State v. Thompson

• Citation: 33 Ohio St.3d 1,514 N.E.2d 407
• Decision Date: 07 October 1987
• Docket Number: No. 85-1301,85-1301
• Parties: The STATE of Ohio, Appellee, v. THOMPSON, Appellant.
• Court: Ohio Supreme Court

Page 1

33 Ohio St.3d 1

514 N.E.2d 407

The STATE of Ohio, Appellee, v. THOMPSON, Appellant.

No. 85-1301.

Supreme Court of Ohio.

Oct. 7, 1987.

Syllabus by the Court

Any egregious error in the penalty phase of a death penalty proceeding, including prosecutorial misconduct, will be cause to vacate the sentence of death with a subsequent remand to the trial court for a new sentencing procedure pursuant to R.C. 2929.06.

On July 1, 1982, at approximately 6:00 p.m., Elizabeth Hendren telephoned the Licking County Sheriff's office to report that she had a problem with a man who was bothering her by coming to her house and asking her questions that were of a suspicious nature. Elizabeth Hendren requested that an officer be sent to her home so that she might file a report concerning the man's suspicious activities. At approximately 8:00 p.m., a deputy sheriff arrived at the Hendren home to take Elizabeth Hendren's report. The deputy departed shortly thereafter when he received no response from within the home.

At approximately 9:00 p.m., David Hendren, Elizabeth Hendren's husband, discovered his wife's body. She was lying naked on the bed with her hands tied behind her back. Her face was lying in a small pool of blood. She had apparently been raped and strangled. ¹

Police attention quickly focused upon the appellant, Jeffrey Wayne Thompson, who had been seen near the Hendrens' home that afternoon by David Hendren's father. Appellant, who lived within walking distance of the Hendrens' home, was known by both the victim and her husband. The police went to appellant's home. Even though appellant was not home, the police did discover a spool of cord which closely resembled a length of blood-stained cord that was found on the Hendrens' driveway. ² The blood-stained cord had apparently been used to strangle the victim.

During their investigation, police learned that appellant was currently on parole for a rape that he had committed in 1978. On July 2, 1982, appellant's parole officer, accompanied by three Licking County sheriff's deputies, arrested appellant in Columbus, Ohio for a parole violation. Appellant was immediately advised of his Miranda rights and returned to Licking County. The Hendrens' car was located in an apartment complex parking lot, within walking distance from where appellant had been found and arrested in Columbus. Appellant was identified as the driver of the Hendrens' car.

While incarcerated, appellant made several statements to police. Each time, appellant was advised of and voluntarily waived his right to silence. Appellant told police that he had been drinking whiskey on the day of the murder and also stated that he had walked over to the victim's home, struck up a conversation with her and drank a glass of ice tea that she had offered to him. Appellant told police that he then returned to his garage, drank more whiskey and cut a length of cord from a spool with a knife. He took the knife and cord and returned to the victim's home. Once there, appellant remembers grabbing Elizabeth by the neck, but claims that he remembers nothing more until running downstairs from the bedroom, taking the Hendrens' car and driving on back roads to his brother's apartment in Columbus.

On July 14, 1982, appellant was indicted on one count of aggravated murder in violation of R.C. 2903.01, with the specification that the crime was committed while appellant was committing or attempting to commit, or fleeing immediately after committing or attempting to commit the offense of rape in violation of R.C. 2907.02, and one count of theft in violation of R.C. 2913.02. Appellant's trial commenced on May 31, 1983, and on June 8, 1983, the jury returned guilty verdicts on both counts of the indictment. The subsequent penalty hearing, commencing June 17, 1983 and ending June 18, 1983, resulted in a recommendation by the jury that appellant be sentenced to death. The trial court, upon completion of its required independent weighing of the aggravating circumstances against the mitigating factors, adopted the recommendation of the jury and imposed the penalty of death. The court of appeals concurred, affirming the convictions and sentence in all respects.

The cause is now before this court upon an appeal as of right.

Robert L. Becker, Prosecuting Atty., for appellee.

Gold, Rotatori, Schwartz & Gibbons Co., L.P.A., John S. Pyle, Hendershott, Huffman, Peckinpaugh & Fisher Co., L.P.A., Norman R. Fisher and Alan E. Johnson, Cleveland, for appellant.

PER CURIAM.

The instant appeal presents this court with numerous issues concerning appellant's conviction and the penalty of death which was subsequently imposed. For the reasons discussed infra, we affirm the judgment of the court of appeals with regard to appellant's conviction, but reverse the judgment of the court of appeals as to appellant's death sentence.

I

We begin our analysis by considering appellant's propositions of law which challenge the validity of his conviction for aggravated murder.

In appellant's first proposition of law, he asserts that his conviction must be reversed because the prosecutor improperly commented upon appellant's refusal to testify on his own behalf. Appellant argues that he was materially prejudiced by comments made during the prosecutor's closing argument. We agree that the comments of the prosecutor were improper but do not agree that such comments affected in any material way the conviction of the appellant.

In closing argument, the prosecutor made the following statements:

" * * * The only other thing that is missing in this case is a complete and total confession to the crime by the defendant. Why doesn't he tell us what happened and make it easier on himself. He doesn't want to admit the actual killing. * * *

" * * *

" * * * What happened next? He walked back to his own house. Why? Something happen? What did he do, proposition her? She's a good-looking woman. What does he say to her? I don't know * * *. * * * Was he mad? Had he been jilted? Did he decide he really liked the girl? Heaven knows. I don't know and he's not telling us.

" * * *

" * * * I submit that it does not make one bit of difference whether Mr. Thompson remembers tying up Beth or having sex with Beth or having killed her. It doesn't make any difference because we know that he did. Why isn't he telling us that? What is he trying to tell us? That he had a blackout? Balogna [sic]. Our version is that Mr. Thompson told us as much as he thought he could, but he's going to leave out something because he wanted to bargain. He wanted a deal." (Emphasis added.)

Appellant objected to the prosecutor's comments on two separate occasions. Both objections were sustained. Following the first sustained objection, the court stated, "[h]e's [appellant's] under no obligation to tell anyone. The jury will disregard that completely." Additionally, the court gave the following curative instruction as part of its general charge to the jury:

"The defendant did not testify in this case. It is not necessary that the defendant take the witness stand in his own defense. He has a constitutional right not to testify. The fact that he did not testify must not be considered for any purpose."

The United States Supreme Court in Griffin v. California (1965), 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, 32 O.O.2d 437, held that a prosecutor's comments regarding a defendant's refusal to testify violated the accused's Fifth Amendment right to remain silent. See State v. Lynn (1966), 5 Ohio St.2d 106, 214 N.E.2d 226, 34 O.O.2d 226, 214 N.E.2d 226. However, in Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, and more recently in United States v. Hasting (1983), 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96, the Supreme Court held that the defendant's conviction may be affirmed, provided that the comments regarding the defendant's silence are found to be harmless beyond a reasonable doubt. This court has similarly held that if it is " * * * clear beyond a reasonable doubt that, absent the prosecutor's comments, the jury would have found the defendant guilty," then the defendant's conviction need not be reversed. State v. Smith (1984), 14 Ohio St.3d 13, 15, 14 OBR 317, 319, 470 N.E.2d 883, 886; see, also, State v. Zimmerman (1985), 18 Ohio St.3d 43, 18 OBR 79, 479 N.E.2d 862, syllabus.

Comments by prosecutors on the post-arrest silence or refusal to testify by defendants have always been looked upon with extreme disfavor because they raise an inference of guilt from a defendant's decision to remain silent. In effect, such comments penalize a defendant for choosing to exercise a constitutional right. Prosecutors must therefore take care not to equate the defendant's silence to guilt. See State v. Rogers (1987), 32 Ohio St.3d 70, 512 N.E.2d 581. Further, they must be aware that where such comments work to the material prejudice of the defendant, they will not be tolerated. See, e.g., Wainwright v. Greenfield (1986), 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623; Doyle v. Ohio (1976), 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91.

Although considerable latitude is permitted the parties in closing argument, the prosecutor's remarks in the case now before us were unquestionably improper. ³ Further, after previously having this line of argument objected to, which objection was sustained by the court, the prosecutor proceeded to comment once again on appellant's failure to tell his side of the story. This third comment prompted both an objection, which was again sustained, and a motion for a mistrial, which was overruled.

Notwithstanding the clear impropriety of the prosecutor's comments, there is no doubt that the jury herein would have convicted appellant even if the comments in question had not been made. Appellant's admissions and the other evidence produced leave no doubt that appellant was the perpetrator of the crime. Thus, the prosecutor's comments, while highly improper...