Romell Broom appeals his conviction and sentence of death. We uphold the conviction and the sentence of death for the reasons that follow.
This court is required to undertake a three-part analysis in all death penalty cases. State v. Clark (1988),
I
Appellant has raised twenty-four propositions of law. The fifth, sixth, eighth, thirteenth, fourteenth, sixteenth, eighteenth and nineteenth propositions were neither raised nor briefed in the court of appeals. Such failure constitutes waiver of any errors involved, under the principle of res judicata. State v. Greer (1988),
A
In his first proposition of law, appellant contends that he was denied a fair trial by the admission of evidence of other acts, specifically all evidence concerning the attempted kidnapping of Venita McKenney on September 18, 1984, and the attempted kidnapping of Melinda Grissom on December 6,1984. We note that appellant was positively identified either in a lineup or a showup and in the courtroom by both of the victims and numerous witnesses to those two incidents. The jury was given a carefully drafted limiting instruction to explain that the evidence concerning those two incidents was admitted only for the purpose of considering whether those acts tended to show intent, motive, scheme, plan or system for the September 21 and 22 kidnapping, rape, and murder of Tryna Middleton and attempted kidnapping of Tammy Sims and Bonita Callier.
Evid. R. 404(B) provides:
“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
The rule is in accord with R.C. 2945.59. The issue of identity, although not listed in the statute, has been held to be included within the concept of scheme, plan, or system. State v. Curry (1975),
R.C. 2945.59 provides:
“In any criminal case in which the defendant’s motive or intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant.”
Because R.C. 2945.59 and Evid. R.
From the outset, appellant claimed that there was a mistaken identity because he allegedly was with someone else the night that Tryna died. The acts of September 18 and December 6,1984 satisfy the preliminary requirements of admission of other acts because they share a “temporal, modal, and situational relationship with the acts constituting the crime charged * * Burson, supra, at 159, 67 O.O. 2d at 175,
“* * * ‘Scheme, plan or system’ evidence is relevant in two general factual situations. First, those situations in which the ‘other acts’ form part of the immediate background of the alleged act which forms the foundation of the crime charged in the indictment. * * * To be admissible pursuant to this sub-category of ‘scheme, plan or system’ evidence, the ‘other acts’ testimony must concern events which are inextricably related to the alleged criminal act. * * *
“Identity of the perpetrator of a crime is the second factual situation in which ‘scheme, plan or system’ evidence is admissible. One recognized method of establishing that the accused committed the offense set forth in the indictment is to show that he has committed similar crimes within a period of time reasonably near to the offense on trial, and that a similar scheme, plan or system was utilized to commit both the offense at issue and the other crimes.” (Emphasis added.) Id. at 73, 72 O.O. 2d at 41,
The evidence of other acts in this case comes under the second category noted in Curry since identity of the perpetrator of the rape and murder of Tryna Middleton was at issue. Cf. State v. Eubank (1979),
B
In his second assignment of error, appellant, an indigent, contends that the trial court’s refusal to appoint an eyewitness identification expert to aid his defense constituted a denial of due process. In addition, appellant claims the trial court misapplied the “reasonably necessary” standard in R.C. 2929.024, which requires the court to order the state to pay for “reasonably necessary” services.
The United States Supreme Court in Ake v. Oklahoma (1985),
“Ake and Caldwell taken together hold that a defendant must show more than a mere possibility of assistance from an expert. Rather, a defendant must show a reasonable probability that an expert would aid in his defense, and that denial of expert assistance would result in an unfair trial.” Little v. Armontrout (C.A. 8, 1987),
“R.C. 2929.024 requires the court to provide an indigent defendant with expert assistance whenever, in the sound discretion of the court, the services are reasonably necessary for the proper representation of a defendant charged with aggravated murder. The factors to consider are (1) the value of the expert assistance to the defendant’s proper representation at either the guilt or sentencing phase of an aggravated murder trial; and (2) the availability of alternative devices that would fulfill the same functions as the expert assistance sought.” (Emphasis added.)
Expert testimony on eyewitness
C
Appellant’s third and tenth propositions of law contend that the identification testimony of Janet and Melinda Grissom should have been excluded because it was the product of an unnecessarily suggestive showup and that Tammy’s identification of the appellant was also made under suggestive conditions.
We agree that the showup of the defendant at the hospital, where he was identified by the Grissoms, was both unnecessary and suggestive. “The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.” Stovall v. Denno (1967),
All five factors were favorable in this case. Both Grissoms had ample time to view appellant, and their attention was completely focused as the mother tried to rescue her daughter. The descriptions given to the police prior to the confrontation matched the appellant. Finally, the identification was emphatically positive, and it occurred very shortly after the crime.
While Tammy initially expressed some doubt she nevertheless picked
D
Appellant argues in his fourth proposition of law that he was not advised of his Miranda rights, and that all statements he may have made were involuntary and the result of coercion. It is well-established that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Miranda v. Arizona (1966),
Appellant had been arrested and was in custody for the Grissom incicent. Appellant testified at the suppression hearing that at the time of the December 17, 1984 questioning about the Middleton incident, counsel had been retained to represent him in the Grissom case. However, the record reveals that appellant’s father testified that he did not retain any counsel until appellant’s first court appearance in January. On December 17, adversarial proceedings had not commenced against the appellant with respect to the Grissom or Middleton incidents. Accordingly, no Sixth Amendment right to counsel had attached for those crimes. Kirby v. Illinois (1972),
Under either Fifth Amendment or Sixth Amendment analysis, once an accused has invoked a right to counsel, the state must cease all questioning unless counsel is present. Edwards, swpra. Police cannot initiate further questioning of an accused in custody on the crime at issue or other crimes even if the accused is given Miranda warnings. Id. at 484-485; Arizona v. Roberson (1988), 486 U.S___
Our inquiry then is limited to whether appellant was given his Miranda warnings and whether he waived his Fifth Amendment rights with “a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.” Moran v. Burbine (1986),
There was conflicting testimony at the suppression hearing. Detective Svekric testified that on December 17, 1984, prior to interrogation, appellant was advised of his rights, although police did not obtain a written waiver. The appellant was removed from his cell at about 4:30 p.m. and returned at 5:00 p.m. after the lineups. He was questioned around 10:00 p.m. by several detectives. Appellant did not ask to see a lawyer, but did ask to call his father. The file concerning the stabbing death of appellant’s sister was read by officers and discussed with appellant. Appellant’s father arrived after midnight and talked with his son, who then told police that he did not want to say anything further. The interrogation ended around 2:00 a.m. Appellant claims that he was denied
There is nothing in the record to indicate that the trial court abused its discretion in accepting the testimony of Detective Svekric rather than that of the appellant who contradicted himself during his testimony. Under the totality of the circumstances test set forth in State v. Edwards (1976),
E
In his fifth, ninth and fourteenth propositions of law appellant alleges prosecutorial misconduct. The fifth proposition concerns statements made during voir dire. This proposition was not argued in the court of appeals. However, similar statements asked during voir dire were held not to constitute error in State v. Jester (1987),
The ninth proposition concerns several comments made in the prosecutor’s closing remarks.
At the time of the prosecutor’s comments concerning the appellant’s unsworn statement, this court had held that “* * * the prohibition of Griffin v. California (1965),
However, in the recent case of State v. DePew (1988),
F
In the sixth proposition of law, the appellant claims that he was denied due process in violation of the Sixth and Fourteenth Amendments when his challenge for cause of a juror was denied by the trial court. The appellant used his fifth peremptory challenge to exclude that juror. Subsequently, both parties passed the jury for cause with the state then exercising five peremptory challenges and the appellant exercising six peremptory challenges. In this case, the court allowed both the state and the defendant twelve peremptory challenges. With six challenges left, the appellant approved the jury selected.
The relevant inquiry in this situation is “ ‘whether the composition of the jury panel as a whole could possibly have been affected by the trial court’s error.’ ” (Emphasis sic.) Gray v. Mississippi (1987),
G
Appellant, in his seventh proposition of law, contends that denial of his motion for a continuance denied him a fair trial since “[i]t is a basic due process right and indeed essential to a fair trial that a defense counsel be afforded the reasonable opportunity to prepare his case.” State v. Sowders (1983),
The trial was originally scheduled to commence on July 8,1985, then continued to August 19. Original retained defense counsel withdrew and on July 26, 1985, newly appointed counsel requested a continuance. The court granted a continuance and set the trial date for September 16, 1985, but indicated at that time that the trial date was firm. Nevertheless, defense counsel filed another motion on September 5 for a continuance of an indeterminate length.
Defense counsel for the first time then argued that the approaching Jewish holidays might affect the composition of the jury and the amount of time for trial preparation available to some members of the defense team. The court stated that neither the defendant nor the two principal defense attorneys were Jewish and that the court would accommodate any Jewish jurors if necessary. Defense counsel also argued that they had had difficulty obtaining mitigation records and establishing a relationship with the defendant. However, the record is silent on whether they were in fact unable to obtain any records for the mitigation hearing. The balancing of the competing interests required by Ungar and Sowders, supra, results in the conclusion that the appellant was not denied due process when his motion for a continuance was denied.
H
In his eighth proposition of law, appellant objects to the admission of Tryna’s mother’s testimony, claiming that it was irrelevant and unduly prejudicial. Appellant did not object at trial nor did he raise this proposition in the court of appeals; therefore, only if admission of Mrs. Middleton’s testimony
Appellant argues that the mother’s testimony is akin to a victim impact statement, which has been held to be inadmissible because it or similar evidence is irrelevant and inflames the passions of the jury. Booth v. Maryland (1987), 482 U.S._,
The mother’s brief testimony was relevant to the prosecution of the five counts of the indictment although it did not prove any of the elements of the crimes involved. Her testimony regarding when she last saw the victim, what clothing the victim was wearing, how the FBI became involved, and what she did upon notification of the crime, assisted the jury in understanding other evidence that was presented. References to the victim’s family members were minimal and not emotional. Accordingly, the testimony’s relevance was not outweighed by its prejudicial effect, if any. It was obviously not plain error to admit it.
I
Appellant, in his eleventh and twelfth propositions of law, challenges the refusal of the trial court to give two instructions: one on eyewitness identification and one on lesser included offenses. The court’s instruction regarding credibility of witnesses included the substance of the proposed instruction requested by appellant, which is all that is required. State v. Nelson (1973),
Appellant also requested an instruction on the lesser included offenses of murder and voluntary manslaughter. A trial court must charge a jury on a lesser included offense when the evidence warrants such an instruction. Hopper v. Evans (1982),
Appellant argues that there is only circumstantial evidence of the rape, of when the murder occurred, and of whether the kidnapper is the same person as the rapist and/or murderer. Furthermore, appellant argues that “the jury could have found that provocation existed. It is known that a fight ensued after the kidnap.” These arguments are not supported by any facts in the record. The suggestion of provocation is not even colorable. Cf. Muscatello, supra. See State v. Spisak (1988),
The jury could not have reasonably found that the murder was not committed while committing, attempting to commit, or while fleeing after committing or attempting to commit kidnapping or rape. The evidence of kidnapping and rape is overwhelming and the law is clear that an instruction must be consistent with the facts presented in evidence. State v. Parra (1980),
J
Appellant argues, in his thirteenth and eighteenth propositions of law, that kidnapping and rape are allied offenses of similar import under R.C.
Under the circumstances of this case the kidnapping and rape of Tryna Middleton were offenses committed with separate animuses. The restraint and asportation of the victim at knife-point, in a car, to a location over a mile away can hardly be considered as merely incidental to the rape and murder of the victim. State v. Logan (1979),
K
In his fifteenth proposition of law, appellant argues that he was denied a fair trial because the state on cross-examination of appellant’s father was allowed to impeach that witness’ credibility by showing that the father did not consider any of appellant’s previous prior convictions as “trouble.”
Romell Broom’s father was a character witness for his son. “[introduction by a defendant of a character witness’ testimony ‘opens a veritable Pandora’s box.’ ” State v. Elliott (1971),
It was not error to allow the impeachment of appellant’s father. Even if it was error to fail to give a limiting instruction, such error was harmless in light of the fact that Broom admitted in his voluntary statement to the jury that he had “been convicted before, and I did nine years for being involved with a young girl.” See Pigott, swpra, paragraph four of the syllabus (failure to instruct on “other crimes” constitutes error but is cured when defendant admits committing them). Chapman v. California (1967),
L
Appellant’s sixteenth proposition of law contends that the state’s use of the additional crimes of rape and kid
M
Appellant’s seventeenth proposition of law alleges that the trial court’s instruction and the prosecutor’s arguments to the jury violated the constitutional standard set forth in Caldwell v. Mississippi, supra. In Caldwell, the court held that:
“* * *[I]t is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Id. at 328-329.
In closing argument in the penalty phase of the trial, defense counsel stated, “I am now to do what the law requires me to do, by leaving the question [of Romell Broom’s guilt] behind and shifting the focus of my presentation to the reasons why you should not vote to kill my client.” Later, defense counsel argued that “[T]he question that ultimately we have to deal with, is why should you kill Romell Broom, because that is really what we are getting down to here?” (Emphasis added.)
Earlier the prosecutor had told the jurors that if they determined that the aggravating circumstances sufficiently outweigh the mitigating factors, then they were “duty bound to recommend to the Court the sentence of death.” In summation; the prosecutor responded to the defendant’s counsel’s arguments in a measured way by stating: “And in following the law, I trust and know in your good judgment that you will follow the law and you will return the one and only verdict that you can with [sic] its perimeters, and that verdict is the recommendation of the imposition of the death penalty.”
The court correctly stated the law in Ohio when it instructed the jury that if they found that the aggravating circumstances outweigh the mitigating factors by proof beyond a reasonable doubt then they “have no choice and must recommend to the Court that the sentence of death be imposed upon the Defendant, Romell Broom.” R.C. 2929.03(D)(2). There was no instruction that recommendation of death was not binding on the court, although there was an instruction that a recommendation of a life sentence would be binding on the court.
This court has repeatedly emphasized its preference that no comment whatsoever be made on the question of whether the jury or the trial court ultimately determines the sentence. Henderson, supra, at 30,
The jury instructions and the prosecutorial remarks did not specifically refer to the jury verdict as merely advisory, nor did they emphasize or even mention the appellate process mandated under Ohio law should the jury recommend the sentence of death. Cf. Caldwell v. Mississippi, supra. It is our view that the statements at issue in this case did not so diminish the jury’s sense of responsibility for its decision so that an impermissible likelihood arose that the jury was biased in favor of imposing the death sentence. Accordingly, we hold that the jury was not led to believe that the responsibility for determining the propriety of the defendant’s death rested elsewhere. Appellant’s seventeenth proposition of law is overruled.
N
In his nineteenth proposition of law, appellant contends the trial court improperly considered four subjective factors in its independent review of the case pursuant to R.C. 2929.03(F): the heinousness of the crime, the multiplicity of crimes, the gruesomeness of the photographs, and the nature and circumstances of the crime.
It would be illogical to require a trial court to consider the nature and circumstances of the offense in reaching a decision and yet preclude the court from citing such nature and circumstances for its decision. State v. Stumpf (1987),
In his twentieth proposition of law the appellant broadly attacks the constitutionality of the Ohio death penalty statutes in order to preserve this issue for later review. However, we hold that the death penalty statutes are constitutional for the reasons set forth in State v. Jenkins, supra; State v. Maurer, supra; and State v. Buell, supra.
P
In his twenty-first proposition of law, appellant asserts that he was denied effective assistance of counsel because various propositions of law raised in this appeal were not raised in the appeal below. Lawyers are necessities in a criminal trial, and a defendant is entitled to effective assistance of counsel on appeal. Evitts v. Lucey (1985),
Q
In his twenty-second proposition of law, appellant argues that R.C. 2945.33 and Crim. R. 24(G)(2)(c)
R
The last two of the twenty-four propositions of law were filed pro se by the appellant. In the first, he contends he was denied his Sixth Amendment rights when he did not have counsel present at the lineups. Appellant was in custody for the Grissom incident at the time that Tammy and Bonita independently picked him out of a lineup.
The Sixth Amendment right to counsel attaches only when adversarial proceedings are initiated against an in
Adversarial proceedings had not been initiated against the appellant for the Middleton incident. The preindictment lineup was merely investigative, in contrast to a post-indictment lineup which is used as a means of preparing an identification witness to testify at trial. This proposition of law is without merit.
S
In the appellant’s second pro se proposition of law he contends that there was insufficient evidence to support his conviction. Construing the evidence in this case “in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt.” (Emphasis sic.) Jackson v. Virginia (1979),
II
We must next independently determine whether the aggravating circumstances outweigh the mitigating factors in this case as required by R.C. 2929.05(A). The aggravating circumstances are that the appellant was found guilty of one count of aggravated murder with two capital punishment specifications — kidnapping and rape.
R.C. 2929.04(B) sets forth seven factors to be considered in mitigation of the death penalty:
“(1) Whether the victim of the offense induced or facilitated it;
“(2) Whether it is unlikely that the offense would have been committed, but for the fact that the offender was under duress, coercion, or strong provocation;
“(3) Whether, at the time of committing the offense, the offender, because of a mental disease or defect, lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law;
“(4) The youth of the offender;
“(5) The offender’s lack of a significant history of prior criminal convictions and delinquency adjudications;
“(6) If the offender was a participant in the offense but not the principal offender, the degree of the offender’s participation in the offense and the degree of the offender’s participation in the acts that led to the death of the victim;
“(7) Any other factors that are relevant to the issue of whether the offender should be sentenced to death.”
There is nothing in the record to invoke the mitigating factors listed in numbers one, two, or six. With respect to item three, a defense witness testified that appellant was a good student at Aireo Technical Institute. We find no evidence to suggest that appellant lacked capacity to appreciate the criminality of his actions. The appellant was twenty-eight at the time of the murder, so factor four does not apply either. Nor does the fifth factor apply since appellant’s prior criminal convictions are significant in number and seriousness.
Finally, with regard to the seventh factor, testimony revealed that appellant’s home life was less than ideal while he was growing up. However, there is no evidence to suggest that the childhood of the appellant differed in any respect from those of millions of other people who do not commit the kinds of heinous acts of which the ap
Ill
Finally, we must consider the proportionality of a sentence of death in this case. A review of cases in which the death penalty has been upheld indicates that the sentence imposed in this case is neither excessive nor disproportionate. State v. Buell, supra; State v. Maurer, supra.
In conclusion, we find that there is no merit to the issues raised by the appellant concerning the proceedings below, the aggravating circumstances are not mitigated by the factors presented by the appellant, and the sentence of death is neither excessive nor disproportionate in this case.
Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
Notes
Chief Justice Rehnquist, writing for a unanimous court in Huddleston v. United States (1988), 485 U.S___
The prosecutor’s closing remarks contained the following comments: “You saw the photos of that little girl. You will never see Tryna Middleton again.”
“He killed the little girl, and he probably would have killed the mother and father. He kills in the community, and it’s going to go on and on and on.”
“But Tryna Middleton is not alive. Tryna Middleton does not have the most precious thing that we all have, that is life and the hopes of someday being a woman and having a family and all those things that one goes through. And because of him, she can’t have that.”
“We had the FBI cooperating to their fullest. Why? Because Miss [sic] Middleton [the decedent’s mother] had been on the staff for 19 years. Firstly, obviously, they had the jurisdiction to enter the case. But beypnd that, out of their knowledge of her and the kind of person she was, and out of their love if you will for her, they came into the case and committed all that they had at their disposal and that is significant.”
Some of the comments complained of in the fourteenth proposition of law are:
(1) “He served nine years for being involved with a little girl.”
(2) “In the light of that, the man took the stand and said in an unsworn statement, and as you were told, there was no opportunity to cross-examine him in his unsworn statement.”
(3) The prosecutor, over objection, informed the jury that the court would impose the penalty, the jury would recommend it.
(4) “Do not be intimidated, do not think that this is death or life and that is all there is. Think of Tryna Middleton, think of Tryna Middleton’s parents.”
(5) “You heard him tell you he was involved with a little girl. He said he served nine years. Now, he is telling you ‘Send me back for 20 years, so I can come back and do it again.’ ”
During the course of his direct examination of William Broom, appellant’s father, defense counsel asked:
“Now, during the 16 years that you worked at Ford, have you ever had any problems with Romell at all?”
The witness answered:
“No. Maybe he might skip school or something like that.”
After a sidebar conference and over objection of defense counsel, the following questions were asked on cross-examination of William Broom:
“Q: Calling your attention to June 27, 1975, do you consider a plea of guilty to robbery to be trouble?
“A: No.
<<* * *
“Q: Calling your attention to June 27th of 1975, do you consider rape to be trouble?
<<* * *
"A: No.
W* * *
“Q: Okay. Calling your attention to April 2nd of 1975, a plea of guilty to aggravated robbery, do you consider that to be trouble to you?
* *
“A: No.”
The court notes that oral arguments have been heard in the case of Dugger v. Adams (No. 87-121), certiorari granted (1988), 485 U.S___
However, in finding a violation of the Eighth Amendment the court of appeals pointed out that a Florida judge is not to override the jury unless the facts are “so clear and convincing that virtually no reasonable person could differ.” Adams v. Wainwright, supra, at 1529 (quoting Tedder v. State [Fla. 1975],
The trial judge did not specifically cite the circumstances of the crime as specific aggravating factors in reaching his conclusion that the penalty of death was appropriate in this case.
R.C. 2945.33 provides in part:
“In cases where the offense charged may be punished by death, after the case is finally submitted to the jury, the jurors shall be kept in charge of the proper officer and proper arrangements for their care and maintenance shall be made as under section 2945.31 of the Revised Code.”
Crim. R. 24(G)(2)(c) provides:
“After submission of a capital case to the jury, the jury shall remain under the supervision of an officer of the court until a verdict is rendered or the jury is discharged by the court.”