State v. Rogers ( 1986 )

Holmes, J.

In Caldwell v. Mississippi, supra, the United States Supreme Court held that a death sentence is invalid “when the sentencing jury is led to believe that responsibility for determining the appropriateness of a death sentence rests not with the jury but with the appellate court which later reviews the case.” Caldwell, supra, at 323. It is clear that the Mississippi jury was statutorily obligated to determine whether a defendant “should be sentenced to death,” or to life imprisonment. Miss. Code Annot. Section 99-19-101.

In response to the defense counsel’s assertions, the prosecution in Caldwell stated during closing argument:

“ ‘* * * I’m in complete disagreement with the approach the defense has taken. I don’t think it’s fair. I think it’s unfair. I think the lawyers know better. Now, they would have you believe that you’re going to kill this man and they know — they know that your decision is not the final decision. My God, how unfair can you be? Your job is reviewable. They know it. * * * [T]he decision you render is automatically reviewable by the Supreme Court. Automatically, and I think it’s unfair and I don’t mind telling them so.’ ” Id. at 325-326.

Upon appeal, the Mississippi Supreme Court narrowly upheld the above closing argument.

In reversing, the United States Supreme Court noted that the prosecutor’s remarks provided the jurors with “an invitation to rely on * * * [appellate] review” which would “generate a bias toward returning a death sentence,” and which “presents an intolerable danger that the jury will in fact choose to minimize the importance of its role.” Caldwell, supra, at 231. Also, the court found the statutory framework of appellate review insufficient to correct the complained-of error. The court noted that: “ ‘Even a novice attorney knows that appellate courts do not impose a death penalty, they merely review the jury’s decision and that review is with a presumption of correctness.’ ” Id. at 331, quoting Caldwell v. State (Miss. 1983), 443 So. 2d 806, at 816 (Lee, J., dissenting), and citing Miss. Code Annot. Section 99-19-105 (Supp. 1984). Consequently, the prosecution’s argument undermined the Eighth Amendment guarantee of a reliable determination of the appropriateness of death as punishment in particular cases. Id. at 323, citing Woodson v. North Carolina (1976), 428 U.S. 280.

Upon review of Ohio’s statutory framework and the circumstances of this case, it must be concluded that none of the above dangers expressed in Caldwell threatened the integrity of the sentencing authority of the case sub judice.

At the outset of the within analysis, it should be stated that Ohio’s statutory framework for the imposition of the death penalty is altogether different from that of Mississippi, most importantly in that Ohio has no “sentencing jury.” All power to impose the punishment of death resides in the trial court which oversees the mitigation or penalty phase of the trial. The duty of the trial judge is set forth in R.C. 2929.03(D)(3).¹

Immediately obvious is that, under this provision, the jury provides only a recommendation as to the imposition of the death penalty. The trial court must thereafter independently re-weigh the aggravating circumstances against the mitigating factors and issue a formal opinion stating its specific findings, before it may impose the death penalty. R.C. 2929.03(F). It is the trial court, not the jury, which performs the function of sentencing authority. Thus, no “sentencing jury” was involved in the proceedings below. Furthermore, as actual sentencer, the trial court was “present to hear the evidence and arguments and see the witnesses” and was in a position to fully appreciate a plea for mercy. Caldwell, supra, at 331.

Furthermore, Ohio’s sentencing procedures are not unique both because a separate sentencing hearing is utilized, and because capital sentencing authority is invested in the trial judge. See, e.g., Ala. Code Subsection 13A-5-47 (1986 Supp.) (judge is not bound by jury’s advisory verdict); Ariz. Rev. Stat. Annot. Section 13-703(B), (C) and (D) (1986 Supp.) (jury is completely excluded from sentencing); Colo. Rev. Stat. Section 16-11-103 (2)(C) (1985 Supp.) (trial judge may vacate a jury finding if clearly erroneous); Fla. Stat. Section 921.141(2) (1982 Cum. Supp.) (trial court independently re-weighs aggravating versus mitigating circumstances after an advisory jury verdict); Idaho Code Section 19-2515(d) (1986 Supp.) (trial court alone sentences and conducts a mitigation hearing), etc.

Florida’s statutory system, which is remarkably similar to Ohio’s, was expressly upheld in the case of Spaziano v. Florida (1984), 468 U.S. 447. Justice Blackmun, writing for the court, concluded:

“If a judge may be vested with sole responsibility for imposing the [death] penalty, then there is nothing constitutionally wrong with the judge’s exercising that responsibility after receiving the advice of the jury. The advice does not become a judgment simply because it comes from the jury.” Id. at 465.

Recently, the United States Court of Appeals for the Eleventh Circuit issued its decision in Adams v. Wainwright (C.A. 11, 1986), 804 F.2d 1526. That panel reversed a Florida death sentence because it felt that the trial court’s instructions violated the spirit of the Caldwell decision. We need not consider the broad reading of Caldwell set forth therein since the case before us differs in several significant respects. Neither the trial court in the present case nor the prosecutor invited the jury to rely upon later judgments. Instead, merely correct legal statements were made. Furthermore, under Ohio’s framework, the trial court is not a simple “buffer where the jury allows emotion to override the duty of a deliberate determination,” Cooper v. State (Fla. 1976), 336 So. 2d 1133, 1140, certiorari denied (1977), 431 U.S. 925, but is the authority in whom resides the sole power to initially impose the death penalty. Finally, to hold that “the jury’s sense of responsibility for its advisory sentence was diminished,” Adams, supra, at 5, for the single reason that the trial court informed the jury that their verdict was a mere recommendation, creates an unacceptable dilemma. Either the relevant portions of Ohio’s statutory framework for imposition of the death penalty must be ruled unconstitutional or any juror who at any time has learned the legal nature of the jury’s finding must be considered hopelessly prejudiced. This court cannot accept either proposition based on Caldwell.

Thus, the Sixth Amendment provides no right to a jury determination of the punishment to be imposed; nor does the Ohio system impugn the Eighth Amendment. Spaziano, supra, at 464. See, also, State v. Buell (1986), 22 Ohio St. 3d 124, 142-144, and State v. Williams (1986), 23 Ohio St. 3d 16, 21-22.

Consequently, the trial court’s instructions as well as the jury verdict forms,² based as they were upon the very wording of a constitutional statutory sentencing procedure, merely gave “the jury accurate information of which both the defendant and his counsel * * * [were] aware.” California v. Ramos (1983), 463 U.S. 992, 1004.

Also, the record before us differs from that of Caldwell in that neither the prosecution nor the trial court made mention of the appellate process or thereby sought to allow the jurors to minimize their role through dependence upon such process. Nevertheless, another important distinction from Caldwell is that the Ohio appellate courts are statutorily obligated to do much more than “merely review the jury’s decision * * * with a presumption of correctness.” R.C. 2929.05³ provides that the intermediate courts of appeals and the Supreme Court of Ohio must each weigh the mitigating factors against the aggravating circumstances; evaluate whether the sentence of death is appropriate, excessive, or disproportionate; and review again the aggravating circumstances and whether the trial court properly weighed them against the mitigating factors.

Such thorough review provides every opportunity and authority for a reviewing court to make an original determination, to independently weigh not only those factors weighed by the jury but also to determine whether the sentence was appropriate. This grant of wide latitude requires Ohio’s appellate courts to function as much more than mere reviewers of jury findings. See, also, State v. Glenn (1986), 28 Ohio St. 3d 451, 462-463. Indeed, Ohio requires that appellate courts must perform a proportionality analysis, which goes beyond constitutional requirements. Pulley v. Harris (1984), 465 U.S. 37. It therefore becomes clear that Ohio’s statutory, multistepped sentencing process does not deprive the capital offender of a sensitive sentencer and then place him at the mercy of the normal appellate review system.

Turning now to the prosecutor’s rebuttal comments,⁴ it is observed that these, too, were mere accurate statements of the law. Further, his few observations on the nature of the jury’s finding fall far short of the kind of provocations to error found in Caldwell, supra. The prosecution in the present case neither invited erroneous reliance on an appellate overview, nor provided false assurances that the jury may more “freely ‘err because the error may be corrected on appeal.’ * * * ” Caldwell, supra, at 331, quoting Maggio v. Williams (1983), 464 U.S. 46, 54-55 (Stevens, J., concurring). The prosecutor made no reference to any appellate court or to the Supreme Court of Ohio. No comment was made about automatic appellate review of death sentences. Consequently, the prosecution did not create a “chance that an invitation to rely on that review will generate a bias toward returning a death sentence.” Caldwell, supra, at 333. As he concluded his argument, the prosecution analyzed the balancing process required of the jurors.⁵ Again, his use of the term “recommend” was incidental to and merely part of the recitation of his views on the statutory requirements. He could hardly be expected to falsely inform the jurors of what act they must do should their findings be of a particular kind. This he would have risked had he used a different word to describe their actions.

This court has never held that prosecutors are “free to expose capital sentencing juries to any information and argument concerning postsentencing procedures.” Caldwell, supra, at 335. Although the Ohio jury is not a “capital sentencing” jury because it cannot impose the death penalty, nevertheless this court has demonstrated an appreciation of the fact that some degree of unreliability in jury findings may be occasioned by arguments based on postsentencing procedures. We have repeatedly stated that “because of the possible risk of diminishing jury responsibility, ‘* * * we prefer that in the future no reference be made to the jury regarding the finality of their decision * * *.’ ” State v. Williams, supra, at 22, quoting State v. Jenkins (1984), 15 Ohio St. 3d 164, 202-203, certiorari denied (1985), 473 U.S. _, 87 L. Ed. 2d 643. In so stating, we reserved power to evaluate such references in the context of the record to determine the impact of such statements and whether defense counsel, by its statements, created a reasonable basis for a response from the prosecution.

In the case here, the prosecution’s single argumentative reference to the jury’s “recommendation” was made expressly in response to defense counsel’s remarks. In his comments on the death penalty, defense counsel stated that: “[A]lmost nothing [is written] to indicate the death penalty is a deterrent. * * * In the 30 years that I have been representing people in murder cases, rarely has the * * * man or woman expressed any thought of what the penalty might be, at the time of the crime.”

After asserting that appellant did not act like a normal human being, counsel stated: “Do we kill a man like this? Because that’s what you’re being asked to do.” Counsel later challenged the jury with the following: “* * * [W]e knew it would come to this point ultimately, are you going to kill Billy Rogers today or are you going to place him in an institution for the rest of his life?” Appellant also described the jury’s duty under the statute: “The mitigating circumstances — or the aggravating circumstances, rather, in order for you to impose the death penalty must outweigh the mitigating circumstances. Even if they are equal, * * * you cannot impose the death penalty.” As part of his conclusion, counsel quoted: “ ‘Though the justice of God may indeed ordain that some should die, the justice of man is all together [sic] and always insufficient for saying who these may be.’ ”

In a strongly worded argument, defense counsel confronted the jurors with the following statements:

“Is it justice, is it even seeking after justice to try to put Billy Rogers out of his miserable life some months hence? I submit to you, ladies and gentlemen, that life is something that this courtroom should not have anything to do with. Life is God-given. It doesn’t come from the state of Ohio. It should not be a punishment to take a man’s life away from him. It goes back to barbarism. I hope that some day we will consider death penalty trials as barbarous as we consider the burning of Joan of Arc at the stake. And with the evolving decency, the evolving humanity of people like yourself, perhaps that day will come soon.”

To assert that the jurors are going to kill the appellant is not only an inaccurate statement of the law of Ohio, it is a brash, if not inappropriate, argument as utilized by appellant’s counsel. Defense counsel certainly has the right to plead for mercy and, indeed, has the very duty to cause the jury to “confront both the gravity and the responsibility of calling for another’s death.” Caldwell, supra, at 324. However, such does not create a license for counsel to cross over into the area where, as here, an attempt was made to create an improper sense of guilt in the jury, and to direct this guilt into a finding in appellant’s favor.

Furthermore, portions of defense counsel’s argument were not directed to the jurors’ responsibility to feel the gravity of their decision, but were undisguised attacks on the merits of capital punishment itself. This issue has been legislatively determined and is not a subject for argument or comment.

While the prosecutor’s commentary in Caldwell was an unacceptable response to defense counsel’s arguments because it “distorted the jury’s deliberations,” id. at 336, it can be concluded that the prosecutor in the case sub judice was not unreasonable in his determination not to allow these inaccurate representations to remain unchallenged. It is because of the circumstances contained in the record before us that this court has refused to adopt a per se rule concerning comments directed at the jury’s role in the mitigation phase of a capital case. Where, as here, the prosecutor’s remarks were restrained in emphasis and contained a brief corrective comment on the jury’s role, and only contained a basic recitation of the law, it cannot be said that error or distortion entered into the jurors’ deliberations.

In an order dated April 2, 1986, this court granted appellant’s motion to expand the scope of review. Appellant’s motion set forth a need to “raise the question in the state court” of whether the prosecution’s comments and questions about the acts of appellant after he was advised of his Miranda rights were in violation of Wainwright v. Greenfield (1986), 474 U.S. _, 88 L. Ed. 2d 623. Appellant cited State v. Buell, supra, as authority to “include consideration of a recently decided constitutional issue not argued by an appellant * * *. This case is in the identical posture with respect to the Greenfield issue that Buell was with respect to the Caldwell issue.” Appellant’s motion, page 7.

After examining the record in the present case, it becomes apparent that appellant does not stand in the asserted “identical posture” as the appellant in Buell. Although appellant did fail to object at the trial level, it appeared to be a conscious result of his own decision to initially broach the subjects now asserted to have been erroneously broached. However, the issue was firmly raised before the Court of Appeals for Lucas County in appellant’s proposition of law number twenty-six. That court determined that any posssible error was self-induced.

On direct appeal to this court, appellant abandoned this argument. By failing to challenge the ruling of the court of appeals on direct appeal to this court, appellant has acquiesced in the previous ruling. Accordingly, Ohio’s doctrine of res judicata has foreclosed consideration of such issue at this time. State v. Roberts (1982), 1 Ohio St. 3d 36.

Having reconsidered the issues presented on remand from the Supreme Court of the United States, in light of Caldwell v. Mississippi, supra, we hereby reaffirm our previous decision in this case for the reasons stated hereinabove.

Judgment reaffirmed.

Celebrezze, C.J., Sweeney and Locher, JJ., concur. C. Brown, Reilly and Wright, JJ., dissent. Reilly, J., of the Tenth Appellate District, sitting for Douglas, J.

1 R.C. 2929.03(D)(3) states as follows:

“Upon consideration of the relevant evidence raised at trial, the testimony, other evidence, statement of the offender, arguments of counsel, and, if applicable, the reports submitted to the court pursuant to division (D)(1) of this section, if, after receiving pursuant to division (D)(2) of this section the trial jury’s recommendation that the sentence of death be imposed, the court finds, by proof beyond a reasonable doubt, or if the panel of three judges unanimously finds, that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors, it shall impose sentence of death on the offender. Absent such a finding by the court or panel, the court or the panel shall impose one of the following sentences on the offender:

“(a) Life imprisonment with parole eligibility after serving twenty full years of imprisonment;

“(b) Life imprisonment with parole eligibility after serving thirty full years of imprisonment.”

2 Appellant contends that the record in the present case reveals that the conduct of the prosecution and the trial court throughout the penalty phase of the trial was of such character as to deprive appellant of a fair trial under authority of Caldwell v. Mississippi, supra. The specific conduct complained of began with the voir dire of prospective jurors at which time the possible penalty phase finding was referred to as a mere recommendation to the trial judge. Apparently, both the prosecution and the defense utilized “recommendation”-based questions in determining the views of potential jurors.

Also, in its final instructions, the trial court stated:

“If all twelve members of the jury find by proof beyond a reasonable doubt that the aggravating circumstances which Billy Rogers was found guilty of committing outweigh the mitigating factors, then you must return such finding to the court. I instruct you as a matter of law that if you make such a finding then you have no choice and must recommend to the court that the sentence of death be imposed upon the defendant, Billy Rogers.

“A jury recommendation to the court that the death penalty be imposed is just that, a recommendation, and is not binding upon the court. The final decision as to whether the death penalty shall be imposed upon the defendant rests upon this court. In the final analysis, after following the procedures and applying the criteria set forth in the statute, I will make the decision as to whether the defendant, Billy Rogers, will be sentenced to death or to life imprisonment.” (Emphasis added.)

Finally, the verdict forms given to the jury recited in part as follows:

“We, the jury recommend that the Sentence of Death be imposed on the defendant, Billy Rogers.”

“We, the jury recommend that the defendant, Billy Rogers, be sentenced to Life Imprisonment with parole eligibility after serving [twenty or thirty] full years of imprisonment.” (Emphasis added.)

3 R.C. 2929.05(A) states in pertinent part:

“* * * The court of appeals and the supreme court shall review the judgment in the case and the sentence of death imposed by the court or panel of three judges in the same manner that they review other criminal cases, except that they shall review and independently weigh all of the facts and other evidence disclosed in the record in the case and consider the offense and the offender to determine whether the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors in the case, and whether the sentence of death is appropriate. In determining whether the sentence of death is appropriate, the court of appeals and the supreme court shall consider whether the sentence is excessive or disproportionate to the penalty imposed in similar cases. They shall also review all of the facts and other evidence to determine if the evidence supports the finding of the aggravating circumstances the trial jury or the panel of three judges found the offender guilty of committing, and shall determine whether the sentencing court properly weighed the aggravating circumstances the offender was found guilty of committing and the mitigating factors. The court of appeals or the supreme court shall affirm a sentence of death only if the particular court is persuaded from the record that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors present in the case and that the sentence of death is the appropriate sentence in the case.”

4 During final arguments in the penalty phase, appellant’s counsel made several arguments concerning the death penalty and the jury’s role for that part of the proceedings. During rebuttal, the prosecution commented as follows:

“Mr. Callahan put some even greater obligations on you. He doesn’t say to you that it’s your recommendation to the Court. He says that you, ladies and gentlemen, decide whether to kill Billy Rogers.

“You ladies and gentlemen, as we discussed with you in the voir dire, decide a recommendation to the Court. The Court must agree or disagree with your finding.” (Emphasis added.)

5 He stated:

“If you don’t [find a mitigating factor], your recommendation to the Court must be the death penalty. If you do [find a mitigating factor], you have to weigh this, and if the aggravating factors, that being the intentional killing in the commission of the rape and the commission of the kidnapping, if that outweighs, then you must recommend the death penalty.” (Emphasis added.)