State v. Jester

• Decision Date: 26 August 1987
• Docket Number: No. 85-1860,85-1860
• Citation: 32 Ohio St.3d 147,512 N.E.2d 962
• Parties: The STATE of Ohio, Appellee, v. JESTER, Appellant.
• Court: Ohio Supreme Court

Page 147

32 Ohio St.3d 147

512 N.E.2d 962

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

No. 85-1860.

Supreme Court of Ohio.

Aug. 26, 1987.

John T. Corrigan, Pros. Atty., and Edward M. Walsh, Asst. Pros. Atty., for appellee.

Carla M. Tricarichi, Cleveland and Michael E. Murman, Lakewood, for appellant.

PER CURIAM.

This court is required to review the facts and circumstances of appellant's conviction, as well as to independently weigh the aggravating circumstances against the mitigating factors. We must also consider the proportionality of appellant's death sentence. We affirm the judgment of the court of appeals for the reasons set forth below.

I

In his first proposition of law, appellant asserts that he cannot be convicted of aggravated murder on the basis of specification one of count one of the indictment, because it could not reasonably be construed that he committed the offense with the purpose of escaping detection. He urges that because the shooting occurred in a crowded bank, it is not possible to find that he was seeking to avoid detection. The state counters that the bank guard was the only person who could have stopped appellant and, to prevent the guard from detecting the hidden fact of the robbery, appellant killed him.

Specification one of count one of the indictment states the " * * * offender committed the offense presented above for the purpose of escaping detection for another offense * * *." This aggravating circumstance is taken from R.C. 2929.04(A)(3) which provides that:

"The offense was committed for the purpose of escaping detection, apprehension, trial, or punishment for another offense committed by the offender."

Clearly, if the specification contained "apprehension, trial, or punishment," the aggravating circumstance would have applied to the instant case. The issue is whether the specification is fatally deficient for failure to include the other circumstances.

It is difficult to agree with the state's somewhat tortured definition of "detection," which is that appellant had a hidden purpose to rob which could have been "detected" by the guard.

"Detection" is defined as "a finding out or being found out: said esp. of what tends to elude notice." Webster's New World Dictionary (2 Ed.1982) 384. Derived from the root detectio (meaning an uncovering or revealing), "detection" is "[a] laying open of what was concealed; exposure; revelation; accusation." Webster's New International Dictionary of the English Language (2 Ed.1956) 710.

The better definition is that "detection" anticipates a situation where the witness or witnesses are killed in an attempt to hide the commission of the crime. For example, in State v. Stumpf (1987), 32 Ohio St.3d 95, 512 N.E.2d 598, the defendant had shot the husband. Believing that he had killed the husband, Stumpf then killed the wife, the only witness besides defendant and his co-defendant, to avoid detection.

Crim.R. 7(B) states that an indictment may be " * * * in any words sufficient to give the accused notice of all the elements of the offense * * *. Error in the designation or its omission shall not be ground for dismissal of the indictment or information, or for reversal of a conviction, if the error or omission did not mislead the defendant to his prejudice." See, also, R.C. 2941.05 and 2941.08.

Crim.R. 7 mirrors general Ohio case law. In State v. Toney (1909), 81 Ohio St. 130, 90 N.E. 142, it was held that an indictment which apprised a party of the charge against him so that he might know from the language of the indictment what he was expected to meet alleged sufficient matter to indicate the crime and was not void for uncertainty. See, also, State v. Oliver (1972), 32 Ohio St.2d 109, 61 O.O.2d 371, 290 N.E.2d 828, syllabus.

In Harris v. State (1932), 125 Ohio St. 257, 181 N.E. 104, it was held in paragraph four of the syllabus that if a vital and material element identifying the offense was omitted from the indictment, it was insufficient to charge an offense and could not be cured by a court. Failure to allow a defendant to know what was necessary for his defense was reversible error. State v. Fowler (1963), 174 Ohio St. 362, 22 O.O.2d 416, 189 N.E.2d 133.

Here, the state chose to charge appellant in the first specification with the aggravating circumstance of committing an aggravated murder for the purpose of escaping detection. The more applicable terms of apprehension, trial, or punishment did not appear in the indictment.

The court of appeals reasoned that the four alternatives of detection, apprehension, trial, or punishment were "elucidations of the legislative concept of accountability." (Emphasis sic.) The court relied on the Committee Comment to R.C. 2929.04(A)(3). However, the committee observation is not included within the statute. Further, the statute uses "or" rather than "and," indicating that the four terms, while related, are separate concepts.

Even if this proposition of law were sustained, such would not reverse appellant's underlying conviction because the aggravating circumstance of R.C. 2929.04(A)(7) remains. Appellant urges that if the "detection" specification is dismissed, then the verdict is fatally flawed for the reason that the jury might not have convicted appellant on the basis of the single specification. However, if this court were to conclude that the first specification was legally sufficient, then it would be merged with the felony-murder specification as duplicative because the circumstances arise from the same act. State v. Jenkins (1984), 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264, paragraph five of the syllabus. Thus, there would be only one specification in any event.

Appellant's first proposition of law is overruled.

II

In his second proposition of law, appellant urges that it was error for the trial court to admit evidence of a prior aggravated robbery committed while he was a juvenile for the purpose of proving prior criminal conviction where appellant did not rely on the mitigating factor of lack of a significant history of prior criminal convictions and delinquency adjudications. Apparently, it is appellant's position that a jury can be denied information regarding prior criminal convictions where the issue is not raised by a capital defendant.

This court need not reach this issue, however, because appellant stipulated to the juvenile conviction. Thus, the information was transmitted to the jury with appellant's express approval. Accordingly, it was not error for the trial court to mention lack of a significant history of prior criminal convictions and delinquency adjudications, pursuant to R.C. 2929.04(B)(5), to the jury in the instructions.

Appellant's second proposition of law is overruled.

III

Appellant, in his third proposition of law, asserts that the trial court insufficiently instructed the jury on the purpose of mitigating factors, and that the trial court failed to instruct the jury on its option to recommend a life sentence despite the existence of aggravating circumstances.

The trial judge instructed the jury that:

"Mitigating factors are factors that, while they do not justify or excuse the crime of aggravated murder, nevertheless may be considered by you as extenuating, lessening, weakening, excusing to some extent, or reducing the degree of the defendant's blame."

The trial court therefore did describe the mitigating factors and their effect. Further, appellant failed to object to the jury instruction, and the failure to object constitutes a waiver of any alleged error that may have resulted. State v. Underwood (1983), 3 Ohio St.3d 12, 3 OBR 360, 444 N.E.2d 1332, syllabus; State v. Fanning (1982), 1 Ohio St.3d 19, 21, 1 OBR 57, 59, 437 N.E.2d 583, 585; State v. Scott (1986), 26 Ohio St.3d 92, 100, 26 OBR 79, 85-86, 497 N.E.2d 55, 62. See, also, State v. Lancaster (1971), 25 Ohio St.2d 83, 54 O.O.2d 222, 267 N.E.2d 291, paragraph one of the syllabus; State v. Morris (1975), 42 Ohio St.2d 307, 71 O.O.2d 294, 329 N.E.2d 85, paragraph one of the syllabus.

Further, appellant cannot claim that the trial court's instruction was plain error, inasmuch as he cannot demonstrate that but for the error, the outcome of the trial would have been different. State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804.

Appellant also claims that the trial court must instruct the jury that it has the "option" to recommend against the death penalty. However, the trial court clearly instructed the jury no fewer than four times that they must find the aggravating circumstances outweighed the mitigating factors beyond a reasonable doubt before they could impose the death penalty. This instruction was correct and was the charge to which appellant was entitled.

Appellant's third proposition of law is overruled.

IV

In his fourth proposition of law, appellant urges that the trial court erred in its instructions to the jury when it expanded upon the definition of reasonable doubt beyond that provided in R.C. 2901.05(D).

The trial court instructed the jury as follows:

"Now then, what is reasonable doubt?

"The legislature of the state of Ohio defined 'reasonable doubt' as follows:

" 'Reasonable doubt is present when, after you have carefully considered and compared all the evidence, you cannot say you are firmly convinced of the truth of the charge.

" 'Reasonable doubt is a doubt based on reason and common sense. Reasonable doubt is not mere possible doubt, because everything relating to human affairs or depending on moral evidence is open to some possible or imaginary doubt.

" 'Proof beyond a reasonable doubt is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of his own affairs.'

"Reasonable doubt is an honest doubt existing in the mind of an impartial and diligent juror, after a full and fair consideration of all the evidence, with a sincere purpose to ascertain the truth, irrespective of...