State v. Bedford

• Decision Date: 12 October 1988
• Docket Number: No. 86-1976,86-1976
• Parties: The STATE of Ohio, Appellee, v. BEDFORD, Appellant.
• Court: Ohio Supreme Court

Page 122

39 Ohio St.3d 122

529 N.E.2d 913

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

No. 86-1976.

Supreme Court of Ohio.

Submitted June 9, 1988.

Decided Oct. 12, 1988.

Arthur M. Ney, Jr., Pros. Atty., Leonard Kirschner, Christian J. Schaefer, Thomas P. Longano and Patrick Dinkelacker, Cincinnati, for appellee.

H. Fred Hoefle and Peter Rosenwald, Cincinnati, for appellant.

MOYER, Chief Justice.

Daniel Bedford appeals his aggravated murder conviction and death sentence. In reviewing a death penalty case, this court must review the proceedings in the appellate and trial courts. Second, we must independently review the death sentence to determine whether the aggravating circumstance outweighs the mitigating factors beyond a reasonable doubt. Finally, we must consider whether appellant's sentence is proportionate to the penalty in other cases. For the reasons stated below, we affirm appellant's conviction and sentence of death.

I

Bedford's first proposition of law challenges the prosecutor's closing argument and the trial court's jury instructions. He argues that both impermissibly informed the jury that they did not have the final responsibility for determining whether he should receive the death penalty. While acknowledging that the challenged comments were consistent with this court's prior holdings, Bedford nonetheless urges us to reverse those decisions as being in conflict with the holding of Caldwell v. Mississippi (1985), 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231.

A review of the record confirms that both the prosecutor's closing argument and the trial court's jury instructions were within the permissible boundaries established by our prior holdings. The comments neither reduced the jury's sense of responsibility nor increased the possibility of a recommendation of death in reliance upon the appellate process. State v. Thompson (1987), 33 Ohio St.3d 1, 6, 514 N.E.2d 407, 413; State v. Steffen (1987), 31 Ohio St.3d 111, 113-114, 31 OBR 273, 275, 509 N.E.2d 383, 387-388; see, also, State v. Beuke (1988), 38 Ohio St.3d 29, 526 N.E.2d 274, and cases cited therein.

Bedford's first proposition of law is overruled.

II

In his second proposition of law, Bedford identifies four remarks made by the prosecutor during the closing arguments at the sentencing phase of trial and contends these comments require that his death sentence be vacated. We do not agree with this contention.

At the sentencing phase of appellant's trial, the prosecutor read a passage from the decision in Gregg v. Georgia (1976), 428 U.S. 153, 183, 96 S.Ct. 2909, 2929, 49 L.Ed.2d 859, to the effect that capital punishment is an expression of society's moral outrage at particularly offensive conduct. This court has previously disapproved of such a closing argument and we reiterate our caution to prosecutors to avoid such argument. However, such an argument is not grounds for reversal. State v. Byrd (1987), 32 Ohio St.3d 79, 82-83, 512 N.E.2d 611, 615-616. Additionally, during this portion of closing argument, the prosecutor also reminded the jury, no less than four times, to carefully weigh the evidence and identified the appropriate standard of review no less than three times. Thus, the prosecutor's comment in context, does not merit reversing the death sentence.

The second portion of the state's closing argument, made after appellant's closing argument, presents a closer question. During this argument, the assistant prosecutor stated that there was no guarantee that Bedford would serve either a twenty- or thirty-year sentence without parole because the statute could be changed, mentioned that the prosecution was not permitted to cross-examine Bedford after he made his unsworn statement, and also showed pictures of the two victims originally introduced at the guilt phase of trial.

Undeniably, the conduct of the prosecutor was ill-advised. The issue, however, is whether the conduct requires that the death sentence be vacated. We conclude that it does not.

The prosecutor argued that a life sentence was not guaranteed because the General Assembly could amend the statute and the term of imprisonment. This comment, that the court could not guarantee that Bedford would serve a twenty- or thirty-year sentence, after an objection, was followed with the prosecutor's observation that the jury could not base its decision on that fact because it would violate its oath.

We expressly disapprove of arguing to a jury that a statutory penalty could be amended. However, reviewing the closing argument as a whole along with the prosecutor's observation and the correct jury instructions, we determine the comment is not grounds for reversing Bedford's sentence. The comment that appellant's testimony was not under oath must also be read in context. The brief reference was directed at the credibility of the testimony. Such argument has been held to be proper. State v. Mapes (1985), 19 Ohio St.3d 108, 116, 19 OBR 318, 324-325, 484 N.E.2d 140, 147; State v. Jenkins (1984), 15 Ohio St.3d 164, 217, 15 OBR 311, 356-357, 473 N.E.2d 264, 309-310.

Finally, it is not per se error to reintroduce to the jury photographs originally shown at the guilt phase. Our decision in State v. Thompson, supra, does not require such a result and differs from this case in three distinct respects.

First, in Thompson, the prosecutor continued with inappropriate closing argument despite the sustaining of several objections by the trial court. Second, the prosecutor referred to Thompson's failure to testify during the guilt phase of the trial and thereby violated Thompson's constitutional rights. Finally, the prosecutor in Thompson, during the sentencing phase, reminded the jury about the photographic slides originally introduced at the guilt phase. This court concluded that it was harmless error to introduce the gruesome and repetitive photographic slides at the guilt phase because of the overwhelming evidence of guilt. However, the reference to the objectionable slides combined with the prosecutor's objectionable closing arguments impaired Thompson's right to a fair mitigation hearing. In this case, the photographs in question did not taint the guilt phase of the trial.

Based on the foregoing, Bedford's second proposition of law is overruled.

III

In his third proposition of law, Bedford asserts that the jury was coerced into recommending the death penalty.

During its deliberations at the penalty phase, the jury sent the following inquiry to the trial judge: " * * * 'If we cannot reach a unanimous decision for this part of the trial, what would happen? Is there an approximate time frame of deliberation before which we can declare that we are unable to reach a verdict?' " The judge responded " * * * Ladies and gentlemen of the jury, the Court is advised that you have indicated difficulty in making a recommendation of sentence. Now the Court suggests to you that since the trial of this case means a great deal to the parties and to the public and has been expensive in time, effort and money, the Court urges you to make every reasonable effort to agree on a recommendation.

"In an ordinary case where the jury is deadlocked, the Judge can declare a mistrial and another jury can be selected to rehear the case. In this matter, such a solution is, obviously, undesirable since this jury has already decided guilt and no new jury could balance as easily the aggravating circumstance and mitigating factors. You then must consider that you are the jury that is in the best position to make an intelligent and fair recommendation in this matter, and the Court urges you to make every reasonable conscience [sic] effort to do so.

"There's no time limit set by law to the time a jury may take to make a recommendation. The Court, in an effort to help you in your deliberations, suggests the following: Return to the jury room and consider whether you are, in fact, unable with reasonable anticipation to come to an agreement. If you believe an agreement may be reached, continue to deliberate. If then you reach a unanimous decision to recommend the death penalty or life sentence, do so under the instructions previously given.

"If, after exhausting all reasonable discussion, you remain hopelessly deadlocked on the issue of the death penalty, then you will consider that the prosecution has failed to prove to you as a unanimous group that the aggravating circumstance outweighs beyond a reasonable doubt the mitigating factors. If you in fact reach the last conclusion, proceed to recommend the appropriate life sentence."

In addition, Bedford notes that one juror required medical attention for stress during the jury's deliberations.

The thrust of Bedford's argument is that the instruction given to the jury was overly coercive and encouraged the jury to make a death recommendation. However, the trial court was not advised that the jury was, in fact, deadlocked. His advice to the jury was a reasonable response to the jury's question and complied with this court's decision in State v. Maupin (1975), 42 Ohio St.2d 473, 71 O.O.2d 485, 330 N.E.2d 708, where we indicated that a trial court should urge a jury to reach a decision only if it could conscientiously do so. Here, the jury was instructed to further deliberate and determine whether it could reach a fair and intelligent recommendation after making every reasonable, conscious effort to do so. This instruction did not unduly coerce a verdict. The cases cited by appellant are inapplicable because they are concerned with a trial court's instructions to a deadlocked jury.

The mere fact that a juror suffered a stress-related temporary illness does not bolster Bedford's proposition. It is not surprising that occasionally a juror will become somewhat stressed while making a life or death determination. After being polled, the juror stated that she concurred in the death verdict. There is no reversible error and this proposition of law is...