State v. Davis

• Decision Date: 19 February 1992
• Docket Number: No. 90-2524,90-2524
• Citation: 584 N.E.2d 1192,63 Ohio St.3d 44
• Parties: The STATE of Ohio, Appellee, v. DAVIS, Appellant.
• Court: Ohio Supreme Court

Page 44

63 Ohio St.3d 44

584 N.E.2d 1192

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

No. 90-2524.

Supreme Court of Ohio.

Submitted Dec. 11, 1991.

Decided Feb. 19, 1992.

In 1984, appellant, Von Clark Davis, was tried before a three-judge panel for the aggravated murder of Suzette Butler. Appellant was found guilty on one count of aggravated murder for purposely, and with prior calculation and design, causing Butler's death. Appellant was also found guilty of a death-penalty specification in connection with the aggravated murder. Following a full mitigation hearing, the three-judge panel sentenced appellant to death. The court of appeals affirmed appellant's conviction and the sentence of death.

In State v. Davis (1988), 38 Ohio St.3d 361, 528 N.E.2d 925, we affirmed appellant's conviction, but a majority of this court reversed appellant's death sentence based upon errors which occurred after all available mitigating evidence had been heard in the penalty phase of appellant's trial. The Davis majority remanded the cause to the "trial court" (the three-judge panel) for a resentencing hearing " * * * at which the state may seek whatever punishment is lawful, including, but not limited to, the death sentence." Id. at 373, 528 N.E.2d at 936. ¹

On remand, in August 1989, the same three-judge panel which had originally convicted and sentenced appellant conducted the resentencing hearing. At this hearing appellant was not permitted to introduce evidence concerning appellant's adjustment to prison life since his 1984 conviction and sentence. Appellant was also not permitted to present the testimony of Dr. Roger Fisher, a psychologist, who, according to appellant, would have provided a "psychological update" of appellant covering the period since appellant's 1984 conviction and sentence.

Following the resentencing hearing, the panel, limiting its consideration to the evidence presented in mitigation at appellant's 1984 trial, resentenced appellant to death. On appeal, the court of appeals affirmed the sentence of death.

The cause is now before us upon an appeal as of right.

John F. Holcomb, Pros. Atty., and Daniel G. Eichel, Hamilton, for appellee.

Randall M. Dana, Ohio Public Defender, Joann Bour-Stokes and Linda Prucha, Columbus, for appellant.

DOUGLAS, Justice.

This appeal involves questions relating to the resentencing of appellant pursuant to our remand in Davis, supra. Appellant presents a number of issues for our consideration. We have considered appellant's propositions of law and have reviewed the death sentence for appropriateness and proportionality. Upon review, and for the reasons which follow, we affirm the sentence of death.

I

In his first proposition of law, appellant argues that his sentence must be vacated since he was not permitted to introduce additional (post-trial) mitigating evidence at the resentencing hearing, and since the three-judge panel, in resentencing appellant, limited its consideration to the evidence presented in mitigation at appellant's 1984 trial. In support of this argument, appellant relies upon a litany of United States Supreme Court cases requiring that relevant mitigating evidence not be precluded from consideration by the "sentencer" in a capital case. See, e.g., Lockett v. Ohio (1978), 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973; Eddings v. Oklahoma (1982), 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1; Skipper v. South Carolina (1986), 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1; and Hitchcock v. Dugger (1987), 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347.

In response, appellee argues that upon remand from an appellate court, a lower court is required to proceed from the point at which the error occurred. See, e.g., State, ex rel. Stevenson, v. Murray (1982), 69 Ohio St.2d 112, 113, 23 O.O.3d 160, 431 N.E.2d 324, 325. In the case at bar, the Davis majority held that errors occurred after the close of evidence in the mitigation phase of appellant's 1984 trial. Id., 38 Ohio St.3d at 367-373, 528 N.E.2d at 931-936. Therefore, appellee argues that the panel did not err in failing to consider the additional mitigating evidence at the resentencing hearing.

We find that the cases cited by appellant are distinguishable from the facts in the case at bar. For instance, appellant places great emphasis on Skipper, supra. In Skipper, Ronald Skipper was convicted in South Carolina for capital murder and rape. During the penalty phase of his trial, Skipper sought to introduce the testimony of witnesses concerning Skipper's adjustment to prison life during the seven and one-half months Skipper spent in jail between his arrest for the murder and rape and his trial on those charges. The trial court excluded the evidence as irrelevant. After hearing closing arguments (during the course of which the prosecutor argued that Skipper would pose disciplinary problems if sentenced to prison and would likely rape other prisoners), the jury sentenced Skipper to death. The United States Supreme Court vacated Skipper's death sentence, finding that the evidence of Skipper's good prison record between his arrest and trial was relevant mitigating evidence which should not have been excluded from consideration by the trial jury. Id. at 4-5, 106 S.Ct. at 1671, 90 L.Ed.2d at 6-7.

In the case at bar, no relevant mitigating evidence was excluded from consideration by the panel during the mitigation phase of appellant's 1984 trial. All mitigating evidence which was available at that time was duly received and considered by the panel including evidence concerning appellant's ability to adjust to prison life. That same relevant evidence was again received and considered by the panel in 1989 for purposes of resentencing appellant. The evidence excluded from consideration by the panel at appellant's resentencing hearing concerned certain post-trial matters. Under these circumstances, we do not believe that Skipper or, for that matter, Lockett, supra, Eddings, supra, or Hitchcock, supra, requires that appellant's death sentence be vacated. Here, appellant was not denied the type of individual consideration of relevant mitigating factors required in capital cases. Accordingly, we reject appellant's first proposition of law. ²

II

The three-judge panel began its resentencing deliberations on Friday, August 4, 1989. The members of the panel then separated over the weekend to individually consider the case. On Monday, August 7, 1989, the panel resumed deliberations and, later that day, announced its decision sentencing appellant to death. In his fourth proposition of law, appellant claims that the members of the panel erred in separating during sentencing deliberations. We disagree.

R.C. 2945.06 provides, in part, that:

"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, any judge of the court in which the cause is pending shall proceed to hear, try, and determine the cause in accordance with the rules and in like manner as if the cause were being tried before a jury. * * * "

R.C. 2945.33 ³ and Crim.R. 24(G)(2)(C) ⁴ require that jurors in a capital case remain sequestered during sentencing deliberations. Furthermore, R.C 2945.33 and Crim.R. 24(G) clearly contemplate that jurors in capital cases generally must not be permitted to separate during their sentencing deliberations.

The purpose of R.C. 2945.33 and Crim.R. 24(G) is evident. The statute and rule are designed to protect jurors from the dangers of jury tampering and other outside influences and to, thereby, protect the integrity of the jury's verdict (or recommendation). As such, it is apparent that the rules pertaining to jury sequestration need not apply to a three-judge panel which is presumed to consider only relevant, competent and admissible evidence in its deliberations. See, e.g., State v. Wickline (1990), 50 Ohio St.3d 114, 122, 552 N.E.2d 913, 922, and State v. White (1968), 15 Ohio St.2d 146, 151, 44 O.O.2d 132, 136, 239 N.E.2d 65, 70. Judges, unlike juries, are presumed to know the law. Judges are trained and expected to disregard any extraneous influences in deliberations. Therefore, notwithstanding the provisions R.C. 2945.06, the panel did not err in failing to follow the rules pertaining to jury sequestration.

Appellant argues that he was " * * * denied the benefit of the decision of a deliberative body * * * " as a result of the members of the panel having individually considered the evidence during their separation. While we agree with appellant that he was entitled to a decision of a "deliberative body," the record in this case shows that the panel did engage in direct deliberations. As no evidence before us supports appellant's argument that he was denied any right to which he was entitled, we reject appellant's fourth proposition of law.

III

In his fifth proposition of law, appellant challenges the constitutionality of our holding in Davis, supra, which permitted the three-judge panel to consider reimposing the death penalty on remand. Appellant argues that our holding in Davis is unconstitutional since a defendant whose death sentence is vacated following a jury trial would not similarly be subject to the death penalty upon sentencing remand. See State v. Penix (1987), 32 Ohio St.3d 369, 513 N.E.2d 744, syllabus. In effect, appellant requests that we reconsider our holding in Davis in which we distinguished Penix, supra. See Davis, supra, 38 Ohio St.3d at 373, 528 N.E.2d at 936. However, we decline appellant's invitation, at this time, to revisit our basic holding in Davis.

Appellant also argues that he must now be permitted to withdraw his 1984 waiver of the right to trial by jury based upon our holding in Davis which permitted the panel to resentence appellant to death. In this regard, appellant suggests that he did not make an "informed choice" between being tried by a panel or by a jury because he was not aware at...