Case Information
*1
[This opinion has been published in
Ohio Official Reports
at
T HE TATE OF , A PPELLEE ,
v
. G ARNER , A PPELLANT .
[Cite as
State v. Garner
,
Criminal law—Aggravated murder—Death penalty upheld, when.
(No. 94-1964—Submitted July 12, 1995—Decided November 22, 1995.) A PPEAL from the Court of Appeals for Hamilton County, No. C-920864. __________________
In the pre-dawn hours of January 26, 1992, three fires were intentionally
set in the apartment of Addie F. Mack at 1969 Knob Court in Cincinnati while Mack was being treated at a local hospital emergency room. As a result, five children who had been sleeping on the second floor of the apartment died of smoke inhalation. Mack's oldest child, Rod (age thirteen), survived by escaping through a window. He was found at the scene by police officers: crying, upset and shoeless on the bitterly cold January night. Later that morning, police interviewed Thomas J. Tolliver, a cab driver
for the Yellow Cab Company. Investigators had been led to Tolliver based upon information provided by two police squad car officers who had observed a young man walking to a Yellow Cab waiting outside the 1969 Knob Court address just prior to the time the fire was reported. Tolliver provided police with an address on Burnet Avenue to which he
had delivered his previous night's fare, who had identified himself as "William." Tolliver described picking "William" up at the sаme hospital emergency room where Mack had been treated, driving to 1969 Knob Court, and waiting while "William" entered the apartment and eventually brought several items to the cab. Tolliver told police he then drove his fare to a United Dairy Farmers ("UDF") convenience store and waited while "William" purchased several items. Police recovered a television set from Tolliver which "William" had removed from Knob Court, and which Tolliver accepted as collateral in lieu of payment of cab fare when “William” told him he could not pay cash. Police obtained surveillance videotape from the UDF and showed
Tolliver still photographs taken from it. Tolliver confirmed that the individual shown therein was his fare from the previous evening, although Tolliver made his identification on the basis of clothing rather than facial features. During this questioning, Tolliver was shown three photo arrays, two of which contained police photographs of appellant, William L. Garner. Tolliver identified Garner as the "William" he had transported the night before in both of the two photo аrrays which included Garner's photograph. As a result of the information received from Tolliver, police obtained a
search warrant and searched the Burnet Avenue residence where "William" had been taken by Tolliver. Police there recovered several items which matched descriptions Tolliver had given of items his passenger had brought to the cab from the Knob Court address. Police recovered a VCR, a Sony "boom box," and a portable telephone, as well as a pair of gloves, a set of keys later identified as Addie Mack's, and copies of her children's birth certificates. Police photographed a UDF grocery bag in a trash can at the residence. During the search police arrested Garner, in connection with the fire, and advised him of his Miranda rights. Garner was interviewed at police headquarters, where he provided a
taped statement in which he described events of the previous night. He recounted having found Mack's purse near a pay telephone in the emergency room area of the hospital, and obtaining Mack's address, food stamps, and keys from the purse. He admitted calling a cab and being transported to the Knob Court address. Garner acknowledged that his intent in going to Mack's apartment was to "take her things." Garner described going through the rooms in the apartment, and noticing that a back bedroom was "full o[f] girls.” He described talking to one girl who asked him for water, and providing it to her. Garner said the girl then turned on a television set for a few minutes before going back to the room where the other girls were sleeping. Garner also admitted having been in the bedroom in which the two boys were sleeping.
{¶ 7} Garner admitted taking a television set, a VCR, a telephone, and a "radio box" from the apartment, and putting them in the cab. He described telling the driver that he and his girlfriend had a "fallin[g] out," forcing him to move his possessions. He admitted setting one fire at Mack's apartment by throwing a lighted match onto a couch on the first floor, and confirmed watching a small flame ignite in the couch. He then left the apartment with the final stolen item (the television) and directed the cab driver to make a stop at a UDF convenience store. Garner said he there purchased several items before instructing the driver to take him to his residence at 3250 Burnet Avenue. When asked why he had set the couch on fire, Garner stated that he had
intended to create a smoke screen and to cover fingerprints he suspected he had left on the couch. He told police that he believed the children would smell the smoke and get out of the house, particularly as he believed one child to be awake, and that all of the children were old enough to get out. Rod Mack, the sole survivor of the fire, testified that he and his friend,
Richard Gaines, were sleeping in one of the upstairs bedrooms on the night of the fire, and that all four girls were sleeping together in a second bedroom. Mack testified that the “radio” (Sony boom box) found by police at appellant's residence was his, and had been in his bedroom on the night of the fire. He testified that the receiver portion of a two-piece cordless phone (later recovered during the police sеarch of Garner's residence) had been located in the bedroom where all of the girls had been sleeping. He testified that the VCR recovered from appellant's residence had been located in a third bedroom, his mother's room. Rod described being awakened by smoke, seeing fire in the hallway
outside his bedroom, and hearing his sisters screaming in their room. Finding the hallway blocked by fire, Rod told his friend Richard to follow him out a bedroom window. As Rod exited through the window, Richard instead opened the door to the hall. As Rod continued his escape, he heard Richard fall to the floor, where his body was ultimately found by firefighters.
{¶ 11} A smoke detector was found in the apartment after the fire, but did not contain a battery, and was thus inoperable. Following the fire, Cincinnati Fire Division investigator Peter Frye
concluded that, in addition to an intentional fire having been set in the living room couch, two other fires were intentionally set in the apartment. One fire was set in a bed in the mother's unoccupied bedroom, and one in a bed in the remaining unoccupied fourth bedroom. The latter two fires had smoldered but eventually gone out. Frye testified that the fire originating in the couch almost totally destroyed the contents of the living room, and resulted in heavy smoke filling the entire apartment. Garner was indicted and charged with five counts of aggravated felony-murder (R.C. 2903.01[B]). Each count included three death penalty specifications. In addition, Garner was charged with aggravated burglary (R.C. 2911.11), and two counts of aggravated arson (R.C. 2909.02). A jury found Garner guilty of all charges, including the death penalty specifications. Thereafter the jury returned a recommendation that he be sentenced to death, and that recommendation was accepted by the trial court. The court of appeals affirmed Garner's convictions and death sentence,
and the cause is now before this court upon an appeal as of right.
__________________
Joseph T. Deters , Hamilton County Prosecuting Attorney, and Christian J. Schaefer , Assistant Prosecuting Attorney, for appellee.
H. Fred Hoefle and Robert J. Ranz , for appellant.
__________________
M OYER , C.J. Appellant has raised twenty-three propositions of law. We have reviewed each and, for the reasons stated below, we find that none justifies reversal of appellant's conviction of the crimes of aggravated murder, aggravated burglary аnd aggravated arson. We have fulfilled our responsibilities to independently review the record, weigh the aggravating circumstances against the mitigating factors, and examine the proportionality of a sentence of death in this case. Upon full review of the record we affirm appellant's convictions and death sentence.
I
Failure to Merge Specifications The jury found Garner guilty of three statutory death penalty
specifications as to each murder: engaging in a course of conduct on January 26, 1992
involving the killing of two or more persons (R.C. 2929.04[A][5]); committing the
aggravated murders for the purpose of escaping detection, apprehension, trial or
punishment for another offense (R.C. 2929.04[A][3]); and committing the aggravated
murders, as a principal offender, while committing or fleeing immediately after
committing aggravated burglary and aggravated arson (R.C. 2929.04[A][7]). Garner
claims reversible error in the trial court's denial of his motion to merge the R.C.
2929.04(A)(3) and (A)(7) specifications, and to instruct the jury that they should be
weighed as one aggravating circumstance in determining the appropriate sentence.
The lаw governing our resolution of this contention is set forth in the
fifth paragraph of the syllabus of
State v. Jenkins
[1]
(1984),
"In the penalty phase of a capital prosecution, where two or more aggravating
circumstances arise from the same act or indivisible course of conduct and are thus
1. The law set forth in the fifth paragraph of
Jenkins
has consistently been followed by this court. See,
e.g
.,
State v. Spisak
(1988),
duplicative, the duplicative aggravating circumstances will be merged for purposes of sentencing. Should this merging of aggravating circumstances take place upon appellate review of a death sentence, resentencing is not automatically required where the reviewing court independently determines that the remaining aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt and that the jury's consideration of duplicative aggravating circumstances in the penalty-phase did not affect the verdict." We believe it is a necessary corollary to Jenkins that, where a jury in
the guilt phase of a capital trial has found the defendant guilty of duplicative specifications, a trial court should instruct the jury in the penalty phase that those duplicative specifications must be considered merged for purposes of weighing the aggravating circumstances against the mitigating factors. In this case, no such instruction was given. Thus, pursuant to Jenkins , in order to determine whether that omission constituted reversible error, we must engage in a two-pronged analysis. We first look to see whether the specifications at issue "ar[o]se from the same act or indivisible course of conduct," and were thus, in fact, duplicative. If this initial inquiry is answered in the affirmative, Jenkins instructs us to proceed to determine whether the jury's penalty-phase consideration of those duplicative aggravating circumstances affected its verdict, and to independently determine whether the merged aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt. The court of appeals correctly concluded that the specifications based
on R.C. 2929.04 (3) and (7) arose from an indivisible course of conduct, i.e ., Garner's actions in burglarizing and setting fire to the residence at 1969 Knob Court. Having reviewed the rеcord in detail, we reject the state's factual contention that Garner had completed the theft offense and then initiated a second, separate course of conduct in setting the fires. The record instead justifies the conclusion that Garner set the fires before exiting the apartment for the final time with the last stolen item, the television. His actions in burglarizing the residence and attempting to cover up his conduct by setting the fires were inextricably intertwined, and thereby constituted one indivisible course of conduct. This conclusion obtains even though Garner may have had multiple motives in setting the fire, i.e ., he may have intended both to eliminate possible witnesses as well as to destroy fingerprints or other evidence of his presence. Similarly, the fact that the children did not actually die until some time after Garner left the premises does not require a finding that the specifications were non- duplicative, as the cause of the deaths, i.e ., the ignition of the fires, occurred in conjunction of time and place with the burglary and arson. We conclude that the defendant's motion to merge the sрecifications in this case for purposes of sentencing should have been granted, and the jury should have been instructed accordingly. Having satisfied the first prong of the Jenkins analysis, we next determine whether the jury's consideration of duplicative aggravating circumstances in the penalty phase affected its verdict. We find beyond a reasonable doubt that the trial court's failure to instruct the jury that the duplicative specifications should be considered merged did not influence the jury to recommend death whereas it would otherwise have recommended life. In coming to this conclusion we note that, where a verdict of guilt has
been returned as to even a single R.C. 2929.04 (A) specification, a jury is required to
consider a wide range of evidence, including evidence of the nature and circumstances
of the crime, in determining whether the aggravating circumstances outweigh the
mitigating factors. R.C. 2929.03(D)(1) and (2);
State v. Gumm
(1995), 73 Ohio St.3d
413,
II
Propriety of Instruction on Mental Disease
or Defect as Mitigation
In
State v. DePew
(1988),
for jury instructions on the R.C. 2929.04(B)(3) mitigating factor, stating that "[w]e are not going to assert that particular mitigating circumstance." However, in first requesting the (B)(3) instruction, and calling expert witnesses to testify to the mental condition of the defendant, the defense had already "raised" the (B)(3) mitigating factor as that term was used in DePew . We will not sanction a procedure whereby the defense may effectively control the court's charge by representing that it is abandoning a particular mitigating factor based on an evaluation that the testimony of its mitigation witnesses was unfavorable. The defense indeed raised R.C. 2929.04(B)(3) as possible mitigation, and the trial court did not err in including that statutory mitigating factor in its instructions.
III
Rejection of Proposed Instructions on
Residual Doubt and Mercy
The trial court overruled a defense motion to instruct the jury that
"residual doubt or lingering doubts about the guilt of the defendant" could be
considered a mitigating factor. Similarly, the trial court refused to give the following
instruction proffered by the defense: "[W]hile your decision should not be based
merely upon sympathy, you may extend mercy by returning a verdict for life
imprisonment, where such a verdict is appropriate, considering the evidence presented
in mitigation, and the mitigating factors which you find to exist." Garner asserts in
this court that failure to use the proffered instructions constituted reversible error.
Residual doubt of guilt has been defined as "a lingering uncertainty
about facts, a state of mind that exists somewhere between `beyond a reasonable
doubt' and `absolute certainty.'"
Franklin v. Lynaugh
(1988),
instructions on residual doubt and mercy.
IV
Alleged Ex Post Facto Application of
New Judicial Doctrine
Garner argues that, prior to the 1993 case of
State v. Lorraine, supra,
Ohio law recognized mercy as a mitigating factor, citing
State v. Rogers
(1986), 28
Ohio St.3d 427, 434, 28 OBR 480, 486,
2. Although the trial court rejected Garner's proposed residual doubt instruction, it advised defense counsel that it would allow a residual doubt argument in the defense summation, and such an argument was in fact made to the jury. The United States Supreme Court has acknowledged that "[a]n
unforeseeable judicial enlargement of a criminal statute, applied retroactively,
operates precisely like an ex post facto law * * *,"
Bouie v. Columbia
(1964), 378
U.S. 347, 353,
for the proposition that, prior to
Lorraine,
mercy was a recognized mitigating factor
in Ohio. In
Rogers
, the court simply noted that "[defense counsel] certainly has the
right to plead for mercy."
Rogers,
V
Prosecutorial Misconduct
{¶ 35} Garner contends that the prosecutors’ final argument to the jury at the conclusion of the penalty phase constituted prosecutorial misconduct so еgregious as to warrant reversal of the death sentence. We disagree. Garner objects to what he contends was impermissible argument of
nonstatutory aggravating circumstances. His position is foreclosed by our recognition in State v. Gumm, supra , that prosecutorial argument based on the nature and circumstances of the crime as disclosed by the evidence is permissible. For example, the prosecutor could legitimately refer to the screams of the girls who died in the fire, as that fact was testified to by the only survivor of the fire, Rod Mack. We have examined the record of both the prosecutors’ conduct during
voir dire and in closing arguments and we do not find that the prosecutors who tried
this case argued facts not in evidence, misstated the law, or engaged in inflammatory
rhetoric so as to justify the conclusion that Garner was prejudicially deprived of a fair
trial. Cf.
State v. Lott
(1990),
VI
Alleged Prejudicial Reference to Arrest Record of Defendant Garner became a suspect in this case as a result of Tolliver's having
informed police that he had delivered his fare to 3250 Burnet Avenue on the night of the fire. A police investigator testified that, when givеn this information, he sought further information as to the occupants of that residence, and "ran the phone number that was at the residence at 3250 Burnett [ sic ] Avenue and it came back William Garner using that address in one of his arrests ." (Emphasis added.) Defense counsel immediately objected to this reference to Garner's prior police record, and moved for a mistrial. The court refused to grant a mistrial, but sustained the defense objection in the presence of the jury, and expressly instructed the jury to disregard the officer's statement. The grant or denial of an order of mistrial lies within the sound
discretion of the trial court.
State v. Glover
(1988),
VII
Sufficiency of Evidence of Intent to Kill R.C. 2903.01 provides that guilt of aggravated murder is dependent
upon establishment of a "specific intent of the [defendant] to have caused the death [of another] by proof beyond a reasonable doubt." At trial, Garner did not dispute that he was responsible for causing the fire at Mack's apartment. Garner's defense to the aggravated murder charge centered on his claim that he lacked the requisite mens rea element of intent to kill. The defense asserted, on the basis of Garner's taped confession, that he did not believe that the children would be killed but rather that he thought that they would awaken and escape. Garner argued that he should be found guilty only of the lesser-included offense of involuntary manslaughter, rather than aggravated murder. The law has long recognized that intent, lying as it does within the
privacy of a person's own thoughts, is not susceptible to objective proof. The law
recognizes that intent can be determined from the surrounding facts and
circumstances, and persons are presumed to have intended the natural, reasonable and
probable consequences of their voluntary acts.
State v. Carter
(1995), 72 Ohio St.3d
545, 554,
than a thoughtless act by a nineteen-year-old who did not think about the potential
consequences of his reckless acts. While this argument constitutes a plausible
interpretation of the evidence, it was the jury's responsibility to determine Garner's
intent as a matter of fact, and the jury rejected the defense interpretation of the
evidence. When a defendant challenges the sufficiency of the evidence, "[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),
VIII
Miranda Issues
Law enforcement officers were not required to inform Garner that he
was potentially eligible for a death sentence prior to obtaining a valid waiver of the
right to counsel.
State v. Bell
(1976),
signed by the defendant. Garner signed and dated the form citing the time of his waiver as 1:47 p.m. The advice-of-rights form, however, indicates the time of the waiver to be "1445 HRS” (2:45 p.m.). Appellant contends that this discrepancy raises the question whether he was interviewed prior to having validly waived his Sixth Amendment right to counsel. We do not find this contention to be well founded. First, we note that
appellant providеd no rebuttal to the testimony of the interrogating police officer who made the "1445 HRS” notation that his mistaken use of military time on the form caused the discrepancy. Further, other officers testified that appellant was advised of his rights prior to giving the taped statement not only at the police station, but prior thereto at the time of his arrest. Moreover, the audiotape of appellant's confession contains appellant's acknowledgment that he had previously executed the Miranda waiver form.
{¶ 46} Based upon the evidence presented, we hold that the trial court was justified in finding that appellant was adequately advised of his rights prior to making his statement.
IX
Overly Suggestive Identification Garner challenges the admissibility of cab driver Tolliver's in-court
identification of him as the "William" the cabdriver described transporting on the night of the fire. Garner asserts that Tolliver's identification was based upon his exposure to overly suggestive photographic lineups in that (1) his photograph was the only one to appear in both of two separate arrays shown to the driver, and (2) only Garner's photоgraph was of a man 5"8" tall consistent with Tolliver's description of "William" as being 5'8" in height. Identifications made subsequent to an impermissibly suggestive
procedure are admissible where the identification itself is nevertheless deemed
reliable. "The central question is whether under the totality of the circumstances the
identification is reliable even though the confrontation procedure was suggestive."
State v. Parker
(1990),
{¶ 50} Tolliver had contact with Garner for an extended period from the time he picked him up at the hospital at 4:45 a.m. until the time Garner was finally dropped off on Burnet Ave., approximately an hour later. Tolliver repeatedly testified that he watched "William's" actions closely, in part because he was concerned he was not going to be paid Based on the totality of these circumstances the trial court properly
deemed Tolliver's identification of Garner to be reliable and did nоt err in refusing to suppress it.
X
Alleged Unreliability of Informant Tolliver Garner asserts that the search warrant authorizing search of Garner's
residence was illegally obtained, having been issued based on information provided by an unreliable informant, Tolliver. Garner claims that the evidence obtained during the search should thus have been excluded. In reviewing this contention, we look to the totality of the
circumstances to determine whether Tolliver's information provided the municipal
judge with a substantial basis for concluding that probable cause existed that
contraband or evidence of a crime would be found at Garner's residence.
State v.
George
(1989),
conclusion that the judge acted lawfully in issuing the search wаrrant at issue in this case.
XI
Voir Dire Issues
Garner asserts that at least four prospective jurors who were
philosophically opposed to capital punishment were improperly excused from the
venire based on the doctrine of
Witherspoon v. Illinois
(1968),
substance that they could not sign a verdict form recommending a death sentence and
would be unable to follow the instructions of the court if those instructions required
the signing of such a form. The judge appropriately recognized that the views of each
prospective juror would "‘“prevent or substantially impair the performance of his
duties as a juror in accordance with his instructions and his oath.”’"
State v. Beuke,
supra
, at 38,
being provided more than six peremptory challenges. We instead affirm our existing
precedent to the contrary. See,
e.g
.,
State v. Greer
(1988),
exercise his peremptory challenges, nor impermissibly limited in his voir-dire
questioning of prospective jurors. The trial court refused to allow counsel to ask
prospective jurors whether they would "consider the youth of Mr. Garner if you had
to go to that second [sentencing recommendation] phase as far as mitigating factor,"
based on the form of that question. However, the court allowed prospective jurors to
be questioned as to whether they would follow instructions the court might later give
them, including an instruction that youth should be considered as a mitigating factor.
The ruling complied with Ohio law. See
State v. Bedford
(1988),
judge is afforded considerable discretion in conducting voir dire.
Mu'Min v. Virginia
(1991),
requirements of the United States Constitution as well as with Ohio law.
XII
Cumulative Error
In
State v. DeMarco
(1987), 31 Ohio St.3d 191, 31 OBR 390, 509
N.E.2d 1256, paragraph two of the syllabus, we recognized the doctrine of cumulative
error. Pursuant to this doctrine, a conviction will be reversed where the cumulative
effect of errors in a trial deprives a defendant of the constitutional right to a fair trial
even though each of numerous instances of trial court error does not individually
constitute cause for reversal. The doctrine is not applicable to the case at bar as we
do not find multiple instances of harmless error. Cf.
State v. Webb
, 70 Ohio St.3d at
335,
XIII
Alleged Insufficiency of Trial Court Sentencing Opinion Assuming, arguendo , that the trial court's sentencing opinion was
deficient in any way, errors in the opinion are cured by this court's independent review.
State v. Fox
(1994),
XIV
Alleged Unconstitutionality of Ohio Death Penalty Statutes Garner challenges the constitutionality of Ohio's death-penalty
statutory framework for the express purpose of preserving the issue for federal review.
“‘*** [W]e have consistently held that Ohiо's death penalty scheme is constitutional
and we continue to adhere to that position.’”
State v. Carter
,
XV
Independent Review The defense offered evidence that Garner possessed lower than average intelligence and was raised in a deplorable home environment, devoid of love, support, consistency and stability. Evidence existed from which the jury could conclude that Garner suffered sexual abuse as a child by an older brother, and physical abuse from his mother and others. The defense offered considerable mitigating evidence which is entitled to significant weight. However, production of substantial mitigation evidence does not preclude a finding that the aggravating circumstances nevertheless outweigh the mitigating factors beyond a reasonable doubt. The tragic case of William Garner exemplifies this principle.
3. In his dissent, infra , Justice Wright has extensively outlined the nature of the mitigation evidence presented by the defense. In addition to Garner's age (nineteen at the time of the crime) and
appalling childhood history, he asks us to consider residual doubt of his guilt as part of оur independent review. The state produced abundant proof that Garner was responsible for causing the fire that took the lives of five children. While there is virtually no residual doubt on the question of Garner's identity as the perpetrator of this crime, Garner nevertheless contends that this court should accord significant weight to residual doubt that Garner intended to kill the children. As discussed, supra , ascertainment of a person's intent is not often
objectively proven, but is reliant upon proof of the nature and circumstances surrounding an act, combined with determination of the natural, reasonable and probable consequences of that act. Ultimately in such a case, resolution of questions of intent is highly dependent upon the evaluation of the evidence by the factfinder at trial. Although this court is statutorily mandated to independently review the record to determine whether the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt, we are not required to redetermine de novo questions of fact previously determined by a jury. Rather, we are required to determine “if the evidence supports the finding” of guilt by the jury. R.C. 2929.05. Even assuming there is some modiсum of residual doubt on the question of whether Garner intended to kill the children, we do not accord it significant weight in this case. In each capital case we are statutorily mandated to posit aggravating
circumstances against mitigating factors. In so doing, we are required to "independently weigh all of the facts and other evidence disclosed in the record and consider both the offense and the offender" to determine whether a sentence of death is appropriate. R.C. 2929.05. In this case the jury found that Garner intentionally set fires in an apartment occupied by six young children, all but one of whom he knew to be sleeping. Garner set three fires, in three separate locations, and had been wearing gloves up until the time he set fire to the couch. The setting of those fires, wholly unnecessary even from the perspective of a burglar concerned about apprehension, resulted in the deaths of five of those children, undoubtedly shattering the lives of three separate families. When Garner drove away from the Mack apartment, he not only took with him the telephone from the girls’ room, thereby depriving them of a means of summoning help, but he also took with him the futures of five children, and left them to die trapped in an apartment filled with smoke. His acts were callous, heinous, and completely unjustifiable. We note as well that the state produced evidence which tended to
diminish the weight to be given the mitigation evidence. For example, court- appointed psychologist Dr. Nancy Schmidtgoessling testified that Garner appeared healthy, neatly groomed, very coherent, organized, cooperative, emotionally calm, realistic in his thoughts, and of near average intelligence, even though she suspected possible organic brain impairment. She saw no signs of a major mental illness and deemed him fully competent to stand trial. Appellant was fully capable of scheming the burglary of Mack’s apartment, and was able to concoct a plausible explanation for the cab driver’s benefit as to why he was removing property from an apartment in the middle of the night. Dr. Schmidtgoessling opined that defendant's diagnosed failure to thrive as an infant, referenced in Justice Wright's dissent, infra, did not affect or delay his early development beyond the first few months of life. Several of the reprehensible events which occurred in Garner's family occurred before Garner was even born, e.g ., the injury to the feet of Garner’s brother, Marvin, and the murder of Garner's sister, Bobbie Lynette. The weighing of aggravating circumstances against mitigating factors
in review of capital cases necessarily proceeds on a case-by-case basis. Having reviewed the entire record, we find beyond a reasonable doubt that the balance of aggravating circumstances against mitigating factors in this case weighs in favor of a death sentence.
XVI
Proportionality Review
Pursuant to R.C. 2929.05(A), we are called upon to determine whether
imposition of a death sentence in this case is both appropriate and proportional to other
Ohio death penalty cases. We find that this court has consistently upheld the
imposition of death stemming from murder in the commission of aggravated arson in
cаses whose facts are no more heinous or egregious in nature than are the facts of the
case at bar. See,
e.g
.,
State v. Grant
(1993),
Judgment affirmed. D OUGLAS , R ESNICK , F.E. WEENEY , P FEIFER and OOK , JJ., concur. W RIGHT , J., dissents.
__________________
W RIGHT , J., dissenting.
{¶ 73} As I have said on other occasions, I have no moral compunctions about imposing the death penalty when required. However, I believe that the death penalty should be applied only when the state has met its heavy burden of proof and should be used sparingly. That view is supported by the legislative history of R.C. 2929.04.
{¶ 74} As part of this court’s review, we must independently determine whether the state has met its burden in proving that the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt. This, of course, is the heaviest burden under the law. In my view, the aggravating circumstances clearly do not outweigh the mitigating factors in this matter. This is the type of case that calls for the application of mercy, and it is for this reason that I respectfully dissent. I certainly cannot deny that this was a horrible crime, resulting in the senseless death of five innocent children. It is not my job to criticize a jury verdict supported by adequate evidence. I do not excuse Garner’s actions, and I do believe that he should be severely punished for his crimes, i.e., five life sentences. However, although the state has proven William Garner’s guilt beyond a reasonable doubt, I believe that there is a fair amount of residual doubt as to whether Garner possessed the necessary purpose to kill. The mitigating factors that Garner presented are among the most
cоmpelling that this court has seen. The conditions in which Garner was raised and
the experiences that he endured throughout his entire life are even more extreme
than the factors presented in
State v. Murphy
(1992),
replaced with violence, physical injury, sexual abuse and abject terror. The basic needs of Garner and his siblings were ignored by their mother, a child-care provider of all things. His mother’s need to satisfy her own immediate gratification superseded the needs of, and her responsibility to, her children.
{¶ 78} William Garner is the youngest of six children born to Patricia Garner. Mrs. Garner’s other children are Gary Sawyer, Lisa Ross, Marvin Garner, Bobbie Lynette (now deceased), and William Garner’s twin brother, Willie. Gary Sawyer is now incarcerated at the Southern Ohio Correctional Facility at Lucasville. While Mrs. Garner was pregnant with William and Willie, Bobbie was murdered by one of Mrs. Garner’s boyfriends. Lisa was sexually abused over a period of years by one of Mrs. Garner’s boyfriends. One instance of abuse was committed in the presence of Mrs. Garner, who did nothing to prevent it. Lisa’s brother, Gary, also sexually assaulted her. Lisa testified that Gary also assaulted or attempted to assault two female cousins. Mrs. Garner testified that Gary admitted to her that he also sexually abused his brother, William, when they were children. Another one of Mrs. Garner’s boyfriends submerged Marvin’s feet into scalding water, causing severe burns that have left Marvin Garner disfigured to this day. This, of course, has resulted in a constant reminder to the entire family of the abuse that was a common occurrence in their house. Although the state has argued that the instances of abuse suffered by
Lisa and the other Garner children are irrelevant as mitigating factors for appellant, the recitation of events that occurred throughout Garner’s lifetime adds credence to the descriptions above and below of his tragic upbringing. Additionally, Garner was present in the household during the
physical and sexual abuse of Lisa and the physical abuse suffered by the other children. This was the lifestyle in which he was reared. A constant pattern of physical, mental, emotional and sexual abuse and neglect is all that Garner has ever known. Lisa testified that she was responsible for the children when her
mother was not at home. By age four, the twins, William and Willie, would go to the grocery store to “hustle for money” for food. Lisa said the children would go to the neighborhood grocery store and offer to carry bags of groceries in exchange for food. On occasion, Mrs. Garner would take the money the children earned for food and would “go out with it.”
{¶ 82} Lisa testified that their mother was abusive and violent towards the children as well as to her boyfriends and husbands. The children were beaten with anything she could get her hands on, such as two by fours and extension cords. Mrs. Garner had her children assist her in beating up her boyfriends, and the children were present when she and a boyfriend beat up her husband. Garner participated in one such beating when he was four or five years old. Dr. Nancy Schmidtgoessling, a psychologist appointed by the court
to evaluate Garner, agreed that it is very difficult for a person like William Garner who is “raised in an environment where you have a mother who does not provide proper care and support for children, a brother who rapes you and beats you up, a home life where people are violated in numerous ways, a home life where no one cares as far as your educational background is concerned, where you find that situation, and you have a person who has a low IQ and some brain impairment to act in a pro social way.” Dr. Schmidtgoessling continued by stating, “[G]iven that kind of
background and resources, it is very difficult for that person to behave appropriately. They do not have the opportunity to develop the kind of skills and the appropriate emotional reactions that enable you to be a functional, normally healthy, normally productive person.” Dr. Jeffrey Smalldon, a clinical psychologist, also evaluated Garner.
Dr. Smalldon testified that the results of the tests administered to appellant indicated quite clearly that Garner has some degree of underlying brain impairment and that he functions in a borderline range of intellectual functioning between mild retardation and low average IQ. Dr. Smalldon testified that Garner has residual attention deficit disorder and a diagnostic impression of marijuana abuse, possibly marijuana dependence. Dr. Smalldon also testified that Garner has a mixed personality disorder with borderline antisocial features. Dr. Smalldon also testified about certain factors that have an
important effect and continuing influence on the development of a disorder such as Garner’s and applied those factors to Garner’s lifestyle and upbringing. One of the factors discussed was parental bonding. Dr. Smalldon theorized that the necessary bonding process between Garner and his mother would have been profoundly disrupted when appellant returned to the hospital for the first nine months of his life due to his failure to thrive. Other factors Dr. Smalldon applied included environmental factors
and appropriate role models during Garner’s childhood. Dr. Smalldon testified that appellant was traumatized by the environmental influences to which he was exposed, including the lack of parental figures and role models. Garner had virtually no structured opportunities for learning, enrichment, or stimulation. Garner’s biological father denied paternity, and the primary male figure in the household while Garner was a child was George Cunnigham, the man who repeatedly sexually abused Garner’s sister. Many of Garner’s mother’s subsequent boyfriends were abusive to Garner and his siblings. Appellant had no consistent, physically present, emotionally available parental figure in his early life. The only consistency in his life was the pattern of irresponsible behavior, inadequate attention to his needs, and his exposure to violent and repeated sexual and physical abuse from his older brother and frequent physical abuse from his mother. Even Dr. Joseph Schroeder, a rebuttal witness for the state, testified that Garner had a brain impairment and that his IQ showed that he is in the below average and borderline range, i.e., on the border between below average and mental retardation. When continually pressed by the state with regard to whether Garner
knew the difference between right and wrong, Dr. Schroeder аnswered, “[t]here is no psychological tests [ sic ] that we can administer that is designed solely to discern right from wrong.” Dr. Schroeder’s job was to determine whether Garner was competent to stand trial and whether there were any neuropsychological problems. Defense counsel did not raise the issue of insanity as a defense. Therefore, the prosecution’s attempts to turn the history, character and background of the defendant into an argument that Garner did not lack the substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law were irrelevant. The prosecution believed that the psychological testimony was
somehow supposed to lead the jury to believe that the organic brain injury caused Garner to act as he did. This was not the argument presented by the defense. The organic brain injury had nothing to do with the motivation behind the burglary and fires. Nor did the injury in any way cause Garner not to be able to appreciate the criminality of his conduct. Appellant’s history, character and background were presented solely for purposes of mitigation. Garner’s age, both chrnological and mental, is an additional
mitigating factor. At the time of the offense, Garner, it appears, had just turned
nineteen. However, he was much younger than nineteen mentally and emotionally.
This court held in
State v. Rogers
(1985),
{¶ 92} Garner did commit a heinous crime. Although his youth alone would not be enough to persuade me to overturn the lower court’s sentence of death, his youth, combined with his atrocious upbringing, is enough to convince me that justice would be served if Garner were sentenced to the maximum prison term allowed by law. This means that Garner would serve up to one hundred and fifty years in prison for the murder charges; ten to twenty-five years on the aggravated burglary charge and on each of the aggravated аrson charges; and two years each for the theft charge and the two charges of receiving stolen property. This certainly amounts to life without parole. To quote Chief Justice Moyer: “The crime was committed, not after
defendant had matured to an age when education, normal life experiences, and
maturity could have intervened, but so soon after the brutally abusive conditions
created by his family that I am compelled to find that the death sentence is not
appropriate for the defendant in this case.”
State v. Murphy
(1992), 65 Ohio St.3d
554, 588,
had a chance at a normal life. He was born into an atmosphere of violence, deprivation, and abuse. He had a borderline IQ and an organic brain impairment. He suffered physical, mental, sexual, and emotional abuse his entire life. He lacked proper nourishment, appropriate discipline, parental bonding, appropriate role models and any semblance of a normal childhood. For the reasons stated above, I dissent from the majority’s
affirmance of Garner’s death sentence.
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