State v. Holloway

• Decision Date: 24 August 1988
• Docket Number: No. 86-1597,86-1597
• Citation: 527 N.E.2d 831,38 Ohio St.3d 239
• Parties: The STATE of Ohio, Appellee, v. HOLLOWAY, Appellant.
• Court: Ohio Supreme Court

Page 239

38 Ohio St.3d 239

527 N.E.2d 831

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

No. 86-1597.

Supreme Court of Ohio.

Submitted May 3, 1988.

Decided Aug. 24, 1988.

Syllabus by the Court

1. Mitigating factors under R.C. 2929.04(B) are not necessarily related to a defendant's culpability but, rather, are those factors that are relevant to the issue of whether an offender convicted under R.C. 2903.01 should be sentenced to death.

2. The independent weighing process at each appellate level required by R.C. 2929.05 does not contravene the role of the jury in the penalty proceeding; rather, the statutory scheme provides a procedural safeguard against the arbitrary imposition of the death penalty.

Arthur M. Ney, Jr., Pros. Atty., Paul R. Markgraf, William E. Breyer, Cincinnati, and Theodore Froncek, Jr., for appellee.

John K. Issenmann and Jeffrey R. Lewis, Cincinnati, for appellant.

MOYER, Chief Justice.

This appeal presents us with six propositions of law asserting various errors in the penalty phase of the trial and appellate court proceedings.

I

A

Holloway first asserts that his premature release from prison precipitated his violent behavior. He submits that the trial court failed to properly consider his early release as a mitigating factor in sentencing, rendering this sentencing constitutionally deficient under Lockett v. Ohio (1978), 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 applied in State v. Jenkins (1984), 15 Ohio St.3d 164, at 189, 15 OBR 311, at 332-333, 473 N.E.2d 264, at 288-289, and flawed in light of statutory requirements of R.C. 2929.04(B). We disagree.

The Eighth and Fourteenth Amendments to the United States Constitution require the sentencing authority in capital cases to be not precluded from considering, as a mitigating factor, the defendant's character and record, and the circumstances of the particular offense. Lockett v. Ohio, supra.

The first paragraph of R.C. 2929.04(B) mandates consideration of evidence of an offender's history, character, and background in mitigation, and R.C. 2929.04(B)(7) also permits consideration of "[a]ny other factors that are relevant to the issue of whether the offender should be sentenced to death."

Our review of the trial court's opinion reveals that the fact of Holloway's release on parole was considered by the trial court in mitigation consistent with the constitutional and statutory requirements of Lockett v. Ohio, supra, and R.C. 2929.04(B). We find no error in the trial court's determination that defendant's release was irrelevant as a mitigating factor. When found not mitigating, a factor may be given little or no weight against the aggravating circumstances. State v. Stumpf (1987), 32 Ohio St.3d 95, 512 N.E.2d 598, paragraph two of the syllabus; State v. Steffen (1987), 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d 383.

B

Defendant next contends that because the trial judge considered a definition of mitigating factors different from the definition considered by the jury, defendant was prejudiced and deserves a new sentencing hearing. We find the error harmless for the reasons set forth below.

At the penalty phase, the trial court properly instructed the jury to consider all the relevant testimony and exhibits in both the guilt and penalty phases, the arguments of counsel, and all other information relevant to the aggravating circumstances and mitigating factors. The court then recited the statutory mitigating factors defined in R.C. 2929.04(B). ¹

After the jury rendered its recommendation of the sentence of death the court issued a written opinion that set forth its reasons for adopting the jury's recommendation. The court stated its belief that " * * * a mitigating factor is a circumstance or fact that would tend in some way to reduce the offender's culpability for the offense he committed." The court quoted the statutory factors of R.C. 2929.04(B) and then noted, "[i]n considering the nature and circumstances of the offense there is absolutely no evidence which would mitigate or somehow reduce the defendant's culpability."

Contrary to the trial court's opinion, mitigating factors under R.C. 2929.04(B) are not related to a defendant's culpability but, rather, are those factors that are relevant to the issue of whether an offender convicted under R.C. 2903.01 should be sentenced to death. See, e.g., R.C. 2929.04(B)(7). The weighing of aggravating circumstances against mitigating factors " * * * is designed to guide the sentencing authority's discretion by focusing on the 'circumstances of the capital offense and the individual offender * * *,' thus reducing the arbitrary and capricious imposition of death sentences. State v. Jenkins (1984), 15 Ohio St.3d 164, 173, 15 OBR 311, 319, 473 N.E.2d 264, 277." State v. Penix (1987), 32 Ohio St.3d 369, 371, 513 N.E.2d 744, 746-747. The resulting individualized sentencing decisions are essential in capital cases to ensure the reliability of the determination that death is the appropriate punishment. Lockett v. Ohio, supra, 438 U.S. at 602-605, 98 S.Ct. at 2963-65.

The record clearly indicates that the trial court correctly advised the jury of what mitigating factors it was to consider. Given that the jury was properly instructed, reversal is not mandated. The trial court's written opinion clearly indicates that although it fully considered the defendant's evidence in light of each factor listed in R.C. 2929.04(B), it applied a definition of mitigating factors that may have affected its review of the mitigating evidence. We reject, however, Holloway's contention that the deviation is prejudicial error.

In our view, the appellate review process of R.C. 2929.05 was intended, and has functioned in this case, to cure error in the trial judge's sentencing decision. Cf. State v. Jenkins, supra, paragraph five of the syllabus. The court of appeals, upon proper independent review, found nothing of sufficient weight to mitigate the imposition of the death sentence. Our independent review follows in Part II of this opinion.

Therefore, we find the trial judge's definition of mitigating factors to be harmless error.

C

The court of appeals reversed defendant's conviction of the second count of aggravated murder while committing an aggravated burglary, finding that there was insufficient evidence to prove two of the elements of aggravated burglary beyond a reasonable doubt. We hold that the court of appeals erred in reversing the defendant's conviction on the second count.

Ohio's aggravated burglary statute is set out in R.C. 2911.11, and provides, in pertinent part:

"(A) No person, by force, stealth, or deception, shall trespass in an occupied structure, as defined in section 2909.01 of the Revised Code, * * * with purpose to commit therein any theft offense, * * * or any felony, when any of the following apply:

"(1) The offender inflicts, or attempts or threatens to inflict physical harm on another; * * *

" * * *

"(3) The occupied structure involved is the permanent or temporary habitation of any person, in which at the time any person is present or likely to be present."

The court of appeals held that the evidence failed to show: (1) that the defendant, who gained entry to the victim's home by consent, entered by force, stealth, or deception, as required by statute; and (2) that defendant entered Wilson's home with the intent to commit a theft offense or felony. The court, therefore, acquitted the defendant of count two.

This court held in State v. Steffen, supra, that a defendant who initially gains entry to one's home by consent may subsequently become a trespasser if consent is withdrawn. We further held that a jury could justifiably infer from the facts that a victim terminated the accused's privilege to remain after commencement of an assault.

In the case at bar, there is no dispute that Holloway gained entry to the victim's home by consent. It is also not disputed that Holloway subsequently assaulted and murdered the victim. As in Steffen, the jury could justifiably infer that the victim withdrew consent when Holloway commenced the assault and thus trespassed by use of force.

With respect to the second element, we find that there was sufficient evidence in the record for the jury to determine whether Holloway intended to commit a theft offense or felony while committing the trespass. There was testimony presented that Holloway asked the victim for money; and, when she refused, he brutally assaulted and killed her. He ultimately took a radio from the home.

Accordingly, the court of appeals erred by reversing the aggravated burglary charge and, to that extent, we reverse the decision of the court of appeals and reinstate defendant's conviction on count two.

Defendant also infers that the jury instructions in the sentencing phase improperly included as an aggravating circumstance the charge that defendant was the "principal offender" in the commission of murder. The Revised Code clearly does not list principal offender as an aggravating circumstance. If this charge were, in fact, included as an aggravating circumstance, defendant must be resentenced pursuant to R.C. 2929.06.

Although the jury instructions are less than a model of clarity, they clearly did not instruct the jury to consider as an aggravating circumstance the fact that Holloway was the principal offender in the commission of murder. While the jury instructions note that Holloway was the principal offender, they merely reflect the statutory definition of aggravating circumstances under R.C. 2929.04(A)(7) in a manner which is merely descriptive. We consider any error arising thereby to be harmless. Thus, we reject defendant's arguments on this issue. ²

D

Holloway next contends that he was denied effective assistance of counsel when his trial counsel failed to request a clarification of jury instructions given in the penalty phase of his trial. Holloway alleges that the trial court failed to clearly...