State v. Hill

Citation661 N.E.2d 1068,75 Ohio St.3d 195
Decision Date05 March 1996
Docket NumberNo. 95-202,95-202
PartiesThe STATE of Ohio, Appellee, v. HILL, Appellant.
CourtUnited States State Supreme Court of Ohio

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Christian J. Schaefer, Assistant Prosecuting Attorney, for appellee.

H. Fred Hoefle and Chuck R. Stidham, Cincinnati, for appellant.

MOYER, Chief Justice.

Appellant has raised twenty-six propositions of law. We have reviewed each and, for the reasons stated, we find that none justifies reversal of appellant's convictions for the crimes of aggravated murder, aggravated burglary, and kidnapping. We have also independently reviewed the record, weighed the aggravating circumstances against the mitigating factors, and examined the appropriateness and proportionality of the death sentence in this case. Upon review of the record, we affirm appellant's convictions and death sentence.

I Prosecutorial Misconduct-Penalty Phase

In his first and second propositions of law Hill contends that, at the close of the penalty phase of the trial, the prosecutor engaged in misconduct in the presentation of his closing argument. Hill claims that the prosecutor improperly attempted to focus the jury's attention upon nonstatutory aggravating circumstances in the form of evidence of the nature and circumstances of the crime, e.g., that the crime was brutal, and that the victim was defenseless. Hill complains of the prosecutor's comment on the victim's age, status, helplessness and injuries, as well as the fact that Domika was kidnapped while her mother slept.

Hill's argument that the prosecutor engaged in misconduct by arguing nature-and-circumstances evidence is foreclosed by the syllabus in State v. Gumm (1995), 73 Ohio St.3d 413, 653 N.E.2d 253, where we held, as a matter of statutory interpretation of R.C. 2929.03(D), that a prosecutor at the penalty stage of a capital trial may introduce and comment upon, inter alia, evidence that is relevant to the aggravating circumstances specified in the indictment of which the defendant was found guilty, and evidence rebutting the existence of any statutorily defined or other mitigating factors first asserted by the defendant. While Hill acknowledges Gumm's holding, he suggests that our interpretation of R.C. Chapter 2929 in Gumm invalidates Ohio's entire death penalty statutory framework as unconstitutional. He infers that this court is constitutionally required to impose severe restrictions upon the scope of a prosecutor's argument to the jury in the penalty phase of a capital trial, and that to do otherwise allows the imposition of an unreliable death sentence.

We reject Hill's arguments, which, in large part, are repetitious of those made in Gumm. As we there recognized, the United States Supreme Court has consistently relied upon the premise that both the criminal and his crime are properly considered in determining the propriety of imposing a death sentence. Similarly, while recognizing that a sentence of death may not be made under sentencing procedures that create a substantial risk of being inflicted in an arbitrary and capricious manner, that court nevertheless has approved of the presentation of a "wide scope of evidence and argument * * * at presentence hearings." Gregg v. Georgia (1976), 428 U.S. 153, 203-204, 96 S.Ct. 2909, 2939, 49 L.Ed.2d 859, 891-892. See, e.g., California v. Ramos (1983), 463 U.S. 992, 1008, 103 S.Ct. 3446, 3457, 77 L.Ed.2d 1171, 1185; Gumm, at syllabus. The court has expressly refused to "fashion general evidentiary rules, under the guise of interpreting the Eighth Amendment, which would govern the admissibility of evidence at capital sentencing proceedings." Romano v. Oklahoma (1994), 512 U.S. 1, 114 S.Ct. 2004, 2011, 129 L.Ed.2d 1, 12-13.

In the penalty phase of a capital trial, an Ohio jury is statutorily required to "consider" all of the evidentiary factors identified in the first paragraph of R.C. 2929.03(D)(1). Our syllabus in Gumm reflected that statutory provision. The second paragraph of R.C. 2929.03(D)(1) provides, however, that the jury's ultimate recommendation as between a life or death sentence is dependent upon the jury's balancing of whether the "aggravating circumstances the defendant was found guilty of committing" (i.e., the R.C. 2929.04 specifications identified in the indictment) "are sufficient to outweigh the factors in mitigation of the imposition of the sentence of death." In Gumm, we recognized it to be improper for a prosecutor to argue to a jury that individual facts surrounding an aggravated murder "are the aggravating circumstances" in a death penalty case. Such statements are improper, however, not because they seek to focus the jury's attention on the facts surrounding the crime, but rather because they misstate Ohio law. Nature-and-circumstances facts are not "aggravating circumstances" as the term is used in R.C. 2929.03 and 2929.04, or as that term is properly incorporated into jury instructions given to guide a jury in coming to its ultimate recommendation. At the same time, however, pursuant to R.C. 2929.03(D) as interpreted in Gumm, a prosecutor may incorporate proven facts surrounding a murder into the state's closing argument even when those proven facts could increase rather than decrease the likelihood that a sentence of death will ultimately be recommended. Cf. Romano v. Oklahoma, 512 U.S. at ----, 114 S.Ct. at 2009-2010, 129 L.Ed.2d at 10-11.

Our holding in Gumm is necessary in order to harmonize the various subsections of R.C. 2929.03(D). Acceptance of Hill's argument would effectively eliminate the first paragraph of R.C. 2929.03(D)(1), as well as the first phrase of R.C. 2929.03(D)(2), both of which require a jury to "consider" a wide range of evidence during the penalty phase of the trial, as well as counsel's arguments.

We will not interpret Ohio's capital sentencing statute to require a jury to make its recommendation between life and death in a factual vacuum. Nor will we accept an interpretation of Ohio's statutes which runs the risk of resulting in the same kind of unbalanced presentation found unnecessarily unfair to the state in Payne v. Tennessee (1991), 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720, where " 'a parade of witnesses may praise the background, character and good deeds of Defendant * * * without limitation as to relevance, but nothing may be said that bears upon the character of, or the harm imposed, upon the victims.' " Id., 501 U.S. at 826, 111 S.Ct. at 2609, 115 L.Ed.2d at 736. We will not sanction a procedure by which counsel for a criminal defendant is provided full opportunity to vigorously argue the full range of mitigating evidence procured on behalf of his or her client, while his adversary, the prosecutor, is precluded from vigorously arguing the entire scope of facts surrounding the act of murder of which the defendant has been convicted. We instead affirm the view of Justice Cardozo, as did the majority of the United States Supreme Court in Payne, that " '[j]ustice, though due to the accused, is due to the accuser also.' " Id. at 827, 111 S.Ct. at 2609, 115 L.Ed.2d at 736, citing Snyder v. Massachusetts (1934), 291 U.S. 97, 122, 54 S.Ct. 330, 338, 78 L.Ed. 674, 687. In short, a capital defendant in Ohio is not statutorily or constitutionally entitled to protection during the sentencing process from the facts he himself created in committing his crime.

Our conclusions are reinforced by the recognition that there is no constitutional requirement that aggravating circumstances be "weighed against" mitigating factors, nor does the Constitution require that the sentencing process "be transformed into a rigid and mechanical parsing of statutory aggravating factors." Barclay v. Florida (1983), 463 U.S. 939, 950, 103 S.Ct. 3418, 3425, 77 L.Ed.2d 1134, 1144. Similarly, "[i]f the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar." Payne at 827, 111 S.Ct. at 2609, 115 L.Ed.2d at 736. The Eighth Amendment to the United States Constitution does require, however, that a defendant be found guilty of at least one valid, limiting, statutory aggravating circumstance, and that the defendant be provided full opportunity to present evidence in mitigation. Zant v. Stephens (1983), 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235. Our interpretation of Ohio's death penalty statutes preserves these constitutional requisites, and guards against arbitrary imposition of a death sentence by limiting the class of death-eligible murderers to those who are found guilty of at least one of the statutorily defined aggravating circumstances enumerated in R.C. 2929.04(A).

Hill concedes that defense counsel made no objection whatsoever to any portion of the prosecutor's argument. Because Hill failed to object at trial, his challenges to the prosecutor's argument must be analyzed according to plain-error standards, and his death sentence should be reversed only if error is found and that error is deemed to have denied him a fair trial. State v. Wade (1978), 53 Ohio St.2d 182, 7 O.O.3d 362, 373 N.E.2d 1244; State v. Campbell (1994), 69 Ohio St.3d 38, 41, 630 N.E.2d 339, 345. The United States Constitution does not require us to hold that the traditional prosecutorial role of vigorously presenting and arguing admissible evidence must or should be restrained in a capital case beyond the limits constitutionally required in other criminal cases. A death sentence need not be reversed on constitutional grounds even when prosecutorial comment is " 'undesirable or even universally condemned,' " unless the prosecutor's comments " 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.' " Darden v. Wainwright (1986), 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144, 157.

While the prosecutor did improperly characterize the...

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