State v. Benner

• Decision Date: 30 December 1988
• Docket Number: No. 87-1614,87-1614
• Citation: 533 N.E.2d 701,40 Ohio St.3d 301
• Parties: The STATE of Ohio, Appellee, v. BENNER, Appellant.
• Court: Ohio Supreme Court

Page 301

40 Ohio St.3d 301

533 N.E.2d 701

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

No. 87-1614.

Supreme Court of Ohio.

Submitted Sept. 27, 1988.

Decided Dec. 30, 1988. ^*

Lynn C. Slaby, Pros. Atty., and Marc R. Wolff, Akron, for appellee.

Randall M. Dana, Public Defender, Randall L. Porter, Jane P. Perry and Kathleen A. McGarry, Columbus, for appellant.

SWEENEY, Justice.

Pursuant to R.C. 2929.05(A), this court is duty-bound to undertake a three-prong analysis in reviewing the instant death penalty case. First, we will consider the specific issues raised by appellant with respect to the proceedings below. We will review all of appellant's propositions of law even though some may be deemed to have been waived since they were not raised below. Second, we will independently weigh the aggravating circumstances in this case against any and all factors which mitigate against the imposition of the death sentence. Third, we will independently consider whether appellant's sentence is disproportionate to the penalty imposed in similar cases.

In his first proposition of law, appellant argues that the course-of-conduct provision set forth in R.C. 2929.04(A)(5) is void for vagueness, both facially and as applied.

Under R.C. 2929.04(A)(5), one who commits aggravated murder is eligible for the death penalty where:

"Prior to the offense at bar, the offender was convicted of an offense an essential element of which was the purposeful killing of or attempt to kill another, or the offense at bar was part of a course of conduct involving the purposeful killing of or attempt to kill two or more persons by the offender."

It is axiomatic that all statutes enacted by the General Assembly enjoy a strong presumption of validity. See, e.g., State v. Meadows (1986), 28 Ohio St.3d 43, 51-52, 28 OBR 146, 153, 503 N.E.2d 697, 704.

Appellant contends that the Committee Comment to R.C. 2929.04 explains this provision as dealing with "repeat murder or mass murder[.]" Because the phrase "mass murder" in the Committee Comment and the course-of-conduct provision in the subsection are both placed after the word "or," appellant submits that "mass murder" was intended to define the phrase "course of conduct involving the purposeful killing of or attempt to kill two or more persons * * *." Appellant argues that "mass murder" traditionally means the commission of more than one murder in the same transaction.

Upon a careful review of this statutory section, we find that appellant's definition of "mass murder" in this context is unduly narrow. In our view, it would be incongruous to define the R.C. 2929.04(A)(5) specification as including, under the first prong, a defendant who kills two or more people at different times but only if he has been convicted of one of those killings, while including, under the course-of- provision, all those who kill two or more simultaneously even if they have not previously been convicted of any of those killings.

In State v. Beuke (1988), 38 Ohio St.3d 29, 526 N.E.2d 274, the defendant committed one aggravated murder and two attempted aggravated murders, each in a separate incident. In affirming the convictions of defendant, this court held that a course-of-conduct specification was supported by the evidence. Id. at 43, 526 N.E.2d at 288.

We believe that if appellant's vagueness argument is based on the possibility of differing interpretations of the term "course of conduct," it is misdirected since such a possibility is not the correct test for vagueness in capital cases. "Claims of vagueness directed at aggravating circumstances defined in capital punishment statutes are analyzed under the Eighth Amendment and characteristically assert that the challenged provision fails adequately to inform juries what they must find to impose the death penalty and as a result leaves them and appellate courts with the kind of open-ended discretion which was held invalid in Furman v. Georgia [ (1972) 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346] * * *." Maynard v. Cartwright (1988), 486 U.S. 356, ----, 108 S.Ct. 1853, 1858, 100 L.Ed.2d 372, 380.

The R.C. 2929.04(A)(5) course-of-conduct specification is not the type of "open-ended" statute struck down in Maynard, supra, and Godfrey v. Georgia (1980), 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398. In Godfrey, the court found that an aggravating circumstance for murders that were "outrageously or wantonly vile, horrible or inhuman" did not adequately channel jury discretion: "A person of ordinary sensibility could fairly characterize almost every murder as 'outrageously or wantonly vile, horrible or inhuman.' " Id. at 428-429, 100 S.Ct. at 1764-1765. Similarly, in Maynard, the court struck down an aggravating circumstance provision referring to "especially heinous, atrocious or cruel" murders, on the basis that "an ordinary person could honestly believe that every unjustified, intentional taking of human life is 'especially heinous.' " 486 U.S. at ----, 108 S.Ct. at 1859, 100 L.Ed.2d at 382.

Turning to the statute assailed sub judice, it is clear that no one could reasonably believe that every murder is "part of a course of conduct involving the purposeful killing of or attempt to kill two or more persons by the offender." Thus, we find that the specification in R.C. 2929.04(A)(5) does not give the sentencing court the wide discretion condemned in both Godfrey and Maynard. Therefore, we hold that the course-of-conduct specification is not void for vagueness under either the Eighth Amendment to the United States Constitution or Section 9, Article I of the Ohio Constitution. The language of the statute is definitive and is circumscribed to cover only those situations which it fairly describes. Accordingly, we find appellant's first proposition of law to be without merit.

In appellant's second proposition of law, he asserts that the charges stemming from four separate incidents as set forth in the indictments were improperly joined in one trial in contravention of Crim.R. 14.

This court has held that a defendant who asserts that joinder is improper must show prejudice. State v. Roberts (1980), 62 Ohio St.2d 170, 175, 16 O.O.3d 201, 204, 405 N.E.2d 247, 251. Appellant raises two allegations of prejudice. First, he maintains that he was prejudiced by the "risk that the trier of fact will cumulate the evidence and convict a defendant of an offense when he would not have been convicted had the evidence been segregated."

However, this court has held that "[w]here evidence of each of the joined offenses would be admissible at separate trials, severance is not required because prejudice due to the cumulation of evidence or the inference of a criminal disposition is largely absent." State v. Hamblin (1988), 37 Ohio St.3d 153, 159, 524 N.E.2d 476, 481-482. Thus, in State v. Martin (1985), 19 Ohio St.3d 122, 19 OBR 330, 483 N.E.2d 1157, we held that an aggravated robbery count involving the theft of a gun need not be severed from an aggravated murder count, where the stolen gun was the murder weapon. The evidence of the theft tended to show the defendant's possession of the murder weapon, and thus would have been admissible in the murder trial even had the counts been severed. Id. at 127, 19 OBR at 334, 483 N.E.2d at 1162.

In the instant cause, had the trial been severed into four proceedings, the evidence of all the offenses would have been admissible in each trial. Under Evid.R. 404(B), evidence of other crimes is admissible to prove identity. In the cause sub judice, four rapes were committed or attempted. According to the state's theory of the case, all four crimes ended with a strangulation or attempted strangulation of the victim. In two cases, the victim's own brassiere was used as a ligature. In Cynthia Sedgwick's case, the bra was used to tie her hands. Cf. State v. Flonnory (1972), 31 Ohio St.2d 124, 127-128, 60 O.O.2d 95, 97, 285 N.E.2d 726, 730. Moreover, each strangulation or attempted strangulation was relevant to the course-of-conduct specification, R.C. 2929.04(A)(5), that accompanied the Sedgwick and Bowser murders.

Moreover, "the jury is capable of segregating the proof of multiple charges when * * * the evidence of each crime is uncomplicated." Hamblin, supra. The offenses in the instant case were committed in four distinct incidents, and the evidence here does not appear complicated.

Second, appellant argues that he was prejudiced because the joinder influenced his decision on whether to testify. Appellant intimates that he was deterred from giving alibi testimony in the Powell case because the contrast between his testifying on that and his silence on the other three might have caused the court to infer guilt from his silence. Nevertheless, this court has previously rejected this argument as "insubstantial and speculative * * *." State v. Torres (1981), 66 Ohio St.2d 340, 344, 20 O.O.3d 313, 315, 421 N.E.2d 1288, 1291; cf. Roberts, supra.

Based on the foregoing, we find that appellant has shown no prejudice resulting from joinder. Therefore, the trial court did not abuse its discretion in denying severance, and we find appellant's second proposition of law to be without merit.

In his third proposition of law, appellant asserts that an aggravating circumstance cannot duplicate an element of the underlying offense. However, as appellant concedes in his reply brief, the recent opinion in Lowenfield v. Phelps (1988), 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568, finds no constitutional bar to such a practice.

Nevertheless, appellant maintains that such a practice violates Section 9, Article I of the Ohio Constitution (outlawing "cruel and unusual punishments") by failing to narrow the class of murderers who can receive the death penalty.

In State v. Jenkins (1984), 15 Ohio St.3d 164, 178, 15 OBR 311, 323, 473 N.E.2d 264, 280, this court rejected this argument. Moreover, we reaffirm our prior observation that the aggravating circumstances of ...