State v. Brewer

• Citation: 48 Ohio St.3d 50,549 N.E.2d 491
• Decision Date: 10 January 1990
• Docket Number: No. 88-1852,88-1852
• Parties: The STATE of Ohio, Appellee, v. BREWER, Appellant.
• Court: United States State Supreme Court of Ohio

Page 50

48 Ohio St.3d 50

549 N.E.2d 491

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

No. 88-1852.

Supreme Court of Ohio.

Submitted Oct. 24, 1989.

Decided Jan. 10, 1990.

William F. Schenck, Pros. Atty. for appellee.

Randall M. Dana, Public Defender, Joann Bour-Stokes and Richard J. Vickers, Columbus, for appellant.

HERBERT R. BROWN, Justice.

R.C. 2929.05(A) requires us to undertake a three-stage review in capital cases. First, we must review the judgment and consider the claims of error as in all criminal cases. Second, we must independently weigh the evidence of aggravating and mitigating factors. Finally, we must decide whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases. For the reasons set forth below, we affirm the conviction and uphold the sentence of death.

I Admission of Victim Impact Statement

In his first proposition, appellant contends that the trial court improperly considered Joe Byrne's letter in its sentencing decision, in violation of Booth v. Maryland (1987), 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440. ¹

We have previously considered this issue in State v. Post (1987), 32 Ohio St.3d 380, 513 N.E.2d 754, certiorari denied (1988), 484 U.S. 1079, 108 S.Ct. 1061, 98 L.Ed.2d 1023. Booth concerned the admission of a victim impact statement in the sentencing proceedings of a capital jury trial. The Booth court held that the introduction of "emotionally charged" statements by the victim's next of kin " * * * can serve no other purpose than to inflame the jury and divert it from deciding the case on the relevant evidence concerning the crime and the defendant. * * * " (Emphasis added.) Id. 482 U.S. at 508, 107 S.Ct. at 2536. In Post, as in the case sub judice, the defendant was tried by a three-judge panel rather than a jury. Indulging in " * * * the usual presumption that in a bench trial in a criminal case the court considered only the relevant, material, and competent evidence in arriving at its judgment," State v. White (1968), 15 Ohio St.2d 146, 151, 44 O.O.2d 132, 136, 239 N.E.2d 65, 70, we held that "[a]bsent an indication that the panel was influenced by or considered the victim impact evidence in arriving at its sentencing decision, the admission of the victim impact statement * * * did not constitute prejudicial error." Post, supra, 32 Ohio St.3d at 384, 513 N.E.2d at 759; see, also, State v. Sowell (1988), 39 Ohio St.3d 322, 328, 530 N.E.2d 1294, 1302, certiorari denied (1989), 490 U.S. 1028, 104 L.Ed.2d 201, 109 S.Ct. 1766. Appellant asserts that Booth makes no distinction between jury trials and bench trials, and thus our holding in Post should be overruled and the sentence of death vacated.

We do not agree. In Booth, the court expressed concerns that the presentation of victim impact evidence might " * * * distract the sentencing jury from its constitutionally required task [of] * * * determining whether the death penalty is appropriate * * *," Booth, supra, 482 U.S. at 507, 107 S.Ct. at 2535, or "inflame the jury and divert it from deciding the case on the relevant evidence concerning the crime and the defendant." Id. at 508, 107 S.Ct. at 2536. There is no mention of bench trials. If the United States Supreme Court intended Booth to apply to bench trials, it would have said so. ²

Appellant also contends that, even under the test enunciated in Post, he was prejudiced by the introduction of Joe's letter. We find no mention of the victim impact evidence in the trial court's opinion, nor any indication that the three-judge panel relied on it in arriving at the sentence of death. Accordingly, we reject appellant's first proposition of law.

Evidence of Forcible Sexual Acts

At trial, the prosecution introduced testimony from a police officer that appellant told them Sherry may not have been a willing sexual partner. The deputy coroner testified that Sherry's body exhibited bruises which may have been caused by forcible thrusting of a man's body on top of her. Appellant argues in his twelfth proposition of law that this was "evidence of another crime, rape, for which appellant was not indicted," and that its introduction constituted a violation of his rights under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

Appellant advances a related claim in his fifth proposition, where he argues that the prosecutor injected rape as an unspecified aggravating circumstance into his cross-examination of Dr. Schramm. Our review of the transcript indicates that the cross-examination was directed at the factual basis for Dr. Schramm's diagnosis, not at proving an unspecified charge of rape.

We find no indication that the trial court considered rape as an additional crime or as an aggravating circumstance. Moreover, no effort was made by the prosecution to demonstrate appellant's bad character in violation of Evid.R. 404(B). The evidence in question was used by the prosecution to explain and refute the various versions offered by the appellant with regard to the specific crime for which he was charged.

Accordingly, we reject appellant's fifth and twelfth propositions of law.

Weighing of Aggravating and Mitigating Factors

In his tenth proposition of law, appellant attacks the process of weighing aggravating and mitigating factors used by the courts below. He contends that the court of appeals failed to give proper weight to appellant's lack of criminal history, good work record, and concern for the members of his family. He also claims that the court below improperly failed to consider his claim of mental illness, expressions of remorse, and potential for rehabilitation.

The United States Supreme Court consistently stresses the need for " ' * * * individualized consideration of mitigating factors * * * ' " Eddings v. Oklahoma (1982), 455 U.S. 104, 105, 102 S.Ct. 869, 871, 71 L.Ed.2d 1 quoting Lockett v. Ohio (1978), 434 U.S. 586, 606, 98 S.Ct. 873, 883, 55 L.Ed.2d 50. The court has expressly refused to dictate what weight or importance to assign to particular mitigating factors. Id. 455 U.S. at 114-115, 117, 102 S.Ct. at 876-877. The focus has always been "on the circumstances of the crime and the character of the individual defendant * * *." Proffitt v. Florida (1976), 428 U.S. 242, 251, 96 S.Ct. 2960, 2966, 49 L.Ed.2d 913. See, also, Booth, supra, 482 U.S. at 502, 107 S.Ct. at 2532; Zant v. Stephens (1983), 462 U.S. 862, 879, 103 S.Ct. 2733, 2744, 77 L.Ed.2d 235.

Our review satisfies us that these mandates were met. The court of appeals' opinion indicates that the court assigned no weight to Dr. Schramm's diagnosis because it concluded that his testimony failed to establish the existence of a mental defect which impaired appellant's ability to conform his conduct to law. Nothing in the Ohio statutes or the decisional law mandates that a court give weight to a mitigating factor which it finds is not present.

The court's refusal to consider appellant a "youthful offender" was also proper. Appellant was twenty-five years old, has attended college and, prior to this crime, was a successful member of the adult work force. Nothing suggests a lack of the maturity one would reasonably expect of an adult.

Accordingly, we find no error in the weighing process used by the court of appeals. Pursuant to R.C. 2929.05(A), we shall conduct an independent review of the aggravating circumstances and mitigating factors in Part II of this opinion.

Confession Issues

In his second, third and fourth propositions of law, appellant argues that his confession and other inculpatory statements were obtained in violation of his Fourth and Fifth Amendment rights. We discuss these arguments in turn.

In his second proposition, appellant claims that his confession and subsequent inculpatory statements were fruits of an illegal search and seizure. He bases this claim on the fact that the police monitored his conversation with his wife in the interrogation room, violating their expectation of privacy and, thus, their Fourth Amendment rights.

The Supreme Court of the United States has declared that " * * * application of the Fourth Amendment depends on whether a person invoking its protection can claim a 'justifiable,' a 'reasonable,' or a 'legitimate expectation of privacy' that has been invaded by government action. * * * " Smith v. Maryland (1979), 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220. Two questions are involved: the person's subjective expectation of privacy, and whether " * * * the individual's expectation, viewed objectively, is 'justifiable' under the circumstances. * * * " Id. at 740, 99 S.Ct. at 2580. However, if one party to an otherwise private conversation consents to eavesdropping, the other may not claim Fourth Amendment protection. United States v. White (1971), 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453.

In the instant case, there is at least some question as to whether appellant and his wife could have a " 'reasonable' * * * ' * * * expectation of privacy' " in a police interrogation room equipped with two-way mirrors. Additionally, there was testimony that Kathy was told that the conversation would be monitored. ³ In overruling the motion to suppress, the trial court impliedly found that she had been so advised. However, even if she had not, there would still be no error because the substance of the conversation between appellant and Kathy was not introduced at trial. Accordingly, we reject appellant's second proposition of law.

In his third proposition of law, appellant contends that his confession should be suppressed as the product of "deceitful" and "coercive" interrogation. Appellant claims that his lack of prior experience with police interrogation techniques, the "length and intensity of the interrogation," and the monitoring of his conversation with Kathy combined to make his confession involuntary.

Whether a confession is voluntary depends upon " * * * the totality of the...