COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 72230 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION JEFFREY BELPULSI : : Defendant-appellant : : : DATE OF ANNOUNCEMENT : OCTOBER 29, 1998 OF DECISION : : CHARACTER OF PROCEEDINGS : Criminal appeal from : Court of Common Pleas : Case No. CR-270689 : JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, ESQ. DAVID L. DOUGHTEN, ESQ. Cuyahoga County Prosecutor 4403 St. Clair Avenue A. STEVEN DEVER, ESQ. Cleveland, OH 44103 8th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113 JOHN T. PATTON, J.: A jury found defendant Jeffrey Belpulsi guilty of one count of aggravated murder and one count of theft of a motor vehicle in -2- connection with the death of his sister, Janet Drap. The issues raised in this appeal relate to defendant's competency to stand trial, the court's refusal to grant his motion to suppress evidence, the admission of victim impact evidence and the suffi- ciency of the evidence supporting the murder conviction. On July 23, 1991, the resident manager of the victim's apartment building entered the victim's apartment after learning she had not reported to work for several days. The manager noticed a very strong odor emanating from the apartment. She traced the odor to a bedroom closet where she found the victim's decomposing body. A telephone cord had been looped twice around her neck. The coroner's office listed the cause of death as ligature strangula- tion caused by the telephone cord. The apartment showed no signs of forced entry, although the manager noted the bedroom appeared uncharacteristically cluttered. Police suspicion centered almost immediately on defendant. Defendant, who had a long history of mental illness, had been living with the victim for over two months. During that time, the apartment manager received several tenant complaints concerning defendant's strange behavior. These complaints strained the victim's relationship with defendant, and the victim suggested that defendant find another living arrangement. Defendant's brother testified he bought defendant a one-way bus ticket to Minneapolis, Minnesota. The police discovered the victim's car was missing, and learned from a nearby service station attendant that defendant had -3- asked him how to start a car equipped with an ignition kill-switch. About two weeks after the murder, the police were informed that the victim's car turned up in a rural town in Illinois on July 22, 1991. The proprietor of an interstate truck stop told the police defendant came onto his property while pushing the victim's car. The car had broken down and defendant asked permission to keep the car on the lot while he hitchhiked his way to Chicago for assis- tance. Defendant left the following day and did not return for the car. Defendant remained at-large for over four years before being discovered in 1995 by Tennessee law enforcement officials. Defendant testified and admitted killing the victim, but claimed he did so in self-defense. He described his history of psychological treatment in various facilities, including seven or eight commitments at the Cleveland Psychiatric Institute. In May 1991, he began living with the victim after receiving probation on a breaking and entering charge. After two months, he became aware that residents of the victim's apartment building wanted him to vacate the premises. He, his brother and the victim discussed that he would travel to Minneapolis, but he did not have the money to do so. Defendant testified that on the evening of July 19, 1991, he had been in the victim's kitchen listening to the radio and thinking about how he would find the funds to leave town. The victim, who had been in her bedroom watching television, entered the kitchen in an agitated state, telling defendant he should go to a homeless shelter. She told defendant she would call her friend -4- Rick from Pennsylvania. Defendant claimed Rick was a threat to me, but did not elaborate. Defendant gave momentary thought to leaving the apartment, but did not, deciding it would only make the situation worse. The victim yanked the radio from the wall and held it over him as though she would hit him with it. When the victim yanked the radio, she unplugged it. Defendant grabbed hold of one end of the cord, and then the other. He realized the cord was loosely wrapped around the victim's neck. The victim gave him an amused look, took two big steps into the front and did a somer- sault. He apparently moved with her, for he found himself still holding the radio cord around her neck, except that he was now standing behind her: I reached over and the loop of the cord, this is not snug on her neck. Reached over to the loop of the cord and doubled it back over my hand. That began to choke her, there was no doubt about that. But I was not violent, you know. Well, anyway, she kicked the sideways [sic]. But she changed positions and she tried to sweep her leg. She was sitting like on her, like this, and she pulled. (Indicat- ing) She didn't do anything else but put her legs to the floor and she kicked sideways and bolted backwards. She bolted backwards and she came from the front room area where we were in the front of the bathroom, or the kitchen hall. She went like all the way back between the bedroom door and the bathroom door with her head banging, banging her head on the wall. She fell to the floor. Now, she was laying *** on the floor like that. At that time, she just looked at me with a look of; she just looked at me with a look of she just looked like I don't know what to say about that. He denied intending to kill the victim, saying he did not expect her to die. He claimed he blacked out while choking her and -5- the next thing he remembered was telling himself to let go. He told the jury, and I was going to [let go], but before I let her go, I was going to punch her three times before I let go. He claimed he punched her because she made me mad. After realizing he killed the victim, defendant momentarily thought of calling for emergency medical care, but knew that if he did, the police were going to bury me in this. He removed the radio cord and tied a telephone cord around her neck. He thought this might alert the police to check the victim's telephone records, apparently so that they might identify Rick, the threat from Pennsylvania. Defendant knew he would need a few days to think. Aware that the victim had four cats, he placed the body in the closet and made sure the closet door would not open. He then slept through the night. The following morning, he went to the service station and told the attendant he was having problems starting the victim's car. He managed to start the car and headed toward Columbus. On his way, he stopped at a service station and saw someone he recognized from the Cleveland Psychiatric Institute. He then decided to drive some more, eventually finding his way to rural Illinois where the victim's car broke down. He left the car at the truck stop and began a four-year stretch of living the hobo life, traveling all over the country until his capture in Tennessee. I The first assignment of error complains the state lacked sufficient evidence to sustain a conviction for aggravated murder -6- under R.C. 2903.01(A) since it did not prove beyond a reasonable doubt that defendant acted with prior calculation and design when killing the victim. When reviewing a claim that evidence is insufficient to support a conviction, we review the evidence in a light most favorable to the state to determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. In re Washington (1998), 81 Ohio St.3d 337, 339; State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus. Aggravated murder is defined in R.C. 2903.01(A) as no person shall purposely, and with prior calculation and design, cause the death of another ***. The term prior calculation and design is not defined by the Revised Code, but it is generally understood to encompass the calculated decision to kill. State v. Robbins (1979), 58 Ohio St. 2d 74, paragraph one of the syllabus. The Committee Comment to R.C. 2903.01 says the section restates the former crime of premeditated murder so as to embody the classic concept of the planned, cold-blooded killing while discarding the notion that only an instant's prior deliberation is necessary. See, also State v. Cotton(1979), 56 Ohio St. 2d 8, paragraph two of the syllabus. But neither the amount of care nor the length of time the offender takes to ponder the act are critical factors in themselves in determining prior calculation and design. State v. D'Ambrosio (1993), 67 Ohio St.3d 185, 196; State v. O'Neal (Sept. 22, 1994), -7- Cuyahoga App. No. 65260, unreported at 14, citing Legislative Service Commission Comment to R.C. 2903.01. The Supreme Court has recognized it is impossible to formulate a bright-line test which can readily distinguish the presence of prior calculation and design from its absence each case must turn on the specific facts and evidence introduced during the trial. State v. Taylor (1997), 78 Ohio St.3d 15, 20. In State v. Cotton (1978), 56 Ohio St.2d 8, paragraph three of the syllabus states: Where evidence adduced at trial reveals the presence of sufficient time and opportunity for the planning of an act of homicide to constitute prior calculation, and the circum- stances surrounding the homicide show a scheme designed to implement the calculated decision to kill, a finding by the trier of fact of prior calculation and design is justified. See, also, State v. Claytor (1991), 61 Ohio St.3d 234; State v. Robbins (1979), 58 Ohio St.2d 74. In Jenkins the court stated: The trier of fact must look to the context in which the killing occurred to determine whether there was prior calculation and de- sign. Some of the important factors to be examined and considered in deciding whether a homicide was committed with prior calculation and design include: whether the accused knew the victim prior to the crime, as opposed to a random meeting, and if the victim as known to him[;] whether the relationship had been strained; whether thought and preparation were given by the accused to the weapon he used to kill and/or the site on which the homicide was to be committed as compared to no such thought or preparation; and whether the act was drawn out over a period of time as against an almost instantaneous eruption of events. These factors must be considered and weighed together and viewed under the totality of all circumstances of the homicide. When the evidence adduced at trial establishes that the victim was unknown to the accused prior to the crime, and that there was little or no -8- preparation, but rather that the crime was an instantaneouseruption of events, then *** the evidence adduced at trial is legally insuffi- cient ***. Our consideration of the factors set forth in Jenkins leads us to find the evidence does establish prior calculation and design sufficient to sustain the aggravated murder charge. There is no question defendant knew the victim and that their relationship just prior to her death had been strained. Defendant's brother told the jury the victim was the only person left that [defendant] got along with, but even her patience ran out after her apartment manager told her that defendant would have to leave the building. The brother said defendant didn't seem like he wanted to go. The victim and brother knew defendant had no money, so the brother gave him $125 for a bus ticket just two days before the victim's death. The victim told the brother she would buy a backpack and some clothes for defendant, and planned to give him a small amount of cash when she took him to the bus station. All this evidence tended to show defendant's dissatisfaction with being forced to leave the premises. The evidence shows the jury could reasonably find defendant's choice of telephone cord as the murder weapon showed he put some thought into killing the victim. Although defendant said he killed the victim with a radio cord, the coroner concluded that defendant used a telephone cord as the murder weapon. The coroner found furrows on decedent's neck which corresponded exactly to the telephone cord, and bits of the victim's hair and blood on the cord. Significantly, the coroner found the telephone cord had been -9- double-looped around the victim's neck, and a tight knot had been tied on the right side of the neck, below the ear. A rational trier of fact could have found that defendant's use of a telephone cord as a ligature, double-looped, tied and knotted tightly around the victim's neck, indicated preplanning. Reasonable minds could also find the evidence showed the presence of sufficient time and opportunity for the planning of an act of homicide. Cotton, 56 Ohio St.2d at paragraph three of the syllabus. Defendant had two days to think about vacating the victim's apartment, a place he did not want to leave. Defendant admitted he spent the evening of the victim's death contemplating where he would go, spending several hours listening to the radio while he contemplated his future. Reasonable minds could find defendant had time to engage in studied care in planning the victim's death. Our conclusion that defendant had sufficient time and opportunity to plan decedent's death does not equate the amount of time it takes to commit the murder with the amount time spent planning or deciding to kill. In other words, when considering premeditation, it makes no difference whether the actual act of killing was instantaneous or whether it took several minutes to accomplish. The salient question is whether defendant had sufficient time to plan the victim's death, and we find reasonable minds could conclude that he did have that time. Accordingly, the first assignment of error is overruled. II -10- In his second assignment of error, defendant complains the court erred by finding him competent to stand trial because, although he understood the nature of objective of the proceedings against him, his mental condition prevented him from assisting with his defense. R.C. 2945.37(A) provides in relevant part: A defendant is presumed competent to stand trial, unless it is proved by a preponderance of the evidence in a hearing under this sec- tion that because of his present mental condi- tion he is incapable of understanding the nature and objective of the proceedings against him or of presently assisting in his defense. In Dusky v. United States (1960), 362 U.S. 402, the United States Supreme Court said the test on an accused's competency to stand trial must be whether [the accused] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him. See, also, Cooper v. Oklahoma (1996), 116 S.Ct. 1373; State v. Berry (1995), 72 Ohio St.3d 354, 359. Just prior to trial in this matter, three mental health experts examined defendant and subsequently testified at a competency hearing conducted by the court. The experts were all aware of defendant's long history of mental illness. He had been hospitalized at least seven times and, in 1990, had been judged incompetent to stand trial for a charge of breaking and entering. Although they agreed defendant suffered from schizophrenia, two of the experts thought the schizophrenia had been in remission at the -11- time of trial, while the third believed defendant's schizophrenia actively prevented him from assisting defense counsel. The issue of competency centered on defendant's ability to assist in his defense. Defendant proved he had a personality conflict with counsel, but that conflict did not rise to the level of an inability to assist in the preparation of his defense. The lone expert finding defendant incompetent to assist in his own defense did so on the belief that defendant's conflicts with his attorneys demonstrated an inability to assist with his defense. The expert's reported stated: Mr. Belpulsi indicated that he wanted the judge to know that he wanted new attorneys. He indicated that he did not trust any of his attorneys. When he initially stated that he wanted new attorneys, he said that he did not feel that the present attorneys had spent enough time with him. The report went on to say that defendant had been trying to take an active role in his case, but his attorneys would not follow the leads he gave them, nor would they visit him for consultation.As a result, defendant indicated I'd rather suffer the consequences than deal with them. *** If you can't tell your attorneys the truth, how can you have them act on it in court? This report appears to equate defendant's personality conflict with his attorneys with an inability to assist in his defense. These two notions are distinguishable. A mistrust or dislike of appointed counsel, standing alone, is not grounds for finding an inability to assist with a defense, even if that mistrust or dislike manifests itself in the accused's obstinate refusal to -12- assist in a defense. All the experts agreed defendant understood both the nature of the charged offense and the criminal proceedings that had been instituted against him. Importantly, some of the difficulties counsel had with defendant arose because he refused to accept a plea bargain for anything less than manslaughter. This disagreement does not indicate that defendant's decisions were made with a diseased mind. The second assignment of error is overruled. III In his third assignment of error, defendant complains the court erred by failing to suppress statements he made while being processed by the city of Lakewood Police Department. In those statements, he told the police that he should be charged with murder, as opposed to aggravated murder and that there was more to the story than the police knew. Defendant maintains the police violated his Sixth Amendment right to counsel by engaging him in conversation after he refused to waive his rights and despite knowing that he had appointed counsel. The court denied defendant's motion to suppress, concluding the statements were made voluntarily and knowingly. Both the Fifth and Sixth Amendments to the United States Constitution provide for the right to assistance of counsel. The Sixth Amendment contains an express right to counsel which attaches at the initiation of adversary judicial proceedings, and, as applicable here, during arraignment. See United States v. Gouveia (1984), 467 U.S. 180, 187-187. Once a formal accusation has been made, the constitutional right to the assistance of counsel is of -13- such important that the police may no longer employ techniques for eliciting information from an uncounseled defendant that might have been proper at an earlier stage of their investigation. Michigan v. Jackson (1986), 475 U.S. 625, 632. The Fifth Amendment contains no express text relating to the right to counsel, but that right has been afforded as a procedural safeguard against compelled self-incrimination that arises before the Sixth Amendment right to counsel attaches. Miranda v. Arizona (1966), 384 U.S. 436. Once the accused requests counsel, the police may not reinitiate questioning until counsel has been made available, unless the accused himself initiates further conversation with the police. Edwards v. Arizona (1981), 451 U.S. 477, 484-485. Defendant based his motion to suppress the state- ments to the police on Sixth Amendment grounds, so we consider only that aspect of the right to counsel. After being brought back from the state of Tennessee on a murder warrant, defendant was appointed counsel and arraigned on charges of aggravated murder and aggravated robbery. The day after his arraignment, the Lakewood police had defendant brought to them so they could update an identification jacket by obtaining current photos and identification. The police told him what they were going to do and said that if he wished to speak with us, we would listen to him. They advised him of his Miranda rights both verbally and on a written form. The written form contained two sections. The first section contained a statement of rights, with a space marked, do you -14- understand this? and a signature line. The second section contained language indicating a waiver of rights, with signature lines for defendant and two witnesses. In the first section, defendant answered yes to the question whether he understood his rights and signed his name. However, defendant said he did not wish to speak to the officers, so one of the officers drew a line through the signature block. Two officers witnessed the statement. A detective then asked defendant if he understood the charges against him. The detective said that defendant spontaneously just came out with the following information: ***And then he just started telling us that he thought the word, purposely in the indictment was not correct. And that he thought that he shouldn't be charged with aggravated murder. He felt that murder would be correct. But that he could see why it was aggravated murder from the police's point of view. He went on to say that his sister had been over him for years, and that she would tell him what to do. And she was nine years older than him. He stated that Janet came at him, and there was more to the story than we knew, but he wouldn't want to talk to us about that at this time. Defendant also told the police he had been unfairly repre- sented on a television show that detailed stories of fugitives from justice. He questioned why it took the police so long to find him and that he was going to give himself up after one more winter. We must reject the state's argument that defendant knowingly waived his right to remain silent by spontaneously offering his opinion that he had been incorrectly charged. In Michigan v. Jackson (1986), 475 U.S. 625, 636, the court laid down a bright- line rule and held, if police initiate interrogation after a -15- defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid. Statements obtained in violation of Jackson may be used for other purposes; for example, to impeach a defendant's inconsistent trial testimony. See Michigan v. Harvey (1990), 494 U.S. 344, 350-351. There is no question that defendant had been arraigned and appointed counsel. We further find the processing tantamount to custodial interrogation. In Rhode Island v. Ignis (1980), 446 U.S. 291, 301, the Supreme Court defined the phrase functional equivalent of express questioning to include any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. See, also,State v. Williams (1983), 5 Ohio St.3d 281, paragraph five of the syllabus; State v. Knuckles (1992), 65 Ohio St.3d 494, paragraph two of the syllabus. The detective who conducted the processing gave the following testimony during the suppression hearing: Q. It's your testimony that [defendant] was brought back to Lakewood not to be inter- rogated, but rather to be processed? A. He was to be processed, and if he wished to speak with us regarding this, we would listen to him. Q. Well, it was your purpose in removing him to Lakewood, taking him to Lakewood to interrogate him? A. It was to process him. -16- Q. It was to interrogate him? A. If he wished to speak to us. Q. But that was for purposes; and I don't mean to equivocate with you. A. The purpose was to process him, and part of the processing would involve, if he wished to speak with us, we would have the opportunity at that point to listen to him. Q. So, that's part of the modus operandi of the processing, the possibility of an interrogation? A. Possibly an interview is part of the processing. Q. When you process people at Lakewood, do you have every person that you process sign a waiver? A. The ones that I do are presented a waiver, yes. This testimony shows the police fully intended to interrogate defendant, for they would have no reason to ask him to waive his rights otherwise. They initiated the questioning by asking defendant if he understood the nature of the charges against him., a question that should have been answered at arraignment or by counsel. Under the circumstances, we are bound by Jackson to find that defendant could not make an effective waiver of the right to counsel and the court erred by refusing to suppress defendant's statements. Nevertheless, we find this constitutional error harmless beyond a reasonable doubt. Chapman v. California (1967), 386 U.S. 18. Having reviewed the record by disregarding the statements defendant made to the Lakewood police, we find it clear beyond a -17- reasonable doubt that the jury would have returned a guilty verdict on the aggravated murder charge. As detailed in our discussion of the first assignment of error, the state presented compelling circumstantial evidence to suggest defendant premeditated the victim's death. The third assignment of error is overruled. IV In the fourth assignment of error, defendant complains the court erred by admitting victim impact evidence and letting the state argue that evidence in its closing argument. Defendant maintains the state elicited testimony from the victim's employer (a hair stylist) that she had been his best employee, and asked about the number of the victim's customers and how much she earned in tips. Defendant claims such evidence was irrelevant and could only serve to make the jurors more sympathetic to the state. Victim impact evidence is excluded because it is irrelevant and immaterial to the guilt or innocence of the accused it principally serves to prejudicially inflame the passion of the jury. See State v. White (1968), 15 Ohio St.2d 146. Under some circumstances, victim impact evidence may be admissible because it serves another purpose; for example, when the evidence illustrates the nature and circumstances of the crime. See State v. Lorraine (1993), 66 Ohio St.3d 414, 420-421; State v. Soke (1995), 105 Ohio App.3d 226, 253. The state maintains evidence of the victim's performance at work was relevant to the aggravated robbery charge. It claims the -18- police found the victim's purse was empty after the murder. By showing that the victim earned tip money as a hair stylist, the state believed it could show by inference that defendant must have taken money out of her purse. We reject the state's theory. It would be a permissible inference of robbery on the facts had defendant been caught carrying cash in an amount roughly equal to what the victim earned in tips, but this was not the case. Defendant fled after the murder and remained at-large for over four years, so the state could not show what amounts of cash, if any, he carried on him. A purse containing no money, standing alone, does not demonstrate robbery, nor does it create an inference that a robbery occurred. Consequently, evidence of what the victim earned would not have been probative of robbery. Nevertheless, we find no prejudice to defendant. The state very briefly touched on the victim's employment, and nothing in the testimony strikes us as so prejudicial that it influenced the jury's verdict. Moreover, in Lorraine, the court noted the admission of victim impact evidence illustrating the lifestyles of the victims could be tempered by an accused's own description of a killing. Lorraine, 66 Ohio St.3d at 420-422. Defendant gave a very graphic and detailed account of the murder. His description of the killing far outweighed any impact that evidence of the victim's work performance would have had with the jury. The fourth assignment of error is overruled. Judgment affirmed. -19- -20- It is ordered that appellee recover of appellant its costs herein. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate be sent to said court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. TERRENCE O'DONNELL, P.J. MICHAEL J. CORRIGAN, J., CONCUR. JUDGE JOHN T. PATTON N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .