82; State v. Brown (1988), 38 Ohio St.3d 305, 317-318, 528 N.E.2d 523, 538-539. Moreover, the court of appeals explicitly merged the two murder counts and approved only a single death sentence. Accordingly, we recognize that only a single death sentence remains, but otherwise reject Dunlap’s first proposition.

In his second proposition of law, Dunlap argues that the trial court’s submission to the jury of the R.C. 2929.04(A)(7), felony-murder death specification, in counts I and II, prejudiced his rights to a fair sentencing determination. Dunlap argues the specifications and instructions improperly multiplied the felony-murder aggravating circumstance into two aggravating circumstances as pro[315]*315scribed in State v. Penix (1987), 32 Ohio St.3d 369, 370-372, 513 N.E.2d 744, 746-747.

As Penix notes, 32 Ohio St.3d at 371, 513 N.E.2d at 746, “[p]rior calculation and design is an aggravating circumstance only in the case of an offender who did not personally kill the victim.” In this case, the sentencing instructions referred to whether “the offense of aggravated murder was committed while the defendant was committing aggravated robbery or was committed with prior calculation and design * * *.” (Emphasis added.) By so doing, the instructions incorrectly described the aggravating circumstance. However, unlike the court in Penix, the court here did not multiply a single felony murder specification into two aggravating circumstances. The jury’s findings of guilt, as well as the specifications in the indictment, correctly stated this aggravating circumstance.

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Cite This Page — Counsel Stack

Bluebook (online)
652 N.E.2d 988, 73 Ohio St. 3d 308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dunlap-ohio-1995.