State v. Slagle

Wright, J.,

dissenting. In my experience as a judge, nothing that I have undertaken is as hard a task as determining a sentence of life or death for a person convicted of aggravated murder. The General Assembly has placed on each member of this court the responsibility to read the entire record in death penalty cases and to conduct an independent review to determine whether the aggravating circumstances of the crime or crimes outweigh the mitigating factors.

In the past eight years I have had this task in nearly one hundred cases and have never shirked this responsibility. I am not hesitant on moral grounds to impose the death penalty when required, but firmly believe that it should be assessed only when the defendant has demonstrated little or no behavior that requires society’s mercy. I believe that the General Assembly has codified our natural human tendency to show mercy by requiring the courts of this state to vacate a death sentence unless the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt — the heaviest burden under the law. In my view, this case quite clearly calls for mercy and thus I must respectfully dissent from the judgment reached by the majority affirming the sentence of death.1

*616The majority’s recital of the facts in some respects goes far beyond the four corners of the record and in other respects ignores it altogether. Its attempt to write the facts in such a way as to make Billy Slagle a calculating, coldblooded killer is simply not supported by the evidence presented at trial. If the majority honestly believes that an eighteen-year-old victim of substance abuse with no criminal record should die in the electric chair then it should so state — it should not, however, rewrite the facts of this case to make Slagle’s execution more palatable.

The significant facts which the majority omits are as follows:

On the afternoon of August 12, 1987, Billy Slagle went to the home of his friend, Mike Davis. Davis lived approximately two miles from the house Slagle shared with his mother and stepfather. The two began drinking beer and smoking marijuana. Before 1:00 a.m. the next morning, Davis and Slagle had consumed fifteen to twenty beers each and smoked marijuana, and Slagle had consumed a number of shots of whiskey. According to Davis, Slagle acted “buzzed” and was “having a good time,” but did not stagger, fall, or vomit. At approximately 1:00 a.m., Davis went to sleep.

Andrea Davis, Mike Davis’s sister, also saw Slagle drinking beer and whiskey on the afternoon of August 12, that evening, and the early morning of August 13. According to Ms. Davis, at approximately 2:30 a.m., Slagle’s eyes were bloodshot, his speech was slurred, he was very quiet, and he seemed drunk.

William Vivolo, a neighbor of the Davises, saw Mike Davis and Slagle drinking at Davis’s house the night of August 12 and early the next morning. Vivolo last saw Slagle at approximately 3:15 a.m. on August 13 riding a bicycle. Vivolo believed that Slagle was intoxicated. When Vivolo saw him, *617Slagle had left the Davises’ house on a borrowed bicycle and was heading home.

Slagle has a history of serious drug and alcohol abuse and dependency. He testified at his trial that he was eighteen years old at the time of the offense. He had stopped going to school in the eleventh grade and worked different jobs for short periods of time. He admitted drinking and taking drugs daily, having started when he was fifteen years old. Slagle said that when he was not working, he sold marijuana and twice had broken into homes looking for money.

Maureen Dee, a social worker specializing in adolescent chemical dependency, evaluated Slagle in 1986. She found that he needed further evaluation and special help, and recommended group therapy and job counseling. Slagle attended five group therapy sessions, but continued to drink and soon stopped going to therapy.

Psychologist Isidore Helfand evaluated Slagle in November 1986. Helfand found that Slagle had compulsive character problems and drank approximately twelve beers and smoked marijuana daily. Dr. Peter Rogers, a pediatrician specializing in chemical dependency, testified that Slagle had participated in an in-patient drug and alcohol rehabilitation program in December 1986. While in the program, Slagle exhibited anger, resentment, depression, alienation, and problems with authority. Slagle was diagnosed as chemically dependent on alcohol and marijuana and he was treated for twenty-eight days; the treatment included four hours daily of group therapy. Slagle did not respond well to treatment. After he was discharged he returned only once for outpatient treatment.

Dr. Kurt A. Bertschinger, a forensic psychiatrist, agreed Slagle was chemically dependent on alcohol. Bertschinger testified that Slagle’s family history and his Native American heritage made it possible that he was genetically predisposed to alcoholism. Because Slagle had over twelve beers, several shots of whiskey, and several marijuana cigarettes in the twelve hours before the offense, Bertschinger agreed with the conclusion of a psychologist that Slagle killed Pope “while his reason and his ability to control himself were highly impaired by alcohol and drugs.”

At trial, Slagle told the jury that he had suffered blackouts and memory loss after drinking heavily. He did not recall talking with Pope or taking his shoes off. He stipulated that he stabbed Pope to death, but he claimed not to know why he stabbed her. He recalled seeing the flashlight at the window and trying to hide because a police officer threatened to blow his head off. Slagle admitted he went into Pope’s house, knowing that she was likely to be home, to steal something. Counsel agreed that his testimony constituted an *618admission of all of the elements of aggravated burglary. He told the jury that at no time had he intended to harm Pope and that he was very sorry for what had happened.

During the sentencing phase of the trial, Slagle’s mother, Patricia Wake-field, testified that she had left Slagle’s father, Billy Joe Slagle, Sr., when Slagle was seven years old. She told the jury that when he was young, Slagle kept to himself and did not communicate very much, but he was a good child. Wakefield said that early in his life Slagle did very well in school, but by the eleventh grade he failed everything. The family moved frequently and Slagle changed schools yearly. When he was thirteen years old, Slagle went to live with his father, but he moved back to his mother’s house when he was seventeen. Wakefield believed Slagle could be rehabilitated and would not have committed this crime if he had been sober.

Billy Joe Slagle, Sr. also testified. He described his son as an ordinary child who did his chores, went to school, and was disciplined when he misbehaved. Billy began skipping school when he was sixteen and his father suspected that Billy was abusing alcohol and drugs. Lisa Slagle, Billy’s eighteen-year-old sister, testified that she was close to him, but that Billy did not express himself and was quiet. She testified that Billy was sorry for what he had done.

Dr. Thomas W. Hall, a clinical psychologist, testified that he believed that Slagle apparently committed the murder while his reason and ability to control himself were highly impaired by alcohol and drugs. Hall was a witness for the state. He concluded, however, that Slagle “was not suffering from a major mental disease or defect which impaired his ability to know the wrongfulness of his acts or to refrain from doing them.”

Dr. Bertschinger, who had earlier testified about Slagle’s alcohol problem, explained to the jury the disruptive influence of constant family moves on Slagle’s childhood development. He testified that Slagle’s emotional growth was severely limited and that Slagle felt deserted and abandoned. Slagle had few friends and developed emotionally only to the level of a twelve year old. Slagle had antisocial traits consistent with an antisocial personality disorder, although the doctor did not diagnose that disorder. He testified that if incarcerated, Slagle would benefit by being away from alcohol and by attending Alcoholics Anonymous meetings. He expressed his opinion that after a long period of incarceration, Slagle’s alcoholism would likely be in remission and Slagle’s antisocial personality traits would diminish.

Slagle gave an unsworn statement to the jury and reaffirmed his sorrow for what he had done to Mari Anne Pope and stated thát he had not intended to *619kill her. He asked for imprisonment with parole consideration after twenty years.

I now turn to weighing the aggravating circumstances and mitigating factors. As correctly stated by the majority, the aggravating circumstances were proved beyond a reasonable doubt: Slagle murdered Mari Anne Pope while committing aggravated robbery and aggravated burglary. The question for the court is whether these circumstances outweigh the following mitigating factors beyond a reasonable doubt.

The most compelling mitigating factor in this case is Slagle’s age. Slagle was eighteen years old at the time of the murder. Because Slagle was legally an adult, he is eligible for the death penalty. However, the General Assembly, recognizing the ameliorating factor of age, requires sentencing authorities to specifically consider “[t]he youth of the offender[.]” R.C. 2929.-04(B)(4).

The majority minimizes the significance of Slagle’s age. Yet the General Assembly expressly directed us to consider age a mitigating factor while in the same statute it makes eighteen the earliest age at which the death penalty is available. If we do not give real weight to the fact that Slagle was eighteen at the time of the murder, is there any age which may be considéred a mitigating factor?

Eighteen, of course, is just barely the age of majority. Even in the best of circumstances an eighteen year old lacks the judgment of a mature adult. All of us who have lived through our late teens and twenties and seen our children grow through these years know that there is a significant difference between an eighteen year old and a twenty-one or twenty-two year old. Given that difference I would impose the death penalty upon an eighteen year old in only the most extreme circumstances. See, e.g., State v. Hill (1992), 64 Ohio St.3d 313, 595 N.E.2d 884 (eighteen-year-old defendant sexually assaulted, tortured, burned, and murdered child victim).

The second mitigating factor I consider is Slagle’s lack of a prior criminal record. R.C. 2929.04(B)(5) recognizes a mitigating factor if the accused lacks “a significant history of prior criminal convictions and delinquency adjudications.” I believe this factor is applicable because Slagle had no prior criminal convictions or delinquency adjudications. While two exhibits suggested that Slagle had contact with the juvenile court system, the record does not reveal any formal adjudications.2 Therefore, Slagle did not have a “significant *620history” of criminal conduct. Under the laws of this state the murder of Mari Anne Pope was Slagle’s first criminal offense or adjudication — therefore R.C. 2929.04(B)(4) is a significant mitigating factor.

R.C. 2929.04(B)(7) broadly directs us to consider “[a]ny other factors that are relevant to the issue of whether the offender should be sentenced to death.” Several other mitigating factors are revealed in Slagle’s history, character, and background. Slagle presented uncontroverted evidence that he had been drinking heavily in the twelve hours before he killed Pope. The record shows that Slagle is chemically dependent on alcohol and marijuana, and that his family and genetic background in all likelihood predisposed him to alcoholism. His substance abuse problems prevented him from finishing high school or holding a steady job. Constant family moves, his parents’ divorce, and a dysfunctional family retarded Slagle’s emotional development to the level of a twelve year old. Defense experts agreed that Slagle’s disease of alcoholism and drug dependence could be successfully treated.

Although I agree that Slagle formed the purposeful intent to kill, the evidence shows that the murder resulted, in part, from Slagle’s alcoholism and drug dependency. Under the circumstances of this case, the fact that he was an alcoholic and that the offense resulted from that alcoholism are significant mitigating factors.

The majority warns that this court has never recognized alcoholism or voluntary intoxication as a mitigating factor. I agree. However, I am also aware that this is not a case of “mere alcoholism” for the reason that Slagle was a child when he became an alcoholic. Under the circumstances of this case childhood alcoholism is a mitigating factor under R.C. 2929.04(B)(7). I firmly believe that Slagle’s history of alcohol and drug abuse as a child led directly to the murder of Mari Anne Pope. While we cannot and should not routinely show mercy to an adult alcoholic who commits murder, we must pause when we see a defendant who became an alcoholic at fourteen and was never given the treatment and attention necessary to cure this disease.

I wish to be clear: I am not proposing or advocating a new mitigating factor which would have wide application. I simply believe that under these circumstances adolescent alcoholism is one factor that is “relevant to the issue of whether the offender should be sentenced to death.” R.C. 2929.04(B)(7).

*621The mitigating factors indicate to me that Billy Slagle did not possess the emotional maturity to act as society would have him act. The testimony presented by Slagle in the sentencing phase of his trial shows that he was an immature, delinquent eighteen year old who irresponsibly and recklessly entered Mari Anne Pope’s house with the intent to steal. Slagle was a child who had been impaired by drugs and alcohol for the better part of four years and whose judgment was so clouded on the night of the murder that it was unlikely that he rationally considered the consequences of his actions. In a situation in which the law requires us to act rationally, Slagle acted irrationally. The record does not show, however, that Slagle has a calculating or depraved heart. Nor does it show that he intended to harm or kill Pope when he entered her house.

Billy Slagle cannot and should not be excused from punishment for his crime. Society has the right to exact a heavy penalty for the taking of a life. Yet I cannot join the court in its decision to put Slagle to death, because this case is one in which I must exercise my independent judgment and I am doing so on the side of mercy. After weighing both, I conclude that the aggravating circumstances do not outweigh the mitigating factors beyond a reasonable doubt. For the foregoing reasons I would uphold Slagle’s convictions, vacate his death sentence, and remand this cause to the Cuyahoga County Court of Common Pleas for resentencing pursuant to R.C. 2929.06.

H. Brown, J., concurs in the foregoing dissenting opinion.

. I agree with the majority that Slagle’s propositions of law concerning his conviction are without merit. However, I am compelled to clarify one aspect of the majority’s opinion involving discussion of the plain error rule. The majority correctly states that the rule “protects different interests and requires distinct inquiries.” The majority discusses one *616purpose — to protect individual criminal defendants from injustice. However, the majority fails to discuss the second purpose of the plain error rule contained in Crim.R. 52(B).

The second purpose of Crim.R. 52(B) is to protect the court system as an institution. An error is “plain” if it is so fundamental that if it were to stand it would “seriously affect the fairness, integrity or public reputation of judicial proceedings.” United States v. Atkinson (1936), 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555, 557. Professor Wright explained: “It is not a miscarriage of justice to convict a guilty man, but if he is convicted in a way inconsistent with the fairness and integrity of judicial proceedings, then the courts should invoke the plain error rule in order to protect their own public reputation.” 3A Wright, Federal Practice and Procedure, Criminal 2d (1982) 341, Section 856. The question the reviewing court must ask is whether the challenged error was a clear violation of a fundamental constitutional right. The strength of the other evidence introduced during the trial is not relevant here because it is not the defendant’s individual rights but the character and integrity of the rule of law that are being protected by this line of inquiry. See People v. Green (1979), 74 Ill.2d 444, 454-455, 25 Ill.Dec. 1, 6, 386 N.E.2d 272, 277 (Ryan, J., concurring).

. The court of appeals referred to Slagle’s being “confined to a detention home as a juvenile for burglary, auto theft and felonious assault.” However, that finding is based upon personal histories of Slagle prepared by a social worker and a court psychologist, which were not *620introduced at trial or during the sentencing phase. Any admissions Slagle made during cross-examination as to other wrongdoings do not qualify under R.C. 2929.04(B)(5) as “criminal convictions” or “delinquency adjudications.” I believe that the court of appeals’ reliance on this history was improper.