CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-235,868
The opinion of the court was delivered by: Francis E. Sweeney, P.J.
JOURNAL ENTRY and OPINION
Defendant-appellant, Sarita B. Spinks, was indicted on January 31, 1989 on one count of aggravated murder (R.C. 2903.01- ). After a jury trial, appellant was found guilty of the lesser included offense of murder (R.C. 2903.02). Appellant timely appeals her conviction. For the reasons that follow, we affirm.
The pertinent facts are as follows:
On January 21, 1989, at approximately 6:50 p.m., Detective Timothy Ward of the Shaker Heights Police Department observed Cory Williams on the corner of Farnsleigh and Van Aken near the Van Aken Shopping Center. Det. Ward recognized Mr. Williams because, earlier that day, he spoke with Mr. Williams at the police station. Mr. Williams was with a small child, wearing a multicolored jacket and holding a small plastic bag. The small child was later identified as appellant's son.
Linda November testified that at approximately 7:15 p.m. she, her husband and daughter were going to Noggins Restaurant in the Van Aken Shopping Center. While her husband and daughter parked their car, Mrs. November proceeded to walk toward Noggins when she observed a couple, appellant and Mr. Williams, talking to each other in raised voices. A physical struggle ensued wherein Mrs. November observed the man holding the woman's arms up in the air as if to defend himself. Mrs. November next heard a slap or a loud noise and observed the woman running away. The man then stated he had been stabbed. Mrs. November proceeded into the restaurant, went back outside and observed appellant calling for an ambulance. At this point, Mr. Williams was still standing and/or sitting against a car. Mrs. November went back into the restaurant and told someone to call an ambulance. She then went back to her husband, got into the car and drove off. At this point, police cars were already at the scene and policemen were escorting appellant and her son to a police car.
Sandra Gibbons, a nurse, testified that at approximately 7:15 p.m. she and her husband were going to Noggins Restaurant for dinner. She noticed a woman on the phone with a small child standing next to her. The woman seemed very nervous and was shouting out her location. Nurse Gibbons went into the restaurant and, sensing that something was wrong, identified herself as a nurse. She was then led outside where she observed a man sitting on the sidewalk. Mrs. Gibbons went over to the man, who fell into her arms stating he was dying and asking her not to let him die.
Nurse Gibbons ripped open Mr. Williams' shirt and noticed a large, deep stab wound. Nurse Gibbons hollered that the victim had no pulse and prepared the victim for first aid. She also went with the victim in the rescue squad to the hospital. On re- direct, Nurse Gibbons testified that she had to ask the police to move appellant out of the way as appellant was very upset and distracting.
Corporal Robert Rauliniatis, a patrol officer with the Shaker Heights Police Department, testified that at 7:12 p.m., he received a radio call requesting him to respond to a stabbing at the Noggins Restaurant. Corp. Rauliniatis arrived within seconds and observed a female pacing back and forth with a small child outside the restaurant door. Corp. Rauliniatis got out of his car and observed the victim lying on his back. After approaching the victim, who had just passed out, Corp. Rauliniatis walked toward appellant. At that point, Nurse Gibbons asked if she could be of any assistance and was requested to aid the victim.
Corp. Rauliniatis then spoke with appellant, who denied knowing the victim and stated she had just gotten there. However, when Nurse Gibbons yelled, "There's no pulse," appellant became hysterical and started to run. Corp. Rauliniatis grabbed appellant and took her driver's license.
Within minutes, Sergeants Herr and Brancato arrived at the scene and were told by Corp. Rauliniatis to detain appellant. Sgts. Herr and Brancato then proceeded toward appellant, who proceeded to run. After catching up to appellant, appellant blurted out, "Is he dead? Is he breathing? I just got here! I just came from home! Is he going to die?"
At approximately 7:20 p.m., Det. Ward arrived at the scene. Appellant was placed in custody, advised of her constitutional rights, and transported to the police department. En route, appellant was advised of her constitutional rights again, but continued to state that she did not know why she was being arrested and that she had just gotten there. Upon reaching the police department at approximately 7:30 p.m., appellant was placed in an interviewing room where she gave Det. Ward an oral statement essentially reiterating her statements given in the police cruiser. Meanwhile, Det. Klima took appellant's six- year-old son, Jason Spinks, for questioning. Later, the detectives informed appellant that Jason had told them everything and that they had the knife. Appellant then gave another statement which was reduced to a transcript, signed and initialed by appellant and admitted into evidence. This recording began at approximately 9:11 p.m. and was signed at 11:46 p.m. Appellant admits to stabbing the victim, Cory Williams, though she claims it was done in self-defense.
Appellant testified in her own behalf. She alleged numerous instances of abuse by her common-law husband, Cory Williams, during their approximate one and one-half years of co-habitation. Essentially, appellant stated that Cory was a jealous and abusive partner, but that she loved him and wanted to make the relationship work.
Appellant stated that on Saturday, January 21, 1989, Cory left their apartment at 4:30 a.m. to go to work for RTA. Appellant's next contact with Cory was not until approximately 6:00 p.m. later that day. During the course of the day, appellant ran various errands in preparation for a weekend trip to Lorain with Cory and her son Jason.
After learning from her mother that Cory did not obtain a rented car for their trip, appellant and Jason rented some videos from Erol's Video. Appellant then went back to their apartment, but was unable to get in. There, appellant found a note from Cory stating that he sent her belongings to Lorain and that he was leaving her. Next, appellant crossed the street to call her mother, where she ran into Cory. Appellant testified that at first she did not recognize him; he seemed very upset and angry.
Appellant stated that he began calling her names and demanded to know where she had been all day. Appellant testified Cory was pushing and yelling at her. Appellant then ran across the street to the Rite-Aid drug store, leaving Jason behind.
Appellant stated that Cory told her he would kill her as soon as Jason told him who she was with all day. Appellant went inside the Rite-Aid to call the police, but hesitated as she stated the police were tired of responding to calls between her and Cory. Appellant testified she started walking around the store. She bought a pair of mittens, as she was cold, and, after stumbling across an aisle with kitchen knives, decided to buy one, hoping to scare Cory away. Appellant then went back across the street to get Jason as she was afraid for Jason's safety. Cory immediately began pushing her and accusing her of adulterous relationships.
Appellant testified that she showed Cory the knife and waved it at him several times in order to scare him into leaving her alone. At one point, appellant stated she swung the knife at Cory's coat. Later, she testified, she realized this was when she must have stabbed the victim. At first, appellant did not believe Cory was hurt; she thought Cory was trying to trick her.
When she learned otherwise, she became hysterical and attempted to call an ambulance. Further, she testified that she does not recall what she told the police.
Dr. Lynn Rosewater testified on behalf of the defense as an expert witness. Dr. Rosewater testified as to the battered woman syndrome. It was her opinion that appellant suffered from the battered woman syndrome and, as such, appellant reasonably believed she was in imminent danger of great bodily harm and acted reasonably and justifiably. Dr. Rosewater further stated that appellant did not perceive any way of escape and that she felt she would be killed.
Based upon the above evidence, the jury found appellant guilty of murder in violation of R.C. 2903.02. Appellant timely appeals, raising ten assignments of error for our review.*fn1
We will consider appellant's seventh assignment of error first. Appellant contends the trial court prejudicially erred by denying her motion to suppress. Appellant argues her statements were not the product of free will. This argument lacks merit.
When the admissibility of a confession is challenged, the state must prove its voluntariness by a preponderance of the evidence. State v. Melchoir (1978), 56 Ohio St. 2d 15, 25. The court must determine whether, under the totality of the circumstances, the police obtained the incriminating statement by coercion or improper inducement. State v. Garcia (1986), 32 Ohio App. 3d 38, 40. A suspect's decision to waive his Fifth Amendment privilege against compulsory self-incrimination is made voluntarily absent evidence that his will was overborne and his capacity for self-determination was critically impaired because of coercive police conduct. State v. Dailey (1990), 53 Ohio St. 3d 88, paragraph two of the syllabus.
At the suppression hearing, Sgt. Darrix Herr testified that after placing appellant under arrest, he immediately advised her of her constitutional rights. He testified that she replied she understood them. Det. Timothy Ward also testified that while transporting appellant to the Shaker Heights Police Department, he orally advised her of her constitutional rights. Further, Det. Ward read appellant her rights prior to taking her statement. Finally, after appellant's statement was transcribed, she read and initialed every page of her written statement. In fact, appellant made a number of revisions to her statement prior to signing it. Additionally, at the end of her written statement, and prior to her signature, appellant wrote "yes" and placed her initials next to seven questions asking whether she understood each of her Miranda rights.
Based on the totality of the circumstances, we conclude the trial court did not err in determining appellant's confessions were voluntarily given and free from police coercion.
Accordingly, appellant's seventh assignment of error is overruled.
In appellant's fourth assignment of error, appellant contends she was denied due process of law and a speedy trial. On August 14, 1989, the trial court held a hearing on various motions, including the state's motion in limine to exclude the testimony of Dr. Lynn Rosewater on the battered woman syndrome.
The trial court overruled the state's motion, and the state duly filed a notice of appeal. Leave was granted by this court which affirmed the trial court's decision in State v. Spinks (May 3, 1990), Cuyahoga App. No. 58419, unreported. Appellant was then brought to trial on May 25, 1990. Appellant argues that the speedy trial statute (R.C. 2945.71 et seq.) was not tolled by the state's appeal. This argument lacks merit.
R.C. 2945.71(C)(2) provides that a person against whom a charge of a felony is pending shall be brought to trial within two hundred seventy days after his arrest. R.C. 2945.72 delineates various grounds for extending the statutory time limits. Specifically, R.C. 2945.72(I) provides, in pertinent part, that the time within which an accused must be brought to trial may be extended by any period during which an appeal filed pursuant to R.C. 2945.67 is pending.
In the present case, appellant was arrested on January 21, 1989 and held in jail in lieu of bail until January 25, 1989. This time period counts as twelve days. R.C. 2945.71(E); see, also, State v. Smith (1981), 3 Ohio App. 3d 115, 118, fn. 7 (day of arrest excluded from speedy trial computation). The record further reflects that the trial court granted two continuances at appellant's request beginning February 28, 1989, continuing to April 17, 1989. Thus, these forty-seven days are tolled from the speedy trial requirements. R.C. 2945.72(E). Thereafter, the state filed its notice of appeal pursuant to R.C. 2945.67 on September 7, 1989. Pursuant to R.C. 2945.72(I), the time period in which an appeal is pending tolls the speedy trial statute. See, State v. Padavick (Feb. 18, 1988), Cuyahoga App. No. 53343, unreported, at 25-26; and Akron v. Downy (1984), 24 Ohio App. 3d 225 (time tolled upon filing of notice of appeal). Subsequently, this court journalized its decision affirming the trial court's decision on May 14, 1990. However, speedy trial time was tolled an additional thirty days during which the state could have appealed our decision to the Supreme Court. Padavick, supra; and Downey, supra. Thereafter, appellant was brought to trial on May 25, 1990. Thus, the speedy trial requirements of R.C. 2945.71(C- )(2) were tolled from September 7, 1989 to the date of trial (R.C. 2945.71[I]) and from February 28, 1989 to April 17, 1989.
Accordingly, appellant was brought to trial within one hundred eighty-eight speedy trial days. Moreover, assuming that the time period in which an appeal is pending did not begin until October 20, 1989, when this court granted leave to appeal, appellant was still brought to trial within two hundred thirty-one speedy trial days. R.C. 2945.71 et seq.
Appellant also asserts a denial of her constitutional rights to a speedy trial.
However, this court has previously rejected such a contention where the delay between arrest and trial was four years. Padavick, supra, at 27. The present case involves a delay of approximately one year and four months. Moreover, the state's appeal raised issues which, at the time of appeal, were presently before the Ohio Supreme Court and had yet been decided. Additionally, the charged offense (aggravated murder) was sufficiently serious, and appellant remained free on bond. Finally, we can see no prejudice to appellant as her trial testimony substantially mirrored her written statement given the day of her arrest.
Accordingly, appellant's fourth assignment of error is without merit.
In appellant's second assignment of error, appellant argues she was denied her right of confrontation and cross-examination when the trial court allowed the decedent's statement to the police that appellant had threatened to blow his brains out to be read into evidence. The decedent's statement was contained within a police report taken by a Shaker Heights police employee. Conversely, the state argues the statement was ...