State v. Biros

• Decision Date: 14 May 1997
• Docket Number: No. 96-423,96-423
• Citation: 678 N.E.2d 891,78 Ohio St.3d 426
• Parties: The STATE of Ohio, Appellee and Cross-Appellant, v. BIROS, Appellant and Cross-Appellee.
• Court: Ohio Supreme Court

Page 426

78 Ohio St.3d 426

678 N.E.2d 891

The STATE of Ohio, Appellee and Cross-Appellant, v. BIROS, Appellant and Cross-Appellee.

No. 96-423.

Supreme Court of Ohio.

Submitted Jan. 22, 1997.

Decided May 14, 1997.

Dennis Watkins, Trumbull County Prosecuting Attorney, Patrick F. McCarthy and Deborah L. Smith, Assistant Prosecuting Attorneys, for appellee and cross-appellant.

David L. Doughten and Robert A. Dixon, Cleveland, for appellant and cross-appellee.

DOUGLAS, Justice.

Appellant presents twelve propositions of law for our consideration. Additionally, the state of Ohio has filed a cross-appeal challenging the court of appeals' findings of insufficiency of proof that the murder was committed while appellant was committing or while fleeing immediately after committing aggravated robbery. We have considered all of the propositions of law raised by the parties and have independently reviewed appellant's death sentence for appropriateness and proportionality. Upon review, and for the reasons that follow, we reverse the judgment of the court of appeals on the matters raised in

Page 436

the state's cross-appeal, affirm the judgment of the court of appeals in all other respects, and uphold the sentence of death.

I

In his first proposition of law, appellant contends that he is not statutorily eligible for the death penalty because the specifications of aggravating circumstances alleged in the indictment omitted the language from R.C. 2929.04(A)(7) that "either the offender was the principal offender in the commission of the aggravated murder or, if not the principal offender, committed the aggravated murder with prior calculation and design." Appellant contends that the omission of this language from the specifications of aggravating circumstances set forth in his indictment rendered that indictment "insufficient to sustain a capital charge." We do not agree.

Initially, we note that appellant never objected at any time before or during his trial that the R.C. 2929.04(A)(7) specifications of aggravating circumstances were allegedly defective on the basis that they omitted an allegation either that appellant was the principal offender in the commission of the aggravated murder or, if not the principal offender, that he had committed the offense with prior calculation and design. Consequently, appellant's failure to timely object to the allegedly defective indictment constitutes a waiver of the issues involved. State v. Joseph (1995), 73 Ohio St.3d 450, 455, 653 N.E.2d 285, 291. See, also, State v. Mills (1992), 62 Ohio St.3d 357, 363, 582 N.E.2d 972, 980 ("Under Crim.R. 12[B] and 12[G], alleged defects in an indictment must be asserted before trial or they are waived."). Accordingly, our discretionary review of the alleged error must proceed, if at all, under the plain error analysis of Crim.R. 52(B). Plain error does not exist unless it can be said that but for the error, the outcome of the trial would clearly have been otherwise. Joseph at 455, 653 N.E.2d at 291. See, also, State v. Moreland (1990), 50 Ohio St.3d 58, 62, 552 N.E.2d 894, 899.

Turning to the merits, we find that our recent decision in Joseph, 73 Ohio St.3d 450, 653 N.E.2d 285, is dispositive of appellant's contentions. In Joseph, Richard E. Joseph and Jose Bulerin were jointly indicted for the aggravated (felony) murder of Ryan Young. The indictment contained an R.C. 2929.04(A)(7) death penalty specification alleging that Joseph and Bulerin had committed the aggravated murder during the course of a kidnapping, and that the offenders were the principal offenders in the commission of the kidnapping. In Joseph, we found that the specification failed to correspond with the language of R.C. 2929.04(A)(7) because the specification should have indicated that the offenders were the principal offenders in the commission of the aggravated murder. Id. at 455, 653 N.E.2d at 291. However, we found that the error did not render the indictment invalid, since the record clearly demonstrated that Joseph "had sufficient notice

Page 437

that he was being tried as a principal offender in the commission of the aggravated murder of Ryan Young while committing kidnapping." Id. at 455-456, 653 N.E.2d at 291. In Joseph, we went on to explain and hold that:

"The penalty for aggravated murder is life imprisonment or death. R.C. 2929.02. If the state desires to seek the death penalty for a defendant who commits aggravated murder, the indictment charging the offense must contain at least one of eight specifications enumerated in R.C. 2929.04(A)(1) through (8). R.C. 2929.04(A) provides: 'Imposition of the death penalty is precluded, unless one or more of the following is specified in the indictment or the count of the indictment pursuant to section 2941.14 of the Revised Code and proved beyond a reasonable doubt.' That section then sets out eight different aggravating circumstances.

"The form of the specification is governed by R.C. 2941.14(C), which requires that the aggravating circumstance 'may be stated in the words of the subdivision in which it appears, or in words sufficient to give the accused notice of the same.' Thus, the language of the statute clearly provides that the specification is sufficient if the accused knows which subsection, or which aggravating circumstance of the eight listed in R.C. 2929.04(A) has been alleged.

"While the specification in the present case contained a technical error, we cannot find that this error rendered the indictment invalid, as the correct language of the specification was clearly ascertainable to appellant. The indictment's aggravated-felony-murder count and specification recited an obvious and undeniable reference to R.C. 2929.04(A)(7) (the felony murder specification) as the capital specification * * *. The indictment informed appellant of all elements comprising the capital offense of aggravated murder under R.C. 2901.03(B) [sic, 2903.01(B) ], as the exact language of that section containing all the elements for that offense was correctly recited in the single count of the indictment. Following the count set forth in the indictment and pursuant to R.C. 2941.14, a capital specification was included, which stated verbatim the relevant language of R.C. 2929.04(A)(7), except for the substitutional error in the last word of the specification. However, appellant certainly had sufficient notice from the wording of the specification that the aggravating circumstance set forth in R.C. 2929.04(A)(7) was being alleged. In fact, appellant, his attorneys, the prosecutor, and the trial judge treated the indictment as valid at all stages of the proceedings, never noticing any flaw in the indictment. Thus, the record demonstrates that the wording of the specification was sufficient to give appellant notice that the state was required to prove that he was a principal offender in the commission of the aggravated murder of Ryan Young pursuant to the specification contained in R.C. 2929.04(A)(7).

Page 438

"Furthermore, appellant has not shown that he was prejudiced in the defense of his case from this substitutional error or that he would have proceeded differently had this error been corrected. Indeed, had the error been discovered, it was properly subject to amendment. Crim.R. 7(D)." Joseph, 73 Ohio St.3d at 456-457, 653 N.E.2d at 291-292.

In the case at bar, Count One of the indictment charged appellant with the aggravated (felony) murder of Tami Engstrom. The single count of aggravated murder carried two R.C. 2929.04(A)(7) death penalty specifications. The two specifications of aggravating circumstances expressly referred to R.C. 2929.04(A)(7) and stated, respectively, that "KENNETH BIROS committed the offense at bar [aggravated murder] while he was committing or fleeing immediately after committing Aggravated Robbery" and "KENNETH BIROS committed the offense at bar [aggravated murder] while he was attempting to commit or fleeing immediately after attempting to commit Rape." The specifications did not expressly track the language of R.C. 2929.04(A)(7), since there was no specific allegation that appellant was the "principal offender" in the aggravated murder or that he had committed the offense with prior calculation and design. However, notwithstanding that omission, the indictment clearly provided appellant with adequate notice of the death penalty specifications with which he was being charged. The record clearly demonstrates that at all stages of the proceedings, appellant understood that he was being prosecuted for having personally killed Tami Engstrom during the course of an aggravated robbery and attempted rape. Appellant, defense counsel, the prosecution and the trial court treated the indictment as valid throughout the proceedings without noticing any defect in the specifications of aggravating circumstances. Moreover, appellant was indicted and tried on the basis that he had acted alone in the killing, without any accomplices. He was the only individual accused of killing Tami Engstrom and, as the only offender, appellant was, ipso facto, the "principal offender." Based upon the rationale and holdings in Joseph, we reject appellant's arguments concerning the sufficiency of the indictment.

In this proposition, appellant also contends that the trial court erred by failing to instruct the jury that appellant must be found to be the principal offender of the aggravated murder offense to be found guilty of the R.C. 2929.04(A)(7) death penalty specifications. Additionally, appellant protests that the verdict forms failed to reflect that the jury found appellant to be the principal offender. However, appellant failed to object to the absence of the term "principal offender" in the jury instructions and verdict forms. Thus, these issues have been waived. Further, there is absolutely no evidence in this case to suggest that the aggravated murder of Tami Engstrom involved more than one offender. Indeed, appellant even...