State v. Brock, 17-95-3

• Decision Date: 26 April 1996
• Docket Number: No. 17-95-3,17-95-3
• Citation: 110 Ohio App.3d 656,675 N.E.2d 18
• Parties: The STATE of Ohio, Appellee, v. BROCK, Appellant. *
• Court: Ohio Court of Appeals

Page 656

110 Ohio App.3d 656

675 N.E.2d 18

The STATE of Ohio, Appellee, v. BROCK, Appellant. ^*

No. 17-95-3.

Court of Appeals of Ohio,

Third District, Shelby County.

Decided April 26, 1996.

James F. Stevenson, Shelby County Prosecuting Attorney, Van Wert, for appellee.

W. Edward Hatcher, Van Wert, and Gregory W. Donohue, Lima, for appellant.

HADLEY, Presiding Judge.

Defendant-appellant, Daniel Brock, appeals from the judgments of conviction and sentencing entered in the Shelby County Court of Common Pleas, finding him guilty of aggravated murder with a death specification and a gun specification, a violation of R.C. 2903.01, and aggravated robbery with a gun specification, a violation of R.C. 2911.01. The trial court, upon review of the evidence presented, agreed with the recommendation of the jury that appellant be sentenced to death. Thus, the trial court sentenced appellant to death for the aggravated murder violation, ten to twenty-five years for the aggravated robbery violation, and three years of actual incarceration for each of the two gun specifications, all to run consecutively.

Appellant timely filed a notice of appeal from the trial court's entries of conviction and sentencing. A recitation of the relevant facts is limited to those necessary to our disposition of this appeal.

On March 31, 1994, the Shelby County Grand Jury returned an indictment against appellant for one violation of R.C. 2903.01, aggravated murder, with death and gun specifications, and one violation of R.C. 2911.01, aggravated robbery, with a gun specification. Appellant was arrested on the same day pursuant to the indictment. At appellant's arraignment on April 8, 1994, a not guilty plea was entered on his behalf. On June 7, 1994, appellant waived his right to a speedy trial.

On August 31, 1994, appellant filed a motion to change venue and a motion to suppress statements appellant made to law enforcement persons on the date of his arrest. The trial court overruled both motions. The venue motion was overruled as being premature. The suppression motion was overruled because the trial court found, based upon the totality of the circumstances, that appellant had knowingly, willingly, and voluntarily made statements to law enforcement personnel on the date of his arrest.

On October 20, 1994, appellant, appearing in open court, waived his right to a trial by jury, and elected to be tried by a three-judge panel, pursuant to R.C. 2929.022.

On November 18, 1994, appellant withdrew his waiver of his right to a trial by jury and requested a trial by jury.

Trial began on November 29, 1994. The trial court and the parties proceeded with voir dire on November 29 and November 30. On December 1, 1994, the parties exercised their peremptory challenges, and a jury consisting of twelve members and two alternates was chosen and sworn. Prior to the jury being sworn, defense counsel objected to the use of the prosecutor's peremptory strikes, on the bases of intentional racial and gender discrimination.

After the jury was sworn, court was recessed. After the recess, the parties placed on the record an arrangement that had been discussed during the recess. The arrangement was that appellant would tender a no contest plea to the charges in the indictment and would have a jury make a recommendation as to the penalty to be imposed. The court accepted appellant's no contest plea and made a finding of guilty as to the charges in the indictment. The jury reconvened, heard the evidence on the factors to determine the penalty, and, on December 7, 1994, recommended death.

In the judgment entry of December 12, 1994, as subsequently amended on December 14, 1994, the trial court imposed the death penalty as recommended and sentenced appellant as noted above.

It is from these judgments that appellant asserts eighteen assignments of error.

Assignment of Error No. 1

"The trial court erred in substantially deviating from the requirements of Crim.R. 11 and R.C. 2945.06."

As set forth above, appellant first waived his right to a jury trial and requested a trial by a three-judge panel on October 20, 1994. Appellant subsequently withdrew this waiver on November 18, 1994, and, on that date, requested a jury trial.

After the jury was sworn and prior to opening statements, appellant announced that despite "some quirks" he was withdrawing his not guilty plea and with the state and counsel for appellant making "some extensions under Rule 11," appellant was tendering a plea of no contest in his "trial on the guilt or innocent phase" to aggravated murder with death specification, aggravated robbery, and two gun specifications. At that time, appellant reserved his right to trial by jury as to the penalty phase. The prosecution indicated its willingness to proceed in that manner, stating:

"It's our understanding in examining Criminal Rule 11 that when a Defendant pleads guilty or no contest to aggravated murder with a death specification that by doing so he waives his right to a jury trial and then the mitigation hearing is determined by a three judge panel. We have agreed that even though the rule provides that that plea provides for a waiver of a jury trial, that we are prepared and we do agree to permit that mitigation hearing to go to the jury as opposed to a three judge panel.

"In our discussions we--we don't believe that there's any error in that--in that. In effect, we are providing to the Defendant for--of a right to have a hearing by jury than what the rule actually provides for."

The trial court then stated:

"Well, Mr. Brock, if this is--if this is the manner in which you want to proceed, you have every right, if you want to, to enter a plea of no contest as charged."

The court then reviewed with appellant certain constitutional rights including the right to a jury trial for the guilt or innocence phase, the right to have the state prove guilt beyond a reasonable doubt, the right to confront accusers, compulsory process, and the right against self-incrimination. The court explained the possible penalties to appellant and inquired as to the voluntariness of his plea. The court accepted appellant's plea of no contest and subsequently received a statement of facts from the state. Thereafter, the trial court found appellant guilty of aggravated murder with a specification and aggravated robbery with a specification.

Appellant now states that the trial court erred in that the procedure employed was contrary to the statutory death penalty scheme and the Ohio Rules of Criminal Procedure and therefore permitted the arbitrary and capricious imposition of the death penalty in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments, as well as Sections 9, 10, and 16, Article I of the Ohio Constitution.

R.C. 2945.06 states:

"In any case in which a defendant waives his right to trial by jury and elects to be tried by the court under section 2945.05 of the Revised Code, * * * [i]f the accused is charged with an offense punishable with death, he shall be tried by a court to be composed of three judges * * *. The court shall follow the procedures contained in sections 2929.03 and 2929.04 of the Revised Code in all cases in which the accused is charged with an offense punishable by death. * * * " (Emphasis added.)

R.C. 2929.03(C)(2)(a) provided that the penalty to be imposed after a finding of guilty to such a charge with specifications shall be determined "[b]y the panel of three judges that tried the offender upon the offender's waiver of the right to trial by jury."

Crim.R. 11(C)(3) provides in paragraph four:

"If the indictment contains one or more specifications which are not dismissed upon acceptance of a plea of guilty or no contest to the charge, or if pleas of guilty or no contest to both the charge and one or more of the specifications are accepted, a court composed of three judges shall: (a) determine whether the offense was aggravated murder or a lesser offense; and (b) if the offense is determined to have been a lesser offense, impose sentence accordingly; or (c) if the offense is determined to have been aggravated murder, proceed as provided by law to determine the presence or absence of the specified aggravating circumstances and of mitigating circumstances, and impose sentence accordingly." (Emphasis added.)

Appellant argues that the requirements of Crim.R. 11 were never explained to him. During the hearing on his change of plea, the trial court did not sufficiently detail the procedures regarding the entering of the no contest plea and the ramifications. On October 19, 1994, the trial court explained to appellant the procedure if he chose to waive his right to be tried by a jury:

"THE COURT: You also have the right--because this is a what we refer to as a capital murder case, you also have the right, if you choose, to waive that right to be tried by a jury and rather to be tried by a three-judge panel.

"That three-judge panel--one of those judges will be me and then there will be two other judges that I will select to hear this case, and it will be the three-judge panel that will then decide your guilt or innocence and further decide any mitigation matters. Are you aware of all that?

"THE DEFENDANT: Yes sir."

However, the proceedings were subsequently altered, and when appellant later chose to waive the jury as to the guilt or innocence phase only, this language was not repeated at that time to ensure appellant's understanding.

Evidently, the participants themselves must have sensed some potential problem with the course of the proceedings because on December 6, 1994, prior to commencing closing arguments in the mitigation phase to the jury, the court, in chambers, held an additional hearing "to make sure that we've put on the record or certainly clarified the position of the defendant and the prosecution as to our procedure in this matter." The court then explained how they were "deviating a little bit from the...