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State v. Davis

March 17, 1982.

STATE
v.
DAVIS


BELL, J.

After a lengthy trial by jury, Eric Davis was convicted of aggravated murder (three counts), involuntary manslaughter, aggravated robbery (three counts), aggravated arson, receiving stolen property, and grand theft.

Inasmuch as only Eric Davis and Teresa Bickerstaff*fn1 survive to describe the events that transpired on the night of the tragedy unfolded in the record before us, we look to Davis' testimony at trial and to his taped statements for some background of the cause.

 Davis testified that, having engaged in at least two telephone conversations with Teresa Bickerstaff during the evening hours prior to the commission of the crimes, he proceeded to have a friend drop him off near the Bickerstaff residence in the early hours of the morning of August 29. (Davis' taped statements include the assertion, "* * * we [Bickerstaff and Davis] had the intention of taking the car * * * and leaving.") Admitted to the home by Teresa, Davis embraced her and then loaded the .357 magnum revolver which she had obtained at his request, and which she had concealed in a towel and placed on the family room floor. According to Davis, he loaded the gun with which Teresa eventually shot her mother and two younger brothers.

 Davis' description of the events of the night further revealed that prior to the shootings Teresa and he had climbed the stairs together, with Teresa carrying the gun, and that as she fired the gun, he stood next to her in the vicinity of the top stairway landing and/or Teresa's mother's bedroom doorway. Davis claimed that after the shooting, he retrieved Teresa's bag of clothing, already packed, from her room and started downstairs. Reminiscent of a line from the script of a horror story, Bickerstaff screamed to Davis words to the effect that her brothers were still alive. According to defendant's testimony concerning the night's events, he heard, at this point, another shot, and he went back up the stairs, entered the master bedroom where the mother lay with her head in a pool of blood, grabbed a .45 revolver and rifle from the room's closet, and proceeded to usher Teresa downstairs. (Davis' taped statement indicated that Teresa, at Davis' request, had, previous to his arrival at the home, obtained the rifle along with the .357 revolver.) He then reloaded the .357 magnum which he had at some point taken from Teresa, and found and took the keys to the family Datsun from Mrs. Bickerstaff's purse. (In Davis' taped statement, he said this was the time when Teresa screamed that her brothers were not dead.) Bickerstaff and Davis, carrying three guns and clothing, then proceeded to the garage area. Defendant procured a can of gasoline from the garage and reentered the home alone. Upon entering he "threw the can (of gasoline) and * * * threw the match." Fire engulfed the house.

 A thread of doubt woven throughout the assignments of error before us by defendant is whether Davis, and Bickerstaff, had the intention of committing an aggravated robbery prior to or simultaneous with the shootings of Teresa's mother and brothers. That issue will be addressed as it occurs chronologically within the claims of error. However, we note at the outset that intent lies within the mind of the individual and hence must generally be derived from an examination of proven circumstantial evidence, and logical inferences drawn therefrom. State v. Huffman (1936), 131 Ohio St. 27 [5 O.O. 325]. "While objective facts may be proved directly, the state osa man's mind must be inferred from the things he says or does." State v. Wallen (1969), 21 Ohio App.2d 27, 35 [50 O.O.2d 50]. A plentitude of such evidence for consideration by the jury is found within the record of the instant cause.

 We now address in numerical sequence defendant's assignments of error.

Assignment of Error I     

 "The trial court impermissibly invaded the province of the jury in excluding certain relevant evidence."

 Defendant Davis sought the admission into evidence of portions of certain taped statements made by Teresa Bickerstaff during police interviews.

 Defendant's appellate argument states that his "basic contention" herein is that both due process and the integrity of a criminal trial are offended when a trial court excludes relevant evidence (here Bickerstaff's statements) which amounted to a "third-party confession" with "sufficient indicia of trustworthiness" exonerating the defendant.

 Our reading of the transcript of proceedings does not reveal that the trial court acted, as appellant urges, to deny him the opportunity to present Teresa Bickerstaff's taped statements to the jury. Because Bickerstaff, upon taking the stand, asserted her Fifth Amendment rights, the court properly declared her to be unavailable as a witness. Evid. R. 804(A). The court further took the view that the recorded Bickerstaff statements could only be used in their entirety. Defendant was, thus, ultimately given the choice of the admission of the statements in their entirety or the exclusion of same. Defendant and his counsel chose the latter. Defendant cannot now reasonably contend that the trial court excluded evidence relevant to his defense when it was at his deliberate election that the Bickerstaff statements were not placed in their entirety before the jury.

 A reading and consideration of Evid. R. 106 supports the posture taken by the trial court. That rule states as follows:

 "When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which is otherwise admissible and which ought in fairness to be considered contemporaneously with it."

 One need not look beyond the language above to find support for the propriety of the court's ruling requiring the defendant to submit to placing the statements in their entirety into evidence. Not only a wealth of common law, but the fundamental fairness of presenting statements in context rather than in isolation is behind the rudiments of Evid. R. 106. See McCormick, Evidence (2 Ed., Cleary Ed. 1972), Section 56. Wresting a part of a body of expressions from its context may result in a misconception by some or all of the jury members that may linger even, if at a later point, relevant, omitted parts of that same body of statements are supplied. See 7 Wigmore, Evidence (Chadbourn Rev. 1978), Section 2094.

 Evid. R. 106 restates the above consideration and is a rule of timing, avoiding the situation where the adverse party is delayed in presenting the other part or body of evidence "which is otherwise admissible and ought in fairness to be considered contemporaneously * * *." The trial judge in the cause before us ruled correctly in applying the common law considerations of fairness as exemplified in Evid. R. 106 to the introduction of the statements of Teresa Bickerstaff.

 In that no portion, or the entirety, of Bickerstaff's statements was admitted into evidence, we do not reach the issue of a violation of any right of defendant of confrontation. We find no merit in this assignment of error.

Assignment of Error II     

 "The court erred, or abused its discretion, by excluding certain relevant evidence, which evidence bore directly on the defendant's theory of defense."

 Several times the defense sought to have admitted testimony relating to an alleged incestuous relationship between Mr. Bickerstaff and his daughter. The defense attempted to cross-examine Mr. Bickerstaff in this regard, and the state's objections thereto were sustained. The court also refused to permit the defense to question Davis so as to present further information regarding the alleged incest.

 Defendant submits that any evidence tending to show Teresa Bickerstaff's independent reasons for committing these violent acts is certainly relevant to his defense, particularly so if said evidence clashes with the state's theory that these killings were solely for the purpose of facilitating thefts from the home.

 The argument is made by Davis that evidence supportive of his position that Teresa Bickerstaff's report to him of "the threatened recurrence of various sexually and physically abusive acts" upon her by her father motivated Davis' being present in the Bickerstaff home at the time of the commission of the crimes in question. Such evidence, he contends, is strongly relevant to his defense and is admissible under Evid. R. 401.

 That rule defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable than it would be without the evidence." (Emphasis added.)

 We do not agree with appellant's contentions. Based upon defendant's contentions, we assume that the excluded evidence which defendant believes bore directly upon his defense would have been relevant to the assertions regarding the claims of incest between father and daughter alluded to by the defense in opening statement. These opening remarks included the following:

 "[MR. WILLIS]: * * * and that unlike the relationships that existed between our parents with reference to our brothers and sisters, the evidence in this case will show that the relationship that existed between she [sic] and her father was incestuous.

 "MR. PORTER: Objection, Your Honor, it is irrelevant, incompetent and immaterial.

 "Would you please note our continuing objection to this.

 "THE COURT: Objection is overruled. ...


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