State v. Fears, No. 98-19.

• Court: United States State Supreme Court of Ohio
• Writing for the Court: FRANCIS E. SWEENEY, SR., J.
• Citation: 715 NE 2d 136,86 Ohio St.3d 329
• Decision Date: 08 September 1999
• Docket Number: No. 98-19.
• Parties: THE STATE OF OHIO, APPELLEE, v. FEARS, APPELLANT.

86 Ohio St.3d 329
715 NE 2d 136

THE STATE OF OHIO, APPELLEE,
v.
FEARS, APPELLANT

No. 98-19.

Supreme Court of Ohio.

Submitted March 9, 1999.

Decided September 8, 1999.

86 Ohio St.3d 331

Michael K. Allen, Hamilton County Prosecuting Attorney, and Ronald W. Springman, Assistant Prosecuting Attorney, for appellee

H. Fred Hoefle and Cathy R. Cook, for appellant.

FRANCIS E. SWEENEY, SR., J.

Appellant has raised twenty-eight propositions of law, which we have fully considered. (See Appendix.) Pursuant to State v. Poindexter (1988), 36 Ohio St.3d 1, 520 N.E.2d 568, and subsequent cases, we summarily reject without discussion those propositions of law where the error was not properly preserved or where the issues raised have been addressed by this court and rejected. We have also considered the death penalty for appropriateness and proportionality. Upon review, and for the reasons that follow, we uphold appellant's convictions and sentences, including the sentence of death.

86 Ohio St.3d 332

I

PROSECUTORIAL MISCONDUCT

In his first and twenty-first propositions of law, appellant alleges numerous instances of prosecutorial misconduct, in both the guilt and penalty phases of the trial. The test for prosecutorial misconduct is whether the conduct complained of deprived the defendant of a fair trial. State v. Apanovitch (1987), 33 Ohio St.3d 19, 24, 514 N.E.2d 394, 400. For the reasons that follow, although we find no reversible error, we express our deep concern over some of the remarks and misstatements made by the prosecutors involved in this case. While we realize the importance of an attorney's zealously advocating his or her position, we cannot emphasize enough that prosecutors of this state must take their roles as officers of the court seriously. As such, prosecutors must be diligent in their efforts to stay within the boundaries of acceptable argument and must refrain from the desire to make outlandish remarks, misstate evidence, or confuse legal concepts. Nevertheless, because we find that none of the errors complained of rises to the level of plain error, we do not reverse this case based upon prosecutorial misconduct. The alleged errors are discussed as follows.

In his first proposition of law, appellant contends that one of the prosecutors (Mr. Prem) improperly argued nonstatutory aggravating circumstances, when he stated the following during his closing argument in the penalty phase of the trial:

"I submit to you there is nothing mitigating in the manner in which Angelo Fears purposely killed Antwuan Gilliam. There's no mitigation in that."

"What kind of terror did he [appellant] put into Derrick Frazier's head? He told us he peed in his pants. How is that for aggravating circumstances?"

"Well, I guess there's some mitigation there because, you know, * * * he left [Lakesha] alone and that four-year-old baby there. He didn't touch that child. There's mitigation for you. There's mitigation for you. The murder. You have to look at the nature and circumstances of the murder."

"[D]oes that abuse [that appellant suffered as a child], is that justification or is that a mitigation factor sufficient to outweigh the brutal death of Antwuan Gilliam[?]"

Except for the comment regarding Derrick Frazier, defense counsel did not object to the other remarks. Therefore, those comments that were not objected to are analyzed under the plain error rule, since "[a] claim of error in a criminal case can not be predicated upon the improper remarks of counsel during his argument at trial, which were not objected to, unless such remarks serve to deny the defendant a fair trial." State v. Wade (1978), 53 Ohio St.2d 182, 7 O.O.3d 362, 373 N.E.2d 1244, paragraph one of the syllabus.

86 Ohio St.3d 333

In State v. Wogenstahl (1996), 75 Ohio St.3d 344, 662 N.E.2d 311, at paragraph two of the syllabus, we held that "[i]t is improper for prosecutors in the penalty phase of a capital trial to make any comment before a jury that the nature and circumstances of the offense are `aggravating circumstances.'" The "aggravating circumstances" are limited to those factors set forth in R.C. 2929.04(A)(1) through (8) that are specified in the indictment and proved beyond a reasonable doubt. Id. at 351, 662 N.E.2d at 318

It is clear that the prosecutor in this case erred in referring to the terror appellant inflicted on Derrick Frazier as an "aggravating circumstance." As we have previously stated, it is improper for a prosecutor to "suggest that * * * the suffering and mental anguish the victims endured was an aggravating circumstance." State v. Combs (1991), 62 Ohio St.3d 278, 283, 581 N.E.2d 1071, 1077. The prosecutor also erred by telling the jury that it should weigh appellant's childhood abuse against the nature and circumstances of the offense. The nature and circumstances of the offense can be weighed only against the proven aggravating circumstances. In addition, with that comment, the prosecutor implied that mitigation must outweigh aggravation. Nevertheless, although these comments were improper, we do not find that they rise to the level of plain error.

Appellant also states that the prosecutor improperly told the jury in opening argument to consider the nature and circumstances of the offense itself and to weigh these against the aggravating circumstances. We find no error in this comment.

Appellant further contends that both prosecutors erred by commenting on his lack of remorse. First, Prosecutor Prem argued that "the doctor [Dr. Smalldon] said he [appellant] doesn't care. He is callous. He doesn't have any remorse. He doesn't regret the consequences of what he does." Then, Prosecutor Russell stated: "He shot them with no remorse. He shot them in front of two other people and he pistol whipped Derrick Frazier." While it is impermissible to turn the nonexistence of a mitigating factor, such as remorse, into an aggravating circumstance (State v. Tyler [1990], 50 Ohio St.3d 24, 41, 553 N.E.2d 576, 596), a prosecutor is entitled to rebut the evidence of remorse presented by the defendant, State v. Awkal (1996), 76 Ohio St.3d 324, 336, 667 N.E.2d 960, 971. As we stated in State v. McGuire (1997), 80 Ohio St.3d 390, 395, 686 N.E.2d 1112, 1117, State v. Tyler "does not hold that the state cannot comment on the lack of remorse whenever the defendant denies guilt. Rather, it holds that the state cannot refute potential mitigating factors that the defense has not first placed in issue." Since appellant expressed remorse in his unsworn statement, the prosecutors did not err in making these comments.

Another comment alleged to be improper is the prosecutor's reference to Dr. Smalldon as defense counsel's "mouth piece." This comment insinuates that

86 Ohio St.3d 334

defense counsel has paid the expert simply to have him parrot their opinions. It is obviously intended to denigrate defense counsel. However, the trial court sustained an objection to this remark and instructed the jury to disregard it. The jury is presumed to have followed the court's instructions. State v. Raglin (1998), 83 Ohio St.3d 253, 264, 699 N.E.2d 482, 492. Appellant further argues that it was improper for the prosecutor to state in closing argument that the defense expert was being paid with taxpayer money. Again, although it may be proper to discuss an expert's fee to show bias or pecuniary interest, this comment injects an impermissible reference to taxpayer's contributions, by which the prosecutor obviously hoped to gain an unfair advantage. However, even though improper, these remarks do not rise to the level of prejudice found in State v. Keenan (1993), 66 Ohio St.3d 402, 406, 613 N.E.2d 203, 207

Appellant alleges that the prosecutors erred in asking his mother impermissible questions regarding a criminal charge against her and a competency examination connected to that charge. Even though appellant's mother had not yet been sentenced, the prosecutor was entitled to impeach her with her guilty plea to burglary. State v. Cash (1988), 40 Ohio St.3d 116, 532 N.E.2d 111, syllabus. Furthermore, defense counsel did not object to the questions regarding her conviction or her competency, so the claims are waived.

Appellant also says that the prosecutors erred in asking mitigation witnesses questions as to whether they believed that appellant knew right from wrong. This door had already been opened by the defense in its questioning of these witnesses. Therefore, appellant cannot claim error. In a similar vein, appellant objects to the line of questioning regarding whether he belonged to a gang and regarding an assault he had been involved in. Since appellant's brother had already testified that appellant had never been the type of person who would hurt anyone, this line of questioning was not error. Moreover, appellant's sister denied any gang membership and his brother denied appellant's involvement in the assault. Appellant cannot claim prejudice by these remarks.

Several misconduct allegations stem from a dispute at trial over whether the prosecutors were entitled to see Smalldon's interview notes. The trial court ruled that the state could not receive these notes. Nevertheless, the prosecutor made several comments about these notes in the presence of the jury. The prosecutor asked Smalldon, over objection, whether he provided these notes to the state. The prosecutor also alluded in cross-examination to Smalldon's failure to write a report. The court sustained several defense objections. Finally, in closing argument, the prosecutor argued to the jury that Smalldon's bias was shown by his refusal to give information to the state. Prosecutor Russell stated: "He [Smalldon] was reluctant to give up what was in his file. He was reluctant to tell us what the defendant had told him. He was unwilling to give us his notes

86 Ohio St.3d 335

and unwilling to write a report." Defense counsel objected, and the judge sustained the objection as to the notes...