State of Ohio, Plaintiff/Cross-Appellant, v. Brian L. Golsby, Defendant/Cross-Appellee.
No. 18AP-322 (C.P.C. No. 17CR-912)
THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
April 30, 2019
2019-Ohio-1618
(REGULAR CALENDAR)
Rendered on April 30, 2019
Ron O‘Brien, Prosecuting Attorney, and Steven L. Taylor, for State of Ohio.
Yeura R. Venters, Public Defender, and Timothy E. Pierce, for Brian L. Golsby.
ON MOTION FOR LEAVE TO CROSS-APPEAL
BROWN, J.
{¶ 1} Plaintiff, State of Ohio, has filed a motion for leave to cross-appeal from entries of the Franklin County Court of Common Pleas filed on April 6 and 20, 2018, in which the trial court sentenced defendant, Brian L. Golsby, following his convictions for aggravated murder, kidnapping, rape, aggravated robbery, tampering with evidence, and having a weapon while under disability. The state seeks to challenge a jury instruction given by the trial court (over the state‘s objection) during the penalty phase of the underlying capital trial regarding the defendant‘s burden of proof applicable to mitigating factors.
{¶ 3} As noted, the state seeks leave to appeal the trial court‘s ruling on penalty phase jury instructions. Specifically, the state argues the trial court erred “when it refused to instruct the jury on defendant‘s preponderance burden and instead instructed the jury that defendant bore no burden of proof as to the mitigating factors in the penalty phase.” (State‘s Brief at 15.) The ruling of the trial court for which the state seeks leave to appeal falls within the ambit of “any other decision” under
{¶ 5} Accordingly, the state‘s motion for leave to cross-appeal is granted.
Motion for leave to cross-appeal granted.
SADLER, J., concurs.
BRUNNER, J., dissents.
BRUNNER, J., dissenting.
{¶ 6} I respectfully dissent from the decision of the majority and would deny the State‘s motion for leave to appeal. The seminal case the majority relies on in granting the appeal is State v. Bistricky, 51 Ohio St.3d 157 (1990), which is based on long-standing law found in State v. Wallace, 43 Ohio St.2d 1 (1975), citing State v. Hughes, 41 Ohio St.2d 208 (1975), that only the legislature grants to the State, pursuant to
Exercise of Discretion by this Court
{¶ 7} The high court in the pre-Bistricky case of Wallace quoted
The Nature of Appellate Discretion
{¶ 8} The nature of our appellate discretion has been discussed by the Supreme Court of Ohio in the context of actions as of right before courts of appeals, such as mandamus. This discretion is effectively described as being such that we do not exercise “arbitrary discretion.” State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141, 161 (1967). Rather, the discretion in granting or denying is “a judicial or legal one, to be exercised * * * in accordance with well settled rules of law.” Id. As such, it is “a palpable abuse of discretion” when the right to relief requested is not established. Id. In the exercise of its discretion, an appellate court “should take into consideration a wide variety of circumstances” and “should consider the facts of the particular case, the exigency which calls for the exercise of its discretion [and] the consequences of” exercising it in granting relief, along with the “extent of the wrong or injury which would follow a refusal” to exercise its discretion to grant the requested relief. Id. The appellate court is not bound to grant relief even though legal arguments would support a remedy and even though
{¶ 9} The majority cites Bistricky for the proposition that the State‘s disagreement with the jury instruction given during the mitigation phase of the trial is one that is capable of repetition, yet evading review. But this was not the basis for the high court‘s reversal of the Eighth District in Bistricky. Rather, the high court said “the court of appeals’ statement that it lacked authority to consider the state‘s appeal suggests an interpretation of
{¶ 10} We must specifically exercise our discretion on the substantive arguments the State posits according to and as required by
{¶ 11} In short, we should deny the State‘s appeal for three main reasons: First, the State cannot appeal final verdicts.
The State Cannot Appeal a Final Criminal Verdict
{¶ 12} The State cannot appeal final criminal trial verdicts.
{¶ 13} Even were the State‘s appeal construed not to be an appeal of the final verdict itself, which seems a bit of a stretch, since the State argues the jury‘s verdict was a “failure of justice,” allowing an appeal of the abstract legal question about appropriate instructions cannot change the verdict on the mitigation phase of the trial. (Mot. for Leave at 14.) Arnett; Bistricky at 159. In short, Golsby can‘t be “redeathed.”
{¶ 14} A verdict of life without the possibility of parole is regarded as an “acquittal” by the U.S. Supreme Court for purposes of double jeopardy. Rumsey at 211; Bullington at 445-46. The fact that the appeal being sought would be moot is in fact a legitimate consideration in whether to allow it. The U.S. Supreme Court has held, for example, “[w]hen a successful postacquittal appeal by the prosecution would lead to proceedings that violate the Double Jeopardy Clause, the appeal itself has no proper purpose.” Smalis at 145. Thus, even granting the State‘s motion, this Court would be limited to the main issue involved in the State‘s motion: a jury instruction given by the Franklin County Court of Common Pleas during the penalty phase of defendant Brian Lee Golsby‘s trial for the kidnapping, rape, and aggravated murder of Reagan Tokes. We should examine that issue now and make our determination of whether the State gets a substantive appeal, based on the import and weight of the substance of the State‘s motion.
{¶ 15} At the death penalty phase of the trial, the State argued that it was not required to disprove mitigation. It did concede Golsby had to offer mitigation and that the jury, having found Golsby guilty of all counts and associated specifications constituting aggravating circumstances (except those counts and specifications that were severed or for which Golsby had waived jury),1 the State had the burden to prove beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating factors and warranted a death sentence. (Aug. 30, 2017 Memo. Contra Mot. 35 at 1-2.)
{¶ 16} According to an excerpt of an uncertified transcript attached to the State‘s motion for leave to appeal, the trial court held a discussion with counsel about jury instructions to be given during the penalty phase of the trial. (Mar. 19, 2018 Uncertified Tr. Excerpt at A-044 to A-047, A-085 to A-086.) During this discussion, the State for the
{¶ 17} Having considered the parties’ pretrial and pre-penalty phase motions and oral arguments, the trial court instructed the jury at the penalty phase of the trial in relevant part as follows:
In order for you to decide that the sentence of death shall be imposed upon Brian Lee Golsby, the State of Ohio must prove beyond a reasonable doubt that the aggravating circumstances of which the Defendant was found guilty are sufficient to outweigh the factors in mitigation of imposing the death sentence. The Defendant has the obligation of going forward with mitigating factors but no burden of proof. The State of Ohio has the burden of proving the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt.
* * *
If all twelve of you find that the State of Ohio proved beyond a reasonable doubt that the aggravating circumstances the defendant was guilty of committing are sufficient to outweigh the mitigating factors in this case, then it will be your duty to decide that the sentence of death shall be imposed upon Brian Lee Golsby. If you find that the State of Ohio has failed to prove beyond a reasonable doubt that the aggravating circumstances Brian Lee Golsby was guilty of committing are sufficient to outweigh the mitigating factors present in this case, then it will be your duty to decide which of the following life sentence alternatives should be imposed:
A. the sentence of life imprisonment with no parole eligibility until twenty-five full years of imprisonment have been served;
B. the sentence of life imprisonment with no parole eligibility until thirty full years of imprisonment have been served; or
C. life imprisonment without the possibility of parole.
If the weight of the aggravating circumstances and mitigating factors are equal then you must proceed to consider the life sentence alternatives.
You are not required to unanimously find that the State failed to prove that the aggravating circumstances outweigh the
mitigating factors before considering one of the life sentence alternatives. You should proceed to consider and choose one of the life sentence alternatives if any one or more of you conclude that the State has failed to prove beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors. One juror may prevent a death penalty determination if the juror concludes that the State has failed to prove that the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt.
You must be unanimous on one of the life sentence alternatives before you can render that verdict to the court. If you cannot unanimously agree on a specific life sentence, you will then inform the court by written note that you are unable to render a sentencing verdict.
(Mar. 20, 2018 Penalty Phase Jury Instructions at 2, 6-7.)
{¶ 18} On March 21, 2018, the jury reached a unanimous verdict selecting a sentence of “Life Imprisonment without parole.” (Mar. 21, 2018 Penalty Phase Verdict Forms.) In relevant part, the signed verdict forms said that the jury was “deadlocked and unable to agree on whether the aggravating circumstances outweigh[ed] the mitigating factors beyond a reasonable doubt” but stated that they therefore “unanimously determine[d] the * * * sentence [of] * * * Life Imprisonment without parole.” Id. Two other verdict forms were also available to the jury but were not signed by the jurors. One form was for the jury to indicate that it had unanimously determined that the aggravating circumstances outweighed the mitigating factors and that it recommended a sentence of death. (Blank Verdict Form, Unanimous Death.)2 The other was for the jury to indicate that it had unanimously determined that the aggravating circumstances did not outweigh the mitigating factors and then to set forth its selection of one of three terms of life imprisonment: 25-life, 30-life, and life without parole. (Blank Verdict Form, Unanimous Death Rejection.) No form was provided for the jury to indicate unanimous agreement that the aggravating circumstances and any mitigating factors were equal.
{¶ 19} The jury found that Golsby‘s sentence should be life imprisonment without the possibility of parole and did not recommend the death sentence. (Apr. 6, 2018 Jgmt.
{¶ 20} Golsby filed a notice of appeal on May 4, 2018. (May 4, 2018 Golsby Notice of Appeal.) Three days later, the State filed a notice of appeal together with a motion for leave to cross-appeal that included excerpts of the record “to show the probability that the errors claimed did in fact occur.”
{¶ 21} Notwithstanding Golsby‘s decision not to move forward with an appeal, the State requests that we accept jurisdiction and grant leave to appeal in order to resolve a single proposed assignment of error:
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN THE PENALTY PHASE WHEN IT REFUSED TO INSTRUCT THE JURY ON DEFENDANT‘S PREPONDERANCE BURDEN AND INSTEAD INSTRUCTED THE JURY THAT DEFENDANT BORE NO BURDEN OF PROOF.
{¶ 22} “Although
{¶ 23} The Supreme Court of Ohio has held that the “key word” to consider in “final verdict” is the word “verdict.” State v. Lomax, 96 Ohio St.3d 318, 2002-Ohio-4453,
{¶ 24} In Golsby‘s case, the jury was instructed:
You must be unanimous on one of the life sentence alternatives before you can render that verdict to the court. If you cannot unanimously agree on a specific life sentence, you will then inform the court by written note that you are unable to render a sentencing verdict.
(Mar. 20, 2018 Penalty Phase Jury Instructions at 7.) A jury is presumed to follow the trial court‘s instructions. State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, ¶ 39. Here, the jury did not “inform the court by written note that [it was] unable to render a sentencing verdict” but instead “unanimously determine[d]” that Golsby‘s crimes merited a sentence of “Life Imprisonment without parole.” (Mar. 21, 2018 Signed Verdict Form; Mar. 20, 2018 Penalty Phase Jury Instructions at 7.) Although the signed verdict form indicated that the jury had not reached unanimity on the question of whether the aggravating factors outweighed the mitigating factors, by determining Golsby‘s sentence should be life without parole rather than any of the lesser forms of a life sentence, it did reach a unanimous “finding or decision on the factual issues of a case.” Lomax at ¶ 23.
{¶ 25} Because the unanimous jury verdict of life without parole was a “final verdict” within the meaning of
charges and a recommendation of 60 consecutive years on the 6 aggravated robbery counts. (Apr. 3, 2018 Guilty Plea Form.)
{¶ 26} The jury unanimously recommended life in prison without parole, but the jury did not sign the form unanimously rejecting death. Based on this, the State posits that the jury‘s verdict was not one to which jeopardy attaches and that a second effort may be made to obtain a death sentence against Golsby. In other words, the State argues that double jeopardy does not prevent retrying Golsby for a death sentence because the jury signed a form signaling that its members were “deadlocked” on whether to impose death and did not sign a form in which they would have unanimously rejected death. (May 7, 2018 Mot. for Leave at 11.) Compare Blank Verdict Form, Unanimous Death Rejection (for indicating that the jury had “unanimously determined that the aggravating circumstances do not outweigh the mitigating factors“) with Mar. 21, 2018 Signed Verdict Form (indicating that the jury had “deadlocked and [was] unable to agree on whether the aggravating circumstances outweigh[ed] the mitigating factors“).
{¶ 27} The State‘s interpretation of the jury verdict is at odds with the instructions the trial court gave to the jury and which the jury is by law presumed to have followed:
You are not required to unanimously find that the State failed to prove that the aggravating circumstances outweigh the mitigating factors before considering one of the life sentence alternatives. You should proceed to consider and choose one of the life sentence alternatives if any one or more of you conclude that the State has failed to prove beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors.
{¶ 28} The trial court also instructed the jury that “[i]f the weight of the aggravating circumstances and mitigating factors are equal then you must proceed to consider the life sentence alternatives.” (Mar. 20, 2018 Penalty Phase Jury Instructions at 6.) The jury was not provided a verdict form for indicating a finding of equal weight, even though it is possible the jury could have found this. That the jury selected the “deadlocked” form does not mean that it did not unanimously reject death.
{¶ 29} The jury was instructed to examine and weigh the evidence and that the State bore the burden to prove aggravating factors outweighed mitigating circumstances beyond a reasonable doubt. If the jury had found the weight of the evidence supporting aggravating and mitigating circumstances to be equal, the lack of a jury form to indicate that finding, hampered its means to express it. That the jurors did not use the form indicating a unanimous rejection of death is still in keeping with the trial court‘s instructions, especially in the absence of a form to indicate a unanimous finding of equal weight to aggravating circumstances and mitigating factors.
{¶ 30} The jury instruction the State agreed to was that “if any one or more of you conclude that the State has failed to prove beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors,” the jury “should proceed to consider and choose one of the life sentence alternatives.” (Mar. 20, 2018 Penalty Phase Jury
{¶ 31} Other courts have assigned a presumption when a jury “unanimously determine[s]” to recommend the sentence of life. (Mar. 21, 2018 Signed Verdict Form.) In Bullington, a Missouri jury in a death penalty case returned a sentence of life. It had been instructed that its decision to impose death had to be unanimous, and if it was unable to unanimously impose death, the defendant would receive an alternative sentence of life imprisonment. Bullington, 451 U.S. 430, at 435. In Bullington, there was no indication in the record the jury first unanimously rejected death before finding appropriate a life sentence. When Bullington obtained a new trial on grounds unrelated to sentence, the U.S. Supreme Court held that although Bullington obtained a new trial, the State could not seek the death penalty against him in the retrial. Id. at 435-36, 446. This holding supports the proposition, even though the jurors did not unanimously reject death, the life verdict acted as an acquittal for purposes of double jeopardy. Relying on this precedent, we should apply the same presumption in Golsby‘s case, finding the State‘s appeal inapposite because of double jeopardy.
The Legal Viability of the Jury Instructions Sought to Be Appealed Has Not Evaded Review
{¶ 32} Thus, assuming arguendo the State‘s appeal is not an impermissible appeal of the verdict negating the death penalty for Golsby, under the majority‘s “capable of repetition yet evading review” analysis in its application of Bistricky and State v. Ross, 128 Ohio St.3d 283, 2010-Ohio-6282, ¶ 32-33, the question about the jury instructions does not evade review because this same legal question has been addressed and decided before in other cases. Teitelbaum, 2016-Ohio-3524, at ¶ 128-34 (in which the State on cross-appeal argued error in jury instruction relating to the defendant‘s burden of proof in the mitigation phase of a death penalty trial); see also, e.g., Sowell, 148 Ohio St.3d 554, 2016-Ohio-8025, at ¶ 133, 136 (finding that the trial court‘s instructions properly conveyed the State‘s burden of proof, and the requested instruction was therefore covered by the general charge).
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