State v. Glenn

• Decision Date: 30 December 1986
• Docket Number: No. 85-877,85-877
• Citation: 504 N.E.2d 701,28 OBR 501,28 Ohio St.3d 451
• Parties: , 28 O.B.R. 501 The STATE of Ohio, Appellee, v. GLENN, Appellant.
• Court: Ohio Supreme Court

Page 451

28 Ohio St.3d 451

504 N.E.2d 701, 28 O.B.R. 501

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

No. 85-877.

Supreme Court of Ohio.

Dec. 30, 1986.

Syllabus by the Court

1. One who is a reserve or special deputy sheriff qualifies as a peace officer as that term is utilized in R.C. 2929.04(A)(6), which section sets forth one of the criteria for imposing death or imprisonment for a capital offense.

2. It is error for the one who prepares a presentence report to include witness statements given to the police or other versions of the crime taken from police reports when the presentence report is to be utilized in the mitigation phase of an aggravated murder trial. The report should include only such information as is directly relevant to the aggravating and mitigating circumstances. However, the error is not prejudicial when basically the material in the report has been presented as evidence at the trial where the defendant has had the opportunity of full cross-examination of the witnesses, and retains the right to recall such witnesses.

John Glenn, appellant, was convicted of the aggravated murder of Mahoning County Reserve Deputy Sheriff John Litch, Jr. Litch was killed while transporting a prisoner, Robert Glenn, who was also appellant's half-brother, from the prison to a hospital for treatment of Robert's leg which was in a cast. While en route, the deputy's squad car was stopped at a downtown traffic light. At that time, appellant's vehicle struck him from behind. The deputy left the squad car and walked toward the other vehicle. As he approached the door, he was shot at close range and killed with a twelve-gauge shotgun. The prisoner then left the squad car and entered the other vehicle. Both men immediately departed in the auto driven by appellant.

The crime was committed in downtown Youngstown, Ohio, and was witnessed by two firemen. It was shown at trial that appellant had access to the information concerning the scheduled medical treatment of his half-brother. Appellant's girlfriend testified that appellant admitted to her that he killed the officer. Also, appellant had been observed earlier in the day driving the vehicle used in the escape.

Appellant was indicted for escape and aggravated murder with a specification, pursuant to R.C. 2929.04(A)(6), that the victim was a peace officer. The jury found appellant guilty, after which the jury was released until the beginning of the sentencing phase of the trial.

After the sentencing phase presentations, the jury recommended the death penalty. The trial court then determined that the aggravating circumstances outweighed any mitigating factors beyond a reasonable doubt. It thereafter adopted the jury's recommendation and sentenced appellant to death. The court of appeals, after independently reweighing all the evidence, mitigating factors, and aggravating circumstances, as well as determining appellant's other assignments of error, affirmed both the verdict and the sentence.

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

Gary L. Van Brocklin, Pros. Atty., and Mary Jane Stephens, Youngstown, for appellee.

Breckenridge & McCroom, John L. Breckenridge and E. Winther McCroom, Youngstown, for appellant.

HOLMES, Justice.

Appellant argues that R.C. 2903.01, 2929.02 through 2929.023, and 2929.03 through 2929.06 are unconstitutional under both the federal and Ohio Constitutions. These arguments generally have been presented to, and answered by, both the Ohio and United States Supreme Courts.

The death penalty itself is not cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution or the Ohio Constitution. See, e.g., Gregg v. Georgia (1976), 428 U.S. 153, 187, 96 S.Ct. 2909, 2931, 49 L.Ed.2d 859 and State v. Jenkins (1984), 15 Ohio St.3d 164, 179, 473 N.E.2d 264. See, also, State v. Brooks (1986), 25 Ohio St.3d 144, 154, 495 N.E.2d 407, and citations contained therein.

Appellant's second contention with regard to the constitutionality of the Ohio death penalty is that the statute provides a jury with unbridled discretion to weigh the aggravating circumstances and mitigating factors. Appellant maintains that this statutory scheme results in the wholly arbitrary and capricious actions warned against in Furman v. Georgia (1972), 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. A similar contention was addressed and rejected in State v. Jenkins, supra, 15 Ohio St.3d at 173, 473 N.E.2d 264.

Appellant's third argument within his first proposition of law focuses on opportunities for discretionary action inherent in the processing of any murder case, and argues that the risk of arbitrary infliction of the death penalty is not sufficiently reduced. The United States Supreme Court, addressing these arguments, held: "The existence of these discretionary stages is not determinative of the issues before us. * * * Furman held only that, in order to minimize the risk that the death penalty would be imposed on a capriciously selected group of offenders, the decision to impose it had to be guided by standards so that the sentencing authority would focus on the particularized circumstances of the crime and the defendant." Gregg, supra, 428 U.S. at 199, 96 S.Ct. at 2937. Furman does not prohibit discretion per se but requires that discretion in the area of sentencing be exercised in an informed and directed manner. Gregg, supra, at 189, 96 S.Ct. at 2932. The Ohio death penalty statute provides the sentencing authority with specific and detailed guidance in its decision whether to impose the death penalty or imprisonment for life. See, also, Proffitt v. Florida (1976), 428 U.S. 242, at 253, 96 S.Ct. 2960, at 2967, 49 L.Ed.2d 913. Thus, Ohio fulfills the mandate of Furman. Finally, the multi-tiered review structure under the Ohio statute also eliminates the arbitrary imposition of the death penalty. State v. Maurer (1984), 15 Ohio St.3d 239, 246, 473 N.E.2d 768; Jenkins, supra.

Appellant asserts that the victim's status as a volunteer reserve deputy sheriff is insufficient to qualify as a "peace officer." R.C. 2929.04(A)(6) allows imposition of the death penalty on anyone who commits the crime of aggravated murder upon a peace officer as defined in R.C. 2935.01. By this reasoning, appellant concludes that either the specification should have been stricken from the indictment, or that the indictment was fatally defective and did not confer jurisdiction upon the trial court.

R.C. 2935.01(B) defines "peace officer" to include "a sheriff, deputy sheriff, marshal, deputy marshal, member of the organized police department of any municipal corporation, state university law enforcement officer appointed under section 3345.04 of the Revised Code, a police constable of any township * * *." Deputy sheriffs are to be appointed by the sheriff pursuant to R.C. 311.04. Also, a deputy sheriff is a peace officer when he is "commissioned and employed as a peace officer by a political subdivision of this state, and whose primary duties are to preserve the peace, to protect life and property, and to enforce the laws of Ohio * * *." R.C. 109.71.

It is uncontroverted that the victim fulfilled all the above requirements and that he was duly appointed and was in the process of activities performed pursuant to his duties to enforce Ohio's laws. While transporting the prisoner, the victim was in full uniform and driving a sheriff's squad car. Although he served without remuneration, his responsibilities and training requirements were the same as those of a full-time deputy. He was, in every sense, one of those "public servants who regularly must risk their lives in order to guard the safety of other persons * * *." Roberts v. Louisiana (1977), 431 U.S. 633, 636, 97 S.Ct. 1993, 1995, 52 L.Ed.2d 637 . Acting to preserve the peace of his community, John Litch nobly made the supreme sacrifice of his life. We therefore conclude that one who acts as a reserve or special deputy sheriff is a peace officer as that term is utilized in R.C. 2929.04(A)(6) and 109.71. Appellant's argument is therefore not well-taken.

It is contended that the trial court impermissibly interfered in the interrogation of prospective veniremen by restricting the subject matter of the voir dire and by interposing individual questions. After examining the record, it becomes quite clear that there was no abuse of discretion by the trial court. A trial judge is fully empowered to conduct the questioning of prospective jurors and may also direct such individual questions as he deems necessary.

Defense counsel's objections stem from occasions when the trial court refused to allow further questioning about the prospective juror's views on the death penalty. In one instance, counsel sought to obtain the hypothetical views on abolition of the death penalty, but only after the witness had stated that he had no bias against imposition of the death penalty. This further question was therefore irrelevant.

At another point, the venireman had been asked repeatedly by the court and defense counsel whether he could agree to recommend the death penalty. He answered affirmatively when asked whether he would "automatically vote against the death penalty," and affirmed that view consistently. Defense counsel's continued efforts at persuasion were apparently aimed at obtaining a modification of the answers. Clearly, however, the prospective juror was not confused as to the requirements of the law.

There was, therefore, no error in refusing to allow the lines of questioning sought by appellant.

Appellant's assertion that a distinct group was systematically excluded from the jury panel is, without more, unsubstantiated. The mere fact that only one black appeared in the array of prospective jurors neither indicates that minorities were systematically excluded, nor does it create a presumption that discrimination has occurred. Contrary to the requirements of ...