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COURT OF APPEALS FOR CLARK COUNTY, OHIO
O P I N I O N Rendered on the 13th day of December , 2002.
{¶1} William K. Sapp appeals from his convictions and sentences in the Clark County Common Pleas Court on nine counts of aggravated murder with death penalty specifications, two counts of attempted aggravated murder, four counts of rape with force specifications, four counts of kidnapping, three counts of tampering with evidence, and three counts of abuse of a corpse. Sapp advances fifteen assignments of error in which he alleges numerous prejudicial errors arising from the time of his arrest and questioning through the penalty phase of his capital-murder trial.
{¶2} In early 1996, during an investigation by the Clark County Sheriff’s Office on a matter unrelated to this case, officers learned of Sapp’s involvement in a crime in Jacksonville, Florida. On September 26, 1996, Det. Robert A. Hinson from the Jacksonville Florida Sheriff’s Office interviewed Sapp on the matter. During the interview, Sapp referred to an attack on a Springfield woman. Det. Hinson quickly left the interview room and returned with Sgt. Al Graeber of the Springfield Police Department, who was familiar with the Springfield case.
{¶3} Sapp provided the officers with information about his attempted murder of Hazel Pearson. After more investigation, Sapp was linked to the murders of Phree Morrow and Martha Leach. The semen found in Morrow and Leach was tested and compared to DNA samples obtained from Sapp after his interview. It was determined that Sapp was the owner to a reasonable degree of certainty of the DNA samples extracted from both Morrow and Leach.
{¶4} Sapp was interviewed on April 2-3, 1997 by Sgt. Graeber and Det. Stephen L. Moody of the Springfield Police Department. Sapp waived his rights several times during the course of the interview. During the interview, which was videotaped, Sapp confessed to the crimes against Morrow and Leach. Sapp also confessed to the murder of Belinda Anderson and the attempted murder of Hazel Pearson.
{¶5} On April 7, 1997, the Clark County Grand Jury returned a twenty-seven count indictment against Sapp; twenty-five counts of which are at issue in this case. Sapp pled not guilty to the charges. Following the trial court’s disposition of numerous motions, including a motion to sever, a motion to suppress, a motion to dismiss the death penalty specifications on constitutional grounds, and a motion for a hearing to determine competency, all of which the trial court denied, Sapp’s jury trial began on September 13, 1999. The evidence, including portions of Sapp’s videotaped confession, established the following.
The Murder of Phree Morrow and Martha Leach
{¶6} On August 22, 1992, Phree Morrow, twelve years old, and her friend Martha Leach, eleven years old, had spent the day together playing near their homes in Springfield, Ohio. At approximately 5 p.m., Leach approached her mother, Jettie Whitt, and asked if she and Morrow could go to Shuler’s Bakery, to which Whitt said yes.
{¶7} Pamela Gooding and Neda Gillman, employees of Shuler’s at that time, testified that Morrow and Leach had entered Shuler’s, but their testimony conflicted as to what the girls had ordered. Gooding stated that the girls had entered the bakery with an unknown male and that the male had paid for their purchases. Gillman recalled the girls being by themselves. Several other witnesses placed the girls in the area around the bakery at approximately the same time. After leaving the bakery, Morrow and Leach walked to a nearby pond.
{¶8} At approximately the same time, Sapp drove Jamie Turner, David Marcieszewski and his step-son John Balser, and Christopher Bibbs to get something to eat in the vicinity of the bakery. The group proceeded to the pond near the bakery, a location at which the group would occasionally gather.
{¶9} At some point, Morrow called Turner “ugly” and insulted Balser by calling him a “fucking retard.” Balser began shaking and stuttering, which quickly erupted into crying. Turner slapped Morrow, and Sapp quickly followed. Sapp continued to hit Morrow, and the others joined him.
{¶10} During the incident, Marcieszewski’s wife Wanda arrived at the scene with her nephew, Ralph DePriest. Wanda screamed at Marcieszewski for bringing her son, Balser, to the pond with the girls. At some point Wanda removed a necklace from Leach’s neck. The necklace was later recovered from Wanda’s home.
{¶11} Morrow fell to the ground, and the group held her down while Sapp cut her flowered shorts with a knife by splitting the seams of the leg and the crotch and then cutting the fabric across the abdominal area from the zipper to the right lateral seam of the shorts. Marcieszewski removed Leach’s clothes. Sapp instructed Morrow to lay on her stomach and had Leach lay on top of Morrow. Sapp raped Leach, then the group took turns molesting her.
{¶12} The group then turned the girls onto their stomachs, faces in the dirt, and took turns throwing rocks onto the backs of the girls’ heads. All of the men struck each girl with a rock one time, except Sapp, who hit Morrow with a rock a second time after realizing she was not yet dead. DePriest testified that he had watched Sapp hold a large rock high above Morrow’s head and had thrown it down onto the girl with a great amount of force. Sapp then raped Morrow.
{¶13} Sapp took charge of cleaning up the scene. Two wooden pallets were placed over the bodies, and the men gathered brush to cover the pallets. The men collected the girls’ clothes, shoes, and bicycle, and drove the personal belongings to a nearby storm sewer commonly referred to as “the Lion’s Cage.” Marcieszewski and Sapp carried the belongings down into the sewer and left them there. Sapp carefully
wrapped Morrow’s shorts around a rock to ensure that the shorts would not emerge and be discovered. Before leaving the Lion’s Cage, the men wiped down the bars leading into the sewer and were careful not to leave behind any other evidence. With Sapp in charge, the group discussed how they would handle questions in order to ensure that their stories were similar but not exactly the same. Additionally, DePriest testified that before leaving the group, Sapp had told DePriest that he would kill him if he ever told anyone what he had witnessed. Under the circumstances, DePriest believed him.
{¶14} On August 23, 1992, Kyle Cox and his little brother were riding their bikes around the pond when they discovered the bodies of Morrow and Leach underneath the wooden pallets and covered with brush. They rode to Shuler’s Bakery and encountered a fireman, who returned with the boys to the scene.
{¶15} When law enforcement authorities arrived at the scene, they saw two bodies covered by brush and two wooden pallets. The heads of the bodies were positioned in holes in the ground, and a large rock had been placed on Morrow’s head. Officers investigated the area located near the pond, including the Lion’s Cage. There, officers found the girls’ bicycle, Morrow’s shorts, and a brick located near the shorts.
{¶16} Robert Stewart, Deputy Coroner for Clark County and Pathologist for the Mercy Medical Center, performed the autopsies on the girls. Stewart determined that both girls died as a result of multiple blunt trauma to the head. Stewart concluded that the girls’ skull fractures were the result of force equivalent to that of an individual freefalling from a second story window and landing directly on the head. Additionally, sperm was detected in both girls’ vaginas, and Stewart opined that the girls had been raped within twenty-four hours of their death.
{¶17} The initial investigation of the crimes revealed the involvement of Marcieszewski and Wanda, Balser, Bibbs and Turner. It was not until Sapp’s confession in 1997 that authorities became aware of his involvement in the crime.
The Murder of Belinda Anderson
{¶18} On September 7, 1993, Belinda Anderson left her home in Bellefontaine, Ohio to visit her sister, Debra Anderson, in Springfield, Ohio. On September 8, 1993, Belinda and Debra spent the day together. At about 5:20 p.m., Debra left to go to her parents’ home to get money for cigarettes while Belinda stayed at Debra’s house. When Debra arrived home at approximately 6:00 p.m., Belinda was not there. Belinda left a note saying that she had left to make a telephone call. Belinda never returned. Belinda had been wearing a purple silk short-sleeved shirt and sweat pants under a pair of shorts.
{¶19} During his confession, Sapp referred to the murder of Anderson by his stating “it wasn’t the pants this time. It was the goddamn tennis shoes.” Sapp encountered Anderson on the afternoon of September 8, 1993, as she walked near his house. The two talked for a while and Sapp learned that she had left her brother’s house in Bellefontaine to visit her sister in Springfield. They walked and talked for a long time. Sapp believed she was a prostitute, and asked her if she “dated.” After making sure that Sapp was not a police officer, Anderson replied “usually how about [forty] bucks.”
{¶20} Sapp led her through an alley and instructed Anderson to crawl through a hole into a garage. Sapp handed Anderson the money, and she performed fellatio on him. At some point, Anderson decided she did not want to have sexual intercourse with Sapp. Sapp became angry, and Anderson struck Sapp. Sapp grabbed a piece of pipe, approximately five feet in length, and swung it at Anderson, striking her in the side of the head. Anderson began to get up and threatened Sapp that she would come after his wife and children while he was in jail for doing this to her, and he again started swinging the pipe, hitting her in the back, shoulder, and face.
{¶21} After Anderson was dead, Sapp left his “signature” by removing her pants with his knife, “[j]ust like opening up a Christmas present. Some kids tear it open. Me, as a kid, I used to make sure to take the tape off, unfold it, fold by fold.” He disposed of the jogging pants and his shirt in a nearby dumpster.
{¶22} During the next couple days, Sapp returned to the garage to clean up the crime scene. He placed Anderson’s body in two large plastic bags, dug a hole in the garage floor, and placed the body into the shallow grave. He covered up the body with dirt and some of the debris left in the garage. He was unsuccessful at covering Anderson’s shoes.
{¶23} Two years later, on July 8, 1995, Mary Williams and Raymond Calkins decided to clean out the garage of their home which they had purchased the previous year. Prior to their purchase, the house had been vacant for quite some time and the garage had been in a severe state of disrepair. As Williams was removing some of the garbage left by the previous owners, she noticed a pair of tennis shoes on the floor of the garage. Williams attempted to remove the shoes and quickly discovered that there was “something in the shoe.” Williams ran from the garage and brought back her boyfriend, Calkins. Calkins entered the garage to investigate, and found a foot and a leg attached to the shoe. They called 911.
{¶24} The Springfield police were contacted and Anderson’s body was removed from the garage. Forensic pathologist and deputy coroner for the Miami Valley Coroner’s Office Lee Lehman examined Anderson’s body. Lehman determined that Anderson had died from significant trauma to the head and neck area. The amount of impact which occurred was similar to a “chop wound,” such that a heavy instrument with a sharp edge had been swung with a considerable amount of force, chopping through the skin and bones of the skull and separating those bones. Due to the decomposition of the pelvic organs, Lehman was unable to determine if Anderson had been raped…
{¶51} Although at first glance the length of the custodial interview appears to be unreasonable, as it occurred over the span of several days, we do not find this alone to be coercive. First, this was not a case in which Sapp, who wanted to speak with the police, would be able to tell his story in a matter of hours. This case involves four complex incidents, three of which were murders, and Sapp spent a great length of time explaining what had occurred in each of the crimes. Second, there were numerous breaks during which Sapp was permitted to go to the restroom, given medication, food and beverages, and provided with the opportunity to rest or sleep for the night. The intensity of the questioning varied; however the interview did not consist of the officers pummeling Sapp with questions for hours in an effort to break his will and get him to confess. Sapp had a great deal to say, and it took a great deal of time to say it. Third, many times throughout the interview officers reiterated to Sapp that it was his choice to speak, or Sapp had mentioned that he was voluntarily choosing to speak with the officers. He remained rational throughout the course of the interview. We cannot find that there was coercion under these circumstances.
{¶52} Finally, Sapp asserts that his confession was involuntary because law enforcement took advantage of his bipolar mental condition by allowing him to waive his rights and speak with them. We do not agree. This court noted in State v. Phillips (Aug. 11, 2000), Montgomery App. No. 18049, that a “suspect’s impaired mental condition at the time of the waiver and the confession has some bearing on the issue of the voluntariness but only as to whether police officers deliberately exploit the suspect’s mental condition to coerce the waiver and confession.” In this instance, Det. Moody and Sgt. Graeber went to great lengths to ensure that Sapp’s psychological issues were dealt with during the interview process. Dr. James P. Gibfried was called to examine Sapp, and medication was provided to him for his mental issues. Sapp was given his regular dose of Lithium and Prozac to address his mental health issues. We see no evidence in the record to indicate that law enforcement deliberately exploited Sapp’s mental condition to obtain a waiver of rights or confession…