82 Ohio St. 3d 16 | Ohio | 1998
Appellant raises fifteen propositions of law for our consideration. (See Appendix.) We have carefully considered each of these propositions of law, but adhere to our position that we need not separately address all propositions of law in opinion form. See State v. Poindexter (1988), 36 Ohio St.3d 1, 3, 520 N.E.2d 568, 570; State v. Scudder (1994), 71 Ohio St.3d 263, 643 N.E.2d 524. Therefore, we summarily dispose of those propositions of law where the error was not properly preserved or where the issues raised have previously been addressed by this court but rejected. We have also reviewed the death sentence for appropriateness and proportionality. For the reasons that
I
ALLEGED JUROR BIAS
In his first proposition of law, appellant argues that the trial court erred in failing to excuse a juror for cause where that juror expressed concern over whether she was able to be impartial to the appellant. Appellant points out that R.C. 2313.43 requires jurors to be “entirely unbiased,” and asserts that the voir dire of this juror did not meet this standard.
R.C. 2313.43 provides that when a juror is challenged on suspicion of being prejudiced or partial to either party, “[t]he validity of such challenge shall be determined by the court and be sustained if the court has any doubt as to the juror’s being entirely unbiased.” We have previously held that a trial court has broad discretion in determining a juror’s ability to be impartial. State v. Williams (1983), 6 Ohio St.3d 281, 288, 6 OBR 345, 351, 452 N.E.2d 1323, 1331. Thus, where a prospective juror is being challenged for bias, “[djeference must be paid to the trial judge who sees and hears the juror.” Wainwright v. Witt (1985), 469 U.S. 412, 426, 105 S.Ct. 844, 853, 83 L.Ed.2d 841, 853. A decision on a challenge to a prospective juror regarding his or her fairness and impartiality constitutes reversible error only when the trial court is shown to have abused its discretion. State v. Wilson (1972), 29 Ohio St.2d 203, 211, 58 O.O.2d 409, 414, 280 N.E.2d 915, 920.
In deciding whether to exclude a juror for cause, the court must determine whether the prospective juror’s views would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Adams v. Texas (1980), 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581, 589. Thus, the United States Supreme Court has held that jurors who are opposed to the death penalty in every case and are unable to follow the law should be disqualified. However, in State v. Williams (1997), 79 Ohio St.3d 1, 6, 679 N.E.2d 646, 653, we recognized that during voir dire in death penalty cases, prospective jurors often struggle with their personal beliefs concerning the death penalty. In these situations, it is the role of the trial judge to sort through the responses of prospective jurors to determine whether these individuals can follow the law.
In this case, the challenged juror expressed repeated concerns over whether she could be fair to the appellant. However, she ultimately acknowledged that she was a fair person and was willing to listen to all the evidence before making a final decision on appellant’s guilt. She also stated that she would not let her personal feelings interfere with her ability to be fair to appellant because she
In Proposition of Law VII, appellant argues that due to the extraordinary pretrial publicity in this case, it can be presumed that the jury was biased and that he was denied a fair trial. He also contends that the voir dire inadequately addressed the issue of pretrial publicity.
It is rare for a court to presume that a jury is prejudiced by pretrial publicity. State v. Lundgren (1995), 73 Ohio St.3d 474, 479, 653 N.E.2d 304, 313. Moreover, the fact that prospective jurors have been exposed to pretrial publicity does not, in and of itself, demonstrate prejudice. “[Pjretrial publicity — even pervasive, adverse publicity — does not inevitably lead to an unfair trial.” Nebraska Press Assn. v. Stuart (1976), 427 U.S. 539, 554, 96 S.Ct. 2791, 2800, 49 L.Ed.2d 683, 695. Therefore, if “the record on voir dire establishes that prospective veniremen have been exposed to pretrial publicity but affirmed they would judge the defendant solely on the law and the evidence presented at trial, it is not error to empanel such veniremen.” State v. Maurer (1984), 15 Ohio St.3d 239, 252, 15 OBR 379, 390, 473 N.E.2d 768, 781; State v. Carter (1995), 72 Ohio St.3d 545, 556, 651 N.E.2d 965, 976. In State v. Bayless (1976), 48 Ohio St.2d 73, 98, 2 O.O.3d 249, 262, 357 N.E.2d 1035, 1051, we stated that “a careful and searching voir dire provides the best test of whether prejudicial pretrial publicity has prevented obtaining a fair and impartial jury from the locality.”
Contrary to appellant’s assertions that the voir dire was inadequate, the record reveals that the contrary is true. The voir dire in this case was not cursory. It covered three days and four hundred fifty pages of transcript. The trial court asked prospective jurors questions about whether they had read about the murder or heard about it on radio or television. Several prospective jurors were familiar with the case. The court, as well as counsel for both sides, questioned those who indicated that they could not be fair and impartial to appellant. Following this in-depth questioning, the court excluded several prospective jurors who still felt that they could not be impartial due to the pretrial publicity. Appellant has not proven that the jury was prejudiced by pretrial publicity. Nor was the voir dire inadequate in this case. Consequently, we overrule this proposition of law.
II
PROSECUTORIAL MISCONDUCT
In his second proposition of law, appellant alleges four areas of prosecutorial misconduct: (1) using “prosecutorial theatrics” to receive an emotional response
The test for prosecutorial misconduct in closing argument is whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the accused. State v. Smith (1984), 14 Ohio St.3d 13, 14, 14 OBR 317, 318, 470 N.E.2d 883, 885. Since defense counsel failed to object to the alleged instances of prosecutorial misconduct, the alleged improprieties are waived, absent plain error. State v. Slagle (1992), 65 Ohio St.3d 597, 604, 605 N.E.2d 916, 925. We will review these allegations under the plain-error standard.
Under the heading of “prosecutorial theatrics,” appellant points to the following and alleges error: displaying a large photograph of Trooper Gross in uniform, on an easel, in full view of the jury; hanging Trooper Gross’s blood-soaked and tattered uniform on the witness stand; and demonstrating disgust toward appellant by using latex gloves to handle appellant’s clothing. None of these examples is reflected in the transcript, and, according to appellant, the trial court overruled appellant’s motion to correct the record. Under this heading, we find no plain error.
We also find no plain error with the way in which the prosecutor had witnesses describe their attempts to revive Trooper Gross. The witnesses’ testimony, even when graphic, was relevant to describing the murder and its aftermath. The fact that an emotional response was elicited by one witness (who said, “Hang on buddy” as he tried to revive the trooper) does not show prosecutorial misconduct. Nor was it improper to have a witness state that the term “cap” was used by gang members. The witness was defining the term as used by appellant, and it is proper for the witness to explain how he was familiar with it. The testimony was relevant, and the term “cap” needed to be defined. As to allegations that the prosecutor appealed to the jurors’ sympathy by referring to the way Trooper Gross looked before and after his death and by commenting on appellant’s “grim reaper” tattoo and longer hair and goatee, none of these alleged acts of misconduct individually or collectively was outcome-determinative. State v. Long (1978), 53 Ohio St.2d 91, 96-97, 7 O.O.3d 178, 181, 372 N.E.2d 804, 807-808.
Appellant also alleges that the prosecutor made misstatements about his character during the guilt phase closing argument. For instance, appellant states that it was improper for the prosecutor to say that appellant “hated” the police and to call him a “coward.” He also says it was prejudicial for the prosecutor to
Finally, appellant argues that the prosecutor made impermissible comments on appellant’s unsworn statement during the sentencing phase closing argument. In State v. DePew (1988), 38 Ohio St.3d 275, 285, 528 N.E.2d 542, 554, we stated that a prosecutor’s comment on the lack of an oath or affirmation should be limited to pointing out that the defendant’s statement has not been made under oath or affirmation. In this case, the prosecutor said to the jury, “[Wjhen [the appellant] gave his unsworn testimony, he did not give you the respect of explaining it to you.” Even if this comment went beyond the permissible limits set forth in DePew, we find that this remark does not rise to plain error, given the weight of the aggravating circumstances in relation to the mitigating factors. State v. Lorraine (1993), 66 Ohio St.3d 414, 419, 613 N.E.2d 212, 218. Other remarks, even those used to evoke passion (for example, that appellant “tore the heart out of a family”), were also within the permissible scope of closing argument. We have previously held that both parties are entitled to wide latitude during closing arguments. State v. Brown (1988), 38 Ohio St.3d 305, 317, 528 N.E.2d 523, 538. We find no plain error in any of the statements cited.
None of the instances of alleged wrongdoing constitutes prejudicial prosecutorial misconduct. Appellant’s second proposition of law is overruled.
Ill
INEFFECTIVE ASSISTANCE OF COUNSEL
In order to prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel’s representation was deficient and that he was prejudiced by that deficient performance. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693. To establish prejudice, the defendant must show that “there exists a reasonable probability that, were it not for counsel’s errors, the result of trial would have been different.” State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph three of the syllabus.
Appellant points to several other instances where he says trial counsel were ineffective for failing to object. For instance, he refers to the failure to object to the autopsy photographs and other demonstrative evidence displayed before the jury, to statements made by the prosecutor during closing argument in both the guilt and sentencing phase, to irrelevant testimony by Lieutenant Robert Ferguson regarding the purpose of wearing a bulletproof vest and the dangers of patrolling the highways at night, and to testimony regarding his previous offense for carrying a concealed weapon.
Given the clear, overwhelming evidence against appellant, defense counsel were faced with a difficult task in preparing a defense. Although defense counsel should have objected in some circumstances, as we have pointed out in other propositions of law, appellant was not prejudiced by trial counsel’s omissions. For instance, we recognize that defense counsel should have objected to the prosecutor’s comments concerning appellant’s unsworn statement, and, if appellant’s assertions are valid, defense counsel should not have permitted the display of the large photograph of Trooper Gross or a display of his blood-soaked clothing. However, none of the instances raised by appellant in which counsel failed to object amount to prejudicial error. The evidence regarding his guilt was overwhelming, and counsel’s errors did not change the result of the trial.. State v. Bradley, supra.
Appellant also says that trial counsel was defective because they failed to request a change of venue due to the excessive pretrial publicity and because they did not conduct an adequate voir dire. As previously shown, the voir dire was adequate to uncover any bias or prejudice from prospective jurors. Furthermore, counsel made reasonable attempts to question jurors about their biases and whether they were affected by the pretrial publicity. Trial counsel’s failure to request a change of venue is not tantamount to ineffective assistance of counsel. A change of venue is not automatically granted where there is extensive pretrial
Since appellant has failed to show that he was prejudiced by defense counsel’s representation, we overrule the ninth proposition of law.
IV
JURY INSTRUCTION ON INTOXICATION
In Proposition of Law III, appellant argues that he was denied a fair trial when the court erroneously instructed the jury on intoxication. Specifically, appellant challenges the instruction on two grounds: (1) it erroneously informed the jury that intoxication is not a valid defense, and (2) it never informed the jury that appellant need only prove the defense by a preponderance of the evidence.
The charge on intoxication read, in part:
“Intoxication is not an excuse for an offense. However, such evidence is admissible for the purpose of showing that the Defendant was so intoxicated that he was incapable of forming the purpose to commit the offense of aggravated murder.
“The mere fact that a Defendant is intoxicated does not make him incapable of acting with prior calculation and design.
(i* ‡ *
“If you find that by reason of intoxication the mind of the accused was in such condition that he was not capable of forming a purpose to take the life of another with prior calculation and design, then he is not guilty of aggravated murder, as purpose is an essential element of that offense.”
Contrary to appellant’s assertion, the challenged instruction does not state that intoxication is not a valid defense. It simply points out that intoxication “is not an excuse for an offense” and that it can be used to negate specific intent. We have held that intoxication may be considered in determining whether the defendant was capable of forming the specific intent essential to the charged crime. See State v. Fox (1981), 68 Ohio St.2d 53, 55, 22 O.O.3d 259, 260, 428 N.E.2d 410, 411-412. The challenged instruction follows this law. Moreover, we have previously held that the decision to instruct the jury on intoxication rests within the sound discretion of the trial judge and that no instruction need be given where there is insufficient proof of intoxication. State v. Wolons (1989), 44
V
WAIVER OF DEFENDANT’S PRESENCE
Appellant was not present at a hearing where proposed jury instructions were considered. Prior to this hearing, defense counsel advised the court that he would execute a waiver for the defendant to sign, and would make it part of the record. However, that was never done. In Proposition of Law XI, appellant contends that his constitutional right to be present at all proceedings was violated when defense counsel waived his presence at this hearing.
We have previously held that a defendant “has a fundamental right to be present at all critical stages of his criminal trial.” State v. Hill (1995), 73 Ohio St.3d 433, 444, 653 N.E.2d 271, 281. However, the right to be present is not absolute. State v. Meade (1997), 80 Ohio St.3d 419, 421, 687 N.E.2d 278, 280. Therefore, even if a defendant should have been present at a stage of the trial, “[ejrrors of constitutional dimension are not ipso facto prejudicial.” State v. Williams (1983), 6 Ohio St.3d 281, 286, 6 OBR 345, 349, 452 N.E.2d 1323, 1330. Prejudicial error exists only where “a fair and just hearing [is] thwarted by [defendant’s] absence.” Snyder v. Massachusetts (1934), 291 U.S. 97, 108, 54 S.Ct. 330, 333, 78 L.Ed. 674, 679.
We find that appellant’s absence during the hearing on proposed instructions did not deprive him of a fair trial. Accordingly, his absence and the failure of defense counsel to make a written waiver for the record were harmless beyond a reasonable doubt. Chapman v. California (1967), 386 U.S. 18, 22, 87 S.Ct. 824, 827, 17 L.Ed.2d 705, 709.
VI
RIGHT TO COMPLETE TRANSCRIPT
In Proposition of Law VIII, appellant argues that the record in this case is incomplete because a videotape of the trial, which was recorded by a local television station, was not made part of the record. Essentially, appellant contends that his constitutional rights are being jeopardized because the trial
This argument lacks merit. In State ex rel. Spirko v. Court of Appeals (1986), 27 Ohio St.3d 13, 18, 27 OBR 432, 436, 501 N.E.2d 625, 629, we held that under Section 16, Article I of the Ohio Constitution, a capital defendant is entitled to a complete, full, and unabridged transcript of all proceedings against him. Contrary to appellant’s assertion that he is entitled to the videotape recording of the proceedings, a full transcript refers to the complete written record of the trial proceedings and does not necessarily include a videotape made by a television station. Furthermore, appellant previously filed a motion with this court to order the television station to preserve and copy the videotape to be made part of the record on appeal. However, we denied this motion and continue to adhere to that position. Accordingly, appellant’s eighth proposition of law is overruled.
VII
We summarily overrule Proposition of Law XIII, in which appellant attacks the new procedure for review of death-penalty cases, on the authority of State v. Smith (1997), 80 Ohio St.3d 89, 684 N.E.2d 668. Case No. 96-2509 was therefore not properly filed as an appeal as of right, and we hereby dismiss it.
VIII
INDEPENDENT REVIEW AND PROPORTIONALITY
After independent assessment, we find that the evidence supports the aggravating circumstances that appellant murdered a peace officer who he knew or had reasonable cause to know was engaged in his duties as a peace officer (R.C. 2929.04[A][6]) and that he killed Trooper Gross to escape detection or apprehension for another offense. R.C. 2929.04(A)(3). We now weigh the facts and evidence in the record to determine whether the aggravating circumstances of which appellant was convicted outweigh the mitigating factors beyond a reasonable doubt.
We find that the nature and circumstances of the- offense are in no way mitigating. On the evening of January 18, 1996, appellant skipped work and went out drinking. Hoots later, he returned home, was belligerent toward his mother, and damaged property in her home. He pointed a gun at his mother and sister and ordered them to pack his personal belongings. Fearing that the police would be called, he tore the phones off the wall and then tied up his mother and sister. Before leaving, appellant fired a gun at his mother, wounding her just above the ankle. Then, following reports of erratic driving along Interstate 71, Trooper Gross pulled appellant’s vehicle to the berm of the highway. Witnesses
Appellant’s history, character, and background provide some mitigating weight. Appellant grew up on a family farm, the oldest of two children. He was involved with 4-H and church activities. As a child, he often played alone and read frequently. One teacher questioned his attention span; however, subsequent tests revealed that he was very intelligent and had a long attention span. During high school, he worked at a grocery store. Following high school, he joined the Navy. However, he abused alcohol and drugs, was disciplined in three nonjudicial proceedings, and was ultimately let go from the Navy with a less than honorable discharge. Appellant later worked at the Kroger distribution warehouse. As an adult, appellant continually had problems with alcohol abuse. He attended Alcoholics Anonymous and Interact Behavioral Health Care, but could not stop drinking. There was also evidence that his father may have been abusive or hard on him as he was growing up, which is entitled to some weight. Additionally, appellant had told some witnesses that he had lost a wife or girlfriend in an automobile accident while stationed in Hawaii. However, the state refuted this allegation. Even if true, it is entitled to little mitigating weight.
With respect to the statutory mitigating features, very few are present.
Under R.C. 2929.04(B)(3), we are to take into account the factor of whether, at the time the offense was committed, the appellant suffered from a mental defect causing him to lack substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Appellant was said to have suffered from two types of' psychiatric disorders: a dysthymic disorder, which is a persistent form of depression, and substance abuse. Appellant did not claim that these mental diseases or defects met the criteria of R.C. 2929.04(B)(3). We give them only modest weight in mitigation under R.C. 2929.04(B)(7). See State v. Brooks (1986), 25 Ohio St.3d 144, 155-156, 25 OBR 190, 200, 495 N.E.2d 407, 417.
As to R.C. 2929.04(B)(5), appellant had a previous conviction for carrying a concealed weapon in 1995 and was placed on probation for that crime. Since there is not an absence of a criminal record, this factor does not weigh in appellant’s favor.
Under the catchall provision of R.C. 2929.04(B)(7), appellant’s alcohol and drug abuse problems are entitled to some mitigating weight. See State v. Green (1993), 66 Ohio St.3d 141, 153, 609 N.E.2d 1253, 1263. Appellant’s intoxication at the time the murder was committed is also given slight weight in mitigation. However, appellant’s predisposition toward disliking police as well as his actions prior to the murder reduce the weight ascribed to this factor. Appellant’s
Based upon the foregoing, and upon weighing the aggravating circumstances against the mitigating factors, we find that the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt.
Appellant’s actions in committing a murder of a peace officer fulfilled the threats he had expressed to others that “something would happen” to the next officer who pulled him over. His actions merit the capital penalty to which he was sentenced. We conclude that the death penalty imposed in this case is both appropriate and proportionate when compared with capital cases involving the murder of a peace officer (State v. Glenn [1986], 28 Ohio St.3d 451, 28 OBR 501, 504 N.E.2d 701) and murder to escape detection, apprehension, trial, or punishment for another offense (State v. Burke [1995], 73 Ohio St.3d 399, 653 N.E.2d 242).
Accordingly, the judgment of the trial court is affirmed.
Judgment affirmed in case No. 96-2029.
Dismissal of appeal affirmed in case No. 96-2509.
APPENDIX
“Proposition of Law No. I[:] A prospective juror must be removed for cause when she unequivocally states that she is unable to set aside her belief that the defendant is guilty. Failure to remove such a juror deprives a capital defendant of the rights to a fair trial, an impartial jury, a reliable sentencing determination and due process of law.
“Proposition of Law No. II[:] When prosecutors infest [sic] a capital trial with invective and use disturbing physical evidence in such a manner that it inflames the jury, a capital defendant is denied his substantive and procedural due process rights to a fair trial as guaranteed by the Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution, as well as Article I, §§ 1, 2, 9,10, 16 and 20 of the Ohio Constitution.
“Proposition of Law No-. III[:] By refusing [to] properly instruct the jury on the defense of intoxication, the trial court denied appellant White the right to a
“Proposition of Law No. IV[:] When a trial court refuses to provide the jury correct, relevant information about parole availability, and relies upon a capital defendant’s future dangerousness as an aggravating factor, a capital defendant is denied the right to a fair trial, due process of law and a rehable sentencing determination. U.S. Const. Amend. VI, VIII, and XIV; Ohio Const. Art. I, §§ 2, 5, 9,10,16 and 20.
“Proposition of Law No. V[:] When a trial court evaluates expert psychological testimony relevant to the mitigating factors in Ohio Rev.Code Ann. Section 2929.04(B) under a sanity/competency standard and rewrites the expert’s report before submitting it to the jury, a capital defendant is denied the rights to a fair trial, a rehable sentencing determination and due process of law. U.S. Const. Amends. VI, VIII, and XIV; Ohio Const. Art. I, §§ 2, 9, 10, 16 and 20.
“Proposition of Law No. VI[:] A capital defendant is denied his rights to a fair trial, due process and a rehable determination of his guilt and sentence as guaranteed by the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution when gruesome and cumulative photographs are admitted into evidence when their prejudicial effect outweighs their probative value.
“Proposition of Law No. VII[:] When every potential juror in a capital trial has been exposed to pre-trial publicity and not adequately voir dired to reveal prejudice, it is error for the trial court to conduct and allow cursory voir dire examinations to uncover such prejudice. Fifth, Sixth and Fourteenth Amendments to United States Constitution and Article I, Section 5, 10 and 16 of the Ohio Constitution.
“Proposition of Law No. VTII[:] When the trial court allows a capital trial to be video taped pursuant to the Rules of Superintendence and fails to make the video part of the record, a sufficient review of the record pursuant to Ohio Rev.Code Ann. § 2929.05 cannot be conducted. U.S. Const. Amend. XIV; Ohio Const. Art. I, §§ 1, 2, 3, 5,10 and 16.
“Proposition of Law No. IX[:] When defense counsel fail to object to obvious constitutional errors during trial and use trial strategies that are harmful to their client, a capital defendant is deprived of the right to the effective assistance of counsel that is guaranteed by the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, §§ 9, 10, and 16 of the Ohio Constitution.
“Proposition of Law XI[:] A capital defendant has a right to be present at all proceedings. U.S. Const. Amend. VI, VIII and XIV; Ohio Const. Art. I, §§ 2, 5, 9, 10,16 and 20.
“Proposition of Law No. XII[:] A capital appellant, challenging his death sentence as disproportionate to cases in which the same or similar crimes were committed, is denied due process and equal protection when the reviewing court limits the pool of cases for comparison to only those cases in which the death penalty was imposed and then failing to engage in any meaningful review.
“Proposition of Law No. XIII[:] A change in the Ohio Constitution, which provides less review to capital appellants (whose crimes were committed on or after January 1, 1995) violates the Fourteenth Amendment and fails to provide the meaningful appellate review mandated by the Eighth Amendment.
“Proposition of Law No. XIV[:] The trial court erred by sentencing Mr. White to death in violation of treaties to which the United States of America is a signatory in violation of the Supremacy Clause of the United States Constitution.
“Proposition of Law XV[:] The death penalty authorized by the Ohio Revised Code deprives capitally-charged defendants of their lives without due process of law, denies equal protection and imposes cruel and unusual punishment in violation of the Ohio and United States Constitutions.”