State v. Dickerson

• Decision Date: 06 September 1989
• Docket Number: No. 88-662,88-662
• Citation: 45 Ohio St.3d 206,543 N.E.2d 1250
• Parties: The STATE of Ohio, Appellee, v. DICKERSON, Appellant.
• Court: Ohio Supreme Court

Page 206

45 Ohio St.3d 206

543 N.E.2d 1250

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

No. 88-662.

Supreme Court of Ohio.

Submitted May 10, 1989.

Decided Sept. 6, 1989.

Defendant-appellant, Frederick Dickerson, and Denise Howard were involved in a relationship between 1978 and March 1985. Out of this relationship, two children, Frederick and Jovan, were born. Howard decided to terminate her relationship with appellant because of verbal and physical abuse he had allegedly inflicted upon her. Shortly thereafter, Howard and her children moved in with Kevin McCoy, who shared a duplex apartment with Davida McClain and her children, Tony, Donya, and Nicole. Nicole was also known as Sue. The apartment was located at 1552 1/2 Pinewood in Toledo, Ohio.

Upon discovering Howard's new address, appellant went there on May 26, 1985 in an attempt to renew his relationship with Howard. When Howard rebuffed appellant's overtures for a reconciliation, appellant assaulted her. This assault was witnessed by Curtis Jewell, a patrolman with the Toledo Police Department who was off-duty at the time. Jewell asked his father to call the police and went to assist Howard. As a result of this incident, appellant was placed under arrest and charged with disorderly conduct. Subsequently, Howard, her children and McCoy went to the residence of McCoy's mother and returned to the Pinewood apartment at approximately 2:30 a.m. on May 27, 1985. At that time, Howard found a note on her car window from appellant. Approximately an hour later, Howard saw appellant at the side of the Pinewood apartment and promptly called the police. Howard testified that she called the police again at approximately 4:00 a.m. upon hearing someone at the side of the apartment, and phoned them again approximately one-half hour later when she observed appellant near the apartment. Upon investigating each time, the police were unable to locate appellant in the vicinity of the apartment.

Shortly thereafter, however, Howard testified that she heard a window in the apartment bathroom being opened, whereupon she awakened McCoy. McCoy left the bedroom, grabbed a chair and apparently charged toward the bathroom window. Howard ran out the door and down the stairs when she heard a crash and a gunshot. Upon running to a nearby house, she called the police. Before the police could respond to the call, appellant shot McCoy in the chest and in the back of the head. Appellant also shot Nicole McClain twice in the face. The record indicates that McCoy died at the scene, and that McClain died within approximately two hours of the shootings.

Appellant was arrested at approximately 6:00 a.m. next to the rear stairwell outside the Pinewood apartment. The arresting officers recovered a .22 caliber nine-shot revolver from appellant that was later identified as the murder weapon.

On May 31, 1985, appellant was indicted by the grand jury on two counts of aggravated murder (R.C. 2903.01[B] ). Each count carried a felony murder specification (R.C. 2929.04[A] ) and a mass murder specification (R.C. 2929.04[A] ), as well as firearm specifications (R.C. 2929.71).

On October 18, 1985, appellant waived his right to a trial by jury. Consequently, his trial before a three-judge panel commenced on November 4, 1985. The guilt phase of the trial concluded the following day, whereupon the panel returned verdicts finding appellant guilty of both counts of aggravated murder, as well as the specifications attached to those counts.

The mitigation hearing took place immediately thereafter, and on November 7, 1985, the panel announced its judgment that the aggravating circumstances outweighed the mitigating factors beyond a reasonable doubt. Therefore, the panel imposed the death sentence for each count of aggravated murder and two consecutive three-year terms of actual incarceration for the conviction of the two firearm specifications. On November 13, 1985, the panel entered its judgment entry of sentence.

Upon appeal, the court of appeals affirmed the trial court's judgment of conviction and sentence.

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

Anthony G. Pizza, Pros. Atty. and Dean P. Mandross, for appellee.

Fritz Byers, for appellant.

SWEENEY, Justice.

Pursuant to R.C. 2929.05(A), this court must undertake a three-step analysis in reviewing the instant death penalty case. First, we will consider the specific issues raised by appellant with regard to the proceedings below. In so doing, we will review all of the 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 of 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 R.C. 2929.03(D) ¹ violates the constitutional principle of "reasonable definiteness" in death penalty statutes announced in Furman v. Georgia (1972), 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. Appellant contends that while the statute in issue prescribes a burden of proof for a mitigation hearing tried before a jury, no burden of proof is prescribed for a mitigation hearing conducted before a three-judge panel. As a consequence, appellant asserts that the burden of proof implemented by a three-judge panel in a mitigation proceeding will vary depending on the standard of proof selected by the particular panel. In support of his argument, appellant submits three sentencing opinions rendered by separate three-judge panels which he claims applied differing standards of proof in mitigation hearings: State v. Forney (Oct. 19, 1982), Summit C.P. No. 82-04-0443(A), unreported; State v. Stumpf (Sept. 28, 1984), Guernsey C.P. No. 9684, unreported; and State v. Van Hook (Aug. 8, 1985), Hamilton C.P. No. B-851389, unreported. It is appellant's contention that while the Van Hook panel applied the "beyond a reasonable doubt" standard in the mitigation proceeding therein, it does not appear that the panels in Forney and Stumpf applied such a standard.

Upon a careful review of the opinions cited by appellant, it appears that the panels in Forney and Stumpf did not articulate the standard of proof applied in their determinations, whereas the panel in Van Hook clearly announced its application of the "beyond a reasonable doubt" standard. However, the inference that the courts applied a lower standard of proof in Forney and Stumpf is less compelling than the inference that the courts correctly applied the "beyond a reasonable doubt" standard of proof.

Nevertheless, in the assessment of the constitutionality of R.C. 2929.03(D), it is axiomatic that all legislative enactments enjoy a presumption of constitutional validity. See, e.g., Mominee v. Scherbarth (1986), 28 Ohio St.3d 270, 274, 28 OBR 346, 349, 503 N.E.2d 717, 720. In addition, a statute should be construed in a manner that upholds the constitutionality of the enactment, if at all possible. State v. Sinito (1975), 43 Ohio St.2d 98, 101, 72 O.O.2d 54, 56, 330 N.E.2d 896, 898. Moreover, when asked to interpret a statute, a court should consider the statute in its entirety. See Richards v. United States (1962), 369 U.S. 1, 11, 82 S.Ct. 585, 591, 7 L.Ed.2d 492.

In our view, all the foregoing considerations compel a finding that R.C. 2929.03(D) is indeed constitutional, especially when the statute is read in its entirety. R.C. 2929.03(D)(1) provides in relevant part:

" * * * The prosecution shall have the burden of proving, by proof beyond a reasonable doubt, that the aggravating circumstances the defendant was found guilty of committing are sufficient to outweigh the factors in mitigation of the imposition of the sentence of death."

Clearly, the foregoing standard of proof in mitigation hearings embodied in R.C. 2929.03(D) applies equally, regardless of whether the case is tried before a jury or a three-judge panel. Even if we were to assume, arguendo, that R.C. 2929.03(D)(3) is ambiguous with respect to the applicable standard of proof in a mitigation hearing conducted before a three-judge panel, the language of R.C. 2929.03(D)(1) resolves any such alleged ambiguities. Since R.C. 2929.03(D) is not unconstitutionally vague in this context, we find appellant's first proposition of law to be without merit.

In appellant's second proposition of law, he contends that his jury trial waiver was not knowingly and intelligently entered because the trial court failed to inform him that a three-judge panel may establish a lower standard of proof at the mitigation hearing and thereby increase his risk of obtaining a death sentence.

Given our disposition concerning appellant's first proposition of law, the appellant's argument here is also without merit. As mentioned before, the standard of proof in a mitigation hearing is the same (i.e., beyond a reasonable doubt) regardless of whether the hearing is conducted before a jury or a three-judge panel. Therefore, since the standard of proof in a mitigation hearing is not lessened when the hearing takes place before a three-judge panel, we cannot say that appellant's jury trial waiver in this context was not knowingly and intelligently entered. Accordingly, appellant's second proposition of law is not well-taken.

In his third proposition of law, appellant asserts that his jury trial waiver was compromised upon his subsequent discovery that one of the members of the three-judge panel presided in a prior criminal proceeding in which he was involved. Appellant contends that his expressed concern about the impartiality of this particular judge also implied a hesitancy about his jury trial waiver. Appellant submits that the trial court erred in failing to inform him of his right to withdraw the jury trial waiver,...