Lead Opinion
Wе have reviewed Landrum’s thirty-one propositions of law, independently assessed the evidence relating to the death sentence, independently balanced the merged aggravating circumstances against the mitigating factors, and evaluated the proportionality of the sentence to those imposed in similar cases. As a result, we affirm the convictions and sentence of death.
I
Prosecutorial Misconduct
Propositions I, II and XVI all argue alleged misconduct by the prosecutor. In his first proposition of law, Landrum argues various comments by the prosecutor deprived him of constitutional rights against self-incrimination, and to counsel and due process. In response, the state denies impropriety, argues waiver because the defense did not object, and asserts that Landrum received a fair trial.
In final argument, the prosecutor disparagingly referred to Landrum’s not guilty pleas. In September, Landrum had pled not guilty. The prosecutor stated: “[f]or the first time yesterday, he’s changed his story and apparently now, hе and his attorneys honestly are telling you, well, I’m guilty of some things. They’re telling you I’m guilty of Aggravated Burglary even though I denied it when I talked to [Detective] Groves, even though I denied it when I came in and was called upon to enter a plea. Now, I’m going to tell the truth.”
Landrum argues correctly that courts disapprove of penalties imposed for exercising constitutional rights. In Doyle v. Ohio (1976),
In this case, the prosecutor improperly referred to Landrum’s not guilty plea in pejorative terms. In effect, the prosecutor implied that Landrum was dishonest by pleading not guilty and then in his trial testimony admitting partial guilt. However, Landrum was legally and procedurally fully entitled to plead not guilty, rely upon the presumption of innocence, and require the state to prove its case. See Crim. R. 11. Yet, the prosecutor could argue that Landrum should not be believed on the stand because Landrum lied to the police after his arrest.
Landrum further claims that the prosecutor appealed to the jurors’ passions and prejudices and attempted to secure a verdict by fear. When the prosecutor cross-examined Landrum, he handed him the kitchen knife and asked him to hold the knife just as he had that night. During final argument, the prosecutor admitted he may have startled the jury.
He informed the jury that, “I did that on purpose and I watched your reaction and I want you to think now about what your reaction was when you saw that defendant on the stand with that knife. Were you concerned? Were you startled? Did it shock you? Were you worried? Did you think you might be in danger or not? Sometimes our bodies tell us things before our minds do and if you had any of those feelings when Larry was setting [sic] on that stand with that’s — with that weapon, I submit to you it was something inside of you telling you that he knows how to use it and he’s willing to use it. If you had that feeling at all, I ask you to reflect back on what
In this case, defense counsel did not object at trial to the prosecutor’s comment about the not guilty plea or the knife. We decline to invoke the plain error rule. “A claim of error in a criminal case can not be predicated upon the improper remarks of counsel during his argument at trial, which were not objected to, unless such remarks serve to deny the defendant a fair trial. “ State v. Wade (1978),
When the prosecutor handed the knife to Landrum and asked Landrum how he handled the knife that night, the prosecutor’s conduct was not improper per se. Defense counsel did not object, and the prosecutor’s hidden motives do not excuse the lack of objection. The cold record does not reflect theatrics as Landrum claims. Moreover, “[w]here upon a trial of an indictment the defendant offers himself as a witness, and testifies in his own behalf, he thereby subjects himself to the same rules, and may be called on to submit to the same tests as to his credibility as may legally be applied to other witnesses.” Hanoff v. State (1881),
The prosecutor in his argument did appeal to the jury’s emotion rather than reason. By asking the jurors how they felt, and whether they were worried or shocked by seeing Landrum with the knife, the prosecutor overstepped the bounds of propriety.
However, viewed in its total context, the prosecutor’s final argument was reasoned, logical, and not emotional. He kept to matters of record; he carefully reviewed the extensive evidence against Landrum; and he pointed out possible prejudice or bias of defense witnesses. As a whole, the argument was unobjectionable.
The court instructed the jury on the effect of thе not guilty plea and further that counsel’s arguments were not evidence. In his own trial testimony, Landrum admitted planning the burglary and wrestling and threatening White with the butcher knife. Shortly after the murder, Landrum apparently told at least five people that he personally had cut White’s throat. Landrum claimed he did not remember making those admissions, but he never denied making them. Those facts demonstrate a strong case, not a weak circumstantial case as Landrum claims. In light of the overall fairness of the prosecutor’s closing argument, the misconduct was not crucial. Landrum received a fair trial and there was no miscarriage of justice. We decline to recognize any plain error. Crim. R. 52(B); State v. Wade, supra.
Landrum’s other complaints about the prosecutor’s conduct in the guilt phase are without merit. Some latitude is granted to both parties in closing argument. State v. Byrd (1987),
In his second proposition of law, Landrum claims denial of a fair trial by-citing four examples of prosecutorial misсonduct during the sentencing hearing. First, Landrum complains about a comment made by the prosecutor when he cross-examined Landrum about earlier admissions that he slit White’s throat. Defense counsel objected that these admissions were not aggravating factors. The prosecutor responded: “I submit that they are and I’m sure that the White family will submit that they are.” The court announced: “Gentlemen, no more comments. Approach the Bench.”
The prosecutor’s comment was improper. See Booth v. Maryland (1987),
Second, Landrum complains that the prosecutor misstated the law in arguing that Landrum’s age of twenty-thrеe should not be a mitigating factor because of Landrum’s relative maturity. However, the prosecutor did not misstate applicable law. “The youth of the offender” as used in R.C. 2929.04 (B)(4) may refer to chronological age. See State v. Rogers (1985),
Third, Landrum complains that the prosecutor injected nonstatutory aggravating circumstances. Landrum also raises this issue in his sixteenth proposition of law. Landrum contends that the prosecutor’s cross-examination and final argument concerning planning the burglary and cutting White’s throat improperly injected into the trial prior calculation and design and the heinous nature of the crime as nonstatutory aggravating circumstances.
The manner of killing is not a statutory aggravating circumstance. Prior calculation and design is not a statutory aggravating circumstance if a defendant is charged as a principal. R.C. 2929.04(A)(7); State v. Penix (1987),
Landrum’s behavior after the murder also tends to discredit his in-trial expressions of remorse and sorrow. The prosecutor could legitimately challenge Landrum’s claims of religious reconciliation and desire to counsel other juveniles in the future. The trial court properly instructed the jury on what the aggravating circumstances were. Since defense counsel did not object, Landrum also waived any error as to the closing argument. State v. Wade, supra, paragraph one of the syllabus.
Fourth, Landrum argues that the prosecutor’s cumulative misconduct impaired the overall fairness of the death penally determination. We disagree. The jury decided on death only after full and fair argument. The prosecutor did not, in closing, primarily appeal to emotions as in State v. Thompson, (1987),
II
Exclusion of Evidence
In his third proposition of law, Landrum argues that the trial judge erred when he excluded Randy Coffenberger’s proffered testimony during the sentence hearing. Coffenberger would have testified that Grant Swackhammer told him on September 20 that he, Grant, had slit White’s throat. Landrum argues that the alleged statement by Grant was admissible as a declaration against penal interest under Evid. R. 804(B)(3). He further asserts that Grant’s statement was admissible, regardless of the hearsay rule, because of the relaxed rules of evidence in sentencing proceedings. According to counsel at trial, a juvenile court adjudged Grant a delinquent for his role in the White burglary and murder. We agree that the trial judge should have admitted Coffenberger’s testimony.
In this case, Coffenberger’s testimony met several requirements for admissibility. Grant earlier refused to testify as a state witness based on his own privilege against self-incrimination. Thus, the declarant was unavailable as a witness. Grant’s statement also qualifies as a declaration against penal interest by admitting his own guilt as a principal to murder. Admissibility hinges on this further requirement. “* * * A statement tending to expose the declarant to criminal liability * * * is not admissible unless
Landrum argues that his own testimony that he had not cut White’s throat, together with the lack of blood found on his clothing, constitutes sufficient corroborating, circumstances. The state disputes this and argues that Grant told the police that Landrum cut White’s throat.
The state also argues that Coffenberger’s lack of credibility as a potential witness supports the trial court’s decision excluding Coffenberger’s testimony. The state proffered evidence that Coffenberger had five felony convictions and told the police he had not seen Grant after the murder.
The determination of whether corroborating circumstances are sufficient to admit statemеnts against penal interest, as a hearsay exception, generally rests within the discretion of the trial court. United States v. Guillette (C.A.2, 1976),
However, in Chambers v. Mississippi (1973),
In Green v. Georgia (1979),
In this case, three of the four Chambers criteria were satisfied. Grant allegedly made his statement, spontaneously, the day after the murder. He had no motive to lie then. His statement was unquestionably against his penal interest. Corroboration existed in Landrum’s sworn testimony and the lack of any blood on Landrum’s clothing. However, Grant, the declarant, was not available for cross-examination.
The credibility of Coffenberger as a witness does not affect the statement's admissibility. Evid. R. 804 (B)(3) refers to “the trustworthiness of the statement,” not the witness. As the fact finder, the jury was responsible for assessing Coffenberger’s credibility as a witness. As in Chambers, the fact that the declarant had
We also conclude that the trial judge erred for other reasons. In State v. Williams (1986),
We have considered Coffenberger’s proffered testimony in our independent assessment and weighing of evidence mandated by R.C. 2929.05 (A). See Clemons v. Mississippi (1990),
Landrum also urges that the trial court improperly excluded evidence that Grant routinely carried a knife and had a violent nature. However, the fact that Grant regularly carried a knife was before the jury. As to Grant’s allegedly violent character, see Evid. R. 404(A). Landrum made no proffer and preserved no error. Evid. R. 103(A)(2); State v. Gilmore (1986),
Ill
Continuance
Landrum argues in his fourth proposition of law that the trial court erred by denying repeated requests for continuance. Following a September 27,1985 arraignment, the trial court in mid-October set a December 16 trial date. Landrum’s counsel filed over forty-five pretrial motions. The trial court held frequent hearings to dispose of these. On November 19, Landrum’s counsel requested a “reasonable” delay. Reluctantly, the court approved a delay until February 10, 1986.
In mid-January and later, counsel asked for other continuances, arguing that state public defender investigators assigned to the case, especially mitigation specialists, had been too busy on other cases to assist the two locally appointed counsel. Appointed counsel did not assert that they personally lacked time to interview witnesses or develop mitigation strategy. Nor did counsel ask for authority to hirе investigators. The court kept the February 10 start date, but eventually delayed the sentencing hearing until March 17, 1986.
The grant or denial of a continuance is entrusted to the broad, sound discretion of the trial judge. State v. Powell (1990),
In this case, the need for the delay
IV
Venue
In his fifth proposition of law, Landrum argues that the trial court erroneously denied his motion for a defense expert to assist in presenting a change of venue motion. In deciding on requests for experts, trial judges must make an informed decision on whether the services are reasonably necessary for the proper representation of a defendant. R.C. 2929.024. See, also, State v. Jenkins (1984),
In his sixth proposition of law, Landrum alleges that the trial court erred when it did not order a change of venue. Although he initially denied the motion, the trial judge explicitly allowed for renewal of the motion after an attempt was made to seat a jury. After three days of voir dire during which twenty-eight potential jurors were passed for cause, Landrum asked again for a venue change.
The local Chillicothe newspaper extensively reported the crime and local radio also covered it. The news media extensively covered the previous trial of Grant Swackhammer. Most of that coverage was factual, not sensational, and predated Landrum’s trial. However, the news media did report in some detail one crucial item of possibly prejudicial information. Grant Swackhammer confessed to the police, and the state used that confession at Grant’s trial. In that confession, Grant asserted that Landrum cut White’s throat. Grant did not testify at Landrum’s trial and none of his versions of the events was in evidence. See Part II of this opinion.
As Landrum argues, virtually all of the prospective jurors had read or heard media reports about the case. Several potential jurors had known the deceased or his son, Pat White, or had been in his grocery store. Ohio law explicitly recognizes that a trial judge may change venue “when it appears that a fair and impartial trial cannot be held” in that court. Crim. R. 18(B); R.C. 2901.12(K). Any decision on changing venue .rests largely in the discretion of the trial court. Absent a clear showing of an abuse of discretion, the trial court’s decision controls. State v. Maurer, supra, at 251, 15 OBR at
Pretrial publicity can undermine a trial’s fairness. “It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days * * * an important case can be expected to arouse the interest of the public in the vicinity * * Irvin v. Dowd (1961),
In this case, the trial judge decided that despite the pretrial publicity few jurors recalled any details and “none indicated they would have trouble putting it out of their mind or having that interfere with their fair and impartial deliberation.” Our review of the extensive voir dire conducted by the court and both counsel supports that finding. The delay from September to February helped dissipate any effects from the publicity.
Moreover, the trial judge took other effective steps to protect Landrum’s rights. At the request of the defendant, he sent out an extensive questionnaire to all prospective jurors. The court cautioned counsel about discussions with the news media. The judge strongly and repeatedly advised jurors not to listen to local news broadcasts or read local newspapers. Landrum cites no instаnces of prejudicial publicity near or during trial. See Goins v. McKeen, supra. Under all the circumstances, Landrum fails to demonstrate any abuse of discretion.
V
Jury Issues
In his seventh proposition of law, Landrum argues that he was entitled to funding for a defense psychologist, as a consultant, to assist in selecting a jury. The trial court can properly exercise discretion and deny funds for this purpose. See R.C. 2929.024; State v. Jenkins, supra, at 193, 15 OBR at 335,
In his eighth proposition of law, Landrum argues that the trial court erred by conducting group voir dire. Initially, the judge and counsel individually voir dired three prospective jurors. Based on that experience, the judge then decided to collectively voir dire twelve jurors at a time. However, he continued to question individual jurors about their death penalty views out of the hearing of other jurors. The record reflects a full, thorough voir dire with few objections or restrictions. Counsel made few challenges for cause and there was little controversy.
Neither Ohio nor federal law requires individual voir dire. That issue is within the discretion of the trial judge. See State v. Mapes (1985),
In his ninth proposition of law,
We find no merit in Landrum’s argument. During a lengthy voir dire, Clark gave conflicting answers about his death penally views. Finally, he told the trial judge he could not follow the instructions of the court and fairly consider the death penally. Viewing the voir dire in its entirety, Darden v. Wainwright (1986),
In his tenth proposition of law, Landrum argues that the judge should have excused for cause three prospective jurors who indicated they would not consider mitigating factors. Prospective juror Marsha Morrison indicated that age (twenty-three) would not make a difference to her in the death рenalty decision, but that the existence of a drug or alcohol problem or a difficult family environment might. Prospective juror James Bowers also discounted age, and personally felt that the lack of a significant criininal record or a drug and alcohol problem was not important. He would have considered family background. Edler would have personally given no weight to age or the lack of a criminal record, but would consider family background.
When questioned, these prospective jurors did not know what the law required. All three agreed they could put aside personal views and follow the trial court’s instructions on appropriate mitigating factors.
Clearly, jurors cannot be challenged because they do not individually believe in every one of seven statutory mitigating factors. Jurors need not unanimously accept a mitigating factor in order to consider it or give it weight. See McKoy v. North Carolina (1990),
Landrum complains in his eleventh proposition of law that the trial court prejudiced him by ordering that he be handcuffed during the jury’s view of the crime scene. After hearing counsel’s arguments, the trial court decreed Landrum be unobtrusively handcuffed; leg irons were not used.
We have recognized that no one should be tried while shackled, absent unusual circumstances. State v. Kidder (1987),
Here, the jury viewed an apartment building above a grocery store and a wooded area. Landrum was not handcuffed during the trial. Under the circumstances, the record does not demonstrate that the trial judge abused his discretion. Compare Woodards v. Cardwell (C.A.6, 1970),
In his twenty-second proposition of law, Landrum asserts error because the trial judge declined to order а second voir dire at the start of sentencing. His arguments lack merit or authority. See State v. Greer (1988),
In his twenty-third proposition of law, Landrum argues that the process of death qualification of a jury denies him an impartial jury and compromises his constitutional rights. However, both the United States Supreme Court and this court have previously rejected similar arguments and upheld current procedures. Lockhart v. McCree (1986),
VI
Defective Indictment
In his twenty-fourth proposition of law, Landrum argues the aggravated murder indictment was insufficient because it did not set forth the elements of the underlying crimes of burglary and larceny. Before trial, the prosecutor filed a bill of particulars which clarified some of the indictment’s alleged ambiguities.
Crim. R. 7(B) specifically authorizes an indictment to be “in the words of the applicable section of the statute,” though it need not be. See State v. Oliver (1972),
In this case, the indictment followed the statutory language and the bill of particulars provided further clarification. Landrum raised here no issue of fatal defect or variance such as those involved in the cases he cites: State v. Cimpritz (1953),
VII
Defendant as Co-Counsel
In his twenty-sixth proposition of law, Landrum argues that the trial court abused its discretion when it did not permit him to act as co-counsel at his trial. We disagree. Two able, experienced defense counsel represented Landrum. An accused has no right to act as co-counsel in his own behalf. State v. Thompson, supra, at 6-7,
VIII
Prior Statements of Witnesses
In his twenty-eighth proposition of law, Landrum argues that the trial court should have ordered the pretrial release of previous statements of prosecution witnesses. He argues that his counsel had inadequate time to review the statements before cross-examination.
Under Crim. R. 16(B)(1)(g) and (B)(2), defendants are not entitled to pretrial discovery of witnesses’ statements. Crim. R. 16 requires that an accused be given a copy of the statement only if the trial judge determinеs there are inconsistencies between the testimony and the prior statement. Discovery beyond what the rules require is at the trial court’s discretion. See State, ex rel. Lighttiser, v. Spahr (1985),
In this case, the trial court allowed
IX
Witness Immunity and Self-incrimination Privilege
In his twelfth proposition of law, Landrum argues that the trial court erred in refusing to grant immunity to Grant Swackhanimer. At trial, the prosecution called Grant as a witness, but Grant refused to testify, asserting his Fifth Amendment privilege in response to both prosecution and defense questions. Landrum argues that his fundamental right to present witnesses implies a right to compel the state, in appropriate cases, to immunize a witness that claims Fifth Amendment privileges.
Courts have, at times, required some privileges to give way to a criminal dеfendant’s due process rights. United States v. Nixon (1974),
However, Landrum’s claim of error must fail. Ohio trial courts do not have authority to grant nonstatutory use immunity to a defense witness- at an accused’s request. State, ex rel. Leis, v. Outcalt (1982),
Moreover, Landrum does not establish that Grant’s testimony would in fact have helped him. Logically, Grant might have adhere^d to his proffered pretrial statement to the police asserting Landrum cut White’s throat. Nor did Landrum request the prosecutor to seek statutory immunity under R.C. 2945.44. Nor has Landrum suggested prosecutorial misconduct in immunizing some witnesses but not others for a nefarious purpose. Wе find no merit in Landrum’s arguments.
In his thirteenth proposition of law, Landrum argues that the trial court did not adequately question Grant before excusing him from testifying.
The trial judge must determine if a proposed witness’s testimony would be self-incriminating. The witness’s claim alone is not adequate. See Hoffman v. United States (1951),
According to information given to the court, Grant was an admitted accomplice to burglary and murder. He had been adjudged a delinquent. That adjudication was on appeal. The trial court could conclude that it did not clearly appear that the witness was mistaken in claiming the Fifth Amendment privilege. Hoffman, supra, at 486; McGorray v. Sutter, supra. In declining to compel answers under such circumstances, the court acted within its discretion. The court gave Landrum full opportunity to question the witness. Under the circumstances, we find no error.
X
Prior Consistent Statement
In his fourteenth proposition of law, Landrum complains about the trial judge’s refusal to permit him to use a prior statement by a witness during cross-examination. Under Crim. R. 16(B)(1)(g), defense counsel could not use that statement during cross-examination unless there were inconsistencies. See State v. O’Hara (1980),
XI
Gruesome Photo
In his fifteenth proposition of law, Landrum complains about a single gruesome photograph, allegedly inflammatory. This close-up photo at the crime scene depicted the victim’s cut throat. Under Evid. R. 403 and 611(A), admission of photographs is left to the sound discretion of the trial court. State v. Maurer, supra, at 264, 15 OBR at 401,
This photograph was relevant on the issue of what caused White’s death. The danger of prejudice was minimal. Hence, admission of the photo was not prejudicial.
XII
Who Argues Last
Landrum’s seventeenth proposition of law argues that permitting the prosecutor to argue last to the jury in capital sentence hearings violates Ohio statutes and his constitutional rights. We have rejected this argument before. See State v. Jenkins, supra, at paragraph eleven of the syllabus; State v. Rogers, supra, at paragraph six of the syllabus.
XIII
Instructions to the Jury on Sentencing
In his eighteenth proposition of law, Landrum argues that the trial judge erred when he instructed the jury: “* * * [A] jury recommendation to the Court that the death penalty be imposed, is just that — a recommendation and is not binding upon this Court. The final decision as to whether the death penalty shall be imposed upon the defendant, rests upon this Court. * * *” He also urges that the prosecutor erred in arguing this same point.
However, the court’s instructions
However, in this case, Landrum’s defense counsel several times in final argument improperly equated a jury recommendation for death to the jury “killing” Landrum. See State v. Rogers (1986),
In his nineteenth proposition of law, Landrum argues a variety of alleged instructional deficiencies. First, he argues that the court’s instructions precluded the jury from considering sentence appropriateness. However, the instructions followed the Ohio statute, which reflects sentence appropriateness. R.C. 2929.04(D)(2). Moreover, the United States Supreme Court has held that an instruction requiring death if aggravating circumstances outweigh mitigating factors does not prevent a jury from making an individualized dеtermination of the appropriateness of the death penalty as required by the Eighth Amendment. Boyde v. California (1990),
Second, Landrum argues that the jurors were not told what to do if they did not reach agreement. However, such an instruction is not required in advance, and the jury did not reflect any disagreement.
Third, contrary to Landrum’s claims, the jury need not be told that aggravation must outweigh mitigation “clearly and substantially.” Here, Landrum essentially reargues that “outweigh” is an amorphous standard incapable of use. We have rejected this argument. See State v. Jenkins, supra, at 172-173, 15 OBR at 318-319,
In both propositions of law nineteen and twenty-seven, Landrum argues that the court should have instructed the jury that the state’s burden was proof beyond all doubt both in the guilt and in the sentencing stages. We reject this argument for the reasons stated in State v. Jenkins, supra, at 210-211, 15 OBR at 351-352,
In his twentieth proposition of law, Landrum complains that the court declined to instruct separately on eleven separate mitigating factors as framed by defense counsel. However, the court did instruct the jury, following statutory language, that mitigating fаctors included, but were not limited to, the history, character and background of the offender, Landrum’s youth, lack of significant prior criminal convictions and delinquency adjudications, the degree of his participation in the offense, and “any other factors that are relevant * * *.”
While the trial judge might have tailored the instructions more to the evidence, such an approach is not required. The trial judge did not misstate the law. Nor did he exclude consideration of possible mitigating factors as in Lockett v. Ohio (1978),
Considered as a whole, the instructions adequately informed the jury of its responsibility to consider all the defense’s mitigating evidence. See California v. Brown (1987),
XIV
Constitutionality
Landrum’s twenty-first proposition of law, challenging the constitutionality of Ohio’s proportionality review, has been rejected previously. See State v. Steffen, supra. The proportionality of Landrum’s death sentence is considered later.
In his twenty-fifth proposition of law, Landrum lodges a multifaceted attack against the constitutionality of Ohio’s death penalty statutes. We have uрheld their constitutionality against the same challenges advanced by Landrum. State v. Jenkins, supra; see, also, State v. Poindexter (1988),
XV
Appellate Errors
In his thirtieth proposition of law, Landrum argues that the court of appeals erred in affirming the death penalty. Contrary to Landrum’s claim, the court of appeals did consider him a principal offender to the murder. The court stated: “After White had been knocked senseless to the floor, they went to the kitchen, got a knife, and killed him as he lay there. * * *” Nor did the court of appeals improperly inject nonstatutory aggravating circumstances. That court simply recognized that “the brutal, senseless, useless death of a helpless old man * * *” did not allow the nature and circumstances of the offense to be mitigating. A trial court or three-judge panel “may rely upon and cite the nature and circumstances of the offense as reasons supporting its finding that the aggravating circumstances were sufficient tо outweigh the mitigating factors.” State v. Stumpf (1987),
In his thirty-first proposition of law, Landrum claims we denied him the effective assistance of appellate counsel by denying two requests for time extensions to file his initial brief. Landrum obtained extensive delays in the court of appeals and he filed his brief there four hundred thirteen days after the original due date. The current brief is one hundred sixty-two pages with a one hundred eighty-one page appendix. The issues have not, nor could they have, expanded since the court of appeals considered the case. Hence, we find no error.
XVI
Sentence Review
We have independently reviewed and weighed the evidence as required by R.C. 2929.05(A). In doing so, we have rectified any errors we have identified that might have affected the weighing of the aggravating circumstance against mitigating factors, or the fundamental fairness and appropriateness of the death penalty determination. See Clemons v. Mississippi, supra; State v. Lott, supra, at 170,
The United States Supreme Court, in upholding the constitutionality of appellate reweighing in jury cases, noted:
“The primary concern in the Eighth Amendment context has been that the sentencing decision be based on the facts and circumstances of the defendant, his background, and his crime. * * * In scrutinizing death penalty procedures under the Eighth Amendment, the Court has emphasized the ‘twin objectives’ of ‘measured consistent application and fairness to the accused.’ * * *” (Citations omitted.) Clemons, supra, at _,
We find the evidence fully supports' the merged aggravating circumstance that, as a principal offender, Landrum committed murder in the course of burglarizing White’s home (R.C. 2929.04[A][7]) and to escape detection (R.C. 2929.04[A][3]). Landrum and Swackhammer carried a railroad bolt to attack White if he should enter during the burglary. Landrum planned the burglary, “cased” White’s apartment on a pretext, told Carolyn Brown he would kill White if White came back, and waited in Brown’s apartment for White to leave. When White did come back while the burglary was in progress, Landrum signaled Grant to hit White with the bolt, wrestled with White, and told Grant to get a knife. Then Landrum cut White’s throat. Despite Lаndrum’s contrary claim, we find that Landrum was the principal offender in the aggravated murder of White.
After independently assessing the evidence, we find several mitigating features in Landrum’s history, character and background. Although in early childhood, a warm, close family smothered him with care and attention, at age five, he moved abruptly and his father then subjected him to inconsistent discipline for the rest of his childhood. Around the age of sixteen, he became truant and dependent on drugs and alcohol. Juvenile authorities institutionalized him as an unruly child. He spent two years in the Navy. Prior to the murder, Landrum was unemployed. He has two children.
During the sentencing hearing, numerous witnesses described Landrum as a warm, carefree, gentle person, never violent, who got along well with everyone; a childlike man who never grew up. They doubted he could have committed this murder. He did have a serious alcohol and drug problem. Thus, Landrum seemed unable to cope with life as an adult. Yet, clearly,
While testifying, Landrum expressed great remorsе for his crime. With a priest’s help, he had gone through the Sacrament of Reconciliation. He asked the jury and court to spare his life and he begged forgiveness. He asked the White family as well as his own family to forgive him for the pain and sorrow that he brought on them. After prison and further education, he wants to dedicate his life to helping youngsters avoid problems with drugs and alcohol.
We find no evidence supporting the relevance of factors listed in R.C. 2929.04(B)(1) (victim induced offense) or R.C. 2929.04(B)(2) (“duress, coercion, or strong provocation”). We do not find the mitigating factor specified in R.C. 2929.04(B)(3), despite the contrary holding of the court of appeals. That factor requires that the lack of substantial capacity to appreciate criminality or to conform to law result from a mental disease or defect operative when Landrum committed the offenses. State v. Cooey, supra, at 40,
We find Landrum’s age of twenty-three only minimally qualifies as a mitigating factor under R.C. 2929.04 (B)(4), “youth of the offender.” We further find, as a statutory mitigating factor, that Landrum lacked “a significant history of prior criminal convictions and delinquency adjudications^]” R.C. 2929.04(B)(5). Aside from bad check and disorderly conduct convictions, he had no prior criminal convictions. The exact extent of his juvenile record was not before the court.
A key issue remaining is the degree of Landrum’s participation if he weré not the principal offender. R.C. 2929.04(B)(6). We have considered the defense proffer of Coffenberger’s testimony as if it were in evidence in sentencing. (See discussion, Part II, supra.) According to the proffer, on September 20, “Grant said that he was watching him [White] and that the old man kept moving around and kept making noises and then Grant had decided to go to the kitchen and got a knife and that he cut his throat.”
Though it was considered, we view Coffenberger’s proffered testimony as of no value. Grant’s oral statement conflicts with Landrum’s own trial testimony where Landrum admitted wrestling with White and threatening him with the knife; it also conflicts with Landrum’s admission to five juveniles the night of the murder that Landrum personally cut White’s throat. Coffenberger’s credibility is impeached by documents proffered by the state, according to which he had five prior felony convictions, and had denied to the police, in detail, ever seeing Landrum or Grant after the murder. Since we find that Landrum was a principal offender in the murder, the potential mitigation factor in R.C. 2929.04(B)(6) is not present.
As to “other factors,” R.C. 2929.04(B)(7), we find Landrum’s stated remorse, drug and alcohol problems, and desire for rehabilitation to be mitigating. In contrast, we find the nature and circumstances of the offense offer nothing in mitigation. Two youths with weapons attacked and killed an elderly man, in his own home.
We find the sentence of death is the appropriate sentence and proportionate compared with other felony murder cases. See State v. Van Hook, supra (aggravated robbery); State v. Henderson (1988),
Accordingly, appellant’s conviction and sentence are affirmed.
Judgment affirmed.
Concurrence in Part
concurring in part and dissenting in part. I agree with the majority that appellant’s conviction should be affirmed. However, I must respectfully dissent from the judgment so far as it upholds the sentence of death.
As the majority correctly holds in Part II of its opinion, it was error for the trial court to exclude the proffered testimony of Randy Coffenberger that Grant Swackhammer claimed that he, and not appellant, killed White.
R.C. 2929.04(C) prescribes that capital defendants “shall be given great latitude” in presenting mitigating evidence. The purpose of this prescription is to carry out the constitutional requirement that the defendant be able to present all relevant mitigating evidence for the sentencer’s consideration. Lockett v. Ohio (1978),
The United States Supreme Court has repeatedly held that the exclusion of relevant mitigating evidence in the penalty phase of a capital trial requires that the sentence of death be vacated. E.g., Skipper, supra (exclusion of testimony on defendant’s successful
In support of its contention that appellate reweighing is a universal remedy, the majority cites Clemons v. Mississippi (1990),
In Clemons, supra, the United States Supreme Court held that the Mississippi courts did not violate the federal Constitution when they affirmed a death sentence through independent reweighing after one of two applicable statutory aggravating circumstances had been declared unconstitutional. Clemons does not speak to the erroneous exclusion of mitigating evidence.
In Lott, supra, we did hold that our independent reweighing rectified “whatever errors the trial court may have committed,” id. at 170,
Where the only error is that the courts below failed to give the correct weight to various aggravating and mitigating circumstances, this court’s independent review is a sufficient safeguard. See, e.g., State v. Brewer (1990),
Accordingly, I would vacate the sentence of death and remand the case for resentencing in accord with State v. Penix (1987),
Notes
Appellant was also subjected to prosecutorial misconduct, as the majority notes in Part I of its opinion. Clearly, the prosecutor should not have commented on appellant’s not guilty plea, nor should he have attempted to scare the jury by placing the murder weapon in appellant’s hand during cross-examination, and then playing on the jurors’ emotions by asking them if the sight “shock[ed]” or “worried” them.
I can concur in the majority’s conclusion that this misconduct was not prejudicial or plain error requiring reversal of appellant’s conviction. However, these improper arguments reinforce my view that a reweighing of the evidence at this level is no substitute for the right to be sentenced by a jury.