*1 Accordingly, suspend respondent’s we license practice law Ohio for months, six suspension stayed with the entire on the conditions that he success- complete his fully three-year OLAP contract and that he commit no further If respondent comply misconduct. fails to with the stay, conditions of the lifted, stay respondent shall be and will serve the full six-month suspension. respondent. Costs are taxed to
Judgment accordingly. O’Connor, C.J., Lundberg and Pfeifer, Stratton, O’Donnell, Lanzinger, JJ., and McGee concur. Cupp, Brown, Counsel, Coughlan, Costa,
Jonathan E. Disciplinary A. Carol Assistant Counsel, Disciplinary for relator. & Ritter Brown, Hill
Kegler, Stern, Geoffrey for respondent. Appellant. Ohio, Appellee, Lang,
The State
v.
Lang,
State
[Cite as
129 Ohio
jury convicted him of aggravated murder of Marnell Cheek and Jaron aggravated Burditte and of robbery, with each count carrying gun specifications, and it recommended the sentence of death aggravated for the murder Cheek and life with possibility parole no for the murder of Burditte. The trial court accepted those recommendations and Lang accordingly. sentenced The court imposed ten-year imprisonment term of for the aggravated-robbery three-year conviction and a term gun for the which had specifications, merged it for sentencing. and life without of death convictions sentences affirm We pursuant control imposition postrelease proper for the we remand
parole, but *2 robbery. aggravated on sentence for to R.C. 2929.191 his Case State’s on Canton p.m. that at 9:36 October state’s case revealed The {¶ 3} injuries with to a traffic accident dispatched Butterworth was police officer Jesse scene, Dodge that a Butterworth At the observed on Sahara Avenue in Canton. two that the a car. He discovered parked into the back of had crashed Durango were They in of head. had shot the back the Durango inside the been people driver, Cheek, the Burditte, Marnell front-seat the and later as Jaron identified passenger. Investiga- hand. in Burditte’s bag found a cocaine investigators Police in the Durango casings the recovered two shell examining
tors inside the Additionally, pocket. in the driver’s side door area and a bullet spent backseat in car, was found in a third cell phone found the and phones two cell were pocket. Burditte’s that had Durango calls from the showed phones cell recovered One to the time of the and which was close p.m., 9:33 p.m.
been received 9:13 a cell prepaid made from that these calls had been murders. Police learned cell records for the anyone’s name. Phone registered that was not phone Seery of Teddy made number phone that calls had been to the phone showed two of murders. evening on afternoon and inter- John and Mark Kandel Gabbart Sergeants On October
{¶ interview, suspect as a Lang that identified Seery. Following police viewed in the murders. day trial, together every almost Lang that he and were Seery At testified 22, but evening on the of October Lang Seery summer of 2006. called 23, Seery On of October
Seery morning not recall what discussed. did on Sahara that someone had been murdered another friend informed Seery’s day. house later that Lang came to Avenue. Sahara,” visit, Lang happened at Seery asked “what During there” people up two Seery told that “he killed
Lang stayed Lang that area. “[H]e then what had occurred: Lang were to rob.” described “[t]hey going car. girl a in the came and he saw there was guy guy and the up had called around, and he back guy He him back. The came up. The him called guy passed into car and had “shot he gotten then had the car.” said got * * * Seery he was with did not tell whom them [t]wice.” had the two why people. he shot explain police for Lang’s evening obtained warrant arrest. On the
October he police stopped Lang parking girlfriend’s as was car at a local Lang gave identity, false name when asked his apartment. police but police identity established his and arrested him. a 9 mm Police officers seized handgun wrapped ammunition had been inside a resting towel were on the passenger rear floorboard of the car. 25, 2006, Sergeants On October Gabbart and Kandel Lang. interviewed his Miranda rights, Lang waiving
After police told that on October Antonio Walker had come to his house and had told him “he somebody [they] had could Lang agreed join rob.” him. After him gave phone Walker Burditte’s number, Lang arrangements called Burditte and made purchase quarter- ounce of crack cocaine Burditte and later agreed meet $225. night Sahara,” “off 30th Street and Burditte said he would call when *3 got he close to that location. Lang stated that he gave gun they to before left the Walker house
{¶ 11} him, because Walker had [Lang] told had to do in car just “[A]ll was be the with him basically.” they location, As walked the meeting to Lang Walker told how the robbery going was to take place: they Walker said in going get were to the car and up, hold Burditte and told Lang he which to run direction afterwards. location, After the reaching meeting Burditte Lang called and told him
{¶ 12} that he “right them, was around the corner.” past After Burditte drove Lang said that Walker had called Burditte on cell phone and told him where they were. The car in pulled then front of up Lang Lang and Walker. then described “I happened: what like on walked the other side of the car I get [and] in the back seat the got behind and in passenger he the seat back behind the * ** driver. We in jumped the car and he put gun dude head up [sic] and told dude that he wanted and like in everything a moment of seconds fired he two shots. And I jumped out the car.” Lang that they stated went to apartment Walker’s after shootings.
{¶ 13} Lang why asked Walker he shot two people, and said that “he Walker felt as * ** * * * though dude was reachin’ for somethin’. And wasn’t he sure.” Lang that stated he vomited a bag. Lang also called home E” to boy get “[his] gun down disposed meantime, melted and of. In wiped Walker down the gun. also told Lang they get Walker that needed to phone, rid of cell and Lang gave it to him. Walker then dismantled the and phone went outside to throw it in the dumpster. interview, During Lang police told was surprised he just
Walker had shot the victims the “plan to rob him.” Lang * * * * * * said, “I it. did wanna do He to do I just wanted it. went with for, him I my gun needed money.” some in to the after police On October Walker turned himself police for him. then talked to the
learning police looking were Walker about the murders. 22, 2006, he, trial, evening At Walker testified that on the October Horton, apartment. Tamia were at Horton’s
Lang, girlfriend Lang, (commit robbery) hit a lick” had a out and said that he “needed to Lang gun they “Clyde,” could rob money.” Lang because he “needed some mentioned had been they who was Jaron Burditte. Walker knew Burditte because same house in 2004. halfway together “short on rob Burditte because he was also agreed help Lang Walker rob him
money.” plan arrange buy drugs Their was to from Burditte and then arranged buy when he showed for the sale. then called Burditte and up Lang of crack from him later that quarter night. ounce cocaine thereafter, meeting walked to their location on Shortly Lang Walker they 9 mm while waited for Burditte handgun Sahara Avenue. loaded his them, to arrive. Burditte’s drove called Burditte and Durango past When told him where were. Burditte then arrived at their location and stopped front of Lang Walker. Walker, According Lang got into the backseat on the driver’s side Durango. get Durango, Walker did not into the “It didn’t feel explaining,
right gunshots Lang get to me.” Walker then heard two and saw out of the vehicle and start running. Durango up yard.” Walker saw the into the “crash[ ] separately and Walker ran to Horton’s vomited apartment. *4 said, in the bathroom. Walker asked whether was all right, Lang and this, “[E]very time I do this thing happens.” same Walker testified that he never Lang’s handgun saw after reached his also apartment. throwing He denied away Lang’s cell phone. Short, lab, Michael County criminalist with the Canton-Stark crime
testified that none of the collected or fingerprints Lang’s matched Walker’s. handgun Lang’s Short also examined the seized from vehicle and the bullet spent recovered from the that that Durango. testing handgun He testified showed had fired the bullet. also that spent Testing cartridge showed the two cases Durango’s ejected by handgun. found backseat had been this Foster, lab, County Michele a criminalist with the crime Canton-Stark {¶ 22} T-shirt Lang’s clothing. Lang’s pants, examined Blood was found on red and but DNA that it No was found on testing Lang’s Lang’s showed was blood. blood coat, hat, T-shirt, knit that car. white or the athletic shoes were taken from the shoes, Soiling jacket, pants. was also noticed on athletic and on clothing. She found no blood Foster also examined Walker’s 23} {¶ wearing that said he was on or the athletic shoes Walker hooded sweatshirt of dried material was soiling fragments plant 22. But tan-colored with October of both his shoes. noticed on the exterior testing trigger grips, conducted DNA of a swab taken from the Foster
slide, 9 mm Foster detected low levels of magazine handgun. and release on the testified, from at least two individuals on the swab. Foster “Walker is DNA major swabbing pistol.” of detected from the She source DNA we testified, say possible can that Edward cannot be excluded as “[W]e weapon.”1 source to DNA that we found on the Because of the low minor DNA, testified, can’t of scientific say degree level of Foster “we to a reasonable case, is the source. In this the chance of certainty person particular 3,461,” on that 1 in which is finding major profile pistol DNA we found is 3,461 “1 as a source of say people possibly potential of could be included the DNA.” coroner, Murthy, County autopsies Dr. the Stark conducted the P.S.S. Murthy range
on Cheek and Burditte. testified that Cheek was shot at close downwards, gunshot the left ear. The traveled “left to right, slightly above right toxicology report backwards” and exited behind Cheek’s ear. Cheek’s was any for the or alcohol. negative presence drugs Dr. testified that Burditte was shot in the Murthy back the head. downward, was trajectory through the shot the bullet exited the left Dr. Murthy gunshot
side of the victim’s mouth. determined “near toxicology report positive contact entrance wound” to the head. Burditte’s cocaine, THCA, which benzoylecognine, which is the metabolite for that a marijuana. Murthy gunshot Dr. concluded wound to the head was the cause of death for both victims. presented guilt phase. The defense no evidence History
Case aggravated pursuant was indicted on two counts murder to R.C. 2903.01(B). with charged Lang aggravated Count One murder Burditte robbery or to commit committing attempting aggravated aiding while and/or charged aggravated another in so Count Two with the murder of doing. committing attempting aggravated robbery Cheek while to commit and/or aiding doing. another so *5 may misspoken stating Lang “possible
1. Foster have in that cannot be excluded as a minor source” say Lang appears meant to that could not be of the DNA. It from Foster’s other she “major” handgun. possible DNA excluded as a rather than “minor” source of found on the This fully proposition in matter is addressed more V. One and Two death-penalty included for a specifications course {¶ 29} Counts conduct, 2929.04(A)(5), R.C. committing and for or attempting to commit aggravated robbery as the in principal offender the commission of aggravated or, offender, murder if not the principal committing the aggravated murder with 2929.04(A)(7). prior calculation design, R.C. Both counts gun also included specifications. Count Three charged Lang with aggravated robbery. This charge a gun specification.
included Lang pleaded not guilty to all charges. found him guilty of the aggravated murders of Cheek and Burditte and of aggravated robbery, along with the gun specifications. associated jury’s verdict included (the findings shooter) was guilty as the principal offender actual two victims. Lang was sentenced to Cheek, death for the murder of to life without parole Burditte, for the murder of years and to ten in prison on the aggravated-robbery count. The court merged gun specifications, for which it an imposed additional three-year term of imprisonment. Lang seeks reversal of his convictions and in sentence 22 propositions of law.
Pretrial and Trial Issues Sufficiency III, the indictment. In proposition of law that his indictment for in aggravated robbery Count Three is constitutionally defective because it specify fails to the mens rea element of the offense. Lang argues that the defective charge also affects Counts One and Two because aggravated robbery was the predicate felony for aggravated-murder both charges. He also the death-penalty specifications for felony murder 2929.04(A)(7) under R.C. are defective because the predicate felony was aggravat- robbery. ed We have considered similar in arguments prior eases. proposi-
tion of law is not well taken. indictment, Count Three of the aggravated-robbery charge, followed 2911.01(A)(1). wording of R.C. The indictment alleged “did, or
attempting
offense,
committing
theft
as defined in Section 2913.01 of the
Code,
Revised
or in fleeing immediately after
offense,
or
attempt
have a
deadly
on
weapon
or about his person
control,
or under his
Firearm,
to-wit: a
and did either display
it,
the weapon,
it,
brandish
indicate that he possessed
used said weapon,
did aid or abet another in
doing,
so
violation of
and/or
2911.01(A)(1)
Section
of the Ohio Revised
object
Code.”
did not
to the
indictment at trial.
Colon,
invokes State v.
N.E.2d 917
{“Colon
arguing
the indictment’s
allege
failure to
*6
In
error.
robbery constitutes structural
aggravated
rea for the offense
mens
in the
allegation
rea
I,
of a mens
court held that
the omission
Colon
at
Id.
improper.
the conviction
a
defect that rendered
indictment was
structural
¶
appeal.
the first time on
Further,
could be raised for
we held that the issue
this court overruled Colon holds, “An indictment Id. at 45. Homer indictments are defective. criminal is not of the statute by tracking language an offense charges the statute itself fails identify a mental state when culpable defective for failure to syllabus. at one of the Homer also paragraph a mental Id. specify .state.” in an timely objection a to a defect that a defendant’s failure to make holds three of the plain paragraph waiver of all but error. Id. indictment constitutes syllabus. Homer, in Lang’s the failure to include mens rea element Based on 37}
{¶ error, not constitute because the aggravated robbery plain for did indictment 2911.01(A)(1). reasons, we For the same language indictment tracked the R.C. charges and the R.C. reject aggravated felony-murder that the Lang’s argument 2929.04(A)(7) must be dismissed. specifications III. proposition on we overrule foregoing, Based VI, Lang of law jury testimony. proposition grand Disclosure request grand jury testimony. by denying that the trial court erred names of the requesting motions pretrial made various grand and the grand jury transcripts who testified before the
witnesses “any failed to provide The trial court ruled that the defense had jury testimony. trial court request. and denied the The transcripts need” for the particularized grand jury names of the witnesses. the defense motion to disclose the also denied that it reviewed the entry, the trial court stated had subsequent judgment In a witnesses, and of four transcripts, which included grand jury for the particularized has not need provided determined that “the defendant the disclosure” of them. has “not met the burden to establish transcripts” must or other information which exculpatory trial court also found that “no The transcripts transcripts.” within said to the defendant exists be disclosed record. part appellate were sealed and made grand to the rule of exception general have a limited recognized We grand jury transcript not entitled to review the
secrecy: an accused is proceedings justice “unless the ends of it require showing by and there is defense that a particularized need for disclosure exists which outweighs need for secrecy.” State v. Greer 20 O.O.3d 982, paragraph syllabus. two of the A particularized need is established “when probability circumstances reveal a that the to provide grand jury failure *7 testimony will deny the defendant a fair trial.” v. State Sellards Ohio 169, 173, 410, St.3d 17 OBR 478 N.E.2d Determining particular whether Greer, ized need exists is a matter within the trial court’s discretion. paragraph one of syllabus. the Lang argues that the trial court by failing erred to disclose the grand
{¶ 42} codefendant, jury testimony of his But grand Walker. review of the jury shows that Walker never grand jury. testified before the claim lacks merit. Lang also makes a generalized argument that he needed the grand jury
testimony to for prepare cross-examination of the witnesses and to adequately prepare his defense. argues that he was unable to establish a particularized need without knowing who grand testified jury content of their testimony. Lang’s speculative claim that the grand jury testimony might have
contained material
might
evidence or
have aided his cross-examination does not
a particularized
establish
163,
need. See
v. Fry,
State
125 Ohio St.3d
2010-Ohio-
¶
1017,
1239,
926 N.E.2d
68-69 (rejecting claim that the grand jury “must have”
considered favorable or
exculpatory
indictment);
returning the
State
Hancock,
O.O.3d paragraph three of the syllabus. Lang has failed to make such a showing, nothing (including record the testimony under seal) supports it here. We find that the trial court did not abuse its discretion in ruling particularized failed to establish a grand need for the testimony. Based on the foregoing, reject proposition we VI. I, that he was law Lang argues proposition Juror misconduct. Cheek, one of to Marnell jurors was related trial one of
denied a fair the victims. juror No. 386 failed to disclose juror, as a she was seated Before to mention this No. 386 failed brother. Juror was Cheek’s stepfather
her question- or her pretrial-publicity juror questionnaire on either her relationship shooting knowledge” about “personal her asked to disclose naire. When were wrote, stated that both of them deaths, newspaper juror No. 386 “Well asked to drugs.” over When in the back of the heads style shot execution “heard, read, concerning shootings discussed or seen” she had disclose what * * * relatives, friends, co-workers or neighbors, including any “from source wrote, No. 386 “None.” family,” juror during relationship to disclose her Cheek 386 also failed Juror No. from shootings learned about the No. 386 indicated she
voir dire. Juror information about her relation- no further newspaper provided but reading questioning. ship to Cheek *8 witnesses, prosecutor the of the state’s first two Following testimony the him that No. 386’s father had informed “Juror court that Cheek’s
notified the trial court stated that he would brother.” The mother is married to Marnell’s next during “very matter the break.” address the court, witnesses, the prosecu- the trial testimony the of two more After 51}
{¶ to relationship No. 386 about her tor, questioned juror counsel and the defense mom is married to brother” acknowledged, “My [Cheek’s] No. Cheek. Juror 386 No. disclose that information. Juror 386 previously that she had failed to and in the courtroom who were spectators two of the also stated that she knew No. 386 stated that she had met through marriage. mother Juror related to her said that she had juror funeral. No. 386 and had attended her Cheek relatives, mother, anybody or else about the case. other not talked to her Cheek, that she could remain juror No. 386 stated relationship her to Despite of the other any that she had not talked to juror fair. No. 386 stated Finally, to Cheek. jurors relationship about her 386, juror No. moved to excuse prosecution Following questioning, No. 386 and instructed her juror trial court excused agreed. the defense
and from the why or she was excused jurors about the case any not to talk with courtroom, that she had not juror No. 386 reiterated leaving Before jury. matter. jurors to other about this talked previously continued, jurors juror informed the the trial court Before the trial with relationship have had a relative may because “she
No. 386 had been excused trial in the case.” The that was involved somebody or a party either a witness any had had any of them jurors group as a whether asked the court then matter, juror they discussions with No. 386 about this indicated that had they The trial not. then resumed. First, Lang juror that the on presence jury, of No. 386 even time, a short period him of an unbiased Yet deprived jury. process “due not a require every juror
does
new trial
time a
has
in a
placed
potentially
been
* * *
compromising situation.
Due
process
jury
means
capable
willing
solely
it,
on
decide
case
the evidence before
and a trial
ever watchful to
judge
prevent prejudicial occurrences and to
such
determine
effect of
occurrences
they
when
Such
happen.
may
determinations
be
like
properly
hearing
made
ordered in Remmer
(1954),
[v. United States
74 S.Ct.
U.S
”
* * *
Phillips Smith v.
L.Ed.
654]
455 U.S.
102 S.Ct.
78;
(when
see also Remmer
L.Ed.2d
integrity
jury proceedings
is in question,
circumstances,
court “should determine the
impact
upon
juror,
thereof
and whether or not it
prejudicial,
hearing
with all
parties
interested
Moreover,
permitted
participate”).
“a court
judgment
will
reverse a
based
juror
upon
misconduct unless prejudice to the
is
complaining party
shown.”
State Keith
the court that had not to any jurors she talked of the other her relationship about jurors to Cheek. The other also indicated group questioning had had no juror conversations with No. 386 about this matter. claim speculative unsupported
bias by the evidence. Second, by failing that the trial court erred juror excuse No. 386 from jury immediately juror’s after being informed of the relation- ship the victim. Lang juror contends that the continued presence No. 386 during the two jury. more witnesses tainted the *9 Defense counsel court to requested juror the trial talk No.
{¶ 386 57} testified, before other witnesses to any juror’s eliminate risk that presence the might taint jury. the The trial court “There at replied, is no risk this point. * * * We will it at do the next break. will very juror We do it before this has any opportunity go to down to juror and talk the We won’t let the jury. leave the courtroom to go before she has chance down and talk to them.” The trial court break, questioned then No. juror 386 at the next and the was juror excused an Thus, before she had had to talk opportunity jurors. with the other this claim lacks merit. Finally, Lang argues that the trial failed a hearing court to conduct into
{¶ 58}
juror’s
jurors
the
misconduct and its
effect on the other
as
possible
required
Remmer,
227,
450,
654,
and State v. Phillips
347
74
(1995),
U.S.
S.Ct.
98 L.Ed.
74
522
Remmer set forth
procedures
the
72, 88-89,
Ohio St.3d “The trial jury into misconduct: inquiring possible for trial court should follow * * * parte but should determine take final action ex not decide and court should not it the and whether or was circumstances, upon juror, thereof impact the the to parties permitted participate.” in a with all interested prejudicial, hearing 654. 229-230, 98 L.Ed. Remmer 74 S.Ct. in the conducted a Remmer hearing the presence The trial court counsel, trial court and both counsel and the accused. The
prosecutor, defense juror No. discussed her juror During questioning, 386 questioned No. Cheek, had to disclose this information to admitted that she failed relationship this with court, any had not discussed matter the court that she the assured Thereafter, jurors the as a trial court other jurors. questioned other of the not discussed this matter with their assurance that had group and obtained nor the defense objected counsel No. 386. Neither juror state circumstances, an these we inquiry. additional Under questioning requested no inquiry required. hold that further Nevertheless, to individu- obligated that the trial court jurors juror spoken No. 386 had not each of the to ensure
ally question jurors any trial as “Is there group: about Cheek. The court asked them any will silence if none did—but is there jury your take member —I all?” trial court then that she did discuss this with at member it stated, “I take silence that she did not.” by your position. case “The of voir dire is authority support’s Lang’s scope No discretion, voir dire conducted including within the trial court’s
generally
v.
Sanders
outside
investigate jurors’
reaction to
influences.” State
trial
questioning
N.E.2d 90. The trial court’s
jurors’ negative response
questioning.
obviated
need
individual
Moreover,
nor
defense
the trial counsel
requested
neither the state
court
the trial
did
individually question
jurors following
response.
McKnight,
v.
See State
there.
Ohio
by stopping
abuse its discretion
State Henness
101,
questioned
No.
friendly.
juror
had
But
No. 386
to each other and
been
No. 387 were seated next
juror
about
Juror
had not talked to
No. 387
Cheek.
the court that she
assured
that she
not talked to
indicated
had
during group questioning
silence
No. 387’s
*10
in
The trial
any
involved
the case.
juror
relationship
parties
No. 386 about her
juror’s
that
juror
determining
on
387’s silence
rely
No.
permitted
court was
juror
Trial
failure to ask
No. 387
McKnight at 191.
counsel’s
impartiality. See
juror
also indicated that
with
No. 386
any questions
possible
about
conversations
trial court
response.
the
did
juror
the
satisfied with
No. 387’s
defense was
individually.
No. 387
by
interrogate juror
failing
not abuse its discretion
I.
proposition
on the
we overrule
foregoing,
Based
{¶ that
II,
expert
of law
DNA evidence.
In proposition
weapon
him to the murder
unreliable
linking
DNA evidence
testimony about
us
our
holding
He asks
to reconsider
and should not have been admitted.
185,
“Q: you say you not what do mean that? When Well, case, DNA, in this low level particular “A: we had such we can’t to a reasonable of scientific that this say degree certainty person is source. case, particular major
“In this the chance DNA finding profile 3,461,” 3,461 “1 pistol meaning people we found on that is 1 in could possibly potential be included as source of DNA.” testimony Foster’s DNA was the suggested testify source of the DNA even she could not that he was the source “to a though maintains, Therefore, degree certainty.” reasonable scientific he object trial, should have been failed to to such evidence at allowed. however, thus waived all error. plain but State v. Childs Ohio syllabus. St.2d N.E.2d three of the paragraph 43 O.O.2d 702(C) on requires expert’s testimony Evid.R. that an be based “reliable {¶ technical, 702(C), if scientific, or other information.” Under Evid.R. specialized test, “testimony reports procedure, experiment, the result of expert’s if only following apply: reliable all of the testimony is *11 524 test, “(1) or is based procedure, experiment which the theory upon The
{¶ 74} widely knowledge, validly accepted derived from objectively verifiable or is is principles; facts or “(2) test, reliably imple- experiment or design procedure, The theory;
ments the test, in a “(3) or was conducted experiment particular procedure, yield that will an accurate result.”
way
909,
D’Ambrosio,
191,
the court held that
616 N.E.2d
In
67 Ohio St.3d
in
in
rather than
testify
possibility
in criminal cases can
terms
expert witnesses
The treatment of such
certainty
probability.
or
terms of a reasonable scientific
Id.;
admissibility.”
see also State
sufficiency,
involves “an issue of
testimony
“
416,
(2000),
403,
‘Questions
300.
about the
90 Ohio St.3d
739 N.E.2d
v. Jones
”
v.
weight
jury.’
are matters of
State
certainty of the scientific results
error. offered collected, rely upon cross- samples preferring which the were tested cross-examination, Foster During acknowledged of the expert. examination System Index the DNA could not be entered into the Combined DNA profile Foster stated that (“CODIS”), there was such a small amount DNA. “say degree than 1 in 280 to a reasonable the “statistic has to be more billion” answers weakened certainty person of scientific this source.” These [that] assign But remained free to this certainty of the DNA evidence. arriving it at the verdict. weight proper evidence whatever deemed Nevertheless, of the DNA evidence on admissibility attacks the DAmbrosio, First, court should overrule grounds. several to criminal but not civil application N.E.2d because its 67 Ohio St.3d him of the laws. equal protection cases denies Ohio has a split application Evid.R. 702. Criminal cases adhere to the
D’Ambrosio standard in allowing expert opinion possibilities terms of to be contrast, admitted under Evid.R. 702. In require Ohio courts expert opinions civil cases rise to the level of probabilities being before admitted under Evid.R. 702. England (1994), See Stinson v. Jurs,
paragraph syllabus; Daubert, one of the see also Probabilities and Possibili- ties, and the A Ohio Solution: Sensible Approach to Relevance Under Rule 702 in Civil and Criminal Applications 41 Akron L.Rev. *12 Protection Equal Clause of the Fourteenth Amendment to the
{¶ 82}
Constitution,
1,
United States
Section
commands that no state shall
“deny
any
person
jurisdiction
within its
equal protection
of the
Equal
laws.” The
classification,
Protection Clause
not prevent
does
all
however.
It
forbids
simply
laws that
persons
treat
differently
when
are otherwise alike in all relevant
(1992),
respects. Nordlinger
1, 10,
2326,
v. Hahn
505 U.S.
S.Ct.
L.Ed.2d
1. Lang’s equal protection
can
argument
rejected
be
because criminal defendants
and civil litigants
vastly
have
different stakes and concerns and
similarly
are not
U.SA.,
situated.
(2008),
271,
See Mason v. Home Depot
274-275,
Inc.
283 Ga.
denied him his
confrontation,
Sixth Amendment
right
because of
inability
confront a scientifically
possibility.
unreliable
The Confrontation Clause of the
Sixth Amendment to the United States Constitution gives the accused the right
to be
confronted with the witnesses against him.
the Confrontation
guarantees
Clause
“an
only
cross-examination,
opportunity
effective
cross-examination that is effective in
way,
extent,
whatever
and to whatever
sic.)
defense might
(Emphasis
wish.”
15,
Delaware v. Fensterer
474 U.S.
20,
106 S.Ct.
Foster. the record shows that Foster’s cross-examination undermined the reliability of the DNA evidence out that bringing such small amount of DNA was found on the handgun profile the DNA could not be entered into reject CODIS database. we also argument. Third, Lang the admission of the DNA evidence failed to meet the Evid.R. and 403 requirements, “relevancy which address its limits.” Evid.R. 401 defines relevant evidence as “evidence having any tendency
to make the of any existence fact that is of consequence to the determination of the action more or probable probable less than it would be without the evidence.” discretion rests within the sound of relevant evidence or exclusion The “admission 31 OBR Sage trial court.” State v. of the testimony was Foster’s DNA syllabus. of the paragraph two N.E.2d to kill the two handgun link to the used it tended to relevant because victims. weigh requires Evid.R. 403 court relevancy, In addition to of unfair confusion danger prejudice, against value of the evidence
probative prejudicial more issues, and to exclude evidence misleading of the 403, the trial court is evidence under Evid.R. considering than When probative. 227, 2002- Yarbrough, 95 Ohio St.3d See State v. vested with broad discretion. Ohio-2126, excluded testimony should have been argues that the DNA degree could not be made to reasonable Foster’s conclusions jury. highly Yet DNA evidence certainty, thereby and it misled
scientific excluded as a contributor could not be probative showing helped evidence also corroborate other handgun. DNA found on the DNA Questions about the principal was the offender. showing assigned to the to be to the evidence certainty weight of the DNA results went Allen, 2009-CA-13, 2010- 5th Dist. No. admissibility. and not to its See State *13 ¶ Ohio-4644, 157. 2010 WL excluded that the DNA evidence should have been during argument it his final to assert prosecutor improperly used actual But the trial court was not
that the DNA
that
was the
killer.
proved
later use
testimony
prosecutor might
Foster’s
because the
required to exclude
argument.
prejudice
his final
“Unfair
damaging
such evidence with
‘
effect
that results from the
not mean the
to a defendant’s case
damage
“does
evidence; rather it refers to evidence which
force of the
legitimate probative
’ ”
v.
on an
basis.”
United States
Bonds
suggest
improper
tends to
decision
(C.A.6, 1988),
(C.A.6, 1993),
540, 567,
v. Schrock
quoting
12 F.3d
United States
1986),
(C.A.6,
F.2d
v. Mendez-Ortiz
quoting
855 F.2d
United States
comments,
Moreover,
which were
prosecutor’s
shows that the
the record
Diar,
to,
“fair
objected
inference.” See State
represented
460,
During plea the state’s direct Walker testified about He to two counts of to murder pleaded guilty complicity deal. said he had specifications complicity aggravated with firearm and one count to commit robbery specification. with a firearm Walker also testified that he had received concurrent sentences for these offenses of “18 to life.” The then prosecutor elicited the following testimony:
“Q: what you you given And were asked to do because were sentence? Testify.
“A:
“Q: Testify, how?
“A: To truthful give testimony of the events of October 22.
“Q: story you gave And that’s the same Detective when you Kandel were arrested on 27? October
“A: Yes.
“Q: you any Before had deal?
“A: Yes.” 801(D)(1)(b)
Evid.R. authorizes the admission of prior consistent statements that are offered to rebut charges is influenced by an improper reward. It provides:
“(D) hearsay. Statements which are not A statement is not hearsay if:
“(1) Prior statement by witness. The declarant testifies at trial or subject and is hearing statement, to cross-examination concerning the and the statement is
“ * * *
*14
“(b) consistent with declarant’s testimony and is offered to rebut an
express
implied
or
charge against declarant of recent
or improper
fabrication
* *
(Boldface
sic.)
influence or motive
and italics
Prior consistent statements that an
to
offering party seeks
introduce to
rehabilitate its witness must have been made
influence or
alleged
before
motive to fabricate arose to be admissible under this rule. See Tome v. United
(1995),
150, 157-158,
696,
574;
States
513 U.S.
115 S.Ct.
130 L.Ed.2d
v.
State
(1993),
65, 71,
80;
Patel,
Nichols
85 Ohio App.3d
619 N.E.2d
State v.
9th Dist. No.
¶
24030,
528 not have been statement should police that Walker’s his motive for statement, it was made after because prior as a consistent
admitted the admission of object failed to to defense counsel arose. fabrication Childs, 14 Ohio St.2d all error. See plain at trial and waived but the statement An 545, alleged 119, syllabus. three of 56, paragraph 43 O.O.2d “obvious,” 94 State v. Barnes Ohio only if the error is error is error plain error, of the trial 1240, for the the outcome 21, 27, N.E.2d and “but St.3d 759 91, 7 Long v. have been otherwise.” State clearly would of error 804, syllabus. plain two of the Notice paragraph N.E.2d O.O.3d 372 caution, only circumstances and exceptional utmost under “is to be taken with the at three of the justice.” paragraph Id. miscarriage a manifest prevent syllabus. statement, jury counsel told the defense During opening him plead guilty that allowed plea agreement entered into a
Walker had exchange that in for this counsel also informed the charges. lesser Defense deal, “testify truthfully any proceeding, an at signed agreement Walker Co-Defendant, trials, Lang.” Edward Defense the case of including involving [his] if “I understand that I fail to further agreement: counsel recited Walker’s can agreement as and sentence be testify truthfully agreed, cooperate Ohio, and I can be to the fullest extent as by prosecuted voided the State Defense counsel imposed.” law have a consecutive sentence including allowed all by stating: you have heard opening “[A]fter then concluded his statement only against conclusion that the Eddie you the evidence will come to the with an interest in the case.” person persons are the statements or added.) (Emphasis had had a implied counsel’s statement Walker opening Defense This was pretrial agreement.
motive to lie
of the favorable terms of his
state to
improper
an
fabrication or
influence
allowed the
allegation
recent
testimony.
statements to rehabilitate his
See
prior
introduce Walker’s
consistent
entered made before an (prior *9 consistent statement App. No. WL offer allegation a defense estab- leniency following offer of admissible (1986), 34 Ohio falsify); App.3d a motive to State v. Mullins lished otherwise, trial court error, occurred when the plain N.E.2d 945. no consistent statements. prior admitted Walker’s
529 Lang invokes v. Washington U.S. S.Ct. Crawford L.Ed.2d that arguing testimony Walker’s about his prior consistent statements right violated his to confrontation because those first statements had not subject been to cross-examination. In Crawford, the Su- preme Court held that the Confrontation Clause bars “testimonial statements of a witness who did not at trial appear unless he was to testify, unavailable and the defendant prior had had a for opportunity cross-examination.” Id. at 53-54. Lang argues that Walker’s prior Crawford, statement violated he did not have an opportunity earlier to cross-examine Walker about his police statement. But Walker testified at trial subject and was to cross-examination. trial, “[WJhen the declarant appears cross-examination at the Confrontation places Clause no at all constraints on the prior use his testimonial statements. * * * The Clause does not bar admission aof statement so long as the declarant present trial to defend explain it.” Id. at fn. reject 9. we Accordingly, Lang’s claim. Crawford Based on the foregoing, we overrule proposition VII. Inflammatory evidence and gruesome photographs. In proposition VIII,
law Lang argues that prosecutor elicited irrelevant and inflammatory evidence.2 He also that argues the trial court erred admitting gruesome crime-scene and autopsy photographs. He claims the Rules of Evidence prohibit the introduction of this information. 404(B), Under crimes, Evid.R. “Evidence other wrongs, or acts is not admissible to prove” a defendant’s character in order to show criminal * * * however,
propensity. “It may, be motive, admissible proof [to show] intent, opportunity, preparation, plan, knowledge, identity, or absence of mistake or accident.” 1. Inflammatory First, evidence. argues Walker improperly
testified, objection, over defense wore all red the time.
trial court objection sustained the defense when the prosecutor asked Walker whether he was “familiar significance with the of red.” Walker’s testimony about the color red should not have been admitted because the implication was that Lang was member of the gang. “Bloods” The state counters that the Lang wore red relevant in showing familiarity with culture, firearms and the drug and it contends that the very nature of these crimes pointed gang-related homicides. proposition against claims in prosecutor alleged are made but are not in terms of prosecutorial IX, proposition misconduct. allegations law recasts some of these as prosecutorial misconduct. *16 murders to gang trial the two linking However, presented was no evidence red was irrelevant frequently that wore testimony Lang Accordingly, activity. brief, and no testimony But was not have been admitted. and should activity. Given gang the color red linking presented explanation error. testimony constituted harmless such Lang’s guilt, substantial evidence Dittmore, police a Canton Second, that John Lang argues Sergeant {¶ 119} “Gang police department’s officer, supervises testified that he improperly plain waived all but object testimony to this But trial counsel’s failure Unit.” paragraph three Childs, 43 O.O.2d 236 N.E.2d 14 Ohio St.2d error. syllabus. of the unit gang Dittmore’s duties with the testimony that about Lang argues activity. investigation Lang’s gang in the because that he was involved
implied testimony about his duties was that Dittmore’s the state response, crimes. This nature of these possible gang-related relevant because admitted, there was not have been irrelevant and should testimony was However, did activity. testimony this gang the murders with linking no evidence no reference to testimony Dittmore’s made error this case. plain not result affiliation, if Dittmore also testified that he any. or involvement Lang’s gang explained why which would have he investigators, with narcotics closely worked investigation. in this murder was involved that Third, testified Seery improperly that Walker and Lang argues “Tech,” suggest- claims that this nickname Lang nickname was or “Tek.”
Lang’s violent, because “Tech” is shorthand guns that familiar with ed he was However, object testimony failed to to this handgun. Lang of 9 mm type all error. plain and thus waived but nickname or testimony explaining meaning Lang’s There was no jurors that the speculative a mm It is to conclude handgun.
its association with 9 Thus, v. Gillard no error occurred. See State plain made such a connection. that defendant’s (testimony error). “Dirty plain nickname was John” was Fourth, testimony improperly that Dittmore’s Lang argues Sergeant testified, Dittmore illegal drugs. Lang previously purchased that had
suggested people and deal with drugs dealers do not sell objection, drug over defense examination, clarified that “small Dittmore During not know. redirect they do street, the street level dealers that are on the bought amounts of crack cocaine powder in a ounce of larger quarter But amounts as anybody. will sell to * * done going *. That’s to be drugs amount of larger crack or whatever is know each scenes, generally those people surreptitiously more behind plain all but error. testimony to this and waived object But did not Lang other.” knew likelihood testimony showed the Dittmore’s redirect ounce of crack quarter deal for up drug him and set Burditte when he called know he did not police told testimony was relevant because cocaine. Such to kill motive suggested him. It also calling prior Burditte testimony was Dittmore’s redirect to avoid identification. Burditte was error. plain and did not constitute relevant testified that after the Fifth, improperly Walker this, said, thing time I do this same
murders, “[E]very Lang vomited testimony imply that the used prosecution claims happens.” failure to counsel’s someone. defense had killed previously all error. object plain to this waived but *17 in murders were relevant and comments after the Lang’s conduct
{¶ 126}
(1992), 64 Ohio St.3d
Richey
State v.
guilt.
his consciousness of
See
reflecting
Moreover,
to use
attempt
made no
prosecution
{¶ 127} During admitted. improperly to commit murder guilty conspiracy case-in-chief, tape-recorded statement prosecution played state’s court, objection, allowed the The trial over defense police. made to the Lang’s included admission segment tape a prosecutor play to commit murder: conspiracy * ** “(Officer) you felt so everything Kandel: When went bad
{¶ 128} it, call the why you police? bad about didn’t in then that I was the car Basically my gun that he used “Lang:
{¶ 129} I’m that’s sayin’, then as know what happenin’. though, you when that shit And murder. conspiracy to “ * * *
{¶ 130} That’s you “Kandell: what believe? you If at the of a crime and you right Yeah. there scene “Lang: much you a of somethin’ no matter how you part witness somethin’ or bein’ * * * to murder.” conspiracy it, it, you if involved that’s played part added.) (Emphasis with the provided jury the trial court tape played, After the heard in the statement some may instructions: ‘You have
following limiting
I
to murder.
would
concept
conspiracy
sides to a
known as
references
both
alleged conspiracy
in this case that
charges
indicate to
that there are no
you
or the statements
You
take the Defendant’s statement
may
murder.
case,
they
if
deal with the facts of this
but not as
they
may
any
officers
discuss
correct or incorrect
legal
they may
legally.”
conclusions because
be
Lang’s
might
guilty
that he
be
to commit
opinion
conspiracy
murder
error, however,
prejudicial
was irrelevant. No
resulted from
playing
seg
statement,
ment of
because the trial court’s
instructions
limiting
ensured
jury
that the
did not
consider it. See State v.
improperly
Noting,
44,
know the make and model of the murder weapon. Walker testified that he saw testified, with a handgun before the murders. He was a grey “[I]t time, I gun. gun black didn’t know what kind of it was at the I but found out it awas .9 millimeter.” later testified that waiting [sic] Walker while for Burditte at meeting point, Lang to arrive had trouble placing handgun. round Walker also testified that he knew how to chamber round on a 9 mm handgun. Lang claims that familiarity Walker’s with how to load a 9 mm handgun shows that Walker lied when he said that he did not know the make and Lang’s handgun. model of Walker’s statement that he knew how to a mm handgun load does not stated, establish Walker lied when he “I didn’t know what kind of it gun was the time.” credibility Walker’s was a matter for the Moreover, decide after heard his testimony. object defense failed to to such all plain and waived but error. No *18 plain error occurred. Finally, Lang argues unreliable DNA improperly evidence was
{¶ 137} II, But admitted. as discussed in proposition argument this lacks merit. 2. photographs. Gruesome Lang argues that the trial court erred
{¶ 138}
two
admitting
gruesome crime-scene photographs
gruesome
and three
autopsy
photographs.
object
trial counsel failed to
to this evidence at trial and
waived all
plain
respect
Trimble,
but
error with
to those exhibits. State v.
122
¶
297,
{¶ 139}
admissible as
as the
long
probative value of each photograph substantially
outweighs the
of material
danger
prejudice to the accused. State v. Morales
(1987),
252, 257,
267;
32
(1984),
Ohio St.3d
513 N.E.2d
State v. Maurer
15 Ohio
239,
379,
768,
St.3d
15 OBR
473 N.E.2d
paragraph
syllabus.
seven of the
admissibility
Decisions on the
of photographs are “left to the sound discretion of
(1992),
601,
the trial court.”
Slagle
597,
State v.
65 Ohio St.3d
court’s instructions on the R.C. principal- either the finding guilty with the that he was under option of that specification. or the element prior-calculation-and-design offender element all object plain to these instructions and waived but Lang failed 360, 1332, (1983), 444 N.E.2d 3 Ohio St.3d 3 OBR error. State Underwood Moreover, the lan- defense counsel’s instructions included syllabus. proposed any now was erroneous. the defense invited guage contends “ ‘take of an error which he himself invited may advantage error and ” quoting 709 N.E.2d Bey induced.’ State v. St.3d Lincoln-Mercury, Hal Artz Inc. v. Ford Motor Co. 28 Ohio paragraph syllabus. OBR one instructions, jury that it could final the trial court advised the During jurors and Two if the found Lang guilty aggravated find murder Counts One committing, attempt- of the victims “while “purposely that he caused death” *19 commit, or to commit fleeing immediately committing attempting after ing doing.” another in so robbery offense of did aid or abet aggravated the and/or of Lang guilty trial court also the that it could find jury advised Three, accompa- felony-murder death-penalty.specification the Specification Two, a reasonable proved beyond if it found that the “State nied Counts One and was as set forth in One aggravated [Counts Two] doubt that the murder * * * committed the Defendant the of committing aggravated while offense in robbery principal and the Defendant was the offender the commission of the murder.” The trial court advised aggravated jury “principal the the term offender” meant the “actual killer.” 2929.04(A)(7) trial the court’s instructions on the R.C.
specifications incomplete were did not advise of jury option the the him finding guilty “prior calculation and alternative as forth design” set in jury may the statute. have found him guilty jurors presented because the were with an choice all-or-nothing finding between him guilty acquitting as the shooter or him. Beck v. Compare Alabama 447 U.S. S.Ct. L.Ed.2d 392. 2929.04(A)(7), Pursuant R.C. guilty defendant found of aggravated may
murder also be found guilty death-penalty of this if specification defendant felony committed one the enumerated murders and was either “the or, principal offender the commission of the if aggravated murder not the offender, principal committed the aggravated prior murder with calculation and added.) design.” (Emphasis Beck, In Supreme United States Court struck down an Alabama statute that prohibited lesser-included-offense instructions in capital cases. so * * * stated, hand, the court
holding,
the one
the unavailability
“[0]n
on a
convicting
may
lesser included offense
encourage
jury to convict for an
impermissible reason —its belief that
guilty
the defendant
is
of some serious
crime
punished.
hand,
and should be
On the other
apparently
mandatory
nature of the death penalty may encourage
acquit
it to
for an equally'impermissi-
that,
crime,
ble
whatever his
the defendant
does
deserve death.
reason —
* * *
* * *
two extraneous factors
uncertainty
[TJhese
introduce a level of
into
unreliability
factfinding process
that cannot
be tolerated
a capital
case.” Id. at 642-643.
624, 646-647,
See also Schad v. Arizona
501 U.S.
111 S.Ct.
presented jury option with the of finding Lang guilty principal as the offender Beck, or as an aider or abettor. jury Unlike with presented two options finding Lang guilty aggravated-murder counts. The jury was instructed to consider the death-penalty specifications making after on findings circumstances, the aggravated-murder counts. Under these it illogical conclude that the would find the guilty defendant of Counts One and Two as abettor, an guilty aider or but find him of Specification principal Three as the Accordingly, offender. the court’s instructions were not constitutionally defec- tive.
535 if penalty for the death eligible Moreover, have still been Lang would 152} {¶ prior murder with the aggravated committed found that he had jury the had violation, such error was a Beck if there was even design. calculation and harmless. invited error error and plain claims on basis reject Lang’s We IV. proposition
and overrule
IX, Lang argues
of law
proposition
misconduct.
Prosecutorial
How
proceedings.
guilt-phase
committed misconduct
the prosecutor
all
plain
and waived
but
noted,
object
failed to
ever,
defense counsel
where
except
545,
three
119,
Childs,
56,
paragraph
236 N.E.2d
43 O.O.2d
14 Ohio St.2d
error.
syllabus.
were
whether the remarks
misconduct is
prosecutorial
The test for
the accused’s substantial
so,
affected
they prejudicially
and if whether
improper,
317, 470
883.
N.E.2d
St.3d
OBR
v. Smith
Ohio
rights. State
trial,
culpability
not the
“is the fairness of the
analysis
touchstone of the
The
or her
subject
matter of the
an
testimony”
give
opinion that will
assist the
understanding the evidence
determining
a fact at issue. Dittmore testified
that he had experience setting up drug
job
transactions in his present
and while
serving on the police department’s vice unit. Dittmore’s specialized
knowledge
*21
drug-related transactions
knowledge
of a matter not possessed by the
average layman. Accordingly, Dittmore
qualified
testify
as an expert on
these matters under Evid.R. 702. Given
qualifications,
Dittmore’s
prosecu
the
tor’s failure to tender
an expert
Dittmore as
was of no consequence and did not
Skatzes,
result in plain
error. See State v.
“proves beyond reasonable that doubt Eddie Lang is the actual killer.” He contends that expert testimony offered in regard to the DNA evidence does not support prosecutor’s the argument. Lang incorporates his argument from proposition II in claiming that the DNA evidence was unreliable admitted, and should not have been because Foster could not testify to “a degree reasonable certainty” scientific that Lang was the source of DNA on the handgun. II, as in proposition discussed the DNA evidence was Thus, properly admitted. prosecutor’s argument about the DNA evidence was a theory reasonable and represented a fair inference based on the record. No error plain occurred. Fourth, Lang asserts the existence of prosecutorial misconduct in speculative comments made during closing argument, claiming prosecu- * * *
tor argued, over objection, defense that Lang “took the gun and turned it toward Marnell who it saw coming put because she her up.” hand Lang asserts prosecutor’s assertion that Cheek raised her hand to ward off the fatal gunshot was not supported by the evidence. coroner, Dr. Murthy, the testified that Cheek was shot at range, close
and the bullet had entered the left side of her head above the ear. He also
testified that there was a “prominent area
stippling”
found on the back of
hand,
Cheek’s left
which
indicated
her hand was only a “few inches” from the
gun.
muzzle of the
The evidence also showed that Cheek had been
sitting
front passenger seat and she had been
shot from behind.
the prosecutor’s
argument represented a fair inference that could be made from the record. See
Diar,
State v.
improper, judge was the sole and that the of counsel were not evidence arguments 424, 436, 819. v. 588 N.E.2d Waddy the facts. See State speculated prosecutor improperly contends that the Additionally, Lang “[fjrom firing handgun DNA was on argument his final of a Short, discharging “The expert, a forensic testified: Michael gun.” * * * they call what finding increase the greatly probability firearm would fails, Lang’s argument a firearm.” touch DNA on the surfaces of testimony. a fair characterization of Short’s prosecutor’s argument represented error occurred. plain No Fifth, vouched for several prosecutor improperly that the personal An belief attorney may express
of the state’s witnesses.
(1997), 79
St.3d
of witness. State Williams
Ohio
credibility
as to the
opinion
implies knowledge
“Vouching
prosecutor
occurs when the
*22
credibility in issue.”
personal
his or her
places
of facts outside the record or
¶31,
Davis,
404,
Here,
credibility
“But I
prosecutor argued:
you,
you judge
submit
knew,
look at what he
he is
the truth.” The trial court sustained
you
telling
objection
“disregard
to these comments and instructed the
defense
truth.”
telling
Prosecutor’s indication that he believes that he was
State v.
any improper vouching.
trial court’s instructions cured the effect of
See
(1995),
(jury to follow
Gamer
presumed
during guilt phase jury’s carried over into the penalty-phase deliberations. reject argument We prejudicial misconduct did not occur. Based on the foregoing, proposition IX is overruled. X, assistance counsel. In proposition of law Lang asserts Ineffective
that his counsel were ineffective the guilt-phase proceeding. Reversal of a conviction based on ineffective requires assistance that the defendant show first deficient, performance counsel’s and second that the deficient perform- prejudiced ance the defendant so as to deprive the defendant of a fair trial. Strickland v. Washington U.S. 104 S.Ct. 80 L.Ed.2d 674. Accord v. Bradley State
paragraph two of the syllabus. First, Lang argues that his counsel were ineffective failing forcefully challenge the state’s DNA evidence. the record belies this cross-examination, claim. During Foster, defense counsel elicited from Michele the state’s DNA expert, there was such a small amount of DNA obtained *23 from handgun the that the profile DNA could not be entered into the CODIS “[Wjhen database. Foster, Counsel also elicited from saywe to a reasonable degree of scientific certainty source, a person is that statistic has to be more than 1 in 280 billion.” Lang argues that defense counsel should have suppress moved to (relevant evidence).
the DNA evidence under Evid.R. 401 through 403 As II, in discussed proposition the state’s DNA evidence was relevant because it tended to connect Lang handgun addition, the used to kill the victims. trial court could have determined that the admission of the DNA evidence outweighed any danger prejudice, issues, of unfair confusion of the or misleading Thus, jury. this ineffectiveness claim also lacks merit. Next, that argues his counsel were by conceding ineffective that the DNA found on the handgun matched his DNA. During closing argument, his counsel stated: Mr. Barr misstated how noting I was interested gun.
“The gun. is on the Lang’s DNA facts. He said Eddie that he Lab said people I think Crime not what I heard. “That’s is it they think said I don’t they what said. I think that’s can’t excluded. be conclusive. whose identify they DNA that couldn’t minor
“Plus, there was some is that. It they say did Maybe maybe wrong. I am DNA it was. But added.) Maybe that’s true.” (Emphasis Lang’s DNA conclusivelyEddie mis- previous his rectify a attempt was argument poor Counsel’s counsel’s that defense But contends DNA about the evidence. statements that his proof no conclusive there was prejudicial because unduly was concession approach counsel’s assuming Even handgun. DNA was on found under the Strickland test. Evidence deficient, prejudice Lang fails to establish surprising, was not might handgun be on Lang’s DNA outcome of the Moreover, crucial to the such evidence was not was his. handgun and Walker handgun, gave case. defense was he Walker Lang’s defense on the DNA not found testimony that Walker’s shot the victims. This evidence, Lang’s DNA was not. and about key was the handgun rejected. claim is ineffectiveness argu- final
Second, were ineffective counsel final trial counsel argument, lynch During to a mob. by comparing jury ment stated: jury. that make up people up the same lynch
“A mob is made voters, community, taxpayers, employers, employees, are citizens of They they people. are the same from thing lynch mob separates them? One separates
“So what only. your one That’s oath office. jury thing “ ** * mob) (a are not They are in evidence. lynch not interested
“They linking Eddie is no forensic evidence the fact that there interested in that. They not interested one of those murders. are either of four interested, people want know “A A jury is. three them and not do run on why you tests that vehicle on October guy got the deal? Why run tests on Marnell clothes?
“Why run tests on Jaron Burditte’s clothes, to a stop, come on Why run tests Eddie Cheek’s clothes? *24 Why? clothes? halt with Antonio Walker’s They made mob, that. are lynch a be interested “A not would jury,
{¶ 187} up of the same people. “Now, just an jury because a takes oath office does mean not
{¶ 188} door, jury. They jury room, have to act like a can ingo close the hey, flip guilty, go. Okay. let’s a coin. Jury spoken. So let’s has the problem “But is violence was done to not only Defendant but
{¶ 189} beyond indicted, that. am system. Violence was done to the If I if the Court is indicted, indicted, indicted, Prosecutor is if Mr. Koukoutas is even if one those indicted, Deputies are the only safeguard we have is the oath of office. will go everybody you “Life on in this courtroom. If act like jury
or if you lynch act like a mob.” Lang argues that trial counsel lost credibility and alienated the jury when he his lynch-mob made argument. Lang may contends that the jury have perceived lynch-mob comparison card, counsel’s as an attempt to race play the particularly because an African-American argument counsel made the on behalf of an African-American defendant. Counsel for both sides are afforded wide latitude closing
arguments.
v.
State
Brown
wearing murders, on night pants. but not his Foster examined Walker’s shoes and hooded sweatshirt and no found blood trace evidence. Gunshot-residue tests on clothes, were not conducted these because the state never it. requested Lang argues that defense counsel were ineffective by failing secure a expert
forensic to test the pants that Walker wearing on the night murders for gunshot bloodstains and residue. counsel could not make such request, police because the never pants. seized his this ineffective- ness claim merit. lacks As for the clothing, other counsel’s failure pursue independent appears of them
testing have been a tactical decision. See State v. Hartman
541
Moreover,
used
defense counsel
N.E.2d
Ohio St.3d
during closing argu-
clothing
testing
to
of Walker’s
state’s failure
conduct
the
issue
Finally, resolving this
guilty.
him not
finding
as
ments
a reason
kind
in the
indicates what
“Nothing
record
speculative.
would be
Lang’s favor
* *
*
require
that would
Establishing
provided.
could have
expert
an
testimony.
record,
demonstrating
probable
as
the
the
such
affidavits
outside
proof
a
State
appeal.”
on
direct
a
is not
considered
appropriately
Such
claim
390-391,
“The Court: Let’s bottom, firearm. weapon, “Mr. Beane: On no, No, Barr: the cause. “Mr. that is question.
“The Court: You can ask the death, not the That is the down is firearm. cause “Q: weapon fact that that is on him?
“ * * * Yes, yes.
“A:
“Q: Thank you. understands, it looking report, jury
“The Court: that the So just of death.” not It was indicated that was cause person. was on the counsel counsel’s showed questioning contends that trial are claims credibility jury. their with These unprepared were and diminished Moreover, quickly mistake was corrected ensure speculative. counsel’s in the no misstep counsel’s made difference misled. the case. outcome of
Fifth,
by failing
that his counsel were ineffective
vehicle.
from the defendant’s
challenge
custody
handgun
chain of
seized
custody.
the chain of
problem
there
an actual
with
Lang does not assert that
Rather,
for the
custody
the chain of
contends that the state failed
establish
he
taken to the lab.
it
and when it was
between
time was seized
gun
action
to have
appears
Counsel’s
been
tactical decision.
Nothing
problem
the record indicates that
there was a
with the chain
custody.
Moreover, Sergeant Gabbard testified that
the handgun was collected and
County
strong
forwarded to
Stark
Crime Lab.
presumption
Given
*26
assistance,
counsel’s performance
rejected.
constituted reasonable
this claim is
144,
42 Ohio
Bradley,
St.3d at
request
court
prosecutor’s
to seal the
file for appellate purposes. Lang
sealing
contends that
to
necessary
complete
ensure the
disclosure
exculpa
of
tory
87,
as required by Brady
(1963),
83,
evidence
v. Maryland
373 U.S.
83 S.Ct.
1194, 10 L.Ed.2d
required
215. But the court was not
to seal the prosecutor’s file
on speculation
might
based
the prosecutor
have withheld exculpatory
Frazier,
139,
assistance of
but even if
counsel,
we assume deficient performance by
Strickland,
687, 104
none prejudiced
2052,
him.
466 U.S. at
S.Ct.
object testimony “Tech,” that his nickname was or said, vomited and I “[EJvery this, time do thing same happens,” testimony Walker’s about (VIII). the make and model of the handgun prejudice also suffered no from object counsel’s failure to to Dittmore’s testimony that he was employed by the police department’s unit gang or his about the selling practices of (VIII). drug dealers on Based the foregoing, we overrule proposition
{¶ X. 217} (¶ Sufficiency weight the evidence. of proposition 218} law manifest of V, Lang challenges sufficiency both the and manifest weight evidence to convict him as the principal offender of the aggravated charged murders as Specification Three of Counts One and Two. A claim raising sufficiency of process the evidence invokes a due
concern question and raises the whether legally the evidence is sufficient support jury (1997), verdict as a of matter law. v. Thompkins State 78 Ohio
543 relevant challenge, “[t]he 386, reviewing 541. In such 380, N.E.2d St.3d to the favorable light in a most whether, the evidence viewing after is inquiry elements found the essential fact could have any trier of rational prosecution, (1991), 61 Ohio v. Jenks doubt.” State beyond reasonable proven the crime Jackson following 492, syllabus, two 259, paragraph N.E.2d St.3d 2781, L.Ed.2d 560. Virginia U.S. 99 S.Ct. the manifest weight jury against claim that a verdict A “ record, court, the entire reviewing ‘The test.
evidence involves a different inferences, credibility considers and all reasonable weighs the evidence evidence, conflicts in the resolving and determines whether witnesses that the justice miscarriage a manifest its and created such clearly way lost discretionary power trial must be and a new ordered. conviction reversed case in which only exceptional in the trial be exercised grant a new should ” Thompkins quoting against the conviction.’ weighs heavily 20 OBR State v. Martin 20 Ohio App.3d *27 testimony, Seery’s and sufficiency claims lack merit. Walker’s {¶ 221} DNA Lang’s possession, was and weapon that the murder found evidence the offender. Lang’s guilt principal as sufficiently evidence established Lang agreed and Walker night showed that on the of October evidence Their was to plan that rob Burditte. Lang they to a drug suggested rob dealer. car, and Burditte, Lang rob him. then called Burditte meet enter his and him evening. from that purchase a crack cocaine arranged meeting Lang that meeting night. to the location later Lang and Walker went to arrive. mm and it waited for Burditte handgun a 9 loaded while carried Walker, Lang got thereafter, According Burditte arrived. Shortly and Cheek into their and shot Burditte Cheek. the backseat of vehicle himto Seery’s went to house and admitted following day, Lang On the Lang, they the later found police that had shot victims. arrested he When driving. that he was Forensic handgun 9 mm in the backseat of car Additionally, weapon. it the murder handgun examination of the identified as of DNA that possible not be excluded as source Lang Foster testified that could was on the handgun. found Nevertheless, to convict that the evidence is insufficient argues
{¶ credible,
accept-
not
he
testimony
him.
that Walker’s
was
because
Lang asserts
that
also
against
argues
him. He
exchange
testimony
ed
deal
plea
initially told
Seery
police
had
testimony should be discounted
Seery’s
But
claims
for an
these
call
anything
killings.
not
about
he did
know
on review
proper
which
not
Seery’s credibility,
evaluation of Walker’s and
Drummond,
State v.
evidentiary sufficiency.
14,
show that Lang’s DNA was found on handgun Walker’s DNA not. was However, Lang argue continues to that the DNA evidence was unreliable because not testing did establish that his DNA handgun was found on the to a reasonable degree certainty. II, of scientific As in proposition discussed questions about the DNA certainty results went to weight not its admissibility. Despite some discrepancies, accepted testimony of the Furthermore,
state’s witnesses. a review of the entire record shows that the Therefore, neither inherently unreliable nor unbelievable. witness evidence, testimony, circumstantial and forensic evidence provided sufficient prove evidence to beyond a reasonable doubt that guilty the R.C. 2929.04(A)(7)specifications. Although Lang point, does raise the note we that Foster provided
conflicting testimony about the DNA evidence on handgun. found Foster testified could not be as a possible excluded minor DNA. source of Foster then finding major testified the chance of DNA profile that was 3,461. found the pistol on is 1 in Foster also testified that there was a minor “[tjhere contributor the DNA but wasn’t there of enough that second person * * * * * * *28 compare anyone to to we say couldn’t about anything [and] that minor person Thus, that was present.” testimony Foster’s that there was insufficient DNA to identify the minor contributor is inconsistent with her that testimony Lang could not be a possible excluded as minor of source the DNA that was found. It is apparent from the context testimony of Foster’s that she
{¶ misspoke 229} about Lang’s DNA. It appears say that meant Foster to that could be not as a possible major excluded source rather than a minor source of DNA on found the handgun. Even discounting testimony, Foster’s presented sufficient evidence was beyond
to prove guilty reasonable doubt that is aggravated as murders the principal Seery’s offender. and testimony Walker’s established was the principal offender. The weapon belonged Lang, murder to police Moreover, and the it in of found the back the car that Lang driving. was case, to state’s was crucial the not Lang’s handgun DNA on of presence on it. found expected his could be be and DNA Lang’s handgun, it was Three of guilty Specification of have found Accordingly, jury could testimony. DNA Two without the One and Counts not an this is manifest-weight challenges, Lang’s respect With {¶231} ” “ the conviction.’ heavily against weighs in which the evidence ‘exceptional case Martin, 20 Ohio quoting at N.E.2d Thompkins, 78 challenge credibility 717. 20 OBR App.3d lost its neither is Seery’s testimony unpersuasive. of Walker’s and Specifica- in of convicting Lang miscarriage justice way nor created manifest Three of One and Two. tion Counts V. proposition we overrule foregoing, Based on 232}
{¶ Penalty-Phase Issues evidence. guilt-phase Victim-impact testimony and readmission 233} {¶ admitting victim- XV, trial court erred that the of law proposition the trial. phase in the penalty siblings from the victims’ impact testimony readmitting guilt-phase in trial court erred Lang also penalty phase. court, objection, trial over defense Victim-impact testimony. The 1. Jaron, Jeffries, the brother Burditte, and Rashu the sister of allowed LaShonda Cheek, to about victims. testify life, Navy his early schooling, discussed Jaron’s briefly LaShonda and enlistment, married had his work LaShonda testified Jaron and record. was with charged possession daughters. two She mentioned Jaron house, and he later lived with halfway in and cocaine was sent in and Jaron and Cheek met June also testified that Jaron LaShonda. She he killed. years was 32 old when was one of four raised Rashu testified that Cheek was Canton School McKinley High from Canton graduated
children. He stated that Cheek that Cheek married when mascot for the band. Rashu mentioned old, Cheek’s had children. Rashu discussed years she was 18 and she two years old when she was killed. history stated she was employment guarantees. constitutional Victim-impact testimony does not violate 2597, 115 L.Ed.2d 111 S.Ct. Tennessee 501 U.S. Payne See situations testimony This has limited permitted victim-impact court to the overly emotional directed when the capital cases *29 Hartman, 1150. St.3d at N.E.2d See 93 Ohio penalty imposed. be life, Hartman, early victim’s her discussed the briefly the victim’s mother after family with her she and victim’s contact schooling, family, close-knit the her testified, moved from North Carolina to Ohio. Id. witness “[I]t has been an our extremely bad time for us and will be from now on. She’ll never leave heart.” Id. Hartman, testimony the in and testimony Like LaShonda’s Rashu’s 238}
{¶ lives, not overly briefly emotional. Both witnesses summarized the victims’ marriages children, their their and work schooling, history. and their Neither witness mentioned the the effect victim’s death had on their families. Moreover, neither a possible witness mentioned recommended sentence. cites v. State White 85 Ohio St.3d 709 N.E.2d 140, in arguing victim-impact testimony that the was improper. White held that victim-impact testimony impact the on noncapital about victims crimes in of capital-murder improper. case was Id. at 446-447. Unlike the White, victim-impact testimony presented during trial addressed the on impact only the victims of capital crimes. on Lang’s reliance White rejected. the trial court did abuse its discretion in admitting the victim-impact limited testimony. 2. of Readmission guilt-phase evidence. At the start of the penalty 240}
{¶ court, phase, the objection, trial over handgun defense readmitted the swab of the grip, trigger, statement, and slide area of handgun, Lang’s police bullet, spent cartridges, spent two a photograph one the victims as were Durango, found and the photographs autopsy coroner’s reports. 2929.03(D)(1)provides R.C. prosecutor at the penalty stage 241} {¶ a capital proceeding may “any introduce evidence raised trial that is relevant aggravating to the circumstances the guilty committing.” offender found DePew, See State paragraph one of syllabus. The trial court did not its abuse discretion in readmitting this evidence because these items bore some relevance to the nature and circumstances 2929.04(A)(5) (A)(7) surrounding the R.C. specifications. on Based the foregoing, proposition XV is overruled. XIV, Instructions. In proposition of law that the
trial court’s improper instructions jury’s rendered the penalty-phase verdict unreliable. mitigating selection, Instructions on During jury factors. trial
court group advised the first of prospective jurors, “If State proved that the specific aggravating outweighed any circumstance factors, then mitigating to, you would have require you law would to consider and to fact order added.) death penalty.” (Emphasis The trial court provided similar instructions to subsequent groups prospective jurors.
547
that
trial court’s failure to advise the
Lang argues
prospective
the
{¶ 245}
jurors
collectively
must
factors
weigh
mitigating
improper
However,
all
prejudicial.
object
failure to
to these instructions waived
but
Underwood,
12,
360,
1332,
error.
444
plain
syllabus.
3 Ohio St.3d
3 OBR
N.E.2d
The trial court’s voir
were incorrect.
law
dire instructions
“The
{¶ 246}
requires that the
factors be
not
mitigating
collectively,
individually.”
considered
(1999),
329, 345,
However,
State v. Fears
86 Ohio
{¶ 247} instructions, penalty-phase the trial court advised jury: “Some of the testimony you evidence and in considered the trial phase may of this case in be considered this sentencing phase. We went through the only exhibits. I’ve culled out certain you exhibits will be with the jury room. “For purposes of this proceeding, only evidence admitted in the
trial phase is relevant to the aggravating any circumstances and to of the mitigating factors is to be by you. considered You will also consider all of the during admitted the sentencing phase.” Lang argues that the instructions improperly allowed the jury determine which guilt-phase evidence was relevant to the aggravating circum- However, during penalty stances phase. object defense counsel failed Underwood, this instruction 12, and waived all but plain error. OBR N.E.2d syllabus. Neither plain any error nor other error occurred. It is the trial responsibility court’s guilt-phase determine what
evidence is relevant in
penalty
phase.
Getsy
See State v.
84 Ohio
Here,
St.3d
that the committed prosecutor Childs, all but error. object plain counsel’s failure to waived defense syllabus. paragraph three St.2d 43 O.O.2d Ohio First, the evidence prosecutor misrepresented that the now that Eddie was born argument by stating, final “We know *31 Baltimore, pretty good.” seemed to be Maryland, age that until the life added.) that mischaracterized the evi- Lang argues argument this (Emphasis Robinson, half-sister, testified, my “A lot of times Lang’s because Yahnena dence Lang argues him to that [Lang’s Lang. mother didn’t let come” see father] good that he not have a or normal childhood. testimony Robinson’s shows did Robinson also testimony supported prosecutor’s argument. Other the 254} {¶ testified, relationship. brother sister We would watch movies typical “We had school, things younger and other that an older sister do with brother play [sic] prosecutor’s argument and did” was ten. the we shared before fair No error occurred. represented plain comment. Second, that evidence in Lang argues prosecutor the misstated the years that trauma with his father for two
arguing
living
the
he suffered while
Carter,
mother,
by
Tracy
Lang’s
and
supported
not
the evidence. Robinson
years
the trauma
suffered
the two
that he lived with
during
testified about
counseling
psychiatric
his father and the
treatment
that
received for
trauma
returning
after
home.
that the
could
During
argument,
prosecutor
jury
rebuttal
the
stated
about
trauma. The
testimony
Lang’s
Lang’s
discount
from
mother and sister
all
to what
in that
prosecutor argued,
speculation
happened
two-year
is
as
“[I]t
you
knows. But
want
that bad
period
Nobody
speculate
things
of time.
added.)
absolutely
(Emphasis
when
no evidence of that.”
happened
there
prosecutor’s argument
The
mischaracterized the evidence because
testimony
happened
Robinson’s and Carter’s
constituted evidence of what
Nevertheless,
entirety,
when he lived with his father.
when viewed
its
prosecutor’s
unfairly
misstatement did
contribute
the death verdict
plain
Bey,
did not create outcome-determinative
error. See
taking Lang complains prosecutor argued, his medications as child. Eddie, occasions but sought help “And we know that his mother on numerous Eddie didn’t take his medication.” final mentioned failure to take During argument, prosecutor summarizing mitigating testimony. prosecutor’s while
his medications
argument followed Carter’s
Lang took medication for depression
psychiatric
other
or behavioral problems before and after he
with
lived
father. But she also
stated
Eddie “did not take it all the time.”
Lang contends that
prosecutor’s argument
improperly criticized his
struggle with mental health and turned a mitigating factor into an aggravating
circumstance. Review of the state’s
argument
entirety
its
shows that
prosecutor’s argument about Lang’s medications was an isolated remark that did
not convey
improper
Braden,
meaning
Lang suggests.
v.
See State
354,
referring the nickname “Tek” during penalty-phase opening statement, statements. During the state’s opening prosecutor advised the jurors of the aggravating circumstances: “The first is that Lang, Eddie *32 * * Tek, known as committed the offense of *.” The prosecutor repeated the reference to in Lang’s advising nickname the jury about the aggravating second circumstance. The prosecutor also completed his opening by statement stating, * * * “Based upon that I submit that two sentences of death by shall [sic] * * pronounced against Eddie Lang, also known as Tek *.” Lang argues that the prosecutor’s
{¶ reference to his 262} nickname was an improper attempt associate him with gangs and violence. As discussed in proposition VIII, no testimony was introduced explaining the meaning nickname. Lang’s claim that prosecutor was trying paint him aas gang Nevertheless, member is speculative. prosecutor’s use of Lang’s nickname unnecessary and may have been an attempt to impugn his character. But prosecutor did not repeat Lang’s nickname during the remainder of the penalty-phase error, proceedings. Although prosecutor’s brief remarks do not rise to the level of outcome-determinative plain error. Fifth, Lang argues that the prosecutor by committed misconduct improperly making a victim-impact comment during the state’s closing argument. Lang complains prosecutor argued, “We know that just Eddie has a child like Jaron and Marnell.” Lang argues prosecutor’s comments about the victims’ children only were made to enhance the enormity the crime. In the alternative, Lang argues prosecutor’s “just statement about kids like Jaron and presented Marnell” the argument that the two victims had once been children too. children were the victims’ isolated remarks about The prosecutor’s 264}
{¶
“Merely mentioning
evidence.
summing up
mitigating
made while
more,
not constitute
does
family, without
of the victim’s
situation
personal
{¶ impose justice” should “render jurors that the closing argument by arguing sentence of death. * * justice in calling for inherently erroneous nothing “There 266}
{¶
prosecutor’s
N.E.2d 1042. The
St.3d
v. Evans
63 Ohio
State
closing
parties
latitude afforded both
within the creative
argument was
¶31,
Davis,
404,
{¶ XIII, Lang of law proposition counsel. assistance Ineffective multiple assistance on occasions that his counsel ineffective argues provided penalty phase. First, failed to offer evidence of Cheek’s he his counsel or criminal activities to show that Cheek “induced involvement Burditte’s facilitated” the offense. statutory factor. facilitating mitigating the offense is Inducing 2929.04(B)(1). should have established the Lang argues that his counsel
See R.C.
was Burditte’s
showing
of this factor
Cheek
presenting
existence
night
to sell
on the
planned
drugs
and knew that Burditte had
girlfriend
murders,
of cocaine
his hand.
package
Burditte was found with
with the
that Cheek was involved
presented showing
No evidence was
in the
sitting
The fact that Cheek was
night
sale on the
of the murders.
drug
*33
drug
at the time of the
sale is not sufficient to establish
front seat with Burditte
“induced or facilitated” the offense. R.C.
her involvement or show
she
Moreover,
Williams,
18,
2929.04(B)(1);
79
at
ing Cheek attempt present trial counsel’s such jury might have viewed the defense. Thus, character. counsel were unnecessarily attacking Cheek’s evidence as ineffective failing suggesting offer evidence that Cheek or facilitat- induced ed the offense. Second, his counsel failed to fully investigate,
prepare, present mitigating evidence. The presentation mitigating evidence is a strategy.” matter of “trial “
Keith,
at
‘Moreover,
{¶ 275} failed collect and present records, his medical records, records, school police and social- service records to mitigation corroborate the testimony of Carter and Robinson. Defense employed counsel a mitigation expert, a psychologist, and a criminal investigator in preparing for trial. Each of these began individuals working on Lang’s case several months before the penalty phase. The defense requested records about from Department of Social Services Baltimore, Maryland, which childhood home. the record shows that defense counsel thoroughly prepared for the penalty phase of the trial. The record does why not show documentary
{¶
277}
evidence was not
introduced into evidence. But Carter and Robinson provided lengthy testimony
about Lang’s background,
abuse,
his father’s
and the mental-health problems
Lang suffered before and after
with his
living
father for two years. Counsel’s
rely
decision to
solely on Carter’s and Robinson’s testimony constituted a tactical
choice and not ineffective
Hand,
assistance of counsel. See State v.
107 Ohio
378,
gist as witness to explain abuse, the impact of his childhood his abduction by his father, and the failure to take medications. Dr. Jeffrey Smalldon, a clinical psychologist employed defense, by the interviewed and performed psychological on testing Lang and also interviewed Lang’s mother and half-sister. Lang’s claim that Dr. Smalldon would have provided important mitigating evidence on best, his behalf is speculative and counsel’s decision not to call Dr. Smalldon as a witness was a tactical part choice as of a trial strategy. Third, Lang argues that his counsel misrepresented the evidence during closing argument by telling jury, “You [Lang] learned that had * * *
siblings,
said,
like the prosecutor
pretty normal childhood up until he
*34
added.)
misrepre-
argument
that counsel’s
Lang argues
(Emphasis
was ten.”
prejudicial.
and was
about his childhood
the evidence
sented
Carter
misrepresent
the evidence.
did
argument
Defense counsel’s
years
until
ten
old. As
abusive father
he was
did not meet his
Lang
testified that
XII,
Lang
that before
was ten
also testified
in
Robinson
proposition
discussed
relationship.”
old,
“had a
brother sister
typical
years
and allowed the
credibility
defense
also maintained
argument
Counsel’s
argument
counsel’s
ad-
jury’s attention on defense
to focus the
defense
Thus,
him.
counsel’s character-
father abducted
Lang’s abuse after his
dressed
of counsel.
not result in ineffective assistance
Lang’s early
childhood did
ization
356-357,
showing a direct that he would promise counsel did not make Baltimore. Rather, probably will jury, trial counsel told the present “[Y]ou such evidence. dangerous of the most ones is now known as one neighborhood hear added.) Thus, that his Lang has failed to show Maryland.” (Emphasis State of jury. to the promise counsel broke such promise present testimony that his counsel broke a to also statements, defense During opening from of suicide. thoughts he suffered home person” was a “different after he returned
counsel stated stated, thoughts “You’llhear about Eddie’s following his abduction. Counsel of suicide.” mitigation no case that presented Defense counsel keep to this failing considered suicide. counsel were deficient
Lang had
deficiency
prejudicial.
But
has not established
See
promise.
Strickland,
merely
553 XIV) during of the trial-phase penalty phase (proposition consideration evidence XIX). imposition (proposition or the of court costs that of and Finally, the cumulative effect counsel’s errors 287}
{¶ However, omissions resulted in of ineffective assistance counsel. the record trial, that any nonprejudicial. shows a fair error Lang received and was XIII foregoing, rejected. Based on the proposition XI, In of Arbitrary sentencing. law that proposition 289} {¶ death sentence for murder be vacated the jury’s Cheek’s should because sentenc- One) (Count ing recommendations —life for murder and Burditte’s death (Count Two) murder arbitrary. Lang Cheek’s contends that the disparity —are in sentencing because was a not. drug occurred Burditte dealer Cheek was Consequently, Lang argues, jury the the victim’s as improperly considered status an its aggravating circumstance death verdict. reaching reject Lang’s We The argument. jury verdicts are not inconsistent. 290}
{¶ jury “consider, The was required weigh against the circum- aggravating doubt, proved stances beyond reasonable the nature and the circumstances of 2929.04(B); 355, offense.” R.C. Wogenstahl, see 75 Ohio at 662 311. St.3d N.E.2d Here, the nature the and circumstances of offense showed Burditte drugs involved the selling illegal Lang at time of his murder. was no There showing that Cheek was In weighing involved. the nature and circum- offense, jurors stances of the have might determined that Burditte’s murder mitigated Burditte’s leading up involvement the events to his hand, murder. On the jury might other have Lang’s decided murder Cheek was not mitigated 358, all. See v. Ohio Gapen, State St.3d 2004- ¶ Ohio-6548, 1047, 819 N.E.2d 139. Moreover, is not it for an court to appellate speculate why jury about (1997), as it decided did. v. Lovejoy State 683 N.E.2d “ 1112. always inquiring ‘Courts have resisted a jury’s thought processes into * * *; through brings this deference the jury process, the criminal in addition ”
to the collective judgment community, Id., an element of needed finality.’ quoting 66-67, United v. States Powell 469 U.S. 105 S.Ct. L.Ed.2d 461. reject we claim Additionally, jurors improperly consid- a drug
ered Burditte’s status as
an aggravating
dealer as
circumstance.
trial
court properly instructed the
on
jury
aggravating
circumstances that
could consider
their
The trial
during
deliberations.
court’s instructions included
admonition,
aggravated
“The
murder itself is not an aggravating circum-
stance. You may only
just
consider the
aggravating circumstances
were
which
you
described
accompanied
aggravated murder.”
It is pre-
See,
sumed
followed the trial court’s
v.
e.g.,
instructions.
State
Remaining Issues XX, Lang the constitu- Settled issues. challenges In of law proposition of the trial. phases doubt both of the instructions on reasonable tionality of the “reasonable constitutionality have affirmed the already we provided by R.C. 2901.05. See State Jones 91 Ohio definition doubt” 335, 347, 744 St.3d N.E.2d XXI, constitutionality law attacks Ohio’s proposition *36 v. Carter See State rejected. claim is summarily statutes. This
death-penalty
(1984),
v.
607,
345;
15
State
Jenkins
(2000),
593,
Ohio St.3d
734 N.E.2d
Ohio
89
264,
of
164, 15
syllabus.
N.E.2d
one
the
paragraph
St.3d
OBR
473
internation-
Lang
death-penalty
also
that Ohio’s
statutes violate
argues
{¶ 295}
reject
a party.
al
the United States is
We also
agreements
law and
to which
904;
(2001),
49, 69,
Bey,
See State v. Issa
93
N.E.2d
argument.
Ohio St.3d
752
at
death because
in the record
the death sentence for
nothing
supports
and
murder.
court’s
Cheek’s murder
a life sentence
Burditte’s
The
sentenc
circumstances,
analyzed
the
ing opinion
aggravating
mitigating
identified
exist,
fully explained why
aggravating
found to
circumstances
factors
and
2929.03(F)
But the
factors as R.C.
trial
outweighed
mitigating
requires.
required
propriety
court was not
to address the
death sentence
view
Moreover,
of the life sentence that
received for Burditte’s murder.
our
will
flaws in
court’s
any
opinion.
review the sentence
cure
the trial
independent
v. Fox
(1994),
183, 191,
124.
State
631 N.E.2d
Ohio St.3d
Third,
that the trial court did
consider his
properly
{¶ concluded that “his conduct and
youth
mitigating
erroneously
as a
factor
weight
The
taped statement show a street-hard individual.”
“assessment
trial
are
for the
court’s determination.”
mitigating
be
evidence
matters
given
Here,
trial court
of the offense. R.C. that the whether consider, weigh against aggrava- death is an “shall appropriate penalty, doubt, nature and circum- ting proved beyond circumstances reasonable added.) Accordingly, stances the trial court was (Emphasis offense.” required to review these factors. See State Steffen 116-117, however, sentencing in the Nothing, 31 OBR indicates that the trial court viewed the nature and circumstances of the opinion aggravating mitigating offense as an circumstance rather than a factor. trial Finally, Lang argues mitigating court trivialized *37 character, that trial court history, background. Lang
about his
and
claims
mother,
over
with
glossed
relationship
about his father’s abusive
his
fully
being
failed to
consider the mental and
abuse he suffered after
psychological
father,
abducted
his
and
him for not
medications.
always taking
faulted
Nothing
sentencing opinion
indicates that the trial court trivial-
glossed
mitigating
thoroughly
ized or
over
evidence. The trial court
discussed
abuse,
mitigating evidence about his father’s
mentioned that
treated at
Lang was
occasions,
psychiatric
various
facilities on over 30
summarized
properly
that
not
trial
Lang
always
evidence
did
take his medications. The
court also
“weighed
stated that it had
all of the evidence
as it relates to Mr.
presented
character,
Thus,
Lang’s history,
claim also lacks merit.
background.”
foregoing, proposition
Based on the
XVII is overruled.
Imposition
court costs. The trial court assessed
with court
{¶ 305}
of
XIX,
In
trial
proposition
Lang argues
imposition
costs.
of law
court’s
him,
defendant,
an indigent
spirit
Eighth
court costs on
“violates the
of the
object
Amendment.” But
failure to
has waived this issue. See State v.
¶
(motion
Threatt,
277,
{¶
393,
White,
580,
we
so that
trial court may impose
proper
remand this case
terms of
Ketterer,
postrelease
entry.
control and correct the
v.
judgment
See State
¶
448,
mitigating presented arguments his behalf. These will be addressed *38 our during independent sentence evaluation.
INDEPENDENT SENTENCE EVALUATION law, our review of Having completed Lang’s propositions we are {¶ 312} 2929.05(A) required by to review sentence for independently R.C. death appropriateness proportionality. Aggravating circumstances. The evidence at trial beyond established
{¶ 313} a reasonable that Lang doubt murdered Marnell Cheek as of a course of part 2929.04(A)(5). conduct involving purposeful killing of two or more people, R.C. beyond evidence also established a reasonable doubt that Lang murdered Cheek an aggravated robbery and he was the principal offender 2929.04(A)(7). murder, commission of the aggravated R.C. Mitigating circumstances, evidence. Against these aggravating
{¶ we are 314} 2929.04(B). called upon weigh to the mitigating factors contained in Lang R.C. presented mitigating two witnesses. Robinson, half-sister, Yahnena the defendant’s had a relationship close
with Lang before he was ten years old. She it a “typical described as brother sister relationship.” Lang “good student.” father, Robinson testified that Lang’s Sr., Lang Edward abused their mother and was on drugs. Their mother would not allow Edward to visit Lang very often because of history “his and his anger problems.” After Lang graduated school, from elementary Lang his father visited in Delaware. The weeks, visit was supposed last for two but Edward did not allow later, return home. Two years their mother found Lang and him brought home. happy when home, later, he first came {¶ but changed. 318} mood * * *
According Robinson, “he would sometimes, be sad quiet other [and] times he would look hurt real angry.” be Subsequently, Lang received counseling, went to a psychiatric facility, and spent time facility residential for his problems. mental-health Robinson also testified that two-year-old has daughter whose
name is Kanela Lang. Tracy Carter, mother, the defendant’s testified that Lang is the third
of her four children. Carter met Edward Lang Sr. when he was her landlord. Carter did not have money pay rent, and she slept with him in exchange for lodging. Carter and Edward then developed a relationship. Carter stated that Edward became violently abusive when he was
intoxicated and using drugs. born, After Lang was jail Edward went to stabbing Carter and setting apartment her on fire. Edward was also incarcerat- ed for child molestation. Carter would not allow to visit his father until a court order
ordered her Baltimore, to do so. Carter lived Maryland, and Edward lived in old, Delaware. When he years was ten Lang went to see his father in Delaware for a two-week visit. Edward did not allow Lang to return home after ended, the two weeks and Carter did not see her years. son for the next two *39 Delaware, was unsuccessful. but attempts Lang find repeated Carter made him home. brought and Finally, Lang Carter found found him and son was malnourished when she stated her Carter
{¶ 323} wearing Lang that he when he left. clothing the same had been wearing hand, shoulder, Lang told his gash a on his and other bruises. had a burn on his a burn. cigarette mother that the burn was father, Depakote, had been treated with Lang Before he saw his
{¶ 324} sure Lithium, and other conditions. Carter made depression and Risperdal Lang on a basis. did regular that he took these medications father, Edward did not them when he was with his continue take prescriptions. refills for the obtain home, that he Lang was withdrawn. told Carter returning After But Carter happened. did not want to talk to her about what had
was fine and son, Mendez, sexually Lang. from her that Edward had abused learned and other treatment. Carter psychiatric has received extensive testified, at stayed Bridges Program days. stayed in the twice for 90 He “He year. stayed for a And he off and on Respiratory Treatment Center Woodburn * * * Pratt crisis 28 times.” Sheppard center] Center [the] [a child, states, “He has taken care of his Lang has one Kanela. Carter * * * nothing daughter pregnant. ever since the mother was [There] baby.” he wouldn’t do for her and for the grade did not finish school. He out of the 11th and high dropped joba for the census baby’s Lang got working
“went to take care of his mother.” 2006, Lang In June moved to Canton. department. * * * matter, final all I jury, suffering. As a Carter told the “We are was a child. I never sat here and said my perfect
never sat here and said son asking you my life or a bad life. But I am not to kill my good child had child.” evaluation
Sentence find in the nature and circumstances of the nothing mitigating We robbery an Lang brutally during attempted offense. murdered Marnell Cheek Burditte, drug part dealer. Cheek’s murder was course conduct Jaron which also murdered Burditte. during Lang’s nothing mitigation, give character offers we some Although
weight Lang’s history background. Lang during was abused his father abused the two physically his childhood. He was also malnourished Moreover, stayed Lang required that he with his father. extensive years Never- returning treatment after home to his mother. counseling psychiatric theless, of any there is no evidence connection between abusive treatment See, Hale, e.g., and the two murders. State v. 2008-Ohio- *40 ¶ (decisive 864, weight given 892 N.E.2d 265 seldom to defendants with childhoods). unstable history that his of substance mitigating abuse deserves
{¶ 332} However, in weight. nothing history. the record shows that had such a Lang (B)(1) statutory factors mitigating under R.C. 2929.04 include {¶ 333} (victim (B)(2) inducement), (duress, (B)(3) (men- coercion, strong provocation), or (B)(4) (B)(5) (lack defect), offender), tal (youth disease or of a significant (B)(6) (B)(7) factors). record), criminal (accomplice only), (any and other relevant (B)(6) 2929.04(B)(2), (B)(5), We find that the R.C. inapplicable factors are here. 2929.04(B)(1) apply only The R.C. factor would to the course-of-conduct
{¶ 334}
specification because
was sentenced to death for
Lang
Cheek’s murder. Howev-
(B)(1)
er,
factor,
give weight
we
no
to the
because Burditte’s
in
participation
drug sale does not mean
he “induced or facilitated” the murders.
Id. “While
in criminal
participation
activity certainly carries with it an element of serious
risk, the unlawful
of a human life cannot
taking
simply
be deemed less serious
Williams,
activity.”
because the victim was involved
unlawful
79
at
Ohio St.3d
18,
no presented showing evidence was that “at the time of committing offender, defect, because of a mental disease or capacity lacked substantial appreciate criminality of the offender’s conduct or to conform the offender’s requirements conduct to the of the law.” However, we give weight Lang’s some mental under the problems 2929.04(B)(7).
catchall provision, R.C. Testimony showed that suffered from depression and received extensive psychological psychiatric treatment. But again, any there was no evidence of significant Lang’s connection between mental illness and the murders. give We significant weight Lang’s youth pursuant to R.C.
2929.04(B)(4).
than
days
few
older
19 when the offenses occurred.
upheld
penalty
we have
the death
in other cases in which the defendant
Bethel,
committed
murder at
aggravated
Lang’s age
younger.
See State v.
¶
416,
factors,
outweigh
mitigating
circumstances
aggravating
we find that
aggravat-
murder of Cheek
an
beyond
factors
a reasonable doubt.
in murdering
offender and his course of conduct
robbery
principal
ed
as the
aggravating
Lang’s mitigating
are
circumstances.
grave
Cheek and Burditte
*41
comparison
aggravating
in
to these
circumstances.
pales
not
(¶
penalty imposed
also find that the
this case is
“excessive
We
2929.05(A).
in similar cases.” R.C.
The
disproportionate
penalty imposed
to the
approved
robbery-
to death sentences
cases for other
penalty
proportionate
Monroe,
v.
384,
Conclusion convictions, affirm the the conviction for capital aggravated We rob- death, court, bery, judgment the sentence of and the of the trial but we remand trial impose appropriate postrelease pursuant for the court to term of control to R.C. 2929.191.
Judgment accordingly. Lanzinger Cupp, JJ., O’Connor, C.J., and concur. Lundberg Brown, JJ., concur separately.
Pfeifer, Stratton, McGee Lundberg J., concurring. Stratton, an a Lang brutally people during attempted robbery murdered two than many sympathetic dealer. In is no more the defendant
drug
respects,
Ketterer,
70,
reexamine
'to a
society
penalty
whether we as
should administer
death
Ketterer,
70,
Facts Ketterer, Like seriously by abused his father as child. Lang’s parents met when his father was his mother’s landlord. Lang’s mother was a single parent pay Lang’s place and could her rent. father traded her a mother, to live for Lang’s drug sex. father was a addict who Lang’s beat even when she pregnant. Eventually, Lang and his mother received a brief from respite Lang’s father when he was incarcerated for beating stabbing setting mother and fire to their apartment. Lang’s father also served time in prison for child molestation. damage inflicted on turbulent and violent childhood is
probably by best illustrated what was in essence a kidnapping he suffered at ten, the hands of At age his father. went for a Lang court-ordered two-week visit with his father out of state but was held his father for two years. Lang’s mother son, testified after repeated, attempts unsuccessful to find her she found him years emaciated, two later weighing malnourished and about 88 pounds, wearing the shirt and shoes he had left in. Despite being its December in Maryland, he had no coat or warm clothes. When Lang’s mother clothes, him buy took new she body physical discovered his showed abuse. bruises, Lang hand, had a gash on his and an unmistakable burn on cigarette his back. father, Before he left to depression see his had been treated for father,
and was on three
with
psychotropic drugs. During
stay
his forced
Lang’s
Lang’s
surprisingly,
father refused to obtain refills for
medications. Not
mother,
two years apart
after
from his
was withdrawn when he returned
kept
home. He
to himself and refused to
or any
discuss the ordeal
of what had
to him in those two
For
happened
years.
years, Lang
the next several
received
Pratt, a
Sheppard
28 visits to
treatment.
made
psychiatric
extensive
spent
at a time. Twice he
facility, usually staying for two weeks
psychiatric
year
Respiratory
a full
at Woodburn
Bridges Program.
spent
at the
He
days
son, Mendez, told her
mother testified that her older
Lang’s
Treatment Center.
Lang.
Lang’s
sexually
father had
abused
noted,
evidence was
but
parties
mitigation
compelling,
As both
behalf,
but
did not
lay
Lang’s
witnesses testified on
unsupported. Two
documents,
half-sister
reports,
Lang’s
medical
or other evidence.
present any
life,
mother
how
family
his turbulent
and his
testified
and mother testified about
her to
him. Both
years
allowing
father had
him for two
without
see
Lang’s
kept
of,
to,
other
mental
provide any
testified
but did not
witnesses
reason to lie
ample
The state noted to the
that both witnesses had
state.
any
specula-
that without
should be dismissed as mere
proof,
Jeffrey
mitigation expert,
hired Dr.
Smalldon as its
but did not
tion. The defense
testify.
repeatedly hospitalized
him
It is of concern that
have
years, yet
over a
no clear mental-health
psychiatric
period
extensive
treatment
record-symbolic
system.
in the
of a failure of the
diagnosis appears
Decency
Evolving
that Mark
Standards of
Maturing Society
Progress
of a
Ketterer,
Ketterer,
here,
I
is not at issue.
guilt
as
noted
Ketterer, society I continue to that we as a should reexamine current law. believe Id. “ our current did not legislators passed penalty ‘The who death laws adjudication. of constitutional grotesque stage
intend to force issues the center with Manson penalty supposed getting The death be about even Charles retarded, wrestling and the con Bundy, executing teenagers and Ted demned to the for forced doses of Haldol. But here we schizophrenics gurney ” Mello, Mentally quoting Ill Crim.Just. David Executing are.’ Bruck, professor Virginia Capital a clinical of law and director of the Case Clearinghouse Washington University and Lee School of Law. Who, questions legal system to the core of our of death: go “[TJhese *43 why, problem
and do we execute? The of the intersection between mental illness much than that.” Id. at capital and isn’t rocket science. It’s harder punishment Supreme rulings barring Two recent United Court execution States juvenile give hope offenders and with mental retardation seem people the fate of spared also be will judgment for capacity with diminished others Malone, Inhumane: Cruel comprehend. not even they may punishment 2007) (Mar. 27, at Magazine 111, International Mentally Amnesty Executing the persons court case addresses Although neither http://amnestyusa.org/node/87240. Streib, University professor, law illness, an Ohio Northern Victor with mental v. Roper Simmons Supreme Court the United States by times quoted ill 1, notes, mentally 1183, “If certain 551, 161 L.Ed.2d 125 S.Ct. 543 U.S. retarded, should then mentally or the juveniles think and act like defendants row.” Id. from death be excluded Mental Persons with
Unconstitutionality Executing Disabilities Retardation/Developmental Eighth held 1989, Supreme Court the United States a categorical not mandate did to the States Constitution Amendment United Penry offenders.3 mentally retarded penalty from the death exemption time, 256. At the 302, 335, 109 106 L.Ed.2d S.Ct. Lynaugh 492 U.S. banning imposition laws had enacted only noted that two states the court offense. capital convicted of a person retarded mentally on a penalty the death enactments, to the “even when added state Penry held that those two Id. at 334. provide do not completely, rejected capital punishment that have States Id. of a national consensus.” present evidence at sufficient constitutionality of later, the court reconsidered years Thirteen (2002), 536 Virginia In Atkins v. offenders. mentally capital retarded executing “standards of court noted that 153 L.Ed.2d U.S. S.Ct. that the execution Penry and now demonstrate had evolved since decency” noted, Atkins the 13 punishment. “[I]n and unusual retarded is cruel mentally ** scholars, *, legislators, Penry public, the American since we decided years penalty the death should whether question have deliberated over the judges consensus reflected criminal. The mentally on a retarded imposed ever be case.” by this question presented answer to the informs our those deliberations Id. at 307. country across the since legislatures Atkins many noted the state states, held, the court Citing several
Penry
to address the issue.
begun
that had
significant,
is
but
of these States
“It
not so much the number
recently acceptable
“mentally
rather
than the more
the term
retarded”
3. This concurrence uses
disabilities,”
“mentally retarded” has been
developmental
the term
“persons
term
with
legal significance.
Supreme
courts and has
consistently
Court and other
used
the United States
(Brennan, J.,
part
concurring in
Penry,
consistency of the direction of change.” Id. at 315. The court noted that when Atkins decided, only minority permitted states in practice, and even states, Therefore, those it was at rare. Id. 314-315. evolving standards of decency compelled the conclusion that execution of mentally retarded offenders truly “has become unusual and it is fair to say a national consensus has it.” developed against Id. at 316.
Unconstitutionality Executing Juveniles Another category persons whose eligibility for execution rightly {¶ has 356} caused much consternation for the United States Supreme juveniles. Court is v. Kentucky 361, 2969, 492 U.S. 109 306, S.Ct. 106 L.Ed.2d Stanford court that contemporary held decency standards of country this did not proscribe the juvenile execution of offenders who were over 15 but under 18 when they committed their crimes. at Id. 370-371. had noted that 22 of the Stanford 37 death-penalty states permitted the death penalty 16-year-old offenders, for states, among those 37 permitted 25 it for those who had years offended at 17 numbers, view, old. These in the court’s indicated no national consensus “suffi- cient to a particular punishment label cruel and unusual.” at Id. 371. later, years Sixteen the court reconsidered issue and held that the
Eighth and Fourteenth Amendments
imposition
forbid
of the death penalty on
offenders who were under the age of 18 when their crimes were committed.
Roper,
568,
1183,
543
at
U.S.
125 S.Ct.
noted,
at 1, 125 S.Ct. 161 L.Ed.2d quoting 315, at 122 U.S. S.Ct. Atkins, 2242, 153 L.Ed.2d 335. “As in the objective indicia of consensus in rejection case—the juvenile death penalty States; in the majority of its infrequency books; use even where it remains on the and the consistency the trend toward abolition of the practice provide sufficient today evidence that — mentally respecting used in the words Atkins juveniles, society our views ” at Roper criminal.’ average than the
retarded, culpable less ‘categorically as S.Ct. citing Atkins 161 L.Ed.2d 125 S.Ct. L.Ed.2d *45 Mental Illness of Persons with Severe Banning Execution
The Case incompetent someone who unconstitutional to execute it is Although 359} {¶ 399, (1986), 477 U.S. execution, Wainwright see Ford v. or her at the time of his Quarterman 335, 2595, and Panetti 417-418, 91 L.Ed.2d 106 S.Ct. Court 662, Supreme 2842, the United States 168 L.Ed.2d 127 S.Ct.
U.S. who to execute someone unconstitutional whether it is yet not decided has If executing crime. at the time of the mental illness from a serious suffered juveniles executing or disabilities retardation/developmental with mental persons 1183, 563, at 125 S.Ct. Roper, 543 U.S. decency,” standards of “evolving offends these same standards 1, comprehend why cannot simply then I 161 L.Ed.2d with severe persons execution prohibit not evolved to also decency yet have time of their crimes. mental illness Indications Enactments and other
Legislative Decency Evolving our Standards of Roper, my in Atkins and since noted Although groundswell 2006, limiting have considered in in a few states concurrence Ketterer ill at the time of the crime. severely mentally execution of those who were Entzeroth, ill. mentally execution of the only prohibit is the state to Connecticut Protect the Constitutionally a Charting Dilemma of Course Challenge (2011), 44 Akron Penalty from the Death Mentally Capital Defendant Severely if or from execution It defendant exempts capital L.Rev. 564. impaired or capacity significantly or her “mental was court finds that his of law requirements to the conform the defendant’s conduct ability defendant’s in case as to constitute impaired not so either impaired but significantly 53a-46(a). Conn.Gen.Stat.Ann. prosecution.” defense to Bar Association’s Recommendation from the American Using language 361} {¶ to bar the have introduced bills 122A, Kentucky in and North Carolina legislators offense, mental who, “had a severe at the time of the of defendants execution (a) appreciate capacity their disability significantly impaired disorder or (b) conduct, rational of their exercise nature, wrongfulness or consequences, (c) conduct, requirements their conduct to the conform relation judgment session, 2009 regular introduced Kentucky H.B. No. of the law.” language. nearly 1075 use identical H.B. No. North Carolina 553/S.B. to examine addition, the Bowser Commission In Indiana established report Bowser Commission issued mentally ill. The
the execution of the 2007 recommending November exemption severely ill mentally from the death Final penalty. Report Commission, of the Bowser Indiana Legislative Agency, Services November http://www.in.gov/legislative/interim/ committee/reports/BCOMABl.pdf, p. 3. Indiana’s S.B. No. prohibit introduced to the imposition of the death penalty on an individual judicially illness, determined to have had a severe mental defined as schizophre- nia, disorder, disorder, schizoaffective bipolar major depression, or delusional crime, disorder, at the time of the www.deathpenaltyinfo.org. See Entzeroth at Finally, the Tennessee Disability Coalition reports that in Ten- nessee legislators introduced H.B. No. 2064 and S.B. prohibit No. 1692 to execution of a person who had persistent severe and mental illness at the time of committing murder in degree, the first http://tn.disability.org. Moreover, at least five leading professional associations, the American Association,
Bar Association, the American Psychiatric the American Psychologi- Association, cal the National Illness, Alliance on Mental and Mental Health *46 America, have adopted policy statements recommending prohibition of execution with persons severe mental illness at the Winick, time of the offense. Supreme Court’s Evolving Death Penalty Jurisprudence: Severe Mental Illness as the Next Frontier 50 B.C.L.Rev.
The Crux
the Issue
Mental Health America estimates that five
percent
to ten
of all death
row inmates suffer from a severe mental
America,
illness. Mental Health
Death
Penalty and People
Illness,
with Mental
www.nmha.org/go/position-statements/54.
view,
In my
a
slowly
consensus is
growing to stop executing persons with severe
mental illness. But excluding
severely
ill
mentally
from death row
involves
more complicated analysis. Juveniles and persons with mental retardation can be
by number,
identified
either an age
IQ
or an
score and recognized factors.
IAs
Ketterer,
noted in my concurrence in
“mental illness is not as easily quantified as
mental retardation. Mental retardation is a fixed condition with
objective
more
symptoms. Mental illness is a much broader category, with
ranges
wide
diagnoses
periods
of decompensation and remission. Treatment options vary
widely, including counseling,
modifications,
behavior
group therapy, and medi-
cation. Some treatments and medications are controversial as to effectiveness
and side effects. Mental illness
a as
defense is a difficult issue to quantify in a
* * *
court
Therefore,
of law.
I personally
while
believe that the time has come
for our society to add persons with severe mental illness to category
those
excluded from application of the death penalty, I believe that the line should be
* * *
drawn
by
General Assembly,
a court.
[NJothing prevents the
* * *
legislature from examining
using
those
evolving standards
decen-
[of
Therefore, I
our General
urge
role to do so.
fact,
legislature’s
it is the
cy].
when a
determining
criteria for
setting the
legislation
to consider
Assembly
of death.
penalty
from the
illness should be excluded
mental
with severe
person
IQ
on an
test
by a number
retardation,
can be determined
which
mental
Unlike
The General
severity.
in
criteria,
vary widely
mental illnesses
basic
and other
variations, take public
to examine these
body
proper
would be the
Assembly
judicial
field,
criteria for the
in
and fashion
experts
hear from
testimony,
Conclusion “ it the those who need health care to ‘A that denies mental society very at its core. cruel and inhumane executes them is subsequently and then
most envision for society that we “Is this the kind asking: need to be All of us ” Gunawardena- can and must do better.’ Sue is that we My ourselves?” answer the Death to Abolish Program International USA’s Amnesty Director of Vaughn, Mentally Malone, Executing and Inhumane: in Cruel Penalty, quoted Magazine, http://www.amnestyusa.org/node/87240. Amnesty International concurrence reasons, expressed my those as well as For these I continue Ketterer, majority today, decision but I concur reluctantly whether, critical issue of up to take Assembly our fervently urge General persons circumstances, should continue execute this state under what and/or of mental illness. varying degrees with JJ., foregoing opinion. concur in the and McGee Brown,
Pfeifer *47 Mark Attorney, and Ronald Jr., County Prosecuting D. Ferrero Stark John Attorneys, appel- for Prosecuting Assistant Tatarsky, and Kathleen O. Caldwell lee. Counsel, Wilhelm, Defender, Chief Joseph E. Public
Timothy Young, Ohio Prillo, Zober, and Rachel Division, A. Benjamin D. Jennifer Penalty Death Defenders, Troutman, appellant. Assistant Public