State v. Mack ( 1995 )

Pfeifer, J.

Appellant presents a number of issues for our consideration. (See Appendix, infra.) We have carefully considered each of appellant’s propositions of law, independently weighed the aggravating circumstances against the evidence presented in mitigation, and reviewed the death penalty for appropriateness and proportionality. For the reasons that follow, we affirm the judgment of the court of appeals and uphold appellant’s death sentence.

I

R.C. 2929.05 requires this court to review capital cases in a certain manner. However, as we have held on a number of previous occasions, R.C. 2929.05 does not require this court to address and discuss, in opinion form, each and every proposition of law raised by the parties. See, e.g., State v. Poindexter (1988), 36 Ohio St.3d 1, 520 N.E.2d 568, syllabus; State v. Bonnell (1991), 61 Ohio St.3d 179, 181, 573 N.E.2d 1082, 1085; State v. Hawkins (1993), 66 Ohio St.3d 339, 342, 612 N.E.2d 1227, 1230; and State v. Scudder (1994), 71 Ohio St.3d 263, 267, 643 N.E.2d 524, 528. We adhere to that position today. Upon a careful review of the record and the governing law, we fail to detect any errors that would undermine our confidence in the integrity and reliability of the trial court’s findings. We address, in opinion form, only those issues that warrant some discussion.

II

In his second proposition of law, appellant contends that where a particularized need is demonstrated by the defense for the examination of grand jury testimony, the failure of the trial court to provide defense counsel with the testimony deprives a defendant of a fair trial.

Appellant claims that he needed the grand jury transcript to examine the testimony of Timothy Willis, who the defense claims fabricated his story to conceal his own involvement in Peter Sanelli’s murder, and that those grounds constituted a particularized need. We disagree.

Crim.R. 6(E) controls the disclosure of grand jury testimony. Matters occurring before a grand jury may be disclosed “when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury.” Id.

In State v. Laskey (1970), 21 Ohio St.2d 187, 50 O.O.2d 432, 257 N.E.2d 65, this court set forth the standard for considering such a request. “ * * * Generally, proceedings before a grand jury are secret and an accused is not entitled to inspect grand jury minutes before trial [or at trial] * * *. This rule is relaxed only when the ends of justice require it, such as when the defense shows that a particularized need exists for the minutes which outweighs the policy of secrecy.” Id. at 191, 50 O.O.2d at 434, 257 N.E.2d at 68.

In State v. Greer (1981), 66 Ohio St.2d 139, 20 O.O.3d 157, 420 N.E.2d 982, this court expounded upon this rule, stating:

“Whether particularized need for disclosure of grand jury testimony is shown is a question of fact; but, generally, it is shown where from a consideration of all the surrounding circumstances it is probable that the failure to disclose the testimony will deprive the defendant of a fair adjudication of the allegations placed in issue by the witness’ trial testimony.” Id. at paragraph three of the syllabus.

In State v. Brown (1988), 38 Ohio St.3d 305, 308, 528 N.E.2d 523, 530, this court held that a trial court did not abuse its discretion when it overruled a motion to inspect grand jury testimony where the alleged particularized need was that the transcript would indicate whether the indictment was properly issued.

In this case, the record reveals no abuse of discretion on the part of the trial court in its denial of appellant’s request to review the grand jury testimony. The appellant failed to demonstrate a particularized need to inspect the grand jury testimony. His bald assertion on appeal that he needed to examine the testimony of an adverse witness for inconsistencies failed to set forth a particularized need.

When a defendant “speculates that the grand jury testimony might have contained material evidence or might have aided his cross-examination * * * by-revealing contradictions,” the trial court does not abuse its discretion by finding the defendant had not shown a particularized need. State v. Webb (1994), 70 Ohio St.3d 325. 337. 638 N.E.2d 1023. 1034.

In the present case, we have reviewed the record as a whole and are convinced that the trial court did not abuse its discretion in denying appellant’s request to review grand jury testimony. Accordingly, we reject appellant’s second proposition of law.

Ill

Appellant’s fourth and fifth propositions of law claim that the trial court abused its discretion when it dismissed for cause potential jurors who expressed reservations on recommending the death penalty and when it denied motions to remove potential jurors for cause who favored the death penalty. Neither of these propositions is supported by the record.

Appellant argues that the trial court failed to allow an impartial jury to hear the case by overruling appellant’s motions for dismissal for cause of prospective jurors Leib, Jurecki, and Frankel, who were allegedly predisposed towards the death penalty, and by sustaining the state’s motions for dismissal of prospective jurors Spelic and Davis, who stated they could not vote for the death penalty.

In order for a defendant to be properly convicted of a crime, a guilty verdict must be returned by a fair and impartial jury composed of a fair and representative cross-section of the community as mandated by the Sixth Amendment of the United States Constitution and Section 10, Article I, Ohio Constitution. This court in State v. Tyler (1990), 50 Ohio St.3d 24, 553 N.E.2d 576, stated that a prospective juror must be willing to follow the applicable law as given by the trial judge in the jury instructions. “ ‘[A] juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as juror in accordance with his instructions and his oath.’ ” Id. at 30, 553 N.E.2d at 586, quoting Adams v. Texas (1980), 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581, 585. Improperly conducted voir dire may constitute reversible error only upon a showing of abuse of discretion by the trial court. State v. Rogers (1985), 17 Ohio St.3d 174, 179, 17 OBR 414, 418, 478 N.E.2d 984, 990.

Applying the above standards to the record shows that the trial court did not abuse its discretion by dismissing the antideath-penalty jurors because they indicated that they could not recommend the imposition of the death penalty under any circumstances. When asked whether he could fairly consider the death penalty, potential juror Spelic stated, “I don’t think I could ever recommend it, no.” Furthermore, in response to the trial court’s questioning about his ability to sign a verdict recommending the death penalty, Spelic stated, “I don’t think so. No matter what the circumstances were I wouldn’t be able to sign anything recommending the death penalty, no.” Similarly, potential juror Davis answered “no” to the trial court’s questions of whether she could sign a verdict form recommending the death penalty under any set of circumstances and whether she could follow the law if it mandated the death penalty. When the evidence in the record shows that a potential juror will not follow the law concerning the death penalty, the trial court does not abuse its discretion in dismissing that juror for cause. The responses of these two prospective jurors gave the trial court ample reason to believe that they would be unable to follow their oath and would be substantially impaired in performing their duties as jurors. A juror must be able to follow the law as provided in the jury instructions, and if during voir dire the trial court feels that a juror cannot follow the law and the record supports this decision, then it is not an abuse of discretion to excuse the juror for cause.

With regard to potential jurors Leib, Jurecki, and Frankel, appellant argues in his fifth proposition of law that the trial court erred in overruling his challenges for cause to dismiss these jurors. Leib and Jurecki were members of the final jury. Frankel was excluded by defense counsel’s third peremptory challenge. Appellant subsequently exhausted his six peremptory challenges.

The record reflects that defense counsel failed to move to have Jurecki removed for cause. According to State v. Greer (1988), 39 Ohio St.3d 236, 244, 530 N.E.2d 382, 394, the doctrine of waiver applies in capital cases and therefore appellant waived this error, if any existed, as it pertains to potential juror Jurecki.

To determine whether potential jurors Leib and Frankel should have been dismissed for cause, we apply the previously mentioned Witt standard of whether the prospective juror’s views would prevent or substantially impair the performance of their duties according to their instructions and oath. State v. Rogers, 17 Ohio St.3d 174, 17 OBR 414, 478 N.E.2d 984, paragraph three of the syllabus. The transcript reveals that Leib and Frankel initially revealed a predisposition toward imposing the death penalty; however, both later stated to the trial judge that they would follow the law set forth in his instructions. Because the trial court’s denials of appellant’s challenges for cause are supported by the record, we find that the trial court did not abuse its discretion and hereby overrule appellant’s fifth assignment of error.

IV

In his eighth proposition of law, appellant contends that he was denied due process of law when the trial court admitted the expert testimony of Detective Thomas L. Lucey. Appellant argues that Detective Lucey was improperly qualified as an expert witness, that Lucey’s opinions were improperly based on hearsay opinions of others, and, thus, the admission of his testimony violated appellant’s right to due process of law. We disagree.

The question here turns on whether Detective Lueey’s testimony as a ballistics expert satisfied the requirements of both Evid.R. 702 and 703. For the following reasons we believe that it did.

Former Evid.R. 702 provided: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” As appellant notes in his brief, the testimony of Detective Lucey was critical in establishing the relationship between the bullets and casings found at the crime scene and the weapon found on the appellant at the time of his arrest. Clearly, Detective Lucey’s testimony assisted the jury in its understanding of the technical ballistics report submitted into evidence and “aid[ed] [the jury] in the search for the truth.” Alexander v. Mt. Carmel Med. Ctr. (1978), 56 Ohio St.2d 155, 159, 10 O.O.3d 332, 334, 383 N.E.2d 564, 566. However, appellant questions Detective Lucey’s qualifications as an expert witness.

The record shows that Detective Lucey’s qualifications satisfied the requirements of Evid.R. 702. Detective Lucey has performed firearm and tool mark examinations for the Scientific Investigation Unit of the Cleveland Police Department for the past five years. During his tenure with the forensic laboratory, he has examined in excess of one thousand guns. He was trained in firearm identification by Victor Kovacic, a twenty-five-year veteran in the field. Detective Lucey is a member of the Firearm and Tool Mark Examiners and Ohio Criminalists Associations. Moreover, he has testified over sixty times as an expert witness in various courts throughout Ohio.

“The qualification of an expert is a matter for determination by the court on the facts, and rulings with respect to such matters will ordinarily not be reversed unless there is a clear showing that the court abused its discretion.” State v. Maupin (1975), 42 Ohio St.2d 473, 479, 71 O.O.2d 485, 488, 330 N.E.2d 708, 713; see, also, State v. Tomlin (1992), 63 Ohio St.3d 724, 728, 590 N.E.2d 1253, 1256. Qualifications which may satisfy the requirements of Evid.R. 702 are multitudinous. This court has held that there is no “degree” requirement, per se. Professional experience and training in a particular field may be sufficient to qualify one as an expert. State v. Beuke (1988), 38 Ohio St.3d 29, 43, 526 N.E.2d 274, 289. Detective Lucey’s extensive background was, indeed, sufficient to qualify him as an expert in the field of ballistics. The trial court did not abuse its discretion by allowing his expert testimony.

Appellant further argues that Detective Lucey’s testimony was improperly based upon inadmissible hearsay opinions of others within the forensic laboratory. Evid.R. 703 requires that an expert base an opinion or inference on facts or data either perceived by him or admitted into evidence. Here, Detective Lucey test-fired the gun confiscated from appellant upon his arrest. Detective Lucey compared the test shot with the morgue bullet recovered from the victim, Peter Sanelli, and the spent shell casings recovered from the crime scene, concluding that all had been discharged from appellant’s gun. Doubtlessly based on his own observations, the findings of the ballistics examination were well within Detective Lucey’s personal knowledge.

Notwithstanding Detective Lucey’s personal analysis of the evidence, appellant is troubled by the corroborative procedure of the forensic laboratory, where “two or three or even more individuals view the findings” of any one examination. Appellant cites Zelenka v. Indus. Comm. (1956), 165 Ohio St. 587, 594, 60 O.O. 524, 528, 138 N.E.2d 667, 671, for the proposition that “the opinion of an expert witness cannot be predicated either in whole or in part upon the opinions, inferences and conclusions of others, whether expert or lay witnesses.”

Appellant’s reliance on Zelenka is, however, misplaced. In a case decided since Zelenka, this court found admissible the opinions of doctors to be “based on facts or data perceived by [them]” -within the meaning of Evid.R. 703, despite their being partially based on medical reports not in evidence, where the doctors had personally examined the defendant. State v. Solomon (1991), 59 Ohio St.3d 124, 570 N.E.2d 1118. Speaking for the majority, Justice Douglas opined, “[w]here an expert bases his opinion, in whole or in major part, on facts or data perceived by him, the requirement of Evid.R. 703 has been satisfied.” (Emphasis added.) Id. at syllabus.

In this case, Detective Lucey conducted extensive analysis upon appellant’s gun, the morgue bullet recovered from the victim, and the shell casings recovered from the crime scene. The fact that his colleagues in the laboratory may have confirmed, or even debated, his findings does not remove his opinion beyond the boundaries for admissible expert testimony prescribed by Evid.R. 703. Accordingly, we reject appellant’s eighth -proposition of law.

V

In his ninth proposition of law, appellant claims he was denied his constitutional right against self-incrimination as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Section 10, Article I of the Ohio Constitution. His contention rests on the failure of investigators fully to re-administer the Miranda warnings to him at the outset of a second interview, where the first interview preceded the second by a relatively short period of time and the investigators fully informed appellant of his Miranda rights at the beginning of the first interview. For the following reasons we find appellant’s claim to be without merit.

In Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the United States Supreme Court enunciated the standards by which custodial police interrogations are to be conducted in order to safeguard defendants’ rights under the Constitution. The purpose of the Miranda warnings is “to dissipate the compulsion [by police] inherent in custodial interrogation and, in so doing, guard against abridgment of suspect’s Fifth Amendment rights.” Moran v. Burbine (1986), 475 U.S. 412, 425, 106 S.Ct. 1135, 1143, 89 L.Ed.2d 410, 421. The threshold requirement of Miranda is that the suspect must be informed in clear and unequivocal terms that he has the right to remain silent. 384 U.S. at 467-468, 86 S.Ct. at 1624, 16 L.Ed.2d at 719. Only after such warning may a suspect be deemed capable of “knowingly and intelligently” waiving his rights and agreeing to answer questions or make a statement. Id. at 479, 86 S.Ct. at 1630, 16 L,Ed.2d at 726.

Appellant here takes issue with investigators’ failure fully to readminister the Miranda warnings before beginning interrogation for a second time. On January 23, 1991, appellant was transported after his arrest by Detective Qualey and Lt. James to an interview room in the Homicide Unit in the Justice Center. Detective Qualey informed appellant of his Miranda rights and asked him if he understood those rights, to which he responded in the affirmative. Thereafter Lt. James began to question appellant and Detective Qualey took notes. Appellant answered voluntarily, stating that he did not know anything about the death of Peter Sanelli. The interview lasted approximately forty-five minutes to one hour.

After returning appellant to his cell, Detective Qualey received the ballistics report from the forensic laboratory matching the morgue bullet recovered from the victim and the shell casings found at the crime scene with the gun confiscated from appellant. With this new information in hand, Detective Qualey and Lt. James brought appellant back to the Homicide Unit to resume questioning approximately one-half hour to one hour after the first interview had ended. Without explicitly reciting the Miranda warnings again, Detective Qualey asked appellant if he understood his rights and he said yes. When confronted with the new evidence, appellant provided a brief explanation and denied any involvement in the killing of Peter Sanelli. Questioning ceased soon thereafter when appellant made a request for counsel, and he was returned to his cell. The second interview lasted approximately thirty minutes.

Appellant’s contention that he was denied his right against self-incrimination is not borne out by the facts. After being read his Miranda rights, appellant voluntarily submitted to questioning by Detective Qualey and Lt. James. When the interview ended, appellant had yet to invoke his right to silence or to counsel. When Detective Qualey and Lt. James sought to resume questioning they asked appellant, again, if he understood his rights, and again appellant answered in the affirmative and voluntarily answered questions.

Moreover, the cases give no indication of a requirement upon police to re-administer the Miranda warnings, when questioning a suspect again after a relatively short period of time. In fact, the time between the first and second interviews in question is significantly shorter than that sustained in other cases. See, e.g., Stumes v. Solem (C.A.8, 1985), 752 F.2d 317 (five hours); Evans v. McCotter (C.A.5, 1986), 790 F.2d 1232 (one to one and one-half hours).

Accordingly, we reject appellant’s ninth proposition of law.

VI

In his tenth proposition of law, appellant argues that the trial court abused its discretion by refusing to allow the defense to introduce extrinsic evidence of a prior inconsistent statement by a key state witness. Appellant contends the trial court’s refusal inhibited his ability to impeach the testimony of the witness and, therefore, effectively denied his right to a fair trial. We disagree.

In an effort to impeach the testimony of the state’s witness, Timothy Willis, appellant sought to introduce extrinsic evidence of prior inconsistent statements made by Willis at different times to Carole Mancino, co-counsel for appellant, and Curtis Mack, cousin of appellant. Appellant proffered the testimony of both Mancino and Curtis Mack, after the trial court refused to allow them to testify.

Evid.R., 613(B) states: “Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded a prior opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. * * * ”

In her proffer to the record, Carole Mancino testified that Willis had told her that “he [Willis] can’t believe Clarence would do anything like this.” This statement is actually consistent with those made by Willis while on the stand during the trial. Willis stated that he had told Carole Mancino that he “can’t believe that Clarence would do something like this.” Because there is no contradiction between the statement made by Willis to Carole Mancino and his statement made on the stand, the statement is not a prior inconsistent statement and was properly excluded.

Carole Mancino’s proffered testimony also states that during their conversation, Willis said he didn’t think he had seen Clarence Mack on the murder date. We hold that this portion of Mancino’s proffered testimony was properly excluded because appellant failed to lay a proper foundation for its admission under Evid.R. 613(B). ‘When extrinsic evidence of a prior inconsistent statement * * * is offered into evidence pursuant to Evid.R. 613(B), a foundation must be established through direct or cross-examination in which: (1) the witness is presented with the former statement; (2) the witness is asked whether he made the statement; (3) the witness is given an opportunity to admit, deny or explain the statement; and (4) the opposing party is given an opportunity to interrogate the -witness on the inconsistent statement.” State v. Theuring (1988), 46 Ohio App.3d 152, 155, 546 N.E.2d 436, 439. By examining the record, we find that Willis was never specifically asked if he had told Carole Mancino that he had not seen appellant on the day of Sanelli’s murder. Willis was asked on the stand if he told Mancino that Clarence Mack had visited him at his home on the murder day. Because Willis was never specifically asked about this statement on the stand, no foundation was laid for its introduction into evidence.

Carole Mancino also proffered that during their conversation, Willis had denied calling the police. During his trial testimony, Willis stated that he did not remember if he had made this statement to Mancino. While we find that Mancino’s testimony to impeach Willis’s ambiguous answer should have been admitted by the trial court, we also find that the trial court’s exclusion of this testimony did little to prejudice Clarence Mack. There was an abundance of other credible inculpatory evidence even if the jury were to conclude that Willis did not call the police.

The statements made by Willis to Curtis Mack were also inadmissible extrinsic evidence because appellant failed to lay a proper foundation for their admission. Curtis Mack claimed that Willis had admitted murdering Peter Sanelli. Appellant, however, never asked Willis during the trial whether he had ever made this statement to Curtis Mack. Thus, a proper foundation was not laid for admission of the extrinsic evidence. We, therefore, reject appellant’s tenth proposition of law.

VII

Having considered appellant’s propositions of law, we must now review appellant’s death sentence for appropriateness and proportionality. We find that the aggravating circumstance of which appellant was found guilty, which is set forth in R.C. 2929.04(A)(7), was proven beyond a reasonable doubt.

In mitigation, appellant presented the testimony of several witnesses. They indicated that appellant had lived a tough childhood and was a caring individual.

Finally, appellant gave an unsworn statement in which he denied that he shot Sanelli.

Upon review of the evidence presented in mitigation, it is clear to us that appellant had a troubled and difficult childhood. We find that appellant’s troubled childhood and his general history and background are entitled to some weight in mitigation.

The nature and circumstances of the offense do not reveal any matter of mitigating value. Further, we find that appellant did not establish the existence of any of the R.C. 2929.04(B) mitigating factors by a preponderance of the evidence.

Weighing the aggravated circumstances against the evidence presented in mitigation, we find that the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt.

In his brief, appellant contends that his death sentence is inappropriate because of the existence of residual doubt about whether appellant murdered Sanelli. We disagree. There is an abundance of credible evidence in the record which convinces us that appellant murdered Peter Sanelli. Appellant possessed the murder weapon when he was apprehended by the police. Appellant was observed in a car matching the description of Mr. Sanelli’s car on the day of the murder. Finally, appellant told Willis that he killed Mr. Sanelli.

As a final matter, we have compared the sentence imposed in this case to those in which we have previously imposed the death penalty. We find that appellant’s death sentence is neither excessive nor disproportionate. See, e.g., State v. Tyler (1994), 71 Ohio St.3d 398, 643 N.E.2d 1150; State v. Lewis (1993), 67 Ohio St.3d 200, 616 N.E.2d 921; State v. Sneed (1992), 63 Ohio St.3d 3, 584 N.E.2d 1160.

Accordingly, we affirm the judgment of the court of appeals.

Judgment affirmed.

Moyer, C.J., Douglas, Resnick and F.E. Sweeney, JJ., concur. Wright and Cook, JJ., dissent.