Lead Opinion
I
Thе first issue before us concerns whether pursuant to R.C. 2901.02(B), aggravated murder is a capital offense requiring separate trials for jointly indicted defendants, where there has been no applicаtion for a joint trial as required by Crim. R. 14 and R.C. 2945.20.
The appellant, state of Ohio, contends that as a consequence of the United States Supreme Court decision in Furman v. Georgia (1972),
Appellee Long argues that thе plain meaning of R.C. 2901.02(B) maintains aggravated murder as a capital offense regardless of whether death can be imposed as a penalty.
R.C. 2901.02(B) states:
“Aggravated murder, and any offense for which death may be imposed as a penalty, is a capital offense.” (Emphasis added.)
Crim. R. 14 states in relevant part:
“When two or more persons are jointly indicted for a capitаl offense, each of such persons shall be tried separately, unless the court orders the
In interpreting the intent of the General Assembly, we find that R.C. 1.42 states in relevant part that:
“Words and phrases shall be read in context and construed аccording to the rules of grammar and common usage. * * *”
A plain reading of R.C. 2901.02(B) under this common usage construction leaves little doubt that the position advanced by appellee Long is the proper interpretation to be followed. However, R.C. 1.02(F) states that:
“ ‘And’ may be read ‘or,’ and ‘or’ may be read ‘and’ if the sense requires it. ” (Emphasis added.)
We believe that sense requires the conjunctive “and” to be read exactly as it is written in R.C. 2901.02(B). Certainly, the General Assembly was metiсulous in authoring R.C. 2901.02(B) to insure that aggravated murder was a capital crime independent of whether the death penalty could be imposed. Throughout the Criminal Rules and R.C. Title 29 there appear certain statutory safeguards and detriments that take effect when a person is charged with committing a crime that is classified as a capital offense.
Simply because the Ohio death pеnalty provisions were struck down in Lockett, supra, does not lead to the conclusion that any crime which imposed the death penalty is no longer a capital offense. The United States Supreme Court did not decide whether aggravated murder was a capital offense. The court merely held, inter alia, that the safeguards surrounding the sentencing of the death penalty were constitutionally infirm.
In any event, we hold that under the proper statutory construction aggravated murder is a capital offense, whether or not death may be constitutionally imposed as a penalty upon conviction. Undеr the law of this case, because neither the state nor appellee Henry applied and sought affirmative approval for a joint trial for good cause shown pursuant to Crim. R. 14 and R.C. 2945.20, we affirm the court of appeals and remand the cause for a new trial wherein appellee Long will be tried separately.
The second issue to be decided in this cause is whether thе prosecutor’s misstatements of Ohio law concerning the sufficiency of evidence necessary to convict on an aggravated murder charge so prejudiced the defendants as to deprive them of a fair trial.
The statements in issue, made by the prosecutor during closing argument, were as follows:
“Well, let’s begin with Mr. Long uncontroverted, if he didn’t do anything else in this case, from his own mouth you heard the testimony that Mr. Long got rid of the wallet. Uncontroverted.
“Uncontroverted in this case that you heard from his own mouth was the fact that Mr. Henry drove the automobile away from the scene of the crime. That’s what you heard from their own mouths. Those two things alone are enough to convict them.”
At that point, both defendants’ counsel objected to these statements as being misstatements of the applicable law. The trial judge overruled the objections. Then, after the jury had been deliberating for approximately five and one-half hours, the foreman presented a question from thе jury to the court:
“Does getting rid of evidence from an aggravated robbery constitute guilt of aggravated murder when a victim dies as a result of the aggravated robbery?”
Over objection, and after dеfense counsel requested that the question be answered in the negative, the trial court answered the inquiry with a standard response that the function of the jury is to weigh all of the evidence.
The statе submits several arguments as to why this interplay does not constitute reversible error. First, the state argues that this comment was merely one among many made during closing arguments and therefore is not prejudicial. Second, the state argues that the comments were made only in retaliation to the improper remarks made by opposing counsel, and as such, any error is therefore neutralizеd. Third, the state contends that in light of the ample proof of defendants’ guilt, such isolated remarks do not rise to the level of depriving the defendants of a fair trial. Lastly, the state submits .that even though defense counsel objected to the remarks made by the prosecutor, any point of error was not preserved on appeal because no mistrial was sought; and that in any event, any еrror was cured by proper jury instructions.
We find the state’s arguments to be totally devoid of merit. Given the
In reversing the trial court on this point, we are not dealing with mere incidental, isolated comments, nor are we unduly limiting the latitudе customarily afforded counsel in closing arguments. See State v. Liberatore (1982),
Therefore, we affirm the court of appeals in reversing and remanding this cause for new trials wherein both defendants are to be tried separately.
Judgment affirmed.
Notes
Since defendant-appellee Long was the only party who requestеd separate trials, he alone could preserve this point on appeal.
R.C. 2945.20 expresses similar language.
In addition to the procedural protection of severance at issue in the instant case, the following Criminal Rules and statutes distinguish a capital offense from any other criminal offense:
Crim. R. 7(A) and R.C. 2941.021, prosecution by indictment or information;
Crim R. 24(C) and R.C. 2945.21, peremptory challenges;
Crim. R. 24(GX2)(c), jury under court supervision;
Crim. R. 46(A) and (E), bail;
R.C. 2945.18, venire for jury in capital cases;
R.C. 2945.19, special venire in capital cases; and
R.C. 2967.13(B), parole eligibility.
We also note that the time restraints within Crim. R. 12 do not apply here, sinсe defendants did not bear the burden of requesting separate trials.
Specifically, the trial court responded to the jury’s inquiry in the following manner:
“You are the sole judges of the disputed facts, the сredibility of the witnesses, and the weight of the testimony; and upon determination thereof, you are to apply the instruction of law as provided by the Court. You must consider this evidence in light of your findings on all the evidence in the case in determining the ultimate questions of innocence or guilt of these charges.”
Dissenting Opinion
dissenting. I disagree with the majority’s resolution of each issue in this appeal, so I respectfully dissent.
First, in my opinion, the General Assembly’s intent in enacting R.C. 2901.02(B) was to define capital offenses as those for which the death penalty could be imposed. This is what distinguished capital from other offensеs at common law, and R.C. 2901.02(B) does not evidence sufficient legislative intent to vary this well-established rule. At the time of this trial, Ohio did not have a death penalty provision by virtue of Furman v. Georgia (1972),
Second, I disagree with the holding that appellant’s closing argument contained prejudicial error. Since the trial court gave a correct definition of the law, I find it hard to consider this minor discretion even error. Additionally, even considering it error, in light of the overwhelming evidence of appellees’ guilt, it is, in my opinion, harmless error.
Therefore, I would reverse the judgment of the court of appeals.