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State v. Flemming9/5/1996
ppearing "surly," had no difficulty in responding to any of his questions, nor did he indicate that he did not understand his rights. Kunz testified further that appellant did not appear to be under the influence of either alcohol or drugs at the time of this initial interview. He even noted that appellant's vehicle did not smell of alcohol or marijuana. Officer Oliver and Detective Brian Heffernan, who also spoke with appellant at the scene, confirmed Kunz's observations about appellant's condition.
Det. Kunz spoke with appellant again at about 7:00 a.m. on October 23, 1994 in an interview room. A portion of the detective 's testimony follows:
Q: hat did he say to you at that time?
A: Well, I did some talking first, based upon what I had learned in the investigation and the interviews with the other defendants [Gant and Jolly], and based upon the facts that I was talking to him about, he made some statements to me. He admitted that they had been to a party and had been drinking wine but that he didn't remember how the shooting occurred because he was drunk. Even though he said he was drunk, he then went on to describe in some detail some things that had happened, and he stated that they had crossed the bridge and were trying to rob the guy but that the next thing he knew the guy fell.
He stated that he didn't remember pulling the trigger; that the victim just stood there, and as soon as he pulled it -- meaning the gun -- up, it went off.
He went on to state that they didn't get nothing. They just ran off. He repeated several times that he was just going to rob the guy but he was intoxicated and wasn't going to shoot him.
Appellant did not mention the two girls on the bridge at any time during his two interviews with Det. Kunz. Moreover, testimony revealed that the area was not known for prostitutes, and no pedestrians were seen on the bridge by officers who responded to the broadcast.
Dr. Carlos Santoscoy, Jr., a deputy coroner with the Cuyahoga County Coroner's Office, performed the autopsy on the 5'4", 131 pound Batista. In addition to the gunshot wound, Dr. Santoscoy observed three scrapes or bruises on the back area of the left shoulder. He testified that the injuries were consistent with either being struck by a blunt object, e.g., a baseball bat, or by falling to the pavement. Dr. Santoscoy clarified later that if the injuries were caused by falling to the pavement, each area of injury had to strike the pavement simultaneously. He testified further that Batista had a blood alcohol content of .17 at the time of testing. Other testing resulted in Dr. Santoscoy's opinion that Batista was shot from a distance of one and one half to three feet.
II.
The events of October 23, 1993 led to appellant's November 2, 1993 indictment for two counts of aggravated murder, R.C. 2903.01, with felony-murder and firearm specifications, and one count of aggravated robbery, R.C. 2911.01, with a firearm specification. Trial by jury commenced February 7, 1994, and resulted in guilty verdicts as to all counts. The jury recommended on February 22, 1994, that appellant receive the death penalty.
After appellant was granted a new trial on April 20, 1994 on the basis of newly discovered evidence, his second trial began on May 1, 1994. The jury found appellant guilty of aggravated murder, including the felony-murder and firearm specifications, and aggravated robbery as charged in the indictment.
The mitigation phase of appellant's trial commenced on May 23, 1994. The jury concluded that the aggravating circumstances were not sufficient to overcome the mitigating factors and, therefore, recom
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