Lead Opinion
In this appeal, Hill advances fifteen propositions of law. Finding none meritorious, we affirm his convictions. We have also independently weighed the aggravating circumstance against mitigating factors, and compared the sentence to those imposed in similar cases, as R.C. 2929.05(A) requires. As a result, we affirm the sentence of death.
Inaccurate Jury Sentencing Standard (I-IV)
In propositions of law Nos. I through IV, Hill raises issues centered around his claim that the jury was fundamentally misled concerning the sentencing standard by which aggravating circumstances are weighed against mitigating factors. Yet, Hill did not object at trial to the faulty verdict form or the instructions, and thus waived all but plain error. “The failure to object to a jury instruction constitutes a waiver of any claim of error relative thereto, unless, but for the error, the outcome of the trial clearly would have been otherwise.” State v. Underwood (1983),
As Hill correctly points out, the jury must find beyond a reasonable doubt that the “aggravating circumstances” are “sufficient to outweigh” those “mitigating factors present in the case” before recommending the death penalty. R.C.
In proposition of law No. II, Hill points out that the prosecutor in argument misstated applicable law by asserting that “mitigating factors do not outweigh the aggravating circumstances.” The prosecutor also misspoke by referring to “any mitigating factor” in the singular, and by referring to the jury recommending “death in the electric chair.”
Notwithstanding the prosecutor’s misstatements and the inaccurate life sentence verdict form, we deem it unnecessary to reverse this sentencing determination under the circumstances of this case. First, Hill failed to raise these issues before the court of appeals. We “will not ordinarily consider a claim of error that was not raised in any way in the Court of Appeals and was not considered or decided by that court.” State v. Williams (1977),
Second, Hill failed to object at trial. As noted before, failure to object to an instruction waives “any claim of error * * * unless, but for the error, the outcome of the trial clearly would have been otherwise.” State v. Underwood, syllabus. This principle applies equally to the faulty life sentence verdict form. “Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v. Long (1978),
No plain error exists in this case. In fact, the record demonstrates the parties, including the judge in the instructions, generally did refer to a correct standard in the sentence proceedings. Thus, the jury understood the applicable sentencing standard and its sentencing responsibility. The trial court clearly and correctly instructed the jury more than four separate times in final penalty instructions that the aggravating circumstances had to outweigh mitigating factors before the jury could recommend the death penalty. The court defined the term “reasonable doubt,” and specifically told the jury “the defendant has no burden of proof.” The court specifically referred once to the state’s burden of proof beyond a reasonable doubt that the aggravating circumstances outweighed the factors in
In voir dire, the prosecutor repeatedly referred to the correct standard. Also, the jury never asked any questions. Moreover, the jury form that the jury agreed to and signed reflected the correct standard: “We, the Jury, in the issue joined, do find beyond a reasonable doubt that the aggravating circumstances [sic ] present in this case are sufficient to outweigh the mitigating factors and we therefore recommend that the sentence of Death be imposed on the defendant, Jeffrey D. Hill.”
When the jury instructions including the verdict forms are viewed in their entirety, the trial judge adequately informed the jury of its responsibility under R.C. 2929.03(D)(2). State v. Lorraine (1993),
Moreover, we find nothing suggesting the aggravating circumstance and mitigating factors are in equipoise in this case. In fact, the aggravating circumstance strongly outweighs the scant mitigating factors beyond a reasonable doubt, as discussed later. In essence, Hill asked the jury and this court to spare his life because he is a cocaine addict and confessed to police. Under those circumstances, the faulty form or instructions could not have affected the jury’s decision so that “but for” the faulty form, the “outcome of the trial clearly would have been otherwise.” State v. Underwood, syllabus.
Further, Hill’s failure to object to the prosecutor’s argument also waived all but plain error. State v. Mills (1992),
The prosecutor’s reference to the electric chair was accurate, since the General Assembly had not yet authorized death by lethal injection. See R.C. 2949.22, Sub.H.B. No. 11, effective October 1,1993. The prosecutor’s brief misstatements as to “any mitigating factor” and the weighing process were inconsequential. At times, the prosecutor correctly noted that the aggravating circumstance must outweigh mitigating factors to justify the death penalty. Moreover, the court told the jury it was the court’s job to instruct the jury on the law, and the jury’s duty to follow those instructions. As discussed, the court adequately instructed the jury as to its responsibilities.
In propositions of law Nos. Ill and IV, Hill asserts he was denied the effective assistance of counsel at trial and before the court of appeals. In proposition No. Ill, Hill complains because his counsel did not object at trial to the verdict form or the prosecutorial misstatements, as discussed in propositions Nos. I and II. In proposition No. IV, Hill complains his appellate counsel failed to raise these issues at the court of appeals.
Reversal of a conviction or sentence based on ineffective assistance requires meeting the two-prong standard of Strickland v. Washington (1984),
However, Hill fails to demonstrate either deficient performance or prejudice. Hill’s counsel reasonably decided not to object to the prosecutor’s brief, inaccurate comments. Objections “ ‘tend to disrupt the flow of a trial [and] are considered technical and bothersome[.]’ ” State v. Campbell (1994),
As to the incorrect life verdict form or forms, all parties to the trial, including the two defense counsel, apparently overlooked that deficiency. Such an oversight is “not the kind of egregious and unprofessional conduct condemned by Strickland.” State v. Seiber (1990),
Additionally, Hill has not established prejudice, “a reasonable probability that, were it not for counsel’s errors, the result of the trial would have been different.” State v. Bradley, at paragraph three of the syllabus. In fact, the aggravating circumstance strongly outweighs the scant mitigating factors beyond a reasonable
Appellate counsel’s tactical decision not to raise in the court of appeals the claims in propositions Nos. I and II, or the ineffective assistance claim in proposition No. Ill, reflected reasonable professional judgment. The first two issues had been waived at trial and were unlikely to succeed. “This process of “winnowing out weaker arguments on appeal and focusing on those more likely to prevail * * * is the hallmark of effective appellate advocacy.” Smith v. Murray (1986),
Defective Trial and Appellate Sentencing Opinions (V, VI)
In propositions of law Nos. V and VI, Hill argues the trial court, in its sentencing opinion, and the court of appeals, in its reassessment of the sentence, considered nonstatutory aggravating circumstances and ignored valid mitigation. We find no merit in either claim.
Neither the trial court nor the court of appeals relied upon nonstatutory aggravating circumstances. Both courts accurately identified the single aggravating circumstance. When a court does so correctly, that court is presumed to rely only on that circumstance, and not on nonstatutory aggravating circumstances. State v. Rojas (1992),
As to mitigation, “the assessment and weight to be given mitigating evidence are matters for the trial court’s determination.” State v. Lott, supra, at 171,
In discussing and evaluating the evidence, both the trial court and the court of appeals adequately explained why the aggravating circumstance outweighed any relevant mitigating factors. Even inadequate explanations do not require reversal. State v. Fox (1994),
Comment on Nonapplicable Mitigating Factors (VII)
In proposition No. VII, Hill argues that the trial court’s sentencing opinion justified the death sentence by noting the absence and irrelevance of certain statutory mitigating factors. We find no prejudicial error.
Admittedly, State v. DePew (1988),
Settled Issues (IX)
Hill’s proposition of law No. IX, challenging Ohio’s death penalty statutes, is summarily rejected. See State v. Bedford (1988),
Instructions on Intoxication (X, XI)
In proposition of law No. X, Hill argues plain error because the trial court did not, sua sponte, instruct the jury to consider Hill’s cocaine intoxication in deciding either his guilt or the recommended penalty. In proposition No. XI, Hill argues he was denied the effective assistance of counsel because defense counsel failed to ask for such jury instructions. We reject both propositions.
' First, Hill failed to request any instruction as to the effect of intoxication. Thus, Hill waived all but plain error. State v. Underwood, supra, at syllabus;
Second, we have traditionally recognized a trial judge’s discretion as to. whether to instruct a jury on intoxication as a defense. See State v. Fox (1981),
Moreover, the evidence does not reasonably raise the intoxication issue. “[IJntoxication is not raised as a defense to the element of purpose in a criminal prosecution merely because the evidence suggests reduced inhibitions, impaired judgment or blurred appreciation by the defendant of the consequences of his conduct.” State v. Hicks (1989),
In this case, Hill drove away from his mother’s house, obtained cocaine, and drove back. Then he stabbed her ten times, searched for and found money, and drove away again. When he left after killing his mother, he locked her door behind him. Then, he took the precaution of discarding the murder weapon. Three days later, he recalled and described the events of the murder to police. His careful, calculated steps refute any claim that cocaine use interfered with his capacity to entertain the purposeful intent to kill. See State v. Slagle (1992),
As to the penalty phase, the trial court fully instructed the jury on sentence deliberations and to consider all of the evidence and arguments presented. The trial court need not instruct the jury to give particular weight to any specific evidence, such as Hill’s cocaine use. “The fact that an item of evidence is admissible * * * does not automatically mean that it must be given any weight.” State v. Steffen, supra, at paragraph two of the syllabus. Also, Hill did not establish that his cocaine addiction qualified as a mental disease or defect under R.C. 2929.04(B)(3). See State v. Cooey,
We also reject Hill’s proposition of law No. XI, claiming ineffective assistance of counsel. Defense counsel need not make fruitless requests for jury instructions, such as those on intoxication. Thus, counsel’s decision not to request such instructions reflected professional judgment not falling “below an objective standard of reasonable representation.” State v. Bradley, supra, at paragraph two of the syllabus. Hill also failed to demonstrate prejudice. No “reasonable probability” exists that the result of the trial would have been different if counsel
Defendant’s Absence During Jury-View Instructions (XII)
In proposition No. XII, Hill argues his conviction must be reversed because he was absent when the trial judge instructed the jury immediately prior to a jury visit to the crime scene. Admittedly, Hill has a fundamental right to be present at all critical stages of his criminal trial. Section 10, Article I, Ohio Constitution; Crim.R. 43(A).
However, both Hill and his counsel knew about the jury view and the court’s intention to briefly instruct the jury before the view. Neither Hill nor his counsel expressed any desire to be there, and Hill specifically waived his presence at the jury view. “A party will not be permitted to take advantage of an error which he himself invited or.induced.” Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co. (1986),
Moreover, a trial court’s ex parte communication with the jury is not necessarily prejudicial error. State v. Williams (1983),
Hill fails to meet the tests. The parties had prior “full knowledge” and agreed to the contact. Moreover, the trial court’s innocuous comments involved procedures during the view, not substantive matters. Any irregularity was harmless. State v. Williams,
Batson Claims on State’s Peremptory Challenges (XIII)
In proposition of law No. XIII, Hill argues the prosecutor exercised two peremptory challenges in a racially discriminatory manner. Batson v. Kentucky (1986),
To make a prima facie case of such purposeful discrimination, an accused must demonstrate: (a) that members of a recognized racial group were peremptorily challenged; and (b) that the “ ‘facts and any other relevant circumstances raise an inference that the prosecutor’ ” used the peremptory challenges to exclude
In this case, Hill established no prima facie case at trial. The facts and circumstances raise no inference that the state improperly used peremptory challenges to exclude potential jurors based on race. The prosecutor properly challenged one African-American for cause, and did not challenge another who served on the jury.
However, Hill complains about the prosecutor’s peremptory challenges against two other African-Americans, Robert McDaniel and Gerald Hutcherson. Yet, McDaniel, a seventy-year-old veteran, emphatically and repeatedly asserted he did not want to serve on this jury. McDaniel explained he could not handle “too much pressure.” He had fought in combat for two and one-half years during World War II in China and Burma and “caught lead four different times.” Because of this, McDaniel feared “flashbacks” and was “shell shocked” and “jumpy.” In fact, the prosecutor challenged him for cause, but the court rejected that challenge. Then, the prosecutor excused McDaniel with a peremptory, and Hill raised no Batson claim. Later, Hutcherson was examined and declared he could not think of any instance where the death penalty was warranted. Hutcherson also planned to continue working second shift, until 11:00 p.m., even while serving on the jury. Hill raised the Batson issue only after the prosecutor excused Hutcherson.
Additionally, the prosecution voluntarily explained, in race-neutral terms, specific reasons for its peremptory challenges even in the absence of a prima facie showing. Thus, the trial court need not have interfered with the prosecution’s peremptory challenges. Hernandez v. New York, supra. We find no merit in Hill’s proposition No. XIII.
Admission of Defendant’s Pretrial Statements (XIV)
In proposition of law No. XIV, Hill urges that his pretrial statements were secured in violation of his Fifth and Sixth Amendment rights. Hill argues that the principle of Edwards v. Arizona (1981),
Instead, Hill asks us to assume that counsel had been appointed to represent him for the March 23 charges. Yet, even such an assumption would not have ' prevented police questioning on the unrelated issue of his mother’s death. McNeil v. Wisconsin (1991),
In this case, police fully advised Hill of his Miranda rights and secured a waiver of those rights, prior to questioning Hill about his mother’s death. In fact, police separately advised Hill of his rights three times before obtaining his taped confession, and Hill was not then charged with any offense relating to his mother. Hill testified he asked for a lawyer, and the police told him he did not need one. However, the police testified Hill specifically told them he did not have and did not want an attorney.
The evidence supports the trial court’s decision to admit Hill’s confession as lawfully, freely and voluntarily made. Further, the trial court has the responsibility to weigh the evidence and determine the credibility of witnesses even during suppression hearings. State v. Fanning (1982),
Appointment of Sanity Examiners (XV) '
In proposition of law No. XV, Hill argues he was denied his right to an impartial mental-condition examination under R.C. 2945.39 because the same examiners had already evaluated his mental competency to stand trial. Hill argues those examiners, because of their prior opinions, could be prejudiced when evaluating his mental responsibility.
In fact, the four examiners did not all agree on their evaluations of competency. Dr. Fisher found Hill not competent, but agreed malingering was possible. Dr.
In view of the circumstances, we find the trial court did not err in appointing the same examiners who had evaluated competency to evaluate separately mental responsibility. R.C. 2945.371(E) specifically authorizes appointing the same examiner to evaluate competency for trial and mental condition at the time of an offense. Separate reports must be prepared, but that was done here. Moreover, the examiners’ reports are professional and thorough. Appointing the same examiners makes sense in view of the complexity of myriad details involved in mental evaluations. Hill’s attempts to fake mental illness had already delayed the case, and appointing new examiners would necessitate further delay. In essence, Hill wants two sets of examiners so he can get “two bites of the apple” to evade responsibility. We find no abuse of discretion in reappointing the same examiners.
Further, the trial court need not have specifically asked Hill to recommend an examiner. Hill had no constitutional right to an examiner of his own choosing. See State v. Esparza (1988),
INDEPENDENT SENTENCE ASSESSMENT
In proposition of law No. VIII, Hill argues the death sentence is unwarranted because the aggravating circumstance does not outweigh mitigating factors. R.C. 2929.05(A) requires us to review Hill’s sentence independently.
After independent assessment, we find the evidence clearly proves beyond a reasonable doubt the aggravating circumstance for which Hill was convicted, i.e., murder during the course of an aggravated robbery. As to mitigating factors, Hill’s apparent cocaine addiction is a mitigating factor as it relates to the offense. Aside from that addiction, we find nothing else mitigating in the nature and circumstances of the offense.
We find Hill’s history, character, and background provides nothing of significant mitigating value. Evidence as to Hill’s steady work record was sparse. Dr. Fuess did verify that Hill suffered from “personality disorders.” Yet, we choose
No evidence at trial supports applying any of the statutory mitigating factors in R.C. 2929.04(B)(1) through (6). Despite Dr. Fridman’s testimony, Hill did not establish that his personality or conduct disorders were a “mental disease or defect” under (B)(3). Cf. State v. Seiber,
The aggravating circumstance strongly outweighs the slight mitigation present in this case beyond a reasonable doubt. Aside from Hill’s cocaine addiction and cooperation with police, no mitigating factors of any consequence exist. At best, those two factors are entitled to only very little weight. In contrast, the facts of the aggravating circumstance are horrendous. When weighed against that circumstance, the mitigating factors and evidence pale into insignificance. Hill brutally robbed and murdered his own mother, an elderly, partially paralyzed woman, in her own bedroom, and then left her to die alone. She had done nothing to provoke or contribute to this vicious assault. No merit is found in proposition No. VIII.
The death penalty in this case is both appropriate and proportionate when compared with the penalty imposed in similar cases of felony murder. See State v. Woodard (1993),
The judgment of the court of appeals is affirmed.
Judgment affirmed.
Dissenting Opinion
dissenting. I respectfully dissent from the opinion of the majority because I believe that the sentence of death is inappropriate, given the particular facts of this case. Although this court has upheld death sentences based upon a
Hill did not commit murder with prior calculation and design. The record reflects that Hill simply snapped due to his drug-induced state prior to the offense. He had been up all night smoking crack cocaine. He smoked crack cocaine in his mother’s basement immediately before speaking with her the morning of the murder. After receiving twenty dollars from his mother, he bought and smoked more crack cocaine. Hill testified under oath that when he returned to his mother’s house, he remembers speaking with her and the next thing he knew, she was on the floor. Hill testified that he did not remember stabbing his mother and told his brother that he did not mean to kill her. The state does not dispute this as part of Hill’s confession.
Dr. Fridman, a licensed clinical psychologist, spoke on Hill’s behalf during the mitigation phase. Dr. Fridman testified concerning a condition known as “cocaine psychosis” that develops during heavy use of cocaine. Dr. Fridman stated that this condition is characterized by mental confusion, irrational behavior, a paranoid state, irritability, rapid changes in perception, release of inhibition, and panic reactions. Dr. Fridman also testified that when cocaine is no longer available, the addict goes through a period known as “abstinence syndrome.” Dr. Fridman stated that during this period, the addict is “often capable of behaving and doing anything to get their drug, behaving in very irrational ways. They can certainly be violent, aggressive.”
With regard to Hill’s use of crack cocaine, Dr. Fridman opined that Hill’s addiction would be classified as “chronic, long-term cocaine addiction,” and that Hill “was an addict [and] had been an addict for some time.” When asked whether Hill’s actions on the night of the murder had any connection with the murder, Dr. Fridman testified that “a crack addict who has just binged on a lot of crack, has an abstinence syndrome and his behavior at that time can be directed by his need, his overwhelming intense need for more of the drug, for more crack.”
It is undisputed that the offense occurred in large part as a result of Hill’s drug use and dependency. In light of the foregoing, I question whether Hill was able to form the purposeful intent to kill and believe that his chronic addiction should be viewed as a significant factor in determining punishment in the case before us.
By stating that Hill’s drug use played a significant role in the murder of his mother, I am not advocating the proposition that drug use, standing alone, should be viewed as a substantial mitigating factor. I simply believe that under the particular circumstances of this case, Hill’s drug use is “relevant to the issue of whether the offender should be sentenced to death.” R.C. 2929.04(B)(7).