State v. Fox , 69 Ohio St. 3d 183 ( 1994 )

Moyer, C. J.

We have reviewed Fox’s eight propositions of law, independently assessed the evidence relating to the death sentence, balanced the aggravating circumstance against the mitigating factors, and compared the sentence to those imposed in similar cases. As a result, we affirm the convictions and sentence, including the death penalty.

I

PROCESS

A. Change of Venue

In his fifth proposition of law, Fox argues that the prosecutor committed egregious misconduct by placing Fox’s confession on the public record, thereby causing extensive pretrial publicity. Fox argues that only a change of venue could have vindicated his fair trial rights.

Following Fox’s arrest, his counsel submitted a discovery request to the prosecutor, including a request for copies of any pretrial statements by Fox. The prosecutor promptly responded, and that response included copies of the detective’s notes reflecting Fox’s oral confession. The prosecutor also filed his discovery response with the clerk of courts, readily making it available to the public.

Following the discovery of Keckler’s body and Fox’s arrest, newspapers and T.V. stations in Bowling Green and neighboring cities extensively publicized the case, including details of Fox’s confession. The trial court rejected Fox’s motion for a change of venue. In March, Fox waived his right to a jury trial, and no attempt to seat a jury was ever made.

Fox questions the prosecutor’s conduct and motive in filing the discovery response, thereby making Fox’s confession publicly available. We agree with the conclusion of the court of appeals that the prosecutor erred by filing with the clerk of courts the documents requested by defendant’s counsel pursuant to Crim.R. 16. The dangers pretrial publicity may present to the constitutional rights to a fair trial are obvious.

However, “the touchstone of due process analysis in cases of .alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips (1982), 455 U.S. 209, 219, 102 S.Ct. 940, 947, 71 L.Ed.2d 78, 87. Accord State v. Lott (1990), 51 Ohio St.3d 160, 166, 555 N.E.2d 293, 301.

In this case, Fox received a fair trial before an impartial three-judge panel, and the prosecutor’s act in filing the response to the request for discovery did not prejudice Fox. Fox raised no claim here, or at the court of appeals, that the confession was inadmissible. Moreover, judges are presumed in a bench trial to rely only upon relevant, material, and competent evidence. State v. Davis (1992), 63 Ohio St.3d 44, 48, 584 N.E.2d 1192, 1196; State v. Post (1987), 32 Ohio St.3d 380, 384, 513 N.E.2d 754, 759.

“Any decision on changing venue rests largely in the discretion of the trial court. Absent a clear showing of an abuse of discretion, the trial court’s decision controls.” State v. Landrum (1990), 53 Ohio St.3d 107, 116, 559 N.E.2d 710, 721-722. See, also, Crim.R. 18; R.C. 2901.12(K); State v. Spirko (1991), 59 Ohio St.3d 1, 23, 570 N.E.2d 229, 253-254. Moreover, the interests of judicial economy, convenience, and reduction of public expenses necessitate that judges make a good faith effort to seat a jury before granting a change in venue. State v. Warner (1990), 55 Ohio St.3d 31, 46, 564 N.E.2d 18, 33; State v. Herring (1984), 21 Ohio App.3d 18, 21 OBR 19, 486 N.E.2d 119. “It has long been the rule in Ohio that '[t]he examination of jurors on their voir dire affords the best test as to whether prejudice exists in the community * * *.’ ” State v. Maurer (1984), 15 Ohio St.3d 239, 250-251, 15 OBR 379, 389, 473 N.E.2d 768, 781, quoting State v. Swiger (1966), 5 Ohio St.2d 151, 34 O.O.2d 270, 214 N.E.2d 417, paragraph one of the syllabus.

In this case, Fox’s claim that he was “forced” to waive a jury because of pretrial publicity lacks merit. Because no attempt was made to seat a jury, no proof exists that a fair jury could not have been seated. Even Fox’s own expert witness admitted that sixty-two percent of the voters he surveyed in January 1990 said they could put aside any prior knowledge of the case and decide it on the evidence. By the time of trial, in May 1990, the publicity had lessened considerably. Thus, we reject this proposition of law.

B. Assignment of Retired Judge

In his seventh proposition of law, Fox argues that a retired judge is ineligible to sit as a panel member in a capital case. Fox contends his conviction and sentence are void since a retired judge sat on his trial panel. However, Fox’s proposition lacks any merit.

Section 6(C), Article IV of the Ohio Constitution specifically authorizes the Chief Justice of this court to assign a retired judge, “with his consent,” to “active duty, as a judge.” In State ex rel. Berger v. McMonagle (1983), 6 Ohio St.3d 28, 30, 6 OBR 50, 52, 451 N.E.2d 225, 228, we upheld the propriety of assignment of retired judges, rejecting the argument that “the Ohio Constitution requires a trial judge to have been elected and currently serving his term” to sit upon the trial of a case. And in Pocker v. Brown (C.A.6, 1987), 819 F.2d 148, a United States Court of Appeals rejected federal constitutional challenges to retired Ohio judges sitting as trial judges.

Additionally, neither the Constitution nor statutory law restricts the type of case to which a retired judge may be assigned. R.C. 2945.06 regulates capital trials before a panel, but the statute neither excludes retired judges from sitting upon such panels nor implies such an exclusion.

Retired judges are as competent as full-time judges to serve as panel members in capital cases. Contrary to Fox’s implication, no logic compels a conclusion that judges who must face reelection challenges are more fair to capital defendants than retired jurists. Moreover, retired jurists represent a valuable judicial resource when they can sit upon capital panels, thereby helping to minimize unnecessary delay in a time of crowded dockets. See State ex rel. Keefe v. Eyrich (1986), 22 Ohio St.3d 164, 166, 22 OBR 252, 254, 489 N.E.2d 259, 261. Thus, no reasons exist to prohibit a retired jurist from sitting on a three-judge panel in a capital case.

C. Constitutionality

In his eighth proposition of law, Fox challenges the constitutionality of Ohio’s death penalty statute. We reject Fox’s proposition of law on the authority of State v. Poindexter (1988), 36 Ohio St.3d 1, 520 N.E.2d 568, syllabus; State v. Jenkins (1984), 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264.

II

SENTENCE ERRORS

A. Failure to Comply with R.C. 2929.03(F)

In his first proposition of law, Fox argues that the three-judge panel failed to consider mitigating factors and explain why the aggravating circumstance outweighed mitigating factors. Fox relies upon a section of the trial panel’s opinion headed, “Why the Aggravating Circumstance is Sufficient to Outweigh The Mitigating Factors.” As Fox correctly argues, that section recites only what the panel considered and does not explain why the aggravating circumstance outweighed mitigating factors.

R.C. 2929.03(F) specifies the findings a trial court or three-judge panel must make when imposing a death sentence. Among other requirements, the statute requires “specific findings” as to “the reasons why the aggravating circumstances the offender was found guilty of committing were sufficient to outweigh the mitigating factors.” Fox argues that deficiency was fatal because the panel never answered this “why” question. The dissent in the court of appeals agrees with Fox.

The trial court’s seven-page opinion specified what mitigating factors were unproved or proved and what weight the panel gave to proven mitigating factors. For example, the court described Fox’s strong family and religious upbringing as well as his favorable character traits. However, the panel gave this factor “little weight” because Fox was “given an environment which should have allowed him to be able to follow the laws of our society.” The court also recognized his “personality disorders” and “education and experiences” and stated that it gave “due weight” to those factors.

The panel correctly identified the aggravating circumstance and did not rely upon nonstatutory aggravating circumstances.

Much of Fox’s argument assumes that particular evidence must be given a certain degree of favorable weight. However, “[t]he fact that an item of evidence is admissible under R.C. 2929.04(B)(7) does not automatically mean that it must be given any weight.” State v. Steffen (1987), 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d 383, paragraph two of the syllabus. “In fact, the assessment and weight to be given mitigating evidence are matters for the trial court’s determination.” State v. Lott, supra, 51 Ohio St.3d at 171, 555 N.E.2d at 305. See, also, State v. Stumpf (1987), 32 Ohio St.3d 95, 512 N.E.2d 598, at paragraph two of the syllabus.

We have previously held that our independent review of a sentence will cure any flaws in the trial court’s opinion. State v. Maurer, supra, 15 Ohio St.3d at 247, 15 OBR at 386, 473 N.E.2d at 778, recognized the importance of a trial court’s reasoning in choosing the death penalty. However, Maurer held that such a deficiency in reasoning was not prejudicial because the independent reassessments by the court of appeals and this court purged any such error. Id.

In State v. Lott, supra, 51 Ohio St.3d at 170-173, 555 N.E.2d at 304-306, we also found serious deficiencies in the trial panel’s death penalty written opinion. However, we held in Lott that these errors were “rectified by this court’s careful independent reweighing.” Id. at 170, 555 N.E.2d at 304. See, also, Clemons v. Mississippi (1990), 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725; State v. Landrum, supra, 53 Ohio St.3d at 124, 559 N.E.2d at 729.

The trial court’s opinion in this case causes us to once again admonish trial courts to carefully comply with every specific statutory requirement in R.C. 2929.03(F). As was stated in Maurer, supra, 15 Ohio St.3d at 247, 15 OBR at 386, 473 N.E.2d at 778, “[t]he failure of a trial court to comply with this aspect of R.C. 2929.03(F) disrupts the review procedures enacted by the General Assembly by depriving the defendant and subsequent reviewing courts of the trial court’s perceptions as to the weight accorded all relevant circumstances.”

B. Substantial Impairment

In his second proposition of law, Fox argues that the mitigating factor specified in R.C. 2929.04(B)(3), substantial impairment of capacity, is proved by evidence of a severe “personality disorder,” such as his narcissistic personality disorder. To qualify for the R.C. 2929.04(B)(3) mitigating factor, a defendant must prove that, because of a “mental disease or defect,” he “lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct” to legal requirements.

No expert witness testified that Fox’s personality disorder qualified as a “mental disease or defect” or that it deprived Fox of “substantial capacity to appreciate the criminality” of what he did or “conform his conduct” to the law. Dr. Jackson explained that Fox’s personality disorder “is not a term which can be brought within the definition of a mental disease or mental defect * * *.” Dr. Sherman, the psychiatrist, asserted it was “quite clear medically that [Fox] did not suffer from a mental disease or defect which rendered him substantially incapable of appreciating right or wrong or conforming his behaviors” to law. Dr. McIntyre also agreed that Fox’s personality disorder did not meet the requirements for that mitigating factor.

Moreover, in other cases, we have recognized that a “personality” or “behavior” disorder did not meet the requirements of R.C. 2929.04(B)(3) as a statutory mitigating factor. See State v. Richey (1992), 64 Ohio St.3d 353, 372, 595 N.E.2d 915, 930-931; State v. Seiber (1990), 56 Ohio St.3d 4, 9, 564 N.E.2d 408, 415; State v. Van Hook (1988), 39 Ohio St.3d 256, 262-263, 530 N.E.2d 883, 889-890.

C. Weighing Mitigation

In his third proposition of law, Fox argues the trial court erred by intermingling the separate evidence of Fox’s alleged mental defect, under R.C. 2929.-04(B)(3), with evidence of his history and background. However, that proposition lacks any merit because Fox never proved the mental-defect mitigating factor at trial. Nonetheless, the trial court did consider evidence of Fox’s “personality disorder” as a relevant “other factor” under R.C. 2929.04(B)(7).

A decisionmaker need not weigh mitigating factors in a particular manner. The process of weighing mitigating factors, as well as the weight, if any, to assign a given factor is a matter for the discretion of the individual decisionmaker. See State v. Mills (1992), 62 Ohio St.3d 357, 376, 582 N.E.2d 972, 988. “[E]vidence of an offender’s history, background and character * * * [not found] to be mitigating, need be given little or no weight against the aggravating circumstances.” State v. Stumpf, supra, at paragraph two of the syllabus.

D. Improper Aggravating Circumstances

In his sixth proposition of law, Fox argues that both the trial court and the court of appeals relied upon nonstatutory, uncharged, and unproved aggravating circumstances to justify the death sentence. We disagree.

“R.C. 2941.14(B) limits the aggravating circumstances which may be considered in imposing the death penalty to those specifically enumerated in R.C. 2929.-04(A).” State v. Johnson (1986), 24 Ohio St.3d 87, 24 OBR 282, 494 N.E.2d 1061, syllabus. Reliance upon nonstatutory aggravating circumstances may constitute reversible error. State v. Davis (1988), 38 Ohio St.3d 361, 369-371, 528 N.E.2d 925, 933-934.

Nonetheless, the trial court could appropriately refer to the “manner in which [Fox] planned and executed the events” that led to the kidnapping and murder. Kidnapping was the specified statutory aggravating circumstance. Moreover, “[u]nder R.C. 2929.03(F), a * * * three-judge panel may rely upon and cite the nature and circumstances of the offense as reasons supporting its finding that the aggravating circumstances were sufficient to outweigh the mitigating factors.” State v. Stumpf, supra, at paragraph one of the syllabus. See, also, State v. Lott, supra, 51 Ohio St.3d at 171, 555 N.E.2d at 305.

Fox also argues the court of appeals erred in commenting that “Fox purposely used deception to lure two young women into his control.” We find no error even though Fox was not charged with any offense against Ritchey. The facts of the Ritchey incident were interwoven with the facts and circumstances of the Keckler kidnapping and murder. Moreover, the Ritchey offense was part of Fox’s social history and background and reflected upon his character. See State v. Slagle (1992), 65 Ohio St.3d 597, 612, 605 N.E.2d 916, 930; State v. Cooey (1989), 46 Ohio St.3d 20, 35, 544 N.E.2d 895, 914.

We reject Fox’s assertion that the trial court and the court of appeals improperly used Fox’s strong family and religious background as nonstatutory aggravating circumstances. Instead, both courts simply explained why little weight was given to Fox’s mitigation evidence. The weight, if any, to be given mitigation evidence is a matter for the discretion of the sentencer. State v. Steffen, supra; State v. Stumpf, supra. “At times, we have assigned little or no weight to evidence of personality disorders or family background; hence, the trial court did not err when declining to give those factors any weight.” State v. Richey, supra, 64 Ohio St.3d at 370, 595 N.E.2d at 929. See, also, State v. Brewer (1990), 48 Ohio St.3d 50, 64, 549 N.E.2d 491, 505.

Ill

INDEPENDENT REASSESSMENT

In his fourth proposition of law, Fox argues that, after independent reassessment, we should find the death sentence inappropriate and disproportionate and remand for the imposition of a life sentence. Fox argues that the evidence of kidnapping, or of violence in the kidnapping, is weak and circumstantial; hence, that aggravating circumstance is entitled to minimal weight when weighed against substantial mitigating factors.

However, kidnapping can be by deception, R.C. 2905.01, and we find the evidence proved this aggravating circumstance beyond a reasonable doubt. Simply because the kidnapping involved deception rather than force offers scant reason to minimize this aggravating circumstance. The evidence showed that Fox secured Keckler’s phone number and then called her pretending to be a prospective employer. Keckler expressed enthusiasm for her new “job” to her mother, girlfriend and boyfriend. These facts demonstrate Fox’s careful planning of his “job interview” with Keckler. Additionally, Keckler’s body revealed other signs of struggle; her face was bruised, and her clothing was disarranged.

We find nothing in the circumstances of the offense to be mitigating. Under any reasonable interpretation of the evidence, Fox lured Keckler by careful deception into a situation where he could control or dominate her for his own gratification. For whatever reason, he then brutally stabbed and strangled her and callously dumped her body in a ditch.

In contrast, Fox’s history, character, and background do present unusual mitigating features. Numerous witnesses attested to Fox’s good character and favorable community reputation. Additionally, Fox’s steady, honest employment since high school graduation is relatively unusual among those persons convicted of aggravated murder and sentenced to death. Thus, Fox’s history, character and background are entitled to weight in mitigation.

Fox also lacks any prior criminal record; he thus has the benefit of that statutory mitigating factor in R.C. 2929.04(B)(5). Additionally, the support of Fox’s family and friends, his love and care of his daughter, his remorse, and his relatively successful adjustment to pretrial confinement in the county jail can all be considered as favorable “other factors” under R.C. 2929.04(B)(7). Fox’s personality disorder is also a mitigating “other factor.” All of these factors are entitled to some weight.

However, the foregoing exhausts Fox’s mitigating factors. Even if Keckler called Fox a name, she did not thereby “induce” or “facilitate” the offense within the meaning of R.C. 2929.04(B)(1). Nor was Fox acting “under duress, coercion, or strong provocation” when he reacted to that name. See State v. Seiber, supra, 56 Ohio St.3d at 8, 564 N.E.2d at 415; State v. Clark (1988), 38 Ohio St.3d 252, 263, 527 N.E.2d 844, 856; R.C. 2929.04(B)(2). As discussed previously, Fox’s personality disorder did not qualify as a “mental disease or defect” under R.C. 2929.04(B)(3). At thirty-three years of age, and as the principal offender, Fox did not meet the mitigating factors in R.C. 2929.04(B)(4) or (B)(6). Although Fox confessed, he did so only after initially denying ány involvement, and his confession is entitled to no weight. Aside from those mentioned earlier, there are no other mitigating factors.

When the aggravating circumstance is weighed against the mitigating factors, we find the aggravating circumstance of kidnapping outweighs the mitigating factors beyond a reasonable doubt. Although Fox kidnapped Keckler by deception, rather than force, considerable effort and planning apparently went into that kidnapping. Fox lured a vulnerable eighteen-year-old girl to a remote country road. When she rejected his advances, Fox brutally stabbed her. Then he deliberately got a rope out of the trunk and strangled her “just to make sure she was dead.” After doing this, he dumped her body in a drainage ditch and drove home.

Although Fox’s steady employment, favorable character testimony, and lack of a prior criminal record are noteworthy, we accord them only modest weight in light of all the other circumstances. Fox faced few challenges and little adversity in his life compared with many others. Although Fox’s mental disorder may be a mitigating “other factor,” such a disorder tends to undercut any prospect of successful rehabilitation. Thus, the aggravating circumstance outweighs mitigating factors, even when the mitigating factors are considered in their entirety.

The death penalty is appropriate, and that penalty is neither excessive nor disproportionate when compared with the penalty imposed in similar cases of aggravated murder during a kidnapping. See State v. Seiber, supra; State v. Jells (1990), 53 Ohio St.3d 22, 559 N.E.2d 464; State v. Brewer, supra; State v. Morales (1987), 32 Ohio St.3d 252, 513 N.E.2d 267.

For the foregoing reasons, appellant’s convictions and sentence are affirmed.

Judgment affirmed.

Douglas, Bettman, F.E. Sweeney and Pfeifer, JJ., concur. A.W. Sweeney and Wright, JJ., concur in part and dissent in part. Marianna Brown Bettman, J., of the First Appellate District, sitting for Resnick, J.