76 Ohio St. 3d 244 | Ohio | 1996
In this appeal, Ballew advances nine propositions of law. Finding none meritorious, we affirm his convictions. We have also independently weighed the aggravating circumstance against mitigating factors, and compared the sentence to those imposed in similar cases, as R.C. 2929.05(A) requires. As a result, we affirm the sentence of death.
Sufficiency of Evidence (I, II)
In Proposition of Law I, Ballew argues that the evidence was insufficient to establish that he specifically intended to cause Hill’s death, or that he acted with prior calculation and design as charged in Count I. In Proposition of Law II, Ballew argues that the evidence was insufficient to convict him of specifically intending to cause Hill’s death during a kidnapping as charged in Count II. Ballew claims that Coffey alone shot Hill and that Coffey did so on the spur of the moment, in Ballew’s absence, and without his prior knowledge.
In a review for sufficiency, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. The weight to be given the evidence and the credibility of witnesses are primarily jury issues. State v. Waddy (1992), 63 Ohio St.3d 424, 430, 588 N.E.2d 819, 825; State v. DeHass (1967), 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212, paragraph one of the syllabus.
Admittedly, no eyewitness testified to seeing Ballew shoot Hill. Yet, despite Coffey’s claims that only he was the triggerman, sufficient circumstantial evidence existed to find that Ballew specifically intended to cause Hill’s death. In fact, circumstantial evidence may “ ‘be more certain, satisfying and persuasive than direct evidence.’ ” State v. Lott (1990), 51 Ohio St.3d 160, 167, 555 N.E.2d 293, 302, quoting Michalic v. Cleveland Tankers, Inc. (1960), 364 U.S. 325, 330, 81 S.Ct. 6, 11, 5 L.Ed.2d 20, 25.
Specifically, we hold that the evidence was sufficient to allow the jury to find that Ballew specifically intended to murder Hill. Even if Ballew did not personally shoot Hill, the jury could reasonably find under the evidence that Coffey did so in accordance with their agreed plan. According to Hill’s girlfriend as well as Lewis, Ballew had been looking for Hill for several days. Ballew threatened Hill’s girlfriend that when she found Hill, she should tell him he would be “stinking.” When Lewis’s effort to trick Hill into leaving Marshall’s house failed, Ballew put together an armed force including himself, Coffey, Robinson, and Johnson to forcibly take Hill from the Marshall house.
Whether Coffey or Ballew or both fired the shots lolling Hill was a question for the jury. Both were armed with 9 mm pistols, and police recovered no weapons and only two of the three bullets fired. But even if only Coffey fired the shots, the evidence was sufficient for the jury to find that Coffey did so with Ballew’s concurrence. Back in the car, Ballew said “they had to do what they had to do,” and remarked to Coffey that he had surprised Coffey by being “down there” with him. We find the evidence sufficient to support the jury’s finding that Ballew specifically intended to cause Hill’s death.
That same evidence also supported the jury’s finding in Count I that Ballew acted to kill Hill -with prior calculation and design. “ ‘[PJrior calculation and design’ requires ‘a scheme designed to implement the calculated decision to kill.’ ” State v. D’Ambrosio (1993), 67 Ohio St.3d 185, 196, 616 N.E.2d 909, 918, quoting State v. Cotton (1978), 56 Ohio St.2d 8, 11, 10 O.O.3d 4, 6, 381 N.E.2d 190, 193. The facts show that Ballew “adopted a plan to kill.” State v. Toth (1977), 52 Ohio St.2d 206, 213, 6 O.O.3d 461, 465, 371 N.E.2d 831, 836.
Ballew devoted energy and persistence to find Hill, kidnap him, and then kill him. Hill owed him $2,500, yet Hill was a drug user and apparently had no funds. Having found Hill, Ballew organized an armed group to forcibly kidnap him. Then Ballew and his gang beat up Hill and drove him to a deserted vacant lot. In fact, the organized capture of Hill, his forcible abduction, and his early-morning “last ride” reflect the traditional earmarks of a gangster-style slaying.
The jury could reasonably reject Ballew’s claim that Coffey unilaterally decided, at the last moment, to Mil Hill. Ballew organized far more effort than necessary just to confront or scare Hill. Under the circumstances, the jury could reasonably find that Ballew not only specifically intended to Mil Hill, but that he acted with prior calculation and design to do so. We also hold that the evidence fully supported the jury’s finding that Hill was murdered during the course of the Mdnapping.
Instructions (III, IV)
In Proposition of Law III, Ballew argues that the trial court committed plain error in the guilt phase by failing to instruct the jury properly on the death-
Ballew argues, citing Taylor, that a finding of aiding and abetting cannot be bootstrapped into a finding that he is the principal offender under R.C. 2929.04(A)(7). In essence, Ballew contends that the jury may have been confused as to whether Ballew was guilty of the death-penalty specification simply because he was guilty of complicity in the murder.
At trial, Ballew did not object to instructions on issues he now raises. His failure to object “constitutes a waiver of any claim of error relative thereto, unless, but for the error, the outcome of the trial clearly would have been otherwise.” State v. Underwood (1983), 3 Ohio St.3d 12, 3 OBR 360, 444 N.E.2d 1332, syllabus. Accord State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph two of the syllabus.
Here, we find no outcome-determinative plain error. The trial court adequately instructed the jury on the elements of the two aggravated murder charges and stressed that Ballew must have specifically intended to cause Hill’s death before he would be guilty of aggravated murder. Also, the trial court charged the jury, following the statutory language in R.C. 2929.04(A)(7), to find whether “the defendant is guilty of * * * kidnapping, and the defendant was the principal offender in the commission of the aggravated murder or if not the principal offender, committed the aggravated murder with prior calculation and design * * * 99
We find purely speculative any claim that the jury confused complicity in the murder with whether Ballew was the actual killer. As we held earlier, the jury could reasonably find in this case that Ballew purposely engaged in a scheme designed to end with Hill’s murder. Thus, it is irrelevant whether Ballew was the principal offender, since R.C. 2929.04(A)(7) only requires a finding that “either” Ballew was the principal offender “or” he committed the murder with prior calculation and design.
Taylor is distinguishable. In Taylor, 66 Ohio St.3d at 306, 612 N.E.2d at 324, the court also found insufficient evidence of prior calculation and design. In this case, as we determined earlier, the evidence supports the jury’s finding of prior calculation and design.
In Proposition of Law IV, Ballew argues plain error because the trial court’s sentencing instructions failed to precisely describe the specified aggravating circumstance. Unquestionably, the trial court did not identify the (A)(7) aggravating circumstance in the sentencing instructions as precisely as the trial court might have. Instead, the court simply referred to the “aggravating circumstance” of which the jury found the accused guilty, or “the nature and circumstance of the aggravated [sic ] circumstances.”
However, we find no plain error. Ballew did not complain at trial about the instructions’ failing to more specifically define the aggravating circumstance, and he has not demonstrated plain error here, i.e., that “but for the error, the outcome of the trial clearly would have been otherwise.” Underwood, syllabus; State v. Cook (1992), 65 Ohio St.3d 516, 527, 605 N.E.2d 70, 83. See, also, State v. Hill (1995), 73 Ohio St.3d 433, 439, 653 N.E.2d 271, 278.
In referring to the aggravating circumstance in the guilt phase, the trial court referred to the (A)(7) factor by using the statutory language. Also, the prosecutor precisely referred to the aggravating circumstance in the penalty phase. Further, the court specifically instructed on R.C. 2929.04(B)(6) as a potential mitigating factor, directing the jurors to consider as possible mitigation whether “the defendant was a participant in the offense but not the principal offender, the degree of the defendant’s participation in the offense and the degree of the defendant’s participation in the acts that led to the death of the victim * * *.”
Additionally, the trial court in this case did not inject nonstatutory aggravating circumstances into sentencing as condemned in State v. Davis (1988), 38 Ohio St.3d 361, 367-372, 528 N.E.2d 925, 931-936. Nor did the trial court improperly refer to “principal offender” and “prior calculation and design” as separate, independent aggravating circumstances, as did the trial court in State v. Penix (1987), 32 Ohio St.3d 369, 370, 513 N.E.2d 744, 745. Thus, we reject Ballew’s Proposition of Law IV.
In Proposition of Law V, Ballew argues that the prosecution improperly exercised a peremptory challenge against prospective juror Jamison based on his race. See Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. However, Ballew did not raise this jury issue at trial and thus waived all but plain error. State v. Lundgren (1995), 73 Ohio St.3d 474, 485, 653 N.E.2d 304, 317; State v. Seiber (1990), 56 Ohio St.3d 4, 15, 564 N.E.2d 408, 421. Moreover, race-neutral reasons may well explain the prosecutor’s challenge to Jamison.
Ballew also complains that jurors were peremptorily challenged based on their opposition to the death penalty. Again, Ballew waived the issue by not objecting at trial. Moreover, apart from excluding jurors based on race or gender, “prosecutors can exercise a peremptory challenge for any reason, without inquiry, and without a court’s control.” State v. Seiber, 56 Ohio St.3d at 13, 564 N.E.2d at 419. See, also, State v. Cook, 65 Ohio St.3d at 518, 605 N.E.2d at 77; State v. Evans (1992), 63 Ohio St.3d 231, 249, 586 N.E.2d 1042, 1057. Thus, we reject Proposition of Law V.
We summarily reject Proposition of Law IX, since this issue challenging the process of death-qualifying jurors has been resolved by other cases. State v. Poindexter (1988), 36 Ohio St.3d 1, 520 N.E.2d 568, syllabus; State v. Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768, paragraph two of the syllabus.
Selective Enforcement (VI)
In Proposition of Law VI, Ballew argues that the prosecutor engaged in wrongful selective enforcement of the death penalty statutes. Ballew complains that Patrick Coffey, equally culpable in Hill’s death, was allowed to plea bargain and escape the death penalty. We find no merit in Ballew’s complaint.
Coffey did plead guilty to the same charges levied against Ballew. However, the prosecutor offered Ballew the same plea-bargain arrangement he gave to Coffey, i.e., a life sentence, with parole eligibility after twenty-three years, for aggravated murder and concurrent prison terms for kidnapping and aggravated burglary. Ballew personally rejected that offer, against the advice of his retained counsel, and chose to face capital charges instead. Ballew cannot complain now because Coffey, offered the same choice, pled guilty. None of the others involved
Prosecutorial Misconduct (VII)
In Proposition of Law VII, Ballew claims that the prosecutor erred in questioning Ballew’s accomplices and in final arguments. Ballew argues that the prosecution improperly “rehabilitate^] its own witnesses every time they gave an answer that differed from the answer the prosecution anticipated.”
Yet, aside from a sustained objection as to form, and another for unstated reasons, Ballew did not object on issues he now raises. Thus, he waived all but plain error. State v. Lundgren, 73 Ohio St.3d at 485, 653 N.E.2d at 317; State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364, paragraph one of the syllabus.
In this case, the prosecutor did at times refer witnesses to their prior written statements, which were inconsistent with their trial testimony. Counsel may properly do' so only under very limited conditions. Under Evid.R. 607, “the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage.” Additionally, a party may refresh the recollection of a -witness under Evid.R. 612 by showing him or her a prior statement. However, a party may not read the statement aloud, have the witness read it aloud, or otherwise place it before the jury. See 1 Giannelli & Snyder, Evidence (1996) 477-478, 574-575; Dayton v. Combs (1993), 94 Ohio App.3d 291, 298, 640 N.E.2d 863, 868.
Where Ballew did not object, the record does not demonstrate whether the prosecutor could have legitimately claimed surprise and affirmative damage under Evid.R. 607. The witnesses, Ballew’s accomplices and friends, appear at times to have been hostile witnesses. At other times, the prosecutor could have relied upon his right to refresh recollection under Evid.R. 612. The murder occurred in March 1990, more than two years before the June 1992 trial, and memories may have dimmed. On the single occasion when Ballew did object, we find the error not prejudicial.
Additionally, we find that any other prosecutorial lapse in proper questioning did not amount to plain error. See State v. Lundgren, 73 Ohio St.3d at 487, 653 N.E.2d at 319. Ballew received a. fair trial. See State v. Landrum (1990), 53 Ohio St.3d 107, 111, 559 N.E.2d 710, 717; State v. Apanovitch (1987), 33 Ohio St.3d 19, 24, 514 N.E.2d 394, 400.
We also reject Ballew’s plain-error complaints as to the prosecutor’s closing arguments. None of the prosecutor’s arguments or remarks, even if improper,
“Prosecutors are entitled to latitude as to what the evidence has shown and what inferences can be drawn therefrom.” State v. Richey (1992), 64 Ohio St.3d 353, 362, 595 N.E.2d 915, 924. Accord State v. Grant (1993), 67 Ohio St.3d 465, 482, 620 N.E.2d 50, 68. The closing argument must be reviewed in its entirety to determine prejudicial error. State v. Frazier (1995), 73 Ohio St.3d 323, 342, 652 N.E.2d 1000, 1016; State v. Moritz (1980), 63 Ohio St.2d 150, 157, 17 O.O.3d 92, 97, 407 N.E.2d 1268, 1273.
Here, the prosecutor did not err by arguing that Coffey was a principal to these offenses, that his testimony was incredible and contrary to other witnesses, and that the jury should not lose sight of the evidence. See State v. Waddy, 63 Ohio St.3d at 435, 588 N.E.2d at 828-829. The prosecutor fairly argued that Ballew was a principal to the murder and commented on the evidence of his guilt. The prosecutor appropriately argued that Ballew had foretold Hill’s death, ie., “going to find him stinking,” and that Ballew never challenged Coffey in the car after the murder. Compare State v. Webb (1994), 70 Ohio St.3d 325, 329, 638 N.E.2d 1023, 1028-1029. The prosecutor also correctly identified the aggravating circumstance in arguing for the death penalty. Compare State v. Wogenstahl (1996), 75 Ohio St.3d 344, 355, 662 N.E.2d 311, 321.
Although improper, the prosecutor’s expression of his personal opinion that Coffey “was the worse [sic ] witness I have ever seen” was not crucial. Comments that jurors represent justice or the conscience of the community do not constitute plain error. See State v. Grant, 67 Ohio St.3d at 484, 620 N.E.2d at 70; State v. Tyler (1990), 50 Ohio St.3d 24, 40, 553 N.E.2d 576, 595. We reject Proposition of Law VII.
Ineffective Assistance of Counsel (VIII)
In Proposition of Law VIII, Ballew argues that his retained counsel at trial did not provide him the effective assistance of counsel that is constitutionally required.
Reversal of a conviction or sentence based upon ineffective assistance requires (a) deficient performance, “errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment”; and (b) prejudice, “errors * * * so serious as to deprive the defendant of a . fair trial, a trial whose result is reliable.” Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693. As to deficient performance, “a court must indulge a strong presumption that counsel’s conduct falls within the
We find that Ballew’s counsel presented strong, vigorous, and competent representation at the guilt phase. Counsel developed a coherent and consistent defense theory that Coffey shot Hill without any prior plan to do so, and that Ballew was not present. Counsel presented Coffey’s testimony to that effect, and argued that theory in closing. That theory, although unsuccessful, fit into the testimony of other witnesses and reflected competent representation. In presenting that theory, counsel need not have complicated his argument by technical references to “principal offender” or complicity. The instructions, as given, adequately presented that defense. See discussion in connection with Propositions of Law III and IV. Counsel is not required to raise meritless claims of prosecutorial misconduct.
Consistent with the evidence, counsel made a reasoned tactical choice in referring to Hill as being “executed” or “gunned down,” since Ballew blamed Coffey. Given the numerous accomplices who were prosecution witnesses, and their extensive pretrial statements and testimony, counsel could reasonably choose not to interview these witnesses. Counsel did forcefully attack their credibility, e.g., by arguing that these witnesses “are all whores * * * bought and paid for,” through the plea agreements. Nonetheless, Pearson and others, at times, testified favorably to Ballew in an effort to help him. Given that strategy, counsel could make a reasoned tactical choice not to become diverted by other issues, e.g., sequence of shots, recovery of off-site ammunition, degree of darkness at the time of the offense.
Contrary to Ballew’s claims, his counsel’s presentation at the penalty phase was not deficient, disorganized, or confused. His counsel presented one witness in person, and the deposition testimony of three out-of-state witnesses, including two from the West Coast. The record does not reflect that any other favorable testimony was available. Counsel did the best he could with what he had. State v. Post (1987), 32 Ohio St.3d 380, 388, 513 N.E.2d 754, 763. Also, Ballew made an extensive unsworn statement, and his final admonishment of the jury in that statement may have been designed to raise residual doubt. See State v. Watson (1991), 61 Ohio St.3d 1, 17, 572 N.E.2d 97, 111.
However, we do agree that counsel’s extremely brief final argument on the penalty was questionable. In argument, counsel said that he felt “very strongly” but so far had not “been very effective.” He stated that “the only thing I’m going to say to you is, you’ve heard the evidence,” including “some evidence” on several mitigating factors. But “[i]f that’s not sufficient, then there isn’t anything else I can do.” Counsel’s failure to speak more forcefully in urging a life sentence represented a tactical choice. Ballew failed to establish that his
Moreover, Ballew fails to establish prejudice arising from his counsel’s performance in either the guilt or the penalty phase. To show prejudice, “the defendant must prove that there exists a reasonable probability that, were it not for counsel’s errors, the result of the trial would have been different.” Id. at paragraph three of the syllabus. We find no basis to believe that different tactical choices would have made any difference in the guilt phase in view of the numerous witnesses and the strong evidence of Ballew’s guilt.
Nor has Ballew shown “a reasonable probability” that different tactical choices, such as a longer closing argument at the penalty phase, would have made any difference. Our independent sentence evaluation suggests that a lengthy argument during the sentencing phase would not have altered the outcome. Thus, Ballew failed to establish prejudice as Strickland requires. We reject Proposition of Law VIII.
INDEPENDENT SENTENCE EVALUATION
After independent assessment, we find that the evidence clearly proves the aggravating circumstance of which Ballew was convicted, i.e., murder during a kidnapping in which either Ballew was the principal offender or the murder was done with prior calculation and design. R.C. 2929.04(A)(7). As to possible mitigating factors, we find nothing mitigating in the nature and circumstances of the offense. Ballew organized an armed gang to forcibly take Hill from a place of safety, Marshall’s home, and give him an early morning “last ride.” During Hill’s final moments, Ballew and the others kept hitting him, even as they were about to kill him. Then, Hill was shot three times in the back and left to die alone.
We find only modest mitigating features in Ballew’s history, character, and background. Ballew was born into disadvantaged circumstances, with his parents in jail or absent, and he was raised by his great-grandmother. Despite those hardships, a “Big Brother” befriended him. As a result, Ballew graduated from a private school and attended college on an athletic scholarship. He appears to have some attributes of natural leadership and the ability to influence others. Yet his voluntary choice to sell drugs diminishes that favorable background.
We find the statutory mitigating factors in R.C. 2929.04(B)(1) through (3) are inapplicable. We find the mitigating factor in R.C. 2929.04(B)(4) (youth) entitled to little weight, since Ballew was twenty-two at the time of the offense. We accord some weight to the mitigating factor in R.C. 2929.04(B)(5), since Ballew had no prior convictions except for traffic offenses. However, the weight of that
We conclude that the aggravating circumstance outweighs the mitigating factors present in this case beyond a reasonable doubt. Ballew chose to exact retribution for an unpaid debt in a brutal and cruel manner. Moreover, he enlisted others in his nefarious criminal enterprise, and several of them were sentenced to prison terms. Despite a deprived childhood, Ballew had opportunities some children only dream about, e.g., an athletic scholarship and a college education. Instead of devoting himself to pursuing those opportunities, Ballew chose to sell drugs and engage in kidnapping and murder. Thus, we find that the death penalty is appropriate.
We further conclude that imposing the death penalty is neither excessive nor disproportionate when compared with the penalty in similar felony-murder cases of kidnapping. State v. Joseph (1995), 73 Ohio St.3d 450, 653 N.E.2d 285; State v. Simko (1994), 71 Ohio St.3d 483, 644 N.E.2d 345; State v. Fox (1994), 69 Ohio St.3d 183, 631 N.E.2d 124; State v. Jells (1990), 53 Ohio St.3d 22, 559 N.E.2d 464; State v. Brewer (1990), 48 Ohio St.3d 50, 549 N.E.2d 491; and State v. Morales (1987), 32 Ohio St.3d 252, 513 N.E.2d 267. Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
. Jamison played football extensively, and the prosecutor may have felt that he would identify too closely with Ballew based on their common athletic background. Also, Jamison thought the criminal justice system was biased against blacks. Compare State v. Hill, 73 Ohio St.3d at 445, 653 N.E.2d at 282; State v. Hernandez (1992), 63 Ohio St.3d 577, 589 N.E.2d 1310.
