74 Ohio St. 3d 381 | Ohio | 1996
We are required by R.C. 2929.04(A) to review Wilson’s twenty-eight propositions of law. Many of these legal issues have been decided in prior cases and will be handled summarily. State v. Poindexter (1986), 36 Ohio St.3d 1, 3, 520 N.E.2d 568, 570. We must also make an independent review of the record to determine whether the aggravating circumstance outweighs the mitigating factors beyond a reasonable doubt. Finally, we must decide whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases.
For the reasons set forth below, we affirm the convictions and sentence of death.
I
Voir Dire/Jury Issues
In his first proposition of law, Wilson argues that the trial court denied him due process by not allowing him to individually voir dire prospective jurors about specific mitigating factors. Wilson argues he should have been allowed to ask
Wilson relies strongly on Morgan v. Illinois (1992), 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492. In Morgan, the United States Supreme Court held that the trial court, at an accused’s request, must ask prospective jurors about their views on capital punishment in an attempt to ascertain whether any of them would automatically vote for the death penalty regardless of the circumstances. The court held that the voir dire was inadequate to detect such jurors and reversed the death sentence. An earlier United States Supreme Court decision had held that asking jurors whether they were opposed to the death penalty did not violate an accused’s constitutional rights. Lockhart v. McCree (1986), 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137.
In a recent case the United States Supreme Court held that a trial judge’s refusal to voir dire individual jurors about the contents of news reports each juror had read did not violate the Constitution. Mu’Min v. Virginia (1991), 500 U.S. 415, 111 S.Ct. 1899, 114 L.Ed.2d 493. The court stated that a trial court has “great latitude in deciding what questions should be asked on voir dire.” Mu'Min, 500 U.S. at 424, 111 S.Ct. at 1904, 114 L.Ed.2d at 505. See Annotation (1994), 114 L.Ed.2d 763. Deciding “issues raised in voir dire in criminal cases has long been held to be within the discretion of the trial judge.” State v. Beuke (1988), 38 Ohio St.3d 29, 39, 526 N.E.2d 274, 285. See Rosales-Lopez v. United States (1981), 451 U.S. 182, 101 S.Ct. 1629, 68 L.Ed.2d 22.
We find no abuse of discretion in this case. Here, the trial court allowed individual voir dire in the death-qualification process. The trial judge asked the prospective jurors approximately twenty questions about their views on capital punishment, the basis of those views, their willingness to consider mitigating evidence, the death penalty, and their commitment to follow instructions as given. The trial court also allowed counsel to inquire into these matters.
Morgan does not require judges to allow individual voir dire on separate mitigating factors. The detailed questioning that occurred in this case was adequate to expose faults that would render a juror ineligible. See State v. Rogers (1985), 17 Ohio St.3d 174, 17 OBR 414, 478 N.E.2d 984, paragraph three of the syllabus. Morgan imposes no further requirements on voir dire.
Moreover, we have rejected past efforts to find an abuse of discretion in similar circumstances. See State v. Bedford (1988), 39 Ohio St.3d 122, 129, 529 N.E.2d 913, 920. “Jurors weigh mitigating factors together, not singly, and do so collectively as a jury in the context of a penalty hearing. Realistically, jurors cannot be asked to weigh specific factors until they have heard all the evidence and been fully instructed on the applicable law.” State v. Lundgren (1995), 73 Ohio St.3d 474, 481, 653 N.E.2d 304, 315. Further, a juror need not give any
In his fourth proposition of law, Wilson argues that the trial court erred in allowing the prosecutor to ask questions about “victim’s rights” during general voir dire. At various times, the prosecutor asked jurors about their “perceptions” of the criminal justice system. He followed up by asking whether any jurors had heard or thought about “victim’s rights” and what their thoughts were on that subject. The prosecutor’s questions were deliberately brief, open-ended, and nonjudgmental. He did not attempt to explain “victim’s rights,” indoctrinate the jurors, inflame the jurors, or improperly appeal to community sentiment.
We do not find these limited voir dire questions to be improper. Newspapers and other media frequently discuss the criminal justice system and “victim’s rights.” Such limited, open-ended questions could uncover biased or unsuitable jurors. Trial judges have discretion over voir dire and are not required to exclude all possibly controversial topics. State v. Bedford, 39 Ohio St.3d at 129, 529 N.E.2d at 920; Rosales-Lopez v. United States, supra. The trial court did not abuse its discretion by allowing the prosecutor’s limited questioning about the criminal justice system or “victim’s rights.”
In his tenth proposition of law, Wilson argues that the prosecutor “destroyed the presumption of innocence” and “asked the jurors during voir dire to commit themselves to the * * * death penalty.” Viewed in the context of the entire voir dire, the prosecutor’s questions were not an attempt to destroy Wilson’s presumption of innocence. Instead, the prosecutor tried to determine whether jurors could recommend the death penalty if the accused were convicted as charged, and if the aggravating circumstance were found to outweigh the mitigating factors. Although the prosecutor inartfully used the terms “presume” and “presuming” in connection with guilt, Wilson did not object and therefore waived that issue. Moreover, the context shows that the prosecutor meant “assume” and “assuming,” not “presume” and “presuming.” The trial court fully instructed the jury on the accused’s presumption of innocence. The state’s imprecise language did not affect that presumption.
The prosecutor did not wrongfully attempt to commit jurors to imposing the death penalty. Instead, the prosecutor attempted to discover whether a juror could, in an actual case and not on an abstract level, sign a death penalty verdict if that juror found that the aggravating circumstance outweighed the mitigating factors. As the trial court noted, “the point * * * is can jurors distinguish
In his ninth proposition of law, Wilson argues that the trial court erred in not granting a change of venue or allowing sufficient voir dire to identify biased jurors. Yet, Wilson failed to show any basis for a change in venue. Moreover, the trial court adequately and individually questioned jurors on pretrial publicity, and Wilson’s counsel had ample opportunity to inquire further. Of the jurors that sat, only three had read or heard anything beyond headlines or TV reports, and none had an opinion about the accused’s guilt. Finally, “[a]ny decision on changing venue rests largely in the discretion of the trial court.” State v. Landrum (1990), 53 Ohio St.3d 107, 116, 559 N.E.2d 710, 722. Thus, we find Wilson’s ninth proposition of law lacks merit.
In his eleventh proposition of law, Wilson contends that the trial court improperly used the Wainwright constitutional standard to death-qualify the jury. Wainwright v. Witt (1985), 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841. However, the trial court correctly used the Wainwright standard. See State v. Tyler (1990), 50 Ohio St.3d 24, 30, 553 N.E.2d 576, 586; State v. Scott (1986), 26 Ohio St.3d 92, 96-97, 26 OBR 79, 83, 497 N.E.2d 55, 59-60; State v. Rogers (1985), 17 Ohio St.3d 174, 17 OBR 414, 478 N.E.2d 984, paragraph three of the syllabus.
In his twelfth proposition of law, Wilson argues that the trial court erred in rejecting challenges to prospective jurors Sibley and Clutter and juror Edwards. The standard of review in this respect is that “ ‘[djeference must be paid to the trial judge who sees and hears the juror.’ * * * We will not overrule his decision absent an abuse of discretion.” State v. Tyler, 50 Ohio St.3d at 30, 553 N.E.2d at 586. We have reviewed the transcript and find no abuse of discretion.
In his thirteenth proposition of law, Wilson argues that the prosecutor peremptorily excused prospective juror Bruce on racial grounds. Obviously, jurors
In proposition of law fourteen, Wilson argues that the trial court erred when the court passed out notebooks and told jurors they could take notes during the trial. Wilson did not object to the notetaking or the jury instructions on notetaking thereby waiving all but plain error. A trial court can exercise its discretion and allow jurors to take notes. See State v. Loza (1994), 71 Ohio St.3d 61, 74, 641 N.E.2d 1082, 1099; State v. Williams (1992), 80 Ohio App.3d 648, 610 N.E.2d 545. The court adequately instructed the jury and emphasized that notes were to assist the jury, not a primary objective; that taking notes should not distract the juror from paying close attention to the ongoing testimony; and that “[y]our primary objective is to hear evidence and testimony as it comes to you from the witness stand.” Thus, we find no plain error with respect to the notetaking by the jurors and reject Wilson’s proposition of law fourteen.
II
Evidence Issues
In his eighth proposition of law, Wilson argues that the trial court erred by not suppressing his confession. He claims that he asked for an attorney and didn’t
“[T]he weight of the evidence and credibility of witnesses are primarily for the trier of the facts. * * * This principle is applicable to suppression hearings as well as trials.” State v. Fanning (1982), 1 Ohio St.3d 19, 20, 1 OBR 57, 58, 437 N.E.2d 583, 584. The trial court specifically found in its entry denying Wilson’s motion to suppress that Wilson “knowingly and intelligently waived his right against self-incrimination” and that his statements “were voluntarily made.” Further, the accused’s asserted intake of one beer and “two joints” did not prevent him from being able to make “a knowing, voluntary and intelligent waiver of his rights.” Further, the trial court found that Wilson never invoked his right to counsel “[d]ue to the inconsistencies” in his testimony. The taped interviews and testimony support those findings. State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972, 982; State v. Smith (1991), 61 Ohio St.3d 284, 288, 574 N.E.2d 510, 515. Accordingly, we reject Wilson’s eighth proposition of law.
In proposition of law fifteen, Wilson argues that the trial court erred in admitting prejudicial “other acts” testimony from Angie Shelton and Darlene DeBolt. On the evening of May 3, Wilson had argued with Shelton, his girlfriend, and threatened to hit her. On May 4, around 6:00 a.m., Wilson dropped by the gas station where DeBolt worked and tried to get her to go out with him. We find no prejudicial error in the trial court’s decision to allow the testimony of these witnesses.
The state contended that Wilson’s motive in kidnapping Lutz was, at least in part, his inability to deal with female rejection. The fact that, just before meeting Lutz, Wilson had argued with Shelton and threatened to hit her after she rejected him arguably supports that claimed motive. Under Evid.R. 404(B), evidence of other acts, though criminal, may be admissible as “proof of motive.” See State v. Woodard (1993), 68 Ohio St.3d 70, 73, 623 N.E.2d 75, 78.
DeBolt’s testimony was clearly admissible. DeBolt placed Wilson in Lutz’s Oldsmobile between 6:00 a.m. and 7:00 a.m. on May 4, corroborating that part of Wilson’s confession. DeBolt describes Wilson as “persistent” and “pushy” and thus never raises an “other acts” issue. In view of the overwhelming evidence of Wilson’s guilt, especially his voluntary confession, the testimony of neither
In proposition of law sixteen, Wilson argues that the trial court erred by admitting “cumulative, gruesome and inflammatory” photographs of the victim and crime scene. These photos were also reproduced and shown as slides. Under Evid.R. 403 and 611(A), the admission of photographs is left to the trial court’s sound discretion. State v. Slagle (1992), 65 Ohio St.3d 597, 601, 605 N.E.2d 916, 923. Nonrepetitive photographs in capital cases, even if gruesome, are admissible as long as the probative value of each photograph outweighs the danger of material prejudice to an accused. See State v. Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768, paragraph seven of the syllabus; State v. Morales (1987), 32 Ohio St.3d 252, 257, 513 N.E.2d 267, 273.
The trial court properly admitted these photographs and slides. The two photographs of Lutz’s body illustrate the coroner’s testimony, are nonrepetitive, and each has probative value greater than any prejudicial effect. Two other photographs, also admissible, show Lutz’s body at the scene after the fire was extinguished. Both photographs illustrate testimony and help to demonstrate Wilson’s intent and the extent of Lutz’s injuries. The remaining photographs under objection are relevant, nonobjectionable, and not even gruesome, since they do not contain a body. See State v. DePew (1988), 38 Ohio St.3d 275, 281, 528 N.E.2d 542, 550-551. Thus, we find that proposition of law sixteen lacks merit.
In proposition of law seventeen, Wilson argues plain error, contesting the admission of testimony from the coroner and three witnesses who were at the scene of the burning car. The coroner testified about Lutz’s injuries and confirmed that carbon monoxide and third degree burns had caused her death. Patton described the fire and the pictures she had taken of the burning car, helping to confirm the fire’s origin and intensity. The paramedic described the fire and his confirmation at the scene that no one was in the passenger compartment of the car. A fire department captain described the fire fighting efforts, the car’s damage, and the body in the trunk.
Wilson did not object to these witnesses at trial, thereby waiving this issue absent plain error. The testimony from these witnesses was relatively brief, relevant, and not unfairly prejudicial to the accused under Evid.R. 403(A), which states that even relevant evidence must be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice * * The overwhelming evidence of Wilson’s guilt, including his confession, precluded any material prejudice from this factual testimony. Wilson did object to the photos and a few questions that were asked of the coroner, but those objections lack merit.
Ill
Guilt Phase Instructions
In propositions of law eighteen, nineteen, twenty, twenty-one, and twenty-five, Wilson argues that the trial court erred in giving guilt phase instructions. Wilson failed to object at trial to the instructions he now contests in propositions of law eighteen and nineteen. He also failed to object with specificity to the instruction contested in proposition of law twenty-five. Thus, he waived all but plain error. State v. Underwood (1983), 3 Ohio St.3d 12, 3 OBR 360, 444 N.E.2d 1332, syllabus. We find no plain error as to those issues. As to proposition twenty, Wilson argues correctly that the trial court erred in shifting the burden of proof as to “knowledge.” Except on that point, Wilson’s propositions twenty and twenty-one also lack merit.
In proposition of law eighteen, Wilson argues plain error because the trial court instructed, “[t]he purpose with which a person does an act or brings about a result is determined from the manner in which it is done, the means used and all of the other facts and circumstances in evidence.” We reject Wilson’s claim that these words relieved the prosecutor of his burden of proof or created a mandatory presumption. State v. Montgomery (1991), 61 Ohio St.3d 410, 414-415, 575 N.E.2d 167, 171-172; State v. Price (1979), 60 Ohio St.2d 136, 141, 14 O.O.3d 379, 382, 398 N.E.2d 772, 775.
The court further instructed that no one “may be convicted of Aggravated Murder unless he’s specifically found to have intended to cause the death of another.” The instructions on prior calculation and design also amplified the court’s instructions on “purpose.” When the instructions are viewed in context, Wilson’s claim of error, plain or otherwise, lacks merit.
In proposition of law nineteen, Wilson argues plain error because of the trial court’s following definitions of “purpose” which Wilson contends are “incongruous”: “A person acts purposely when it is his specific intention to cause a certain result. It must be established in this case that at the time in question there was present in the mind of the Defendant a specific intention to cause the death of another. * * * A person acts purposely, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, if it is his specific intention to engage in conduct of that nature.”
In proposition of law twenty, Wilson first argues that the trial court erred in refusing his request to instruct the jury on intoxication as it relates to aggravated murder and arson. Whether to instruct on intoxication as a defense rests within a trial court’s sound discretion. State v. Wolons (1989), 44 Ohio St.3d 64, 541 N.E.2d 443, paragraph two of the syllabus; State v. Fox (1981), 68 Ohio St.2d 53, 22 O.O.3d 259, 428 N.E.2d 410; Nichols v. State (1858), 8 Ohio St. 435, paragraph two of the syllabus. Such an instruction is not required, since “[ijntoxication is easily simulated” and is “often voluntarily induced for the sole purpose of nerving a wicked heart[.]” Nichols, 8 Ohio St. at 439. As discussed infra, the court did instruct on intoxication as to the kidnapping offense and specifications.
Moreover, the evidence does not reasonably raise the intoxication issue as to the aggravated murder or arson. Wilson cites much evidence from the trial to show how much alcohol he drank up to 2:30 a.m. on May 4. However, aside from one or two beers at his trailer around 3:00 a.m., there was no evidence at trial that indicated Wilson drank anything after that time. The murder occurred around 1:30 p.m., eleven hours after the Empire Tavern closed and at least eight hours after Wilson’s last beer. During this time, Wilson walked, slept, drove to various places, and talked with DeBolt at 6:00 a.m. in Stow for sixty to ninety minutes. His own confession reflects that he knew exactly what he was doing after 7:30 a.m. Lacking evidence of intoxication, the court did not err in declining to instruct on intoxication as to the events that directly preceded Lutz’s death. See State v. Hicks (1989), 43 Ohio St.3d 72, 538 N.E.2d 1030, syllabus.
In proposition of law twenty, Wilson further argues that the trial court erred in instructing the jury, over objection, that he had the burden of proof to establish that his intoxication negated the “knowledge” element in the kidnapping. This contention relates solely to the kidnapping conviction. Wilson makes no claim that any error affects the remaining charges or the death penalty.
The court instructed: “Intoxication is not an excuse * * *, [but] such evidence is admissible for the purpose of showing that the Defendant was so intoxicated that he was incapable of having the knowledge to commit the offense of
As the court instructed, “knowledge” is an element of kidnapping. Due process requires the prosecution to prove, beyond a reasonable doubt, every element of the crime charged. In re Winship (1970), 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368. Due process prohibits requiring an accused to disprove an element of the crime charged. Mullaney v. Wilbur (1975), 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508. This instruction is unconstitutional under Winship because it required Wilson to disprove “knowledge,” which is an element of the offense of kidnapping. R.C. 2905.01(B). The burden of proof cannot be placed on a defendant to disprove an element of an offense. Mullaney, supra. Nevertheless, we find the error to be harmless under the facts of this case, since the kidnapping of Lutz continued into the late morning and early afternoon. At that point, he clearly knew what he was doing and intoxication would not reasonably be available as a defense to negate “knowledge.”
No other offenses are affected by this instructional deficiency, since this instruction on intoxication involved only the kidnapping. The felony-murder counts and kidnapping penalty specifications played no role at all in the penalty phase. The death penalty was imposed solely on Count I and specification one.
In proposition of law twenty-one, Wilson argues that the trial court erred in refusing his request to instruct on murder as a lesser included offense. However, a charge on a “lesser included offense is required only where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction upon the lesser included offense.” State v. Thomas (1988), 40 Ohio St.3d 213, 533 N.E.2d 286, paragraph two of the syllabus. Here the evidence did not reasonably raise murder as a lesser included offense.
No evidence exists that indicates that Wilson had anything to drink after approximately 2:30 a.m. Wilson knew Lutz was locked in the trunk at 7:30 a.m. In the hours after that, he drove and walked around, kept Lutz locked in the trunk, and thought about what he was going to do. It appears that by 1:00 p.m., he had decided to kill her and to that end set fire to a rag stuffed into the gas tank. That time, the fire went out. He next let Lutz out of the trunk and talked with her for fifteen to twenty minutes before forcing her back in the car trunk.
We summarily reject Wilson’s proposition of law twenty-five, which challenges Ohio’s statutory reasonable doubt instruction used at the guilt and penalty phases. State v. Van Gundy (1992), 64 Ohio St.3d 230, 594 N.E.2d 604; State v. Nabozny (1978), 54 Ohio St.2d 195, 8 O.O.3d 181, 375 N.E.2d 784, paragraph two of the syllabus. Moreover, it should be noted that Wilson failed to object and waived the issue. State v. Underwood (1983), 3 Ohio St.3d 12, 3 OBR 360, 444 N.E.2d 1332, syllabus; Crim.R. 30(A).
IV
Effective Assistance of Counsel
In proposition of law twenty-four, Wilson argues that he was denied his right to the effective assistance of counsel at trial. Wilson did not raise this claim before the court of appeals and thus waived this issue. State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364. Moreover, reversal of convictions on ineffective assistance requires that the defendant show, first, “that counsel’s performance was deficient” and, second, “that the deficient performance prejudiced the defense * * * so * * * as to deprive the defendant of a fair trial.” Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373.
Wilson challenges his counsel’s decisions on numerous issues. We find that each of those decisions was the product of reasonable professional judgment. Additionally, as to all of these issues, Wilson has not established prejudice, ie., “a reasonable probability that, were it not for counsel’s errors, the result of the trial would have been different.” Bradley, paragraph three of the syllabus. Thus, we find that proposition of law twenty-four lacks merit.
V
Constitutional Issues
Proposition of law twenty-two challenges the death-penalty felony-murder provisions, but it lacks both merit and relevance. State v. Henderson (1988), 39 Ohio St.3d 24, 528 N.E.2d 1237, paragraph one of the syllabus. Wilson’s arguments in proposition of law twenty-seven challenging Ohio’s proportionality
VI
Sentence Issues
In his second proposition of law, Wilson challenges the constitutionality of appellate sentence reweighing in death penalty cases and seeks to sharply restrict the use of appellate reweighing to determine sentence appropriateness. Wilson further argues that appellate reweighing is speculative and improper when an error is based upon inadmissible evidence. However, we find Wilson’s second proposition of law lacks merit.
At the sentencing proceedings, the jury and judge became aware that Wilson had been earlier adjudged a delinquent child for an involuntary manslaughter. Wilson starts his arguments against reweighing with the erroneous assumption that the court improperly admitted evidence of his juvenile criminal history. The trial transcript demonstrates that Wilson mentioned his juvenile record and introduced evidence of that record at sentencing. Having invited any error, he cannot now complain. Center Ridge Ganley, Inc. v. Stinn (1987), 31 Ohio St.3d 310, 31 OBR 587, 511 N.E.2d 106. The trial jury properly considered the defense evidence. See discussion of Wilson’s fifth proposition of law, infra.
However, we agree that the trial court in its sentencing opinion improperly injected Wilson’s juvenile record into the weighing process as a nonstatutory aggravating circumstance. In justifying the death penalty, and explaining why the aggravating circumstance outweighed mitigating factors, the trial court stated: “Defendant’s total disregard for the suffering of his victim(s) in the present case and in his juvenile adjudication finding him delinquent by reason of involuntary manslaughter. * * * Defendant’s actions in both cases support the aggravating circumstance in that defendant acted in order to prevent the victim from seeking assistance in order to avoid detection, apprehension, trial or punishment.” The court of appeals recognized the trial court’s error and took appropriate corrective action by independently reassessing the sentence.
Wilson now challenges the authority of the court of appeals to reassess the sentence under the circumstances. Wilson argues that appellate reweighing is limited to situations where an aggravating circumstance has been subsequently ruled invalid under the Eighth Amendment. His argument lacks logic and is not based on precedent. “The independent weighing process at each appellate level * * * provides a procedural safeguard against the arbitrary imposition of the
In his third proposition of law, Wilson argues that the trial court erred in instructing the jury, over objection, that “[mjitigating factors are factors that, while they do not justify or excuse the crime * * *, may be considered by you as extenuating, lessening, weakening, excusing to some extent, or reducing the degree of the Defendant’s blame or culpability.” (Emphasis added.)
We agree that the trial court erred in referring to only “blame or culpability” when explaining mitigating factors. As State v. Holloway held at paragraph one of the syllabus, “Mitigating factors * * * are not necessarily related to a defendant’s culpability but, rather, are those factors that are relevant to the issue of whether an offender convicted under R.C. 2903.01 should be sentenced to death.” However, instructions must be considered as a whole, not in isolation. State v. Price (1979), 60 Ohio St.2d 136, 14 O.O.3d 379, 398 N.E.2d 772. When considered in context, the trial court’s instructions adequately informed the jury as to the relevant mitigating factors it must consider. The court told the jury that the “mitigating factors which you are to weigh include but are not limited to the youth of the offender; any other factor raised by the Defendant which may include, but is not limited to, that the Defendant is the product of a dysfunctional family; alcoholism; ability to adjust to a structural environment in an institutional setting; the Defendant’s confession.
“Likewise, the existence of any of the mitigating factors does not preclude or prevent the imposition of a sentence of death if you find that the aggravating circumstance still outweighs the mitigating factors by proof beyond a reasonable doubt.
“If, after a full and impartial consideration of all the relevant evidence * * * you are firmly convinced that the aggravating circumstance * * * outweighs the factors in mitigation, beyond a reasonable doubt, then the state has met its burden of proof * * *.
“If, on the other hand, you are not firmly convinced that the aggravating circumstance * * * outweighs the factors in mitigation, beyond a reasonable
Under the circumstances, we find no material prejudice resulted from use of the words “blame” or “culpability.” Taken as a whole, the jury instructions indicate that the penalty phase was to determine Wilson’s punishment, not just to assess his blame or culpability. See State v. Woodard, 68 Ohio St.3d at 77, 623 N.E.2d at 80. The arguments of counsel reflected that view. Additionally, our independent sentence reassessment eliminates the effect of this error. See State v. Landrum, 53 Ohio St.3d at 124, 559 N.E.2d at 729; State v. Holloway, 38 Ohio St.3d at 242, 527 N.E.2d at 835.
Contrary to Wilson’s arguments in proposition of law twenty-three, the trial court did not err in refusing to instruct on mercy. State v. Lorraine, 66 Ohio St.3d at 417, 613 N.E.2d at 216; State v. Landrum, 53 Ohio St.3d at 123, 559 N.E.2d at 728.
In his fifth proposition of law, Wilson argues that prosecutorial misconduct denied him a fair penalty determination. First, Wilson argues that the prosecutor improperly introduced Wilson’s juvenile record into evidence and improperly cross-examined defense witnesses about that record. Wilson’s argument obscures what occurred at trial.
Before trial, the prosecutor stated that he might use Wilson’s prior juvenile record “to cross-examine them [defense witnesses] regarding their knowledge of his record.” Such a comment in a pretrial conference does not constitute use of the evidence before the jury. In fact, the record is clear that Wilson, as part of a reasoned defense strategy, disclosed his juvenile record in his opening statement at the sentencing proceedings and questioned his own witnesses about that juvenile record.
Wilson’s mitigation strategy involved numerous witnesses’ testifying about his childhood. His juvenile record featured prominently in his mitigation case. Wilson was incarcerated at age fourteen, spent two years in institutions, and then lived in a foster home. Wilson’s “personality disorder” diagnosis depended upon a juvenile record. According to Wilson, his father’s alcoholism and neglect directly caused his juvenile record.
Having introduced the evidence himself, Wilson cannot now complain because the prosecutor cross-examined witnesses about his juvenile record or mentioned it in argument. See State v. Montgomery, 61 Ohio St.3d at 418, 575 N.E.2d at 173. “A party cannot take advantage of an error he invited or induced.” State v. Seiber (1990), 56 Ohio St.3d 4, 17, 564 N.E.2d 408, 422.
Wilson’s remaining prosecutorial misconduct arguments also lack merit. “[T]he touchstone of due process analysis in cases of alleged prosecutorial
The prosecutor’s cross-examination about people who kill strangers and Wilson’s possible future conduct was not improper given Wilson’s attempt to present himself as not dangerous when he was off alcohol. Wilson also did not always object so as to preserve any error. The prosecutor could discredit favorable defense childhood testimony by cross-examining witnesses about Wilson’s childhood vandalism.
Since Wilson first presented evidence that he adjusted well to imprisonment, the prosecution could properly cross-examine a defense witness about Wilson’s attempt to escape from custody. The limited victim-impact testimony of Lutz’s mother did not violate constitutional guarantees. Mrs. Lutz expressed no opinion about the penalty. Payne v. Tennessee (1991), 501 U.S. 808, 830, 111 S.Ct. 2597, 2611, 115 L.Ed.2d 720, 739, at fn. 2; State v. Fautenberry (1995), 72 Ohio St.3d 435, 438, 650 N.E.2d 878, 881-882; see State v. Lorraine, 66 Ohio St.3d at 420-421, 613 N.E.2d at 218-219.
Prosecutorial characterization of Wilson as a “walking time bomb” was not unreasonable under the testimony given. Prosecutors can be “colorful or creative.” State v. Brown (1988), 38 Ohio St.3d 305, 317, 528 N.E.2d 523, 538. Prosecutors can urge the merits of their cause and legitimately argue that defense mitigation evidence is worthy of little or no weight. The prosecutor did not err by arguing that others with deprived childhoods do not necessarily commit such crimes. See State v. Murphy (1992), 65 Ohio St.3d 554, 570-571, 605 N.E.2d 884, 899; State v. Richey (1992), 64 Ohio St.3d 353, 370, 595 N.E.2d 915, 929. The trial court’s sentencing instructions cured any asserted prosecutorial misstatements of law. State v. Greer (1988), 39 Ohio St.3d 236, 251, 530 N.E.2d 382, 400.
With respect to Wilson’s allegations about prosecutorial misconduct, we find that such misconduct did not permeate the trial, and that Wilson received a fair trial, if not a perfect one. Compare State v. Landrum, 53 Ohio St.3d at 110-112, 559 N.E.2d at 716-718; State v. Johnson (1989), 46 Ohio St.3d 96, 101-103, 545 N.E.2d 636, 642-643. We therefore reject Wilson’s fifth proposition of law.
In his seventh proposition of law, Wilson argues that the trial court erred in failing “to consider and give effect to his relevant mitigating evidence.” Wilson argues that the trial court’s sentencing opinion did not give appropriate mitigating weight to his alcoholism, confession, adaptation to incarceration, and youth. However, the sentencing opinion shows that the court did consider all asserted
The trial court’s sentencing opinion indicates that the court correctly understood the weighing process and the prosecution’s burden of proof. The court of appeals had earlier recognized and corrected the only notable error. Any imprecision in the trial court’s opinion, as well as the minor mistake regarding the accused’s age, was inconsequential.» Also, our independent reassessment of the sentence cures any arguable error. State v. Lott, supra. Thus, we reject Wilson’s proposition of law seven.
Wilson, in proposition of law twenty-six, argues that the trial court erred in imposing prison sentences along with the death penalty. That claim lacks merit. State v. Campbell (1994), 69 Ohio St.3d 38, 52, 630 N.E.2d 339, 352. In addition, Wilson cannot now complain since he failed to object at trial. State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364.
VII
INDEPENDENT SENTENCE ASSESSMENT
In proposition of law six, Wilson argues that the death sentence is inappropriate for him. After independent assessment, we find that the evidence proves, beyond a reasonable doubt, the aggravating circumstance charged against Wilson, ie., that he killed Lutz “for the purpose of escaping detection, apprehension, trial, or punishment” for kidnapping Lutz. R.C. 2929.04(A)(3). We find nothing in the nature and circumstances of the crimes themselves to be mitigating.
Wilson’s history and background do provide some mitigating features. Until he was fourteen, Wilson suffered at the hands of a tyrannical, alcoholic father, who alternatively teased, beat, and neglected his sons. His mother could do little and ultimately abandoned him to his father. At fourteen, Wilson was adjudged delinquent, spent two years in an institutional setting, and then lived successfully in a foster home for four years. Undoubtedly, Wilson’s “personality disorders” resulted in part from that deprived childhood. We find all of this entitled to some weight. However, its significance is undercut by the fact that, at about age seventeen, Wilson had an opportunity for a fresh start in life, in a loving home,
We accord appropriate weight to the statutory mitigating factor of age. See R.C. 2929.04(B)(4). Wilson was twenty-one at the time of the offense. No other statutory mitigating factor in R.C. 2929.04(B)(l)-(3), (B)(5), or (B)(6) is raised by the evidence or applicable. As to R.C. 2929.04(B)(7), “other factors,” Wilson’s anti-social and borderline personality disorders, his alcoholism, his confession, and his adaptation to confinement collectively deserve some weight. However, Wilson confessed only after he was identified and taken into custody, and thus his confession is entitled to little weight. Personality disorders are often accorded little weight because they are so common in murder cases. Alcoholism is of little mitigating value here because, as we have previously discussed, Wilson’s claim that he was drunk when he killed Lutz does not hold up under examination.
In this case, the aggravating circumstance outweighs the combined mitigating factors beyond a reasonable doubt. Wilson acted in the full light of the afternoon, hours after waking up and thinking about his options. When weighed against this aggravating circumstance, the mitigating factors — his history, background, youth, alcoholism, and the “other factors” cited — are of minor consequence.
The death penalty is both appropriate and proportionate when compared with similar capital cases. State v. Lawson (1992), 64 Ohio St.3d 336, 595 N.E.2d 902; State v. Brewer (1990), 48 Ohio St.3d 50, 549 N.E.2d 491; State v. Stumpf (1987), 32 Ohio St.3d 95, 512 N.E.2d 598.
The judgment of the court of appeals is affirmed.
Judgment affirmed.
. All jurors denied knowledge of the events at issue in the trial, except as indicated. Beere, “headlines” only; Edwards, heard and saw “something about it”; Schlegelmilch, “read a little bit,” but had no opinion; Schuller, “read some articles,” but had no opinion; Perez, “haven’t followed it much”; Barnes, recalled hearing about it “[a] long time ago.”
. Wilson’s counsel asked Sibley what factors he would like to know about an accused before deciding on the sentence. Sibley replied he would “like to know about the crime” and that “would be the deciding factor” or “main thing.” It isn’t possible for a prospective juror to know what, if any, mitigating factors are to be considered before being accepted as a juror. Sibley stated he would follow the court’s instructions and not his personal views, would fairly consider mitigating factors, and would consider penalties other than death if the evidence warranted. We find that no basis for challenge existed.
Edwards expressed concern over her absence from a family business in the event she was sequestered for “a week or something.” She said, “[I]f it’s more than a couple of days, it’s going to be a problem.” She also stated, “As long as I go home at night that’s okay.” She promised not to think about her business “in this courtroom” and to “give this ease” her “full attention.” She promised to “be here and listening” during all court sessions. Again, the court did not abuse its discretion by rejecting this challenge.
