Case Information
*1
[This decision has been published in
Ohio Official Reports
at
T HE TATE OF , A PPELLEE ,
v.
M URPHY , A PPELLANT .
[Cite as
State v. Murphy
,
Criminal law—Aggravated murder—Invocation of right to remain silent is
ambiguous or equivocal, when—Crim.R. 24(F)—Waiver—Allowing alternate jurors to attend deliberations is not reversible plain error, when— Mere existence of conflicting evidence cannot make the evidence insufficient as a matter of law—Death penalty upheld, when.
(No. 98-1586—Submitted October 17, 2000—Decided June 6, 2001.) A PPEAL from the Court of Common Pleas of Franklin County, No. 97CR-05-2877.
__________________ A LICE R OBIE R ESNICK , J.
{¶ 1} Defendant-appellant, Ulysses C. Murphy, was convicted of murdering Andre Brooks during an aggravated robbery and was sentenced to death. Andre Brooks lived in Mansfield. His sister, Condrea Webber, lived in Columbus. On a weekend in May 1997, Webber went to Mansfield to visit her family. On Saturday, May 10, she drove back to Columbus with Brooks. They went to the C&S Lounge, a bar on the East Side of Columbus. Arriving sometime before 1:00 a.m., May 11, they left around 2:00 a.m. and went to the F&H Grill. The F&H occupied a two-story building; the second floor was an
“after-hours bar,” i.e ., an establishment that serves liquor after the lawful closing time. Webber and Brooks stayed until about 3:30 a.m. Murphy was also in the F&H that night. Frank Green, who frequented
the F&H and knew Murphy, later testified that Murphy left “[m]aybe a couple minutes” after Brooks and Webber. Brooks was wearing several gold chains around his neck that evening. These had attracted Murphy’s notice, and he decided to rob Brooks to get them.
{¶ 6} Brooks and Webber were near the car when Murphy told them to put their hands up and ordered Brooks “to take off his gold.” Brooks asked Murphy to let Webber get into the car. As Webber fumbled with the keys, she accidentally set off the car
alarm. Brooks told her how to shut it off, while continuing to ask Murphy to give her a chance to get in. Murphy was pointing his gun at Brooks the entire time. Finally, Webber got in, started the car, and put it in drive. Brooks and Murphy were standing at the rear of the car, and Webber could see them in her rear-view mirror. (Although it was night, and the car’s rear windshield appears to be tinted, the car was near an outdoor light.) Brooks tried to take his gold chains off, with Murphy continually
demanding that he “hurry up.” Then Brooks tried to scare Murphy away by telling his sister to “reach underneath the seat.” But Webber, afraid to support Brooks’s bluff, opened the door and turned around to assure Murphy that she had no gun. It was then that she got her best look at Murphy. Webber then closed the car door but continued to watch the robbery
in the rear-view mirror. Murphy kept yelling at Brooks that he was “moving too slow.” Webber then saw Murphy, who was standing slightly over an arm’s length from Brooks, take a step back. She heard two quick shots; then her brother screamed and fell. According to Webber, Brooks was shot while still trying to take his chains off. Webber hit the gas pedal and sped to a nearby White Castle restaurant to summon a police officer. An autopsy showed that Brooks died of two gunshot wounds. One
bullet entered the inside of Brooks’s upper left arm near the armpit and went into his torso, breaking a rib, which lacerated his lung and caused bleeding. The other entered his lower back and severed an artery.
{¶ 11} Police found three spent shell casings where Brooks was shot. Mark Hardy, a Columbus police criminalist and firearms specialist, examined the casings. Based on firing-pin impressions, extractor and ejector marks, and breech marks found on each casing, Hardy concluded that all three had been ejected from the same gun. Hardy also concluded that both bullets extracted from Brooks’s corpse were fired from one gun.
{¶ 12} Police showed Webber a photographic array, and she identified Murphy as her brother’s killer. She later identified him again in court. Murphy was arrested and interrogated. At first he denied everything.
Ultimately, he admitted that he had shot Brooks while trying to rob him of his chains. He claimed that the gun had accidentally gone off because Brooks tried to grab it. However, he admitted firing a second shot at Brooks when, according to Murphy, Brooks tried to run away after the first shot. Murphy was indicted for aggravated murder, aggravated robbery,
and having a weapon under disability. The aggravated murder count carried a felony-murder death specification. Each count also carried a firearm specification. He was convicted on all counts. After a penalty hearing, he was sentenced to death. In this appeal, appellant raises twenty propositions of law attacking the validity of his convictions and death sentence. After full consideration, we overrule each proposition of law. We have also independently reviewed appellant’s death sentence, as R.C. 2929.05(A) charges us to do, by reweighing the felony- murder aggravating circumstance against the mitigating factors and measuring the sentence in this case against sentences imposed in similar cases. Our analysis leads us to the conclusion that appellant’s convictions and death sentence must be affirmed.
I. Fifth Amendment Issues In his first proposition of law, appellant contends that his videotaped
confession should have been suppressed. He contends, first, that he did not waive
his right to remain silent; second, that police continued to interrogate him after he
invoked his right to cut off questioning. See
Michigan v. Mosley
(1975), 423 U.S.
96,
A. Waiver
{¶ 17}
At 10:38 p.m., May 11, 1997, Detective Viduya began appellant’s
interrogation by administering
Miranda
warnings. See
Miranda v. Arizona
(1966),
him whether he desired to waive his rights, nor did he ask appellant to sign a waiver form. However, he did explain appellant’s rights to him in simple terms. He did give appellant a waiver form, had him read the form aloud, and made sure he understood it. Only then did Viduya proceed to interrogate appellant. The trial court, ruling on appellant’s motion to suppress his ensuing
confession, found that appellant understood his rights and displayed “no hesitation” in talking with Viduya. The court also found that appellant had voluntarily waived his right to remain silent. Appellant contends that he never waived his right to remain silent at
all. He stresses the fact that he never signed the waiver-of-right form, and that the trial court improperly found that he implicitly waived this right by talking with police. It is settled law that a Miranda waiver need not be expressly made
in order to be valid.
North Carolina v. Butler
(1979),
the record supports that inference. Even though Viduya did not ask appellant if he wished to give up his rights, he did ask him whether he understood his rights. Not only did appellant affirm that he understood his rights, he showed his understanding of the right to remain silent: “That means I ain’t got to say nothing right now, ‘til I talk to my lawyer.” He also understood the concept of a waiver: “That means I can talk to you if I want to.” When Viduya questioned him, appellant spoke with no visible
reluctance. His original story was exculpatory, and he evidently believed that if he told it well, he would be released. (Thus, once he had told it, he informed Viduya that he was “ready to go home.”) Where a suspect speaks freely to police after acknowledging that he
understands his rights, a court may infer that the suspect implicitly waived his
rights. See,
e.g
.,
United States v. Ogden
(C.A.5, 1978),
was voluntary. Viduya’s manner was not threatening; there is no evidence that police used coercive tactics to obtain the waiver. Appellant told Viduya that he was sober, and this was confirmed by his appearance and demeanor in the video. Thus, the record supports the trial court’s finding that appellant voluntarily waived his rights.
B. Assertion of Rights Michigan v. Mosley , supra , holds that once a suspect invokes his
right to remain silent, police must cease to question him. The invocation does not
bar further questioning altogether, but police must scrupulously honor the
defendant’s exercise of his right to cut off questioning.
Mosley
,
involved in the crime. After telling his version, he said, “I’m ready to quit talking now and I’m ready to go home, too.” Viduya left the interrogation room for a few minutes to consult another detective. When he came back, he brought a crime scene technician with him, and the interrogation resumed. Appellant answered without apparent reluctance, and ultimately confessed to holding Brooks up and shooting him. Appellant contends that his statement to Viduya that he was “ready
to quit talking, and * * * go home, too” was an expression of his desire to stop talking, hence an invocation of his right to remain silent. Since Viduya did not “scrupulously honor” that invocation, appellant contends, his confession should have been suppressed. However, police must honor an invocation of the right to cut off
questioning only if it is
unambiguous
.
Davis v. United States
(1994),
Oxford don,’ “
Davis
, 512 U.S. at 459, 114 S.Ct. at 2355, 129 L.Ed.2d at 371,
quoting
id.
at 476,
{¶ 33}
This statement can be interpreted as meaning simply that appellant
was ready to “go home.” In
Moore v. Dugger
(C.A.11, 1988),
assertion of his right to remain silent. Such an ambiguous statement could create no obligation for the police to suspend their questioning of a criminal suspect. We therefore overrule appellant’s second proposition of law.
II. Request for New Counsel In his fourth proposition of law, appellant contends that the trial
court abused its discretion in denying him a continuance so that he could seek to retain counsel to replace his appointed counsel after he became dissatisfied with them. At arraignment, appellant requested appointed counsel and filed an
affidavit of indigence, in which he represented under oath that he was “financially unable to retain private counsel without substantial hardship to me or to my family.” The trial court assigned appellant two assistant county public defenders. Appellant later became dissatisfied with their advice, so they sought leave to withdraw. The court granted leave, continued the trial date, and assigned Terry Sherman and Debra Gorrell to represent appellant (who had asked specifically for Sherman).
{¶ 38} However, appellant soon became dissatisfied with Sherman and Gorrell. On May 1, 1998, the first day of voir dire, Sherman and Gorrell sought leave to withdraw and requested another continuance so that appellant could retain private counsel. According to Sherman, appellant asked his attorneys to withdraw because, thinking the case “almost impossible to win,” Sherman had advised him to “consider an option other than trial.” Sherman noted that appellant had nothing against him personally and added, “I like Mr. Murphy a lot.” Appellant stated that “there is nothing inaccurate” in Sherman’s statement. Although appellant thought Sherman and Gorrell were “great lawyers,” he explained that he wanted to hire his own lawyer because he did not trust a state- paid lawyer to work in his best interest. However, appellant also admitted, “I’m not really sure if I’m going to have the money” to retain counsel, but he wanted thirty days to try and raise it. Noting that seventy-eight prospective jurors had been called into
court, the trial judge overruled the motions for withdrawal and continuance. Appellant then refused to cooperate further and asked to be taken back to his cell. The court granted this request and proceeded with voir dire. By the next court session, appellant agreed to return to court. That
morning, Sherman protested a proposal to put a “stun belt” on appellant. Sherman’s representations to the court on this point throw considerable light on his relationship with appellant. Although appellant had been “mouthy,” Sherman believed that he now had his client “under control.” He stated that appellant “hasn’t displayed any problems while he has been incarcerated nor any problems while he was here Friday [May 1]. He did what we told him . He * * * didn’t cause any problems.” Sherman warned that putting a stun belt on appellant would only “cause me to lose the ground that I’ve gained , and I need to work with this guy.” (Emphasis added.) However, before opening statements on May 11, Sherman informed the trial judge that counsel and client were having “a fundamental disagreement” on how to proceed. Sherman believed that, since the court had declined to suppress appellant’s confession, the best remaining defense was to concede that appellant had killed Brooks but argue that he lacked the intent to kill. However, appellant told Sherman that he did not want to take that course.
{¶ 43} Nevertheless, Sherman told the jury in his opening statement that appellant killed Brooks and that the sole issue was whether he had done so with the intent to kill. He then discussed the evidence and told the jury that “you will not find that there was a specific intent to kill.” At the beginning of the next day’s session, appellant requested a
mistrial because counsel had disregarded his wishes in choosing a defense. Addressing the court, appellant said, “Now, counsel and myself have discussed my defense , and I made it perfectly clear that I was innocent. * * * I made it very clear that I didn’t want to go in to trial with that defense, but he did it anyway.” (Emphasis added.) Sherman then told the court that he and appellant were
communicating and “getting along.” He stated that he and co-counsel had discussed various defense options with appellant, shown him witness-interview summaries, police reports, and investigative reports, and conveyed the state’s plea offer. Sherman understood that appellant “did not want us to proceed the way I proceeded.” Sherman had explained his view of the case to appellant and asked him to suggest “any plausible * * * avenue that I can pursue.” Against this factual background, appellant advances three related Sixth Amendment claims. First, appellant contends that the trial judge should have assigned
different counsel to represent him during the trial court’s inquiry into his request
for a change of counsel, when it became apparent that his attorneys had essentially
“abandoned” him by taking a position contrary to his wishes. We cannot agree.
Appellant’s sole authority for this claim is
United States v. Wadsworth
(C.A.9,
1987),
contends that his motion for a continuance so that he could hire his own counsel should have been granted. The determination of whether to grant a continuance is entrusted to
the broad discretion of the trial court.
State v. Unger
(1981),
him and his assigned counsel. Although there is no right to a “meaningful attorney-
client relationship,”
Morris v. Slappy
(1983),
between appellant and his attorneys. Instead, “the record is replete with references
to [counsel’s] discussions with the defendant.”
Iles
,
of counsel. His new request, coming on the first day of voir dire, was ill-timed. And the judge had no reason to believe that appellant could hire counsel. Appellant had already claimed indigence, and he admitted that he still did not have the money to hire a lawyer and was not sure he could get it. We conclude that the trial court did not abuse its discretion either by
denying appellant’s request for continuance or by denying Sherman and Gorrell leave to withdraw. Finally, appellant contends that his counsel rendered ineffective
assistance by pursuing a strategy against his wishes. Appellant cannot and does not
contend that the Constitution reserves the selection of trial strategy to the
defendant’s personal choice. Decisions about “the viability of certain defenses” are
“within the exclusive province of defense counsel to make after consultation with
his client.”
Lewis v. Alexander
(C.A.6, 1993),
his desired course, because it was “just as reasonable” as the course counsel
pursued. However, that implies that counsel’s strategy was also as reasonable as
appellant’s—a concession that dooms appellant’s ineffective-assistance claim. To
prevail on such a claim, a defendant must show that counsel’s actions were
professionally unreasonable. See
Strickland v. Washington
(1984),
III. Voir Dire Issues A. Denial of Voir Dire The trial court excused prospective jurors Shipka, who had an upcoming vacation, and Wack, who felt unable to serve due to a recent negative experience with the criminal-justice system. In his fifth proposition, appellant complains that the trial court gave the defense no chance to voir dire these jurors before excusing them. However, appellant did not request an opportunity to voir dire either one (though he did object to excusing Shipka). Thus, appellant has waived this issue, and his fifth proposition is overruled. We further note that a juror’s discharge “on grounds of personal
excuse” is a matter “between the court and the jurors, and with which the parties
can not, of right, interfere.”
Bond v. State
(1872),
disqualified or biased juror to be seated nor impaired counsel’s ability to exercise
peremptories. Thus, it did not deny appellant the essential benefits of voir dire.
See
Dowd-Feder, Inc. v. Truesdell
(1936),
B. Denial of Challenges for Cause Prospective juror Council had a cousin who was killed by an armed
robber in 1993. He was upset that the killer was never caught. Council initially said that he could separate the instant case from that
of his cousin. Under defense examination, Council indicated that his cousin’s death “probably would” affect him in hearing the case, and he agreed that if he could not hear the case fairly he could not be “a fair juror.” He also told defense counsel that he had no doubt about his fairness and did not think that his cousin’s death would interfere with his being fair in this case. Council further indicated that he could consider a penalty other than death in a case of murder during armed robbery, that a person’s “upbringing” and “personality” might be relevant, and that he was not predisposed toward one penalty over another. A prospective juror is not automatically disqualified by the fact that
a close relative has been the victim of a crime similar to the crime on trial. See
State v. Allen
(1995),
{¶ 64}
Despite some hesitation, Council ultimately made it clear that his
feelings about his cousin’s killing would not affect his ability to be impartial. The
trial court’s ruling on a challenge for cause will not be overturned on appeal if the
record supports it. See
State v. Wilson
(1972),
prevent or substantially impair his ability to consider mitigating factors, as the law
requires, is disqualified. See
Morgan v. Illinois
(1992), 504 U.S. 719, 729, 112
S.Ct. 2222, 2229-2230, 119 L.Ed.2d 492, 502-503;
State v. Williams
(1997), 79
Ohio St.3d 1, 5-6,
and appellant struck Roe with a peremptory challenge. Venireman Hector stated at the outset that he would not
automatically vote to recommend death after a finding of guilty but would decide whether death was appropriate only after listening to the mitigation presented and deciding what weight to give it. While he said that he would give little weight to certain mitigating factors, he never refused to consider them, and he specifically mentioned others that he would consider. Under defense examination, Hector seemed to contradict himself,
stating that “if the intent was to kill, I would have to ask for death.” Hector then clarified these statements: they referred to a situation where there were no mitigating factors. The trial judge found that Hector had misunderstood defense counsel to be talking about a case with no mitigating circumstances. Thus, the judge overruled the challenge, and Hector sat on the jury. Venireman Arnold was seated as an alternate. She stated that “I
think I want to listen to everything and look at all sides before I would make a decision.” Specifically, she thought “I would want to listen to the mitigation evidence * * * [because] I don’t think you get the whole picture unless you do.” Only once did she waver from this position, saying, “There is a possibility I would not.” However, on further inquiry, it turned out that she had not understood defense counsel’s questions. The record affords no basis to overturn the trial judge’s rulings on
these jurors. As soon as each juror understood that he or she would have a legal duty to consider mitigation, each one said he or she could do so. The trial judge could reasonably find that these jurors’ ability to weigh mitigating circumstances would not be substantially impaired. We note that the judge was sensitive to this issue and granted other Morgan challenges by the defense when called for. We do not think she abused her discretion in denying the ones at issue here. Finally, appellant argues that the voir dire of prospective juror
Ellsesser revealed bias against the defendant. Ellsesser is a police officer. During 1. He did not work for the Columbus Police Department, which investigated Brooks’s murder. individual voir dire, Ellsesser was asked if he would be “slanted” because of his police background. He replied: “I will hear the case as the facts are presented to me. I can’t change who I am. * * * I don’t feel it would be slanted. Maybe somebody else would think it would be.” He added that “honor” would require him to follow the judge’s instructions.
{¶ 73} Later, on general voir dire, defense counsel asked him: “As somebody who is involved in law enforcement, what do you think about serving as a juror on an aggravated murder case?” He said, “I don’t know. If I was you guys, I wouldn’t want me here , but that’s your decision.” (Emphasis added.) Appellant urged the trial court, as he now urges us, to read Ellsesser’s statement, “If I was you guys, I wouldn’t want me here,” as an admission of bias. However, this statement simply is not the clear-cut confession of bias that appellant claims it is. Ellsesser’s statement can easily be understood as a mere acknowledgement of what everyone already knows: defendants generally do not want police officers on the jury. Indeed, Ellsesser had said precisely that during his individual voir dire; that earlier statement may well have influenced the trial court’s interpretation of the later one. The context of the statement also militates against appellant’s
reading. The question Ellsesser was answering did not deal with bias, and he had already indicated that he did not feel he would be biased. Moreover, he immediately followed this statement with the comment “The judge will give you instructions. You follow what the law dictates you are to do.” On this record, interpreting the words “I wouldn’t want me here” as an eleventh-hour admission of bias is not warranted. Thus, the record supports the trial court’s finding that Ellsesser was
not biased. The record supports each of the questioned rulings on challenges for
cause. Hence, appellant’s fifth proposition of law is overruled.
C. Batson Issue In his sixth proposition, appellant claims that the prosecutor
exercised two peremptories in a racially discriminatory fashion,
i.e
., that he
challenged prospective jurors Jacobs and Watkins because they were black. The
Equal Protection Clause of the Fourteenth Amendment strictly prohibits a state
actor from engaging in racial discrimination in exercising peremptory challenges.
Such discrimination is grounds to reverse a conviction returned by a jury tainted
with such discrimination. See
Batson v. Kentucky
(1986),
opponent of the peremptory challenge at issue must make a prima facie case that
the proponent was engaging in racial discrimination. In step two, the proponent
must come forward with a race-neutral explanation for the strike. In step three, the
trial court must decide, on the basis of all the circumstances, whether the opponent
has proved racial discrimination.
Purkett v. Elem
(1995),
explanation why they challenged Watkins and Jacobs; hence, the trial court did not,
and we need not, determine whether the defense made the requisite prima facie
case. See
Hernandez v. New York
(1991),
she perceived any discrepancy [in the evidence], she could not find someone guilty,” and also because “in the absence of mitigation, she claims she would vote for life without parole. * * * She absolutely cannot, in my opinion, follow the law when it comes to the death penalty.” These are racially neutral reasons for striking Jacobs. The state struck Watkins because “[h]e has a feeling that the system
here is not fair” and “[h]e felt fine with the O.J. [Simpson] verdict, and anybody that feels fine with the O.J. verdict doesn’t sit on my juries.” The state argued that approval of the “O.J. verdict” indicated “a predisposition [to believe] that the police are going to plant or manufacture evidence.” Appellant argues that this explanation is not race-neutral because
“the ‘O.J. trial’ was itself a racially charged trial.” However, Watkins was
challenged on the basis of an
individual
rather than a racial characteristic: an
opinion he allegedly held. Compare
Heno v. Sprint/United Mgt. Co
. (C.A.10,
2000),
sincere, he would also have struck prospective juror Council, who also thought minor discrepancies were important in determining credibility. A facially neutral reason for a strike may indicate discrimination, if the state uses it only to eliminate jurors of a particular cognizable group. Coulter v. Gilmore (C.A.7, 1998), 155 F.3d 912, 921. Appellant’s argument is not persuasive. Council did not say that he
“wouldn’t want any discrepancies at all,” as Jacobs did. Council also admitted that witnesses might have different “perspective[s]” and that discrepancies did not necessarily indicate lying. The prosecutor also said that he struck Jacobs because she would not
vote for the death penalty. Jacobs did seem to say that she would vote for life
without parole even if the mitigating factors deserved no weight. However,
appellant argues that this justification is disingenuous, because when the question
was clarified, Jacobs said that she
could
sign a death recommendation. Thus, the
state’s claim that Jacobs would never vote for death does seem overstated.
Yet, a valid explanation for a peremptory challenge need not reach
the level of a challenge for cause. See
Batson
,
of proving intentional racial discrimination was his. Moreover, “[t]he trial court’s
finding is entitled to deference, since it turns largely ‘on evaluation of
credibility.’ ”
State v. White,
{¶ 90} Appellant argues that the state’s reason for striking Watkins—his view on the “O.J. verdict”—was insincere, because the state never asked Watkins any questions about the “O.J. verdict.” However, appellant forgets that, before voir dire, the venire members filled out jury questionnaires. Unfortunately, the questionnaires are not in the record, but the voir dire transcript does indicate that they included a question about attitudes toward the “O.J. verdict.” Because of this, the prosecutor’s failure to discuss the subject further during Watkins’s voir dire cannot support a claim of bias. The racially disparate impact of a justification that is race-neutral on
its face can be considered in
Batson
step three as evidence that the claimed
justification was pretextual.
Hernandez v. New York
,
based on a juror’s attitude toward the “O.J. verdict” is a practice having a disparate impact on black jurors. We reject this suggestion for two reasons. First, to find disparate impact, we would have to assume that jurors’ opinions about the “O.J. verdict” were likely to vary according to race. The record contains no evidence to support such an assumption. Second, disparate impact by itself does not violate Batson . Batson
proscribes purposeful discrimination; disparate impact is merely evidence from which discriminatory purpose may be inferred. However, the prosecutor’s race- neutral explanation for the strike was also evidence, and the trial judge was free to believe that evidence instead. Here, the prosecutor stated his belief that a person with a favorable
view of the “O.J. verdict” would be predisposed to suspect police of dishonesty. The trial court evidently accepted this explanation. Since appellant cites nothing in the record to suggest that the explanation was less than sincere, we have no basis to disturb the trial court’s determination of credibility. In overruling appellant’s Batson claims, the trial court implicitly
found that he had failed to show intentional discrimination by the state in exercising its peremptory challenges. Our review of the record reveals nothing that would justify us in disturbing that finding. Accordingly, we overrule appellant’s sixth proposition of law.
IV. Alternate Jurors in Deliberations In both phases of trial, the trial court sent the alternate jurors into the
jury room to listen to the jury’s deliberations. However, the court strictly commanded the alternates not “to participate in the deliberations in any fashion,” even by “gestures” or “facial movements.” It is generally regarded as erroneous to permit alternates to sit in on
jury deliberations. See,
e.g
.,
State v. Rocco
(App.1978),
alternate juror not substituted for a regular juror be discharged when the jury retires.
However, in
State v. Hutton
(1990),
presence of the alternate jurors. The waiver rule requires that a party make a contemporaneous objection to alleged trial error in order to preserve that error for appellate review. The rule is of long standing, and it goes to the heart of an adversary system of justice. Even constitutional rights “may be lost as finally as any others by
a failure to assert them at the proper time.”
State v. Childs
(1968), 14 Ohio St.2d
56, 62,
contemporaneous-objection requirement: “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” Crim.R. 52(B). Under this rule, we may take notice of waived errors only if they
can be characterized as “plain errors.” As we have repeatedly emphasized, the plain
error test is a strict one: “[A]n alleged error ‘does not constitute a plain error or
defect under Crim.R. 52(B) unless, but for the error, the outcome of the trial clearly
would have been otherwise.’ “
State v. Campbell
,
plain error rules. In
United States v. Olano
(1993),
in applying the waiver rule to a similar case: “The first time [the defendant] uttered
any complaint was after the jury was discharged. At that time, the opportunity to
correct the error was lost to the trial court.”
Lightner
,
the right to object on appeal
only
by affirmative waiver. That is, failure to object
to the presence of an alternate is no bar to claiming error unless the defendant has
knowingly, voluntarily, and intelligently agreed to the alternate’s presence during
deliberations. See
, e.g
.,
Boulies,
Ohio’s waiver and plain error rules. Appellant would have us make an ad hoc exception to those rules in cases where an alternate juror has been erroneously admitted into the jury’s deliberations. We think Olano gives highly persuasive reasons why no such exception is necessary. Applying the test for plain error, we cannot find on this record that,
“
but for
the [trial court’s] error, the outcome of the trial
clearly would have been
otherwise
.” (Emphasis added.)
Long
,
V. Photo Array
{¶ 109} “When a witness has been confronted with a suspect before trial, due process requires a court to suppress her identification of the suspect if the confrontation was unnecessarily suggestive of the suspect’s guilt and the identification was unreliable under all the circumstances.” (Emphasis added.) State v. Waddy (1992), 63 Ohio St.3d 424, 438, 588 N.E.2d 819, 830. In his third proposition of law, appellant claims that police used an unduly suggestive photographic lineup to get Condrea Webber to identify appellant as her brother’s killer. Hence, he contends, both Webber’s in-court and out-of-court identifications of appellant should have been suppressed. On May 11, 1997, police showed Condrea Webber an array
comprised of six full-face photographs of black males. According to Webber’s uncontradicted suppression-hearing testimony, she “immediately” picked out appellant’s photo as that of her brother’s killer. She was “[o]ne hundred percent sure” of her identification. The police in no way indicated which one she should choose. After a hearing, the trial judge overruled appellant’s motion to
suppress identification, remarking, “Quite frankly, there’s nothing suggestive here.” Appellant contends that the other photos in the array were so unlike
his that the array was suggestive. However, we affirm the trial court’s contrary
finding. “A defendant in a lineup need not be surrounded by people nearly identical
in appearance.”
State v. Davis
(1996),
with facial hair, he had none. However, that is incorrect. Appellant’s photo in the array shows a short, scraggly chin beard. Four of the other five subjects also had short beards. Three of the other four bearded subjects did have mustaches, unlike appellant; however, those three had only thin, inconspicuous mustaches.
{¶ 114} Appellant’s photo does not stand out in any way. Hence, the array was not suggestive, and appellant’s third proposition of law lacks merit.
VI. Prosecutorial Misconduct
{¶ 115} Appellant’s eighth and sixteenth propositions of law charge prosecutorial misconduct in both phases of trial. Although the prosecution did engage in some improper argument, appellant’s claims are waived because he did not object at trial.
{¶ 116} In his eighth proposition, appellant makes only one claim of guilt- phase misconduct. In closing, the prosecutor argued: “While [Brooks’s mother] was spending her Mother’s Day driving to Columbus to identify the body of her son, [appellant] is taking his girlfriend and mother out for dinner, not a care in the world.” The defense objected on the ground that “[t]hat’s not in evidence.” This isolated statement, while improper, was not outcome- determinative in this case, given that appellant shot Brooks in front of an eyewitness and then confessed to doing it. Appellant’s contention is without merit. The rest of appellant’s eighth proposition deals with alleged penalty-phase misconduct, as does his sixteenth proposition. Again, all these issues were waived at trial, and we find that none of the errors alleged amounted to plain error. Appellant’s eighth and sixteenth propositions are therefore overruled.
VII. Instructions
A. Guilt Phase In his ninth proposition, appellant alleges that the trial court
instructed the jury improperly in the guilt phase. Appellant concedes that he did not object at trial to any of the
allegedly erroneous instructions. Hence, unless appellant can demonstrate plain
error, each objection is waived. Appellant contends that because the state’s
evidence was weak, the outcome of this case would clearly have been otherwise
had these alleged errors not occurred.
State v. Long
,
B. Penalty Phase In propositions twelve through fourteen, appellant claims error in
the penalty-phase instructions. However, appellant actually requested each of the instructions that he now contends were erroneous. In fact, the trial court gave appellant’s proposed instructions almost verbatim. Thus, appellant was “actively responsible,” State v. Kollar (1915),
error doctrine, we note that appellant’s contentions lack merit in any event.
Because appellant attacks the instructions as not only incorrect, but egregiously so,
a brief review of his contentions is in order, to dispel any concern that he was
sentenced on the basis of egregiously incorrect instructions. See, generally,
State
v. Campbell
,
{¶ 124} Appellant’s twelfth proposition identifies four alleged errors in the penalty-phase instructions. The first was when the trial court instructed that “an aggravating circumstance is something that makes the defendant’s crime more serious and which, therefore, makes the death penalty more appropriate for the defendant than a sentence of life imprisonment.” Appellant contends that this instruction creates a presumption that
death is appropriate simply because an aggravating circumstance has been proven. It does not: it merely explains the function of an aggravating circumstance. Other instructions clearly explained to the jury that it must weigh the aggravating circumstance against the mitigating factors and recommend life unless persuaded beyond a reasonable doubt that the former outweighed the latter. The trial court also instructed: “[M]itigating factors are the opposite
of aggravating circumstances.” According to appellant, this implied that mitigating circumstances are circumstances that reduce the defendant’s guilt in the felony murder. However, the judge’s very next words were: “That is, a mitigating
factor is a factor that, in your individual judgment, makes a life sentence more
appropriate for Ulysses Murphy than a sentence of death.” Then the judge
specifically divorced the concept of guilt from that of mitigation: “In order to decide
that something is a mitigating factor which would render a life sentence more
appropriate, you do not have to believe that it excuses or justifies the crime itself.”
Compare
Eddings v. Oklahoma
(1982),
possibilities.” In his brief, appellant chooses to quote only part of the trial court’s instruction. The court explained that the jury “might decide that the one aggravating circumstance, taken alone, outweighs the mitigating factors, taken together”; or “that the mitigating factors, taken together, outweigh the one aggravating circumstance, taken alone”; or “that the weight of the one aggravating circumstance, taken alone, is equal to the weight of all the mitigating factors taken together”; or that the jury “may not be able to decide which side outweighs the other.” Thus, the instruction at issue did say that the jury must recommend
life if mitigation outweighed aggravation—which, of course, is true. See R.C. 2929.03(D)(2). However, it did not even remotely suggest that the jury could recommend life only if mitigation outweighed aggravation. To the contrary, the full instruction made clear that a juror could
vote for death only if he or she found that aggravation outweighed mitigation . In each of the other three situations outlined by the instruction—where mitigation outweighed aggravation, where the two were in equipoise, and where the jurors could not decide which had greater weight—the trial court instructed the jury in plainest English that “[y]our vote as an individual juror must be for a penalty of life imprisonment .” (Emphasis added.) In his thirteenth and fourteenth propositions of law, appellant
contends that the trial court gave instructions inconsistent with
State v. Brooks
(1996),
following instruction: “Your decision will depend on whether the prosecution
proves to each and every one of you, beyond a reasonable doubt, that the death
penalty should be imposed. If the prosecution succeeds in doing this, then you, the
jury, must return a verdict of death. If the prosecution does not succeed in doing
this, then you, the jury, must return a verdict of life imprisonment.”
Appellant suggests that the above instruction was inconsistent with
Brooks
. We disagree. The instruction says that if the jury does find “that the death
penalty should be imposed” (
i.e
., if it finds that aggravation outweighs mitigation),
it
must
recommend death. That, of course, is a correct statement of law. See R.C.
2929.03(D)(2);
State v. Allen
,
states, “Just as the verdict of death must be reached by unanimous agreement, so also the choice between the three life imprisonment verdicts must be reached by unanimous agreement.” Again, appellant claims that this is inconsistent with Brooks .
Again, appellant’s
Brooks
claim fails.
Brooks
holds that the jury need not
unanimously reject the death penalty in order to recommend a life sentence, and the
trial court’s instructions were clear on that point. However, if the jury recommends
life, Ohio law requires it to choose a specific type of life sentence: life without
parole, life with parole eligibility after twenty-five years, or life with parole
eligibility after thirty years. See R.C. 2929.03(D)(2)(a). Nothing in
Brooks
implies
that the jury may recommend one of these options on a less-than-unanimous vote.
To the contrary,
Brooks
states that “the jury, when it cannot unanimously agree on
a death sentence, [is required] to move on in their deliberations to a consideration
of which life sentence is appropriate,
with that determination to be unanimous
.”
(Emphasis added.)
State v. Brooks
,
twelfth, thirteenth, and fourteenth propositions under the doctrine of invited error.
VIII. Ineffective Assistance In his tenth and seventeenth propositions of law, appellant contends
that his trial counsel rendered ineffective assistance at both the guilt and penalty phases. Ineffective-assistance claims are governed by a two-part test. To
prevail, the defendant must show (1) deficient performance by counsel,
i.e
.,
performance falling below an objective standard of reasonable representation, and
(2) resulting prejudice,
i.e
., a reasonable probability that, but for counsel’s errors,
the proceeding’s result would have been different.
Strickland v. Washington,
466
U.S. 668,
A. Guilt Phase
{¶ 141}
In his tenth proposition, appellant contends that his counsel
rendered ineffective assistance by failing to question a juror on voir dire. However,
we have recognized that counsel is in the best position to determine whether any
potential juror should be questioned and to what extent.
Id
. at 143-144, 538 N.E.2d
at 381;
State v. Mason
(1998),
a prima facie case of racial discrimination with respect to his
Batson
claim, that
failure constituted ineffective assistance. (See discussion of sixth proposition of
law,
supra
.) However, since the state here voluntarily offered reasons for the
peremptory challenges at issue, it does not matter whether a prima facie case was
made or not.
Hernandez v. New York
, 500 U.S. at 359, 111 S.Ct. at 1866, 114
L.Ed.2d at 405;
State v. Hernandez
,
transcribe the video violated the requirement of Crim.R. 22 that “[i]n serious
offense cases
all
proceedings shall be recorded.” (Emphasis added.) We do not
agree, however, that counsel’s failure to object was ineffective assistance. This
lapse did not affect the outcome of the trial in any way, nor will it affect the outcome
of this appeal. The video is in the record, and the lack of a transcript does not
prevent us from fully reviewing appellant’s Fifth Amendment claims.
Appellant claims that counsel should have objected at trial to the
prosecutor’s alleged misconduct in arguing to the jury. A failure to object to such
misconduct may, in a given case, be the product of attorney error. However, as we
have recognized, there are significant disadvantages to interrupting opposing
counsel’s argument. Hence, it is also possible that, in a given case, those
disadvantages may outweigh the advantages of objecting to misconduct. In such a
case, defense counsel may make a reasonable tactical decision not to object. See
State v. Campbell,
two allegedly erroneous jury instructions. Yet, contrary to appellant’s claim, the
trial court never instructed the jury to disregard discrepancies in the evidence. (See
discussion of ninth proposition of law,
supra
.) As for the court’s instruction on the
standard of proof, the trial court gave the reasonable doubt instruction required by
R.C. 2901.05(B) and (D). An objection to that instruction would have had no
support in then-existing law, see
State v. Van Gundy
(1992),
alternate jurors in the jury room during deliberations. The record does not disclose
why counsel did not object; and appellant has failed to carry his burden of
persuasion on this issue. Moreover, appellant makes no attempt to show prejudice,
as
Strickland
requires. This clearly is not a situation in which the Sixth Amendment
would require us to presume prejudice. See
Strickland
,
B. Penalty Phase
{¶ 149} Appellant’s seventeenth proposition of law claims ineffective assistance in the penalty phase.
{¶ 150} First, appellant claims that his counsel should have objected to the instruction that “an aggravating circumstance is something that makes the defendant’s crime more serious and which, therefore, makes the death penalty more appropriate for the defendant than a sentence of life imprisonment.” Appellant contends that this instruction creates “a presumption [in favor of] a death sentence.”
{¶ 151} We disagree. The trial court explained to the jury that it must weigh the aggravating circumstance against the mitigating factors and recommend life unless persuaded beyond a reasonable doubt that the former outweighs the latter. Moreover, appellant’s claim that defense counsel did not review the penalty-phase instructions before the trial court gave them is inconsistent with the fact that defense counsel actually submitted the instructions the trial court gave. Next, appellant contends that defense counsel should have objected to alleged prosecutorial misconduct in the penalty phase. However, such decisions are within the scope of trial counsel’s reasonable tactical judgment. Appellant contends that the prosecutor improperly asked the jury
to consider the impact of the crime on Brooks’s family. However, even assuming that defense counsel’s failure to object was unreasonable, it does not meet Strickland ’s prejudice test, because there is no reasonable likelihood that appellant would have received a life sentence but for this remark. Appellant’s other misconduct claims were not supported by
existing law. For instance, he argues that the prosecutor improperly asked a
penalty-phase witness a question not supported by the evidence. However, nothing
2.
State v. Reynolds
(1998),
in the record shows that the prosecutor lacked a good-faith belief that a factual
predicate for the question existed. See
State v. Gillard
(1988),
appeal in closing argument by saying that appellant “will have to ask God for” the
mercy his counsel had asked of the jury. See
People v. Hill
(1998), 17 Cal.4 th 800,
836-837,
allow in our society.” But we have allowed prosecutors to urge the jury to uphold
community standards. See
State v. Murphy
(1992),
“a 26-year-old man, who, after going through his entire juvenile life without a record, decided * * * to take up a life of crime, deal drugs, carry guns, get shot, shoot other people.” Again, however, defense counsel would have had no basis to
object. The defense argued that appellant “wouldn’t be here [in court] today” but for the shortcomings of his parents, and that he “will mature” in prison. The state was entitled to rebut this by arguing that appellant’s crime resulted from freely made adult choices, not immaturity or childhood neglect as claimed by the defense, and to demonstrate this by contrasting appellant’s clean juvenile record with his adult criminality. Appellant contends that it was misconduct for the prosecutor to
argue that he displayed no remorse in his confession, inasmuch as the defense had not raised the issue of remorse. In fact, the defense had raised the issue. A defense psychologist testified in the penalty phase that Murphy admitted his guilt to her with sadness, remorse, and regret. There was no basis for objection to the state’s argument, which directly responded to this testimony. Next, appellant contends that members of Brooks’s family did not
want a death sentence, and that defense counsel therefore should have brought this fact to the attention of the jury as a mitigating factor. However, the record before us does not indicate whether defense
counsel knew about this at the time of the penalty phase, or whether they could have discovered it through reasonable investigative efforts. The record indicates only that Brooks’s relatives publicly expressed opposition to a death sentence after the jury made its recommendation. At that point, defense counsel did file a motion asking the trial judge to take this factor into account in sentencing. Moreover, not calling Brooks’s relatives to express their wishes to
the jury may have been a tactical decision, and if so it was an arguably sound one. At the final sentencing hearing, five of Brooks’s relatives spoke before the trial judge. Only three actually said that appellant should get a life sentence, and their reasons for saying so were born of anger and bitterness, and could have hurt rather than helped appellant’s cause. Brooks’s stepfather hoped that appellant would get life because it would be worse than death. Brooks’s father told Murphy at the sentencing hearing that he hoped Murphy would “get life without parole and stay there until [he] rot[s].” A reasonable attorney could have feared that the evident bitterness and anger of these relatives would affect the jury more than their expressed wishes. Finally, appellant contends that his counsel failed to fully
investigate possible mitigating factors. He argues that counsel should have called an expert witness on “cultural diversity,” but he does not explain what such a witness could have said on his behalf. He also argues that counsel should have called an expert witness on fetal alcohol syndrome and should have obtained a neuropsychological assessment to investigate possible organic brain impairment. However, the record does not show that defense counsel failed to investigate these possibilities. Contrary to appellant’s suggestion, we cannot infer failure to investigate from a silent record; the burden of demonstrating ineffective assistance is on him. The record shows that counsel did search for and present extensive
evidence of mitigating factors. The defense called eleven penalty-phase witnesses
who testified about appellant’s neglected childhood in an alcoholic home, and his
personality, intelligence, and redeeming qualities. “Attorneys need not pursue
every conceivable avenue; they are entitled to be selective.”
United States v.
Davenport
(C.A.7, 1993),
IX. Evidentiary Sufficiency In his eleventh proposition of law, appellant contends that the state
introduced insufficient evidence to support his conviction. Appellant claims that
the state failed to prove that he was Brooks’s killer and that he intended to kill. In
reviewing the sufficiency of the evidence, we must determine “whether, after
viewing the evidence in a light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime proven beyond a
reasonable doubt.”
State v. Jenks
(1991), 61 Ohio St.3d 259, 574 N.E.2d 492,
paragraph two of the syllabus, following
Jackson v. Virginia
(1979),
believed, are easily sufficient to allow a jury to find that appellant killed Andre Brooks. Appellant argues that this evidence is unreliable, but on review for evidentiary sufficiency we do not second-guess the jury’s credibility determinations; rather, we ask whether, “ if believed , [the evidence] would convince the average mind of the defendant’s guilt beyond a reasonable doubt.” (Emphasis added.) Jenks , paragraph two of the syllabus. The evidence here was also sufficient for the jury to find beyond a
reasonable doubt that appellant intended to kill. Because appellant used a deadly
weapon, the jury could infer that he intended the result. See,
e.g
.,
State v. Clark
(1988),
the trier of fact could reasonably find that appellant fired multiple shots into Brooks at close range. These circumstances support the jury’s finding that appellant intended to kill Brooks.
{¶ 171}
Appellant argues that the state failed to prove intent to kill because
“there was conflicting evidence regarding whether [Brooks] grabbed for the gun.”
Evidentiary conflicts are for the jury, see
State v. DeHass
(1967), 10 Ohio St.2d
230,
X. Trial Court’s Sentencing Opinion In his fifteenth proposition, appellant argues that the trial court’s
sentencing opinion does not sufficiently explain why the court found that the
aggravating circumstance outweighed the mitigating factors. However, the opinion
contains more than three pages discussing mitigating factors in detail and
“specif[ying] * * * what weight the [judge] gave to proven mitigating factors.”
State v. Fox
(1994),
“While Defendant’s childhood was less than ideal, even in the absence of parental influence, he was able to lead a law abiding life through his teen years. On May 11, 1997, Defendant chose to take the life of a fellow human being in order to carry out a robbery.” The opinion thus sufficiently explains why the trial court found that
the aggravating circumstance outweighed the mitigating factors. Appellant also criticizes the trial court’s decision to afford little
weight to his “background and upbringing” as the son of alcoholic and absent
parents. However, “[t]he weight, if any, to be given mitigation evidence is a matter
for the discretion of the sentencer.”
Fox,
{¶ 176} Appellant’s fifteenth proposition is overruled.
XI. Settled Issues It is our practice to rule summarily on well-settled points of law.
See, generally,
State v. Poindexter
(1988), 36 Ohio St.3d 1, 520 N.E.2d 568,
syllabus;
State v. Spisak,
XII. Cumulative Error In his twentieth proposition, appellant asks us to hold that the errors
alleged in his brief cumulatively prejudiced his trial and sentencing. We find no merit to this proposition of law.
XIII. Independent Sentence Review R.C. 2929.05(A) requires us to review appellant’s death sentence
independently.
Aggravating Circumstance Appellant was convicted of a felony-murder aggravating
circumstance under R.C. 2929.04(A)(7). The evidence included his confession, eyewitness testimony by Condrea Webber, three shell casings left at the scene, and two bullets removed from Brooks’s body. The evidence supports the finding that appellant killed Brooks intentionally, as the principal offender, and while committing aggravated robbery.
Mitigating Factors
{¶ 181} Appellant called eleven penalty-phase witnesses, including both of his parents, others who knew him as a child, social workers and school personnel familiar with the household situation, a jail supervisor, and a clinical psychologist. Appellant made no unsworn statement. Appellant was born in 1971, the fifth child of Barbara Murphy. His
father, Ulysses Woods, was then married to another woman. Woods and Barbara Murphy lived together for about six weeks after appellant’s birth, but they did not get along, and Woods moved out for good. Although he worked, he gave Barbara little money. Appellant’s parents were both alcoholics. Appellant’s father spent
much of his time in bars and got drunk daily. As a child, appellant wanted to spend time with his father, but hardly ever did, because whenever he wanted to see his father, appellant had to go to whatever bar his father happened to be in at the time. Nor was appellant’s mother much of a presence in his life. Barbara Murphy worked during the day; after work, she spent her time in bars. She drank six days a week and spent her Sundays sleeping. At times, she had a babysitter stay with her children; often, however, she left them home alone. There was food in the house, but frequently nobody was there to fix a meal. As a result, appellant frequently went to a neighbor’s house for dinner. Appellant’s sister, aunt, or grandaunt occasionally took him to the movies. Appellant’s grandmother, Eleanor Woods, tried to maintain as
much contact with appellant as she could, but Barbara discouraged it. Sometimes when appellant visited his grandmother, he would complain that his brothers beat him up and refused to feed him. Sometimes he would say, “None of them love me.”
{¶ 186} When appellant was sixteen, Barbara filed her fifth incorrigibility complaint against him and threw him out of the house. Franklin County Children Services then placed him with his grandmother.
{¶ 187} Dr. Jolie Brams, a clinical psychologist with expertise in the field of child development, interviewed appellant several times and reviewed extensive school and children services records on him and his family. Dr. Brams explained the importance of parental nurturing to a
child’s development. Nurturing involves “being a model,” showing the child how to live and how to set and attain goals. Without nurturing, a child becomes angry and depressed. A child who never learns how to attain goals can develop feelings of worthlessness and frustration. According to Dr. Brams, appellant was a grossly neglected child
who got no nurturing from his alcoholic parents and essentially “raised himself.” School or community connections might have offset familial neglect and helped him to develop, but these were also lacking. Appellant attended eleven schools in seven years, quitting in the eighth grade, and his family was isolated from the community. We note, however, that in cataloguing appellant’s developmental
disadvantages, Brams did not take into account his relationship with his grandmother. Brams mistakenly testified that appellant’s grandmother was mentally ill, abusive, and alcoholic. She later retracted that testimony, admitting that she had confused appellant’s grandmother with his mother. Appellant himself began drinking heavily at age eleven or twelve.
Frustration and depression, the fruits of neglect, contributed to his drinking. Genes may have been a factor as well: both parents and eighty percent of his first- and second-degree relatives were alcoholics. Appellant told Brams that he was drunk when he shot Brooks.
{¶ 192} As a young teenager, appellant would steal food or beer at times but did not indulge in what Dr. Brams characterized as “ grossly delinquent behavior.” (Emphasis added.) As an adult, he became a small-time drug dealer. He had two convictions for drug offenses and one for carrying a concealed weapon, and served two brief prison terms. In prison, appellant was guilty of insubordination because he was too “unmotivated” to do assigned work. Once appellant threw a blanket over an inmate’s head while another person robbed the inmate.
{¶ 193} Dr. Brams testified that appellant did not have “mental health problems.” She described him as intelligent and as possessing “decency.” Appellant showed remorse when he discussed the murder with Brams. Brams felt that appellant had acquired enough “insight” about his
life to see that he had wasted his talents. She thought that, given a life sentence, he “can do something productive and meaningful with his life.” His earlier prison terms had been too short to motivate him to change, but a life sentence would keep him from drinking, allow him to participate in programs, and foster his “innate desire to do something.” On the other hand, Dr. Brams admitted on cross- examination that appellant’s score on the MMPI (a personality test) was consistent with impulsiveness, difficulty in controlling anger, and antisocial tendencies. Sheriff’s Deputy Matthew Massie was a supervisor at the Franklin County Jail. Massie testified that inmates there have little to do, which causes disciplinary problems. Yet, although appellant had been jailed for over a year at that time, jail records did not show that he broke any rules during his stay. Finally, Brooks’s father, sister, and stepfather expressed the view that appellant should get life without parole rather than death. Appellant’s chief mitigating factor was his neglected childhood. It
is clear that appellant grew up with little or no moral guidance. This is entitled to
some weight, but we have seldom accorded strong weight to a defendant’s
childhood. See,
e.g
.,
State v. Holloway
(1988),
involved no serious violence, a fact that deserves some weight. On the other hand,
his good behavior in jail while awaiting trial deserves little weight, given his record
of disciplinary violations in prison. Nor can we give any substantial weight to
appellant’s late expression of remorse. See
State v. Baston
(1999), 85 Ohio St.3d
418, 431,
“decency,” “insight,” and a potential to “do something productive and meaningful with his life.” However, in our view that opinion is too vague and too weakly supported to deserve substantial weight. Finally, we note that, in their statements to the sentencing judge,
Brooks’s father, sister, and stepfather indicated that appellant should receive a life sentence. However, their support for a life sentence appears to have been premised not on mercy but on the view that a life sentence would be a more severe punishment than death. That is not an unreasonable view, perhaps, but we do not share it. These statements, therefore, have virtually no weight in mitigation. On the whole, we find that appellant’s mitigation is weak. We find that the aggravating circumstance outweighs the mitigating factors beyond a reasonable doubt.
Proportionality We further find that the death sentence in this case is proportionate
to death sentences that we have approved in other robbery-murder cases. See,
e.g
.,
State v. Lindsey
(2000),
death.
Judgment affirmed. M OYER , C.J., D OUGLAS , F.E. S WEENEY and L UNDBERG S TRATTON , JJ., concur.
M OYER , C.J., and C OOK , J., concur separately.
D OUGLAS , J., concurs separately.
L UNDBERG TRATTON , J., concurs in Part I of Cook, J.’s separate concurring opinion.
P FEIFER , J., dissents.
__________________
D OUGLAS , J., concurring. I concur in the well-reasoned opinion and judgment of the majority. I write separately to comment, only, on section IV of the opinion. Crim.R. 24(F) provides:
“The court may direct that not more than six jurors in addition to the regular jury be called and impanelled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, have the same qualifications, be subject to the same examination and challenges, take the same oath, and have the same functions, powers, facilities, and privileges as the regular jurors. An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict. Each party is entitled to one peremptory challenge in addition to those otherwise allowed if one or two alternate jurors are to be impanelled, two peremptory challenges if three or four alternate jurors are to be impanelled, and three peremptory challenges if five or six alternate jurors are to be impanelled. The additional peremptory challenges may be used against an alternate juror only, and the other peremptory challenges allowed by this rule may not be used against an alternate juror.” The rule is clear and unequivocal. It is disturbing that we are seeing
a number of cases where the rule is being summarily ignored. The rule should be followed so long as it remains part of our trial practice. In a case less egregious than the case at bar, I believe violation of the rule might be grounds for reversal of a conviction. We should avoid even that possibility by simply following the rule. With regard to the application of the rule in death penalty cases, I believe that, while bifurcated, both the guilt phase and the penalty phase are part of one trial. Accordingly, alternate jurors can be retained until deliberations begin in the penalty phase at which time they should be discharged in accordance with the rule.
__________________ OOK , J., concurring. Though I would affirm Murphy’s convictions and death sentence,
I respectfully disagree with the majority’s analysis of Murphy’s first and tenth propositions of law.
I. Miranda
A. Invocation of the Right to Cut Off Questioning I agree with the majority’s conclusion in Part I(A) that Murphy
initially waived his right to remain silent during his custodial interrogation by Detective Viduya. But after Murphy made some exculpatory statements, he said to Detective Viduya, “I’m ready to quit talking now and I’m ready to go home, too.” The majority decides that when examined “in context” this statement “can be interpreted as meaning simply that appellant was ready ‘to go home.’ * * * [H]is words did not necessarily mean that he wanted to stop talking, no matter what.” I cannot subscribe to the majority’s thesis that examining Murphy’s statement “in context” should result in this court simply ignoring an operative half of that statement. And I find no legal authority for the majority’s proposition that a suspect may only appropriately invoke the right to cut off questioning if he indicates to the police that he does so “no matter what.” As the majority notes, the standard by which a court assesses a
suspect’s invocation of the right to cut off questioning during a custodial
interrogation is an objective one. With today’s decision, the majority suggests that
a reasonable police officer, when told by a suspect that he or she is “ready to quit
talking,” would not understand the meaning of that statement. The implications of
this analysis are an affront to law enforcement and could, in future cases, undermine
the usefulness of the procedural safeguards established by
Miranda v. Arizona
(1966),
the right to cut off questioning without meaning or effect, the majority’s analysis
lacks convincing legal support. The majority relies on
Moore v. Dugger
(C.A.11,
1988), 856 F.2d 129, 134, but in that case the Eleventh Circuit addressed a
question
—not a statement—from a suspect who merely
asked
when police would
let him go home.
Id.
at 132. The suspect in
Moore
neither made an affirmative
statement to the interrogating officers nor indicated that he was “ready to quit
talking,” as Murphy did here. Accordingly,
Moore
is hardly persuasive support for
the majority’s characterization of Murphy’s words as ambiguous or equivocal.
The majority also twice cites a decision of the Wisconsin Supreme
Court,
State v. Ross
(1996),
and
State v. King
(Me.1998), 708 A.2d 1014, but I find these cases equally
unpersuasive. In
Owen,
the defendant’s purported invocations of the right to cut
off questioning (“I’d rather not talk about it” and “I don’t want to talk about it”),
id.
at 717, fn. 4, came in response to specific questions from interrogating officers
about what the Florida Supreme Court described as “relatively insignificant details
of the crime,”
id.
at 717, and these purported invocations occurred only after the
defendant had already “acknowledge[d] the conclusiveness” of the state’s evidence
against him.
Owen,
that have examined suspects’ purported invocations in the related context of
invoking the right to counsel. See,
e.g., State v. Henness
(1997),
purported invocations of the right to an attorney too ambiguous or equivocal to
require interrogation to cease. I express no opinion as to the merits of the individual
cases listed above; what concerns me now is that Murphy’s statement “I’m ready
to quit talking now and I’m ready to go home” is being added to this ever-growing
list of equivocal statements. As the list grows, we will eventually reach a point
where almost nothing that a suspect says will be deemed sufficiently unambiguous
to invoke the right to cut off questioning. This puts our courts on a collision course
with
Miranda
’s express warning that “[i]f the individual indicates
in any manner,
at any time prior to or during questioning
,
that he wishes to remain silent, the
interrogation must cease
. At this point he has shown that he intends to exercise his
Fifth Amendment privilege; any statement taken after the person invokes his
privilege cannot be other than the product of compulsion, subtle or otherwise.
Without the right to cut off questioning, the setting of in-custody interrogation
operates on the individual to overcome free choice in producing a statement after
the privilege has been once invoked.” (Emphasis added.)
Miranda,
384 U.S. at
473-474,
Southern District of Ohio has expressly noted its “reluctan[ce] to hold that a
statement invoking the right to remain silent must meet standards of
post hoc
clarity, along the lines of ‘I hereby invoke my rights under
Miranda
to remain
silent.’ “
United States v. Harrison
(Feb. 19, 1993), S.D. Ohio No. CR-3-92-93,
unreported, 1993 WL 1367348. In
Harrison
, Judge Rice deemed the suspect’s
statement that he “didn’t want to talk about it right now” to be a sufficiently
unambiguous invocation of the right to remain silent. The Sixth Circuit Court of
Appeals has likewise determined that the suspect’s statement “I can’t tell you no
more tonight” was an unambiguous invocation of the right to cut off questioning,
even though the interrogating officer later testified that he “never drew that kind of
conclusion whatsoever from the conversation we were having.”
Kordenbrock v.
Scroggy
(C.A.6, 1990),
unreported,
interrogation room with Murphy when Murphy made the statement at issue here, was on vacation during the hearing on Murphy’s motion to suppress. Detective Yates, however, who entered the room with Detective Viduya two minutes after Murphy said that he was “ready to quit talking,” did testify at the suppression hearing. According to Detective Yates, Detective Viduya “didn’t catch” Murphy’s attempted invocation of the right to remain silent at the time he made it because Murphy was “mumbling.” If this were true, the state’s argument that Murphy failed to invoke clearly and unambiguously the right to cut off questioning would be more persuasive, for an inaudible invocation of the right to cut off questioning can hardly be described as a clear and unambiguous one. But Detective Yates’s testimony at the suppression hearing is flatly
contradicted by the videotape recording of the interrogation, which is also a part of the record here. At approximately 10:57 p.m. on the videotape, Detective Viduya, seated directly in front of Murphy at a small table, said to Murphy, “I’m working on this homicide, but I’m not the primary investigator, O.K.? I’m going to see if I can get ahold of him, because he knows more details about this than I do.” With Detective Viduya still seated at the table and looking directly at him, Murphy responded indignantly (and in a volume at least as loud as his previous responses, if not noticeably louder), “I’m ready to quit talking now and I’m ready to go home, too.” Still looking directly at Murphy, Detective Viduya responded, “ O.K. Just let me ask him a couple of questions before I come back, all right? You just chill out right there. ” (Emphasis added.) The videotape contradicts Detective Yates’s suppression hearing testimony, for it confirms not only that Murphy’s statement was clearly audible, but also that Detective Viduya both heard and responded to the statement. The videotape also lends support to defense counsel’s contention at
the suppression hearing that Murphy actually made a second futile attempt to invoke his right to cut off questioning. At approximately 11:04:51 p.m. on the videotape, Detective Yates told Murphy, “It’s up to you. Do you wanna just go ahead and tell the prosecutor you’ll be cooperative, this was an accident?” Murphy tried to respond by shaking his head and saying “I don’t really want to talk—” but Yates interrupted Murphy and said, “Do you have any doubt that, from what I did out there at the scene, that I am one hundred percent sure and I can prove it in court that you killed this guy? Do you have any doubt in your mind at all?” I would not assign significant weight to Detective Yates’s suppression hearing testimony regarding the clarity of Murphy’s first attempted invocation when Yates was not in the room at the time, and when the videotape shows Yates himself interrupting Murphy just as Murphy appears to attempt a second invocation.
B. Did Police Scrupulously Honor Murphy’s Right to Cut Off Questioning?
Because I would conclude that Murphy unambiguously invoked his
right to cut off questioning, and that the trial court’s finding to the contrary was
clearly erroneous, the question that follows is whether the police “scrupulously
honored” that request before reinitiating the interrogation that ultimately resulted
in Murphy’s inculpatory statements. See
Michigan v. Mosley
,
“scrupulously honored” Mosley’s request to cut off questioning before reinitiating
the interrogation, because “[w]hen Mosley stated that he did not want to discuss
the robberies, Detective Cowie immediately ceased the interrogation and did not
try either to resume the questioning or in any way to persuade Mosley to reconsider
his position. After an interval of more than two hours, Mosley was questioned by
another police officer at another location about an unrelated holdup murder. He
was given full and complete
Miranda
warnings at the outset of the second
interrogation. He was thus reminded again that he could remain silent and could
consult with a lawyer, and was carefully given a full and fair opportunity to exercise
these options. The subsequent questioning did not undercut Mosley’s previous
decision not to answer Detective Cowie’s inquiries.”
Id.
at 104-105, 96 S.Ct. at
327,
led it to believe that the officers had “scrupulously honored” Mosley’s invocation
of the right to silence, saying that “[t]his is not a case, therefore, where the police
failed to honor a decision of a person in custody to cut off questioning, either by
refusing to discontinue the interrogation upon request or by persisting in repeated
efforts to wear down his resistance and make him change his mind. In contrast to
such practices, the police here
immediately ceased the interrogation, resumed
questioning only after the passage of a significant period of time and the provision
of a fresh set of warnings, and restricted the second interrogation to a crime that
had not been the subject of the earlier interrogation.”
(Emphasis added.)
Id.
at
105-106,
are absent from this record to conclude that law enforcement had scrupulously
honored Mosley’s invocation of the right to cut off questioning. Though Detective
Viduya left the room immediately after Murphy told him that he wanted to “quit
talking,” Detective Viduya returned just
two minutes later
with Detective Yates.
Yates, who admitted at trial to playing the “bad cop” role at this stage of the
interrogation, promptly introduced himself as the crime scene investigator with a
“pat” case against Murphy.
Without additional rewarnings
, the two detectives
resumed their interrogation of Murphy
about the same crime.
This interrogation
included additional questions from Detective Viduya—the
very same detective
who, only minutes earlier, had heard Murphy assert his desire to “quit talking” and
had responded to that assertion by saying “O.K.” and leaving the room.
I would conclude, therefore, that the instant case is distinguishable
from
Mosley
and that the interrogating officers in this case did not scrupulously
honor Murphy’s invocation of the right to cut off questioning. See
State v.
Thompson
(Jan. 24, 2001), Jefferson App. Nos. 98 JE 28 and 98 JE 29, unreported,
2001 WL 69197 (invocation of right to remain silent not scrupulously honored
where suspect was interrogated a second time after an undetermined amount of time
had elapsed and suspect was not rewarned);
United States v. Clayton
(E.D.Wis.1976),
C. Harmless Error Having decided that Murphy’s interrogators did not scrupulously
honor Murphy’s invocation of the right to cut off questioning, I would next determine the legal consequences of any improperly admitted inculpatory statements.
1. Arizona v. Fulminante As the United States Supreme Court has noted, the admission of an
improperly obtained confession is a “trial error”—not a “structural” one—that is
subject to review under the same “harmless error” standard as other trial errors.
Arizona v. Fulminante
(1991),
2. Other Courts’ Application of the Harmless-Error Standard As the Sixth Circuit has noted, “The harmless error inquiry is fact
specific and requires an analysis of the particular facts at hand.”
Kordenbrock,
919
F.2d at 1097. And as our own court has stated, “Where constitutional error in the
admission of evidence is extant, such error is harmless beyond a reasonable doubt
if the remaining evidence, standing alone, constitutes overwhelming proof of [the]
defendant’s guilt.”
State v. Williams
(1983),
erroneous introduction of Fulminante’s coerced jailhouse confession to an FBI
informant was not harmless because “[a]bsent the confessions, it is unlikely that
Fulminante would have been prosecuted at all, because the physical evidence from
the scene and other circumstantial evidence would have been insufficient to
convict.”
Id.
,
concluded that the introduction of the defendant’s confession, which had been
obtained after the defendant invoked his right to cut off questioning, was not
harmless error and granted habeas corpus relief.
Id.,
919 F.2d at 1100. In
Kordenbrock
, as here, the defendant knew before trial that his confession was going
to be admitted as evidence. At trial, then, Kordenbrock made a strategic decision
to confess to the homicide—but not to confess to the element of premeditation—in
his opening statement to the jury.
Id.
at 1098. The Sixth Circuit conceded that
there was “independent evidence” that Kordenbrock had committed a premeditated
killing, but noted that there was “
no explicit evidence other than the confession that
plainly tended to contradict Kordenbrock’s contention that he was under the
influence of drugs and alcohol and did not intend to cause death
.” (Emphasis
added.)
Id.
at 1100. Accordingly, the
Kordenbrock
court concluded that the
erroneous introduction of the confession was not harmless, distinguishing
Kordenbrock
from an earlier case in which eyewitness testimony had confirmed
that the defendant was not acting in self-defense, as he claimed.
Id.
, 919 F.2d at
1099-1100, citing
Burks v. Perini
(C.A.6, 1986),
hand, the Supreme Court of Missouri determined that police had scrupulously
honored Bucklew’s Fifth Amendment rights and that his videotaped confession was
properly admitted. Even so, the court concluded that if the trial court’s refusal to
exclude the videotaped statement was indeed error, it was harmless, because an
eyewitness testified to every element of first degree murder.
Id.
at 91. Similarly,
in
Riggs v. State
(1999), 339 Ark. 111, 127-129, 3 S.W.3d 305, 314-315, the
Supreme Court of Arkansas determined that Riggs’s statement, which included a
detailed confession regarding the premeditated killings of her two young children,
was properly admitted despite Riggs’s claim that the statement was involuntarily
made. The
Riggs
court concluded that, even if the statement should have been
suppressed, the jury heard “abundant” additional evidence that Riggs committed
the murders.
Id.
at 130,
3. Applying the Foregoing Principles to the Instant Case The state contends that even absent Murphy’s confession, “there
was overwhelming evidence to support his conviction[s]” for aggravated robbery
and aggravated murder, and that based upon the whole record, any constitutional
error related to the introduction of the confession at trial was harmless beyond a
reasonable doubt. I would agree, for I find the instant case distinguishable from
Fulminante
and
Kordenbrock
and more analagous to
Burks, Bucklew,
and
Riggs
.
In
Fulminante
, the Supreme Court’s independent evaluation of the
record led it to conclude that “both the trial court and the State recognized that
a
successful prosecution depended on the jury believing the two confessions. Absent
the confessions, it is unlikely that Fulminante would have been prosecuted at all.
”
(Emphasis added.)
Id.,
that Condrea Webber, an eyewitness to Murphy’s entire confrontation with Brooks, picked Murphy out of a photo array shortly after the killing, and that an employee of the F&H Bar & Grill corroborated Webber’s eyewitness identification by testifying that he saw Murphy follow the victim out of the bar, it is unlikely that the police would have decided not to prosecute Murphy for these offenses had Murphy never confessed to them. Moreover, as in Burks , 810 F.2d 199, here there was compelling eyewitness testimony from Webber tending to show Murphy’s mens rea . In fact, as in Bucklew , 973 S.W.2d 83, Webber’s detailed account of her brother’s killing went to each element of the charged offenses. The state opened both its opening statement and its case-in-chief
by focusing on Webber’s eyewitness account of the events that occurred behind the F&H Bar & Grill—the state did not “lead” with the inculpatory statements that Murphy made following his invocation of the right to cut off questioning. Webber testified that she watched “everything that was going on” the “whole time.” Asked if she had trouble seeing the assailant clearly, Webber responded, “No, I could see him. And I really got the best look at him when I opened the car door to turn around and tell him that we didn’t have anything.” Webber testified that Murphy eventually grew impatient with Brooks’s effort to remove his necklaces, took a step back, and shot Brooks multiple times at close range with a large weapon that Murphy had been pointing and waving at Brooks’s head and chest. According to Webber, Murphy stepped back and shot Brooks while Brooks’s hands were “[u]p trying to get his chains off.” Webber’s detailed eyewitness account of events was persuasive evidence that Murphy purposely caused Brooks’s death while committing, attempting to commit, or fleeing immediately after committing an aggravated robbery. Though the defense tried to cast doubt on the reliability of
Webber’s identification of Murphy by pointing to the late hour and lack of illumination in the area, the state effectively responded to this tactic with the testimony of the crime scene technician, William Snyder, who had included two nearby light sources in his computer drawing of the scene. The deputy coroner testified that both of Brooks’s bullet wounds resulted from close-range shots, and a firearms examiner testified that the weapon from which the bullets were fired was unlikely to have discharged by bumping or dropping. Even before the state introduced Murphy’s videotaped statement at the conclusion of its case-in-chief, then, the state had built a strong case against Murphy going to all the elements of aggravated robbery and murder. Though the state mentioned Murphy’s confession in its opening
and closing statements, and played the videotape of Murphy’s interrogation for the
jury at the conclusion of its case-in-chief during the testimony of Detective Yates,
the trial court prohibited the state from rehashing Murphy’s inculpatory statements
after the jury viewed the tape. And unlike
Fulminante
, the transcript here does
not
indicate that the trial court and the state “recognized that a successful prosecution
depended
on the jury believing” the confession. (Emphasis added.)
Id.
, 499 U.S.
at 297,
invoked the right to cut off questioning and respectfully disagree with the majority’s analysis to the contrary, I would, like the majority, overrule Murphy’s first proposition of law. The state introduced abundant, independent proof of Murphy’s guilt, and the erroneous admission of Murphy’s videotaped post- invocation statements was harmless beyond a reasonable doubt.
II. Alternate Jurors/Ineffective Assistance of Counsel I also write separately to address the majority’s analysis of the
“alternate juror” problem that Murphy raises in his seventh and tenth propositions
of law. In his seventh proposition, Murphy claims that the trial court deprived him
of his right to a fair trial by allowing the alternates to remain in the jury room during
deliberations in both phases of his trial. I agree with the majority that under
United
States v. Olano
(1993),
analysis of Murphy’s tenth proposition of law, which also implicates the alternate-
juror issue. In his tenth proposition, Murphy claims that his attorney’s failure to
object to the presence of alternates in the jury room constituted ineffective
assistance of counsel. The majority writes that “[t]he record does not disclose why
counsel did not object; and appellant has failed to carry his burden of persuasion on
this issue.” I write separately to clarify that an ineffective-assistance-of-counsel
claimant has no burden of persuasion on the issue of
why his attorney did not object
to a particular trial error. As the majority correctly notes earlier in its opinion, an
appellant raising a claim of ineffective assistance of counsel must only show (1)
that counsel performed deficiently, and (2) that there was a reasonable probability
that, but for counsel’s errors, the proceeding’s result would have been different.
See
State v. Bradley
(1989),
conclusion of its analysis of Murphy’s claim of ineffective assistance of counsel. I do not disagree with Olano’ s formulation of the plain-error standard of review, but the standard for prejudice under the plain-error rule differs from the standard for prejudice in an ineffective-assistance-of-counsel claim, and we should studiously avoid mixing the two concepts. An error is not prejudicial for purposes of plain-error review
unless, “
but for the error, the outcome of the trial clearly would have been
otherwise.
” (Emphasis added.)
State v. Long
(1978),
“[W]e believe that a defendant need not show that counsel’s deficient conduct more likely than not altered the outcome in the case.
“ * * *
“ [T]he appropriate standard of prejudice should be somewhat lower. The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.
“Accordingly, * * * [t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
“In making the determination whether the specified errors resulted in the
required prejudice, a court should presume * * * that the judge or jury acted
according to law.” (Emphasis added.)
Id.
at 693-694,
ineffective assistance of counsel regarding the presence of the alternate jurors
somewhat differently than does the majority. Under the first prong of the
Strickland
analysis, I would conclude that Murphy’s counsel performed deficiently by failing
to object to the presence of alternates in the jury room during deliberations. I would
reach this conclusion because (1) the presence of alternates in the jury room during
deliberations violated Crim.R. 24(F); (2) a timely objection by Murphy’s counsel
may have formed the basis for a successful motion for new trial under Crim.R.
33(A)(1) (“Irregularity in the proceedings”); and (3) this court has recently upheld
a trial court’s decision in a
civil
case to
sua sponte
declare a mistrial when it
discovered the presence of an alternate in the jury room during deliberations, even
though the alternate assured the judge that he had contributed nothing to the jury’s
verdict.
Koch v. Rist
(2000),
in the outcome of this case. See
Strickland,
S jury retired to deliberate, saying, “Just remind the alternate jurors again about not
being able to participate in any manner in the deliberations during this time.”
Murphy provides no specific basis for concluding that the alternate jurors failed to
adhere to the trial court’s explicit instructions. Because we presume, for purposes
of
Strickland
’s second prong, that the jury acted in accordance with law, see
id.,
M OYER , C.J., concurs in the foregoing concurring opinion.
L UNDBERG TRATTON , J., concurs in Part I of the foregoing concurring opinion.
__________________
P FEIFER , J., dissenting. I agree with Justice Cook’s concurrence, except that I do not believe that the error in failing to halt Murphy’s interview was harmless. I write separately to address several other issues. “The constitutional purpose of statutory aggravating circumstances
is to narrow the class of murderers to those deserving society’s ultimate
punishment, the death penalty.
Zant v. Stephens
(1983),
murder. If Murphy had not demanded or taken the gold chains worn by Brooks, the death penalty would not have been possible in this case. Although the mitigating circumstances are not overwhelming, the record indicates that Murphy had significant developmental disadvantages. Basically, he had never been taught right from wrong. In spite of this, he had no documented history of violent behavior. Murphy is not the type of hard-core criminal targeted by the death
penalty, the type who cold-bloodedly plans and executes murders. See
State v.
Smith
(2000),
history, character, and background of the offender” and “[a]ny other factors that are relevant to the issue of whether the offender should be sentenced to death.” If our obligation to independently weigh mitigating factors against each aggravating 4. The Tennessee legislature amended the offending statute in response to Middlebrooks . See Tenn.Code Ann. 39-13-204(i)(7).
circumstance is to mean anything, this court must, when the circumstances warrant, reverse a sentence of death. We must distinguish between a defendant’s guilt and whether he should be put to death. See Crocker, Concepts of Culpability and Deathworthiness: Differentiating between Guilt and Punishment in Death Penalty Cases (1997), 66 Fordham L.Rev. 21. We are required by statute to conduct a proportionality review in
which we “consider whether the sentence is excessive or disproportionate to the
penalty imposed in similar cases.” R.C. 2929.05(A). This court has construed this
language to limit review to similar cases in which the death penalty was imposed.
State v. Steffen
(1987),
requires that certain information for each indictment charging aggravated murder be provided to our court. However, the information provided is incomplete. It does not include race or any other constitutionally significant factors that this court could use to determine whether our justice system fairly treats all the defendants that come before it. It is time for this court to augment the statutorily required information we do receive by gathering constitutionally significant information that could assist us in analyzing proportionality. Murder that fits within the four corners of the death penalty statute
does not necessarily merit prosecution as a death penalty case. R.C. 2929.04(A) states that “[i]mposition of the death penalty for aggravated murder is precluded unless one or more of the following [aggravating circumstances] is specified in the indictment * * * and proved beyond a reasonable doubt.” The statute does not require prosecutors to seek the death penalty whenever an aggravating circumstance can be proven beyond a reasonable doubt; it simply prohibits them from seeking the death penalty absent a statutory aggravating circumstance. Prosecutors are expected to exercise their discretion when seeking the death penalty. When Ohio’s death penalty statute was enacted, it was designed to be narrowly tailored to allow the execution of only the most vile and evil murderers. The death penalty scheme established by the General Assembly is demonstrably better than those of Texas or Illinois. But it is only as good as the principals in our criminal justice our system make it. Prosecutors must continue to zealously pursue convictions while tempering their desire to seek death. Defense attorneys must continue to zealously advocate even when, as in this case, guilt is beyond doubt. Trial judges must continue to ensure that defendants receive the full protections of the Constitution. Juries must continue to receive as much information as is necessary to fulfill their duties and responsibilities. Each principal in the system must continually strive to ensure that we sentence to death only those murderers who truly deserve death. This court is no different. We must be willing to do serious
proportionality review. Even though approximately two hundred males currently reside on death row, this court has never overturned a death sentence based on proportionality review. “Proportionality review” must be more than hollow words, it must someday mean that this court will overturn a sentence of death based solely on proportionality review. Finally, alternate jurors were in the jury room during both the guilt
and penalty phases while the jury deliberated. Crim.R. 24(F) states that “[a]lternate
jurors in the order in which they are called shall replace jurors who, prior to the
time the jury retires to consider its verdict, become or are found to be unable or
disqualified to perform their duties. * * * An alternate juror who does not replace
a regular juror shall be discharged after the jury retires to consider its verdict.” It
is readily apparent that Crim.R. 24(F) was violated because the alternate jurors were
not discharged properly. Further, allowing the alternate jurors to be present during
jury deliberations violated the sanctity of the jury process. See
United States v.
Virginia Erection Corp.
(C.A.4, 1964),
death sentence, even under a plain error standard. However, I need not so find given the other issues discussed above. After reviewing the record, weighing the aggravating circumstance against the mitigating factors, and considering proportionality, I conclude that the sentence of death should be reversed and that Murphy should be sentenced to life in prison without parole.
__________________
5. The Ohio Department of Corrections website lists two hundred and one death row inmates, all male, as of April 2, 2001 (ftp://ftp.sconet.state.oh.us/opinions/2001/981586.pdf). See http://www.drc.state.oh.us/public/deathrow.htm.
Ron O’Brien , Franklin County Prosecuting Attorney, and Susan E. Day , Assistant Prosecuting Attorney, for appellee.
W. Joseph Edwards and Barbara A. Farnbacher , for appellant.
__________________