State v. Esparza

• Decision Date: 05 October 1988
• Docket Number: No. 86-1689,86-1689
• Citation: 39 Ohio St.3d 8,529 N.E.2d 192
• Parties: The STATE of Ohio, Appellee, v. ESPARZA, Appellant.
• Court: Ohio Supreme Court

Page 8

39 Ohio St.3d 8

529 N.E.2d 192

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

No. 86-1689.

Supreme Court of Ohio.

Submitted May 23, 1988.

Decided Oct. 5, 1988.

Syllabus by the Court

R.C. 2929.024 and 2929.03(D)(1) are wholly independent provisions. A court, when requested by a defendant to order a presentence investigation or to appoint a psychologist or psychiatrist to conduct a mental examination pursuant to R.C. 2929.03(D)(1) and 2947.06, is not required by the Constitution or the provisions of R.C. 2929.024 to appoint a psychiatrist or psychologist of the defendant's own choosing. Rather, additional expert services must be provided to an indigent defendant only if the court determines, within its sound discretion, that such services "are reasonably necessary for the proper representation of a defendant" at the sentencing hearing, pursuant to R.C. 2929.024.

At approximately 9:30 p.m. on February 12, 1983, a man entered the Island Variety Carryout in Toledo, Ohio, wearing a green ski mask and a dark blue jacket. The victim, Melanie Gerschultz, and James Barrailloux, both store employees, were the only other persons present and were standing in the back of the store as the man entered. The man approached the pair, pointed a small black handgun at them and ordered one of them to open the cash register at the front of the store. Gerschultz complied and walked towards the cash register. As she opened the register, Barrailloux crouched down and left the store through the rear door, entering the attached home of the store owner, Evelyn Krieger. While he was alerting Krieger of the robbery, they heard a gunshot. Barrailloux and Krieger re-entered the store to find Gerschultz lying on the floor with a fatal gunshot wound in her neck. The cash register was open and approximately $110 was missing. A small round hole was found in the sheet of clear Plexiglas located to the side of the cash register, through which the bullet had apparently passed.

On October 13, 1983, the appellant, Gregory Esparza, was indicted on the following two counts: (1) aggravated murder while in the commission of an aggravated robbery, to which a firearm specification and a specification of committing the aggravated murder while committing aggravated robbery were attached; and (2) aggravated robbery, to which a firearm specification was attached. Appellant pleaded not guilty to each count and specification.

The jury was impaneled on May 4, 1984. At trial, appellant's sister and a fellow inmate, Albert Richardson, testified that appellant had independently told each of them that he had robbed the carryout and had shot a woman.

The jury returned verdicts of guilty on both counts and all specifications charged.

Appellant requested a presentence investigation and a mental examination, pursuant to R.C. 2929.03(D)(1), which were granted. However, his contemporaneous request for appointment of an independent psychologist to perform the examination, pursuant to R.C. 2929.024, was denied. The jury, following the hearing on mitigation, recommended that appellant be sentenced to death. The trial court accepted the jury's recommendation and additionally sentenced appellant to serve seven to twenty-five years' imprisonment for aggravated robbery, plus three years on the firearm specification. The court of appeals affirmed the conviction and sentence.

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

Anthony G. Pizza, Pros. Atty., Ruth Ann Franks and James D. Bates, Toledo, for appellee.

Fuller & Henry and Barbara J. Stutz, Toldeo, for appellant.

HOLMES, Justice.

Appellant appeals his conviction and sentence below, citing fourteen propositions of law in support. For the reasons which follow, we affirm the judgment of the court of appeals and uphold the sentence of death.

In his first proposition of law, appellant contends the mandatory submission to the jury of the presentence investigation and mental examination reports which he requested pursuant to R.C. 2929.03(D)(1) denied him effective assistance of counsel. He also argues that the trial court erred in denying his request under R.C. 2929.024 for an independent psychologist to perform the mental examination, and that it erred in denying his requested continuance. We are not persuaded by appellant's claims. It is clear that these claims are based on the erroneous belief that the provisions of R.C. 2929.024 and 2929.03(D)(1) are intertwined, and require the mental examination to be performed by a psychiatrist or psychologist of the indigent defendant's choosing. ¹ This result is not required by the statutory law or by the Constitution.

R.C. 2929.024 and 2929.03(D)(1) are wholly independent provisions. R.C. 2929.024 provides:

"If the court determines that the defendant is indigent and that investigation services, experts, or other services are reasonably necessary for the proper representation of a defendant charged with aggravated murder at trial or at the sentencing hearing, the court shall authorize the defendant's counsel to obtain the necessary services for the defendant, and shall order that payment of the fees and expenses for the necessary services be made in the same manner that payment for appointed counsel is made pursuant to Chapter 120. of the Revised Code. If the court determines that the necessary services had to be obtained prior to court authorization for payment of the fees and expenses for the necessary services, the court may, after the services have been obtained, authorize the defendant's counsel to obtain the necessary services and order that payment of the fees and expenses for the necessary services be made as provided in this section." (Emphasis added.)

The services provided for by this statute are available to the indigent defendant solely for his own purposes in mounting a defense in a capital trial, since "justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which liberty is at stake." Ake v. Oklahoma (1985), 470 U.S. 68, 76, 105 S.Ct. 1087, 1092, 84 L.Ed.2d 53. "[T]he State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a competent psychiatrist for the purpose we have discussed, and as in the case of the provision of counsel we leave to the States the decision on how to implement this right." (Emphasis added.) Id. at 83, 105 S.Ct. at 1096. R.C. 2929.024 assures the indigent capital defendant access to a competent expert, but does not guarantee such defendant the right to handpick an expert at the state's expense.

R.C. 2929.03(D)(1), on the other hand, applies to all capital defendants, whether indigent or not. Only on the request of the defendant will the court require a presentence investigation or mental examination to be prepared by not more than two psychologists or psychiatrists appointed in the manner specified in R.C. 2947.06. The statute requires that these reports be given to the court, the jury, and the parties, and that they shall be considered during sentencing. As we stated in State v. Buell (1986), 22 Ohio St.3d 124, 138, 22 OBR 203, 215, 489 N.E.2d 795, 808, "the defendant decides whether to expose himself to the risk of potentially incriminating presentence investigations, including mental examinations. There is no constitutional infirmity in providing the defendant with such an option. Additionally, the jury should be privy to all information relevant to its task of deciding whether a defendant should be sentenced to life in prison or whether it should recommend that the defendant be put to death." Cf. Estelle v. Smith (1981), 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359. Appellant, having requested the presentence report and mental examination, cannot be heard to complain of its submission to the jury, since the statute so requires. State v. Steffen (1987), 31 Ohio St.3d 111, 121-122, 31 OBR 273, 282-283, 509 N.E.2d 383, 393-394. Appellant's ineffective assistance of counsel argument must similarly fail, as the decision to request the presentence report was clearly one of sound trial strategy. See Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.

As further support for the appointment of an independent psychiatrist of his own choosing, appellant contends the reports prepared by the court-appointed Court Diagnostic and Treatment Center were prepared without adequate guidelines and without adequate time. As a result, he alleges, the jury was told of the availability of statutory mitigating factors which he did not intend to establish, thus in effect presenting the jury with non-statutory aggravating circumstances. This argument is without merit. The jury was properly instructed on the aggravating circumstances and mitigating factors it was to consider. The reports submitted were prepared in substantially the same manner as the Court Diagnostic and Treatment Center had done in prior cases. Appellant was not entitled to a "rebuttal" presentence investigation and mental examination prepared by a second psychologist or psychiatrist of his own choosing also at state expense. As we made clear in State v. Williams (1986), 23 Ohio St.3d 16, 23, 23 OBR 13, 19, 490 N.E.2d 906, 913, "[a]ll that due process requires with respect to post-conviction reports is giving the defendant a chance to rebut any alleged inaccuracies. See Gregg v. Georgia (1976), 428 U.S. 153, 189, fn. 37, 96 S.Ct. 2909, 2933, fn. 37, 49 L.Ed.2d 859; United States v. Papajohn (C.A. 8, 1983), 701 F.2d 760, 763; and Farrow v. United States (C.A.9, 1978...