State v. Keith

• Decision Date: 01 October 1997
• Docket Number: No. 96-1149,96-1149
• Citation: 684 N.E.2d 47,79 Ohio St.3d 514
• Parties: The STATE of Ohio, Appellee, v. KEITH, Appellant.
• Court: Ohio Supreme Court

Page 514

79 Ohio St.3d 514

684 N.E.2d 47

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

No. 96-1149.

Supreme Court of Ohio.

Submitted March 4, 1997.

Decided Oct. 1, 1997.

Russell B. Wiseman, Crawford County Prosecuting Attorney; Betty D. Montgomery, Attorney General, Stuart W. Harris and Michael L. Collyer, Assistant Attorneys General, for appellee.

Reinhart Law Office and Harry R. Reinhart, Columbus; Carol A. Wright and Stephen Cockley, Columbus, for appellant.

COOK, Justice.

Appellant presents this court with eight propositions of law, raising issues as to both the guilt and sentencing phases of his trial. In accordance with the mandate of R.C. 2929.05(A), we have considered each of appellant's propositions of law and have reviewed the sentence for appropriateness and proportionality.

We have previously held that R.C. 2929.05 does not require this court to address and discuss, in opinion form, each proposition of law raised in a capital case. See, e.g., State v. Davis (1996), 76 Ohio St.3d 107, 110, 666 N.E.2d 1099, 1104; State v. Allen (1995), 73 Ohio St.3d 626, 628, 653 N.E.2d 675, 680. Accordingly, we address only those issues that warrant discussion. For the reasons that follow, we affirm the judgment of the court of appeals as to both the convictions and sentence.

I

GUILT PHASE

A Voir Dire

In his second proposition of law, appellant argues that the trial court erred by instructing prospective jurors, prior to voir dire, that their sentencing determination Appellant's counsel made no objection to the court's preliminary instruction and thus waived all but plain error. See State v. Slagle (1992), 65 Ohio St.3d 597, 605, 605 N.E.2d 916, 925. Plain error is an obvious error or defect in the trial proceedings that affects a substantial right. Crim.R. 52(B). Under this standard, reversal is warranted only when the outcome of the trial clearly would have been different without the error. State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph two of the syllabus.

                would be a "recommendation" to the court.  The trial court instructed the jury:  "[D]epending on your action in the first trial, you might then be involved in a second proceedings [sic ].  If the second proceeding takes place, you will have to make a recommendation, and I repeat, it is a recommendation to the Court on a sentence.  And one of the recommendations could be the death penalty.  If you do make a recommendation, before that sentence is ordered, this Court must independently determine if that recommendation is supported with the proof of the evidence beyond a reasonable doubt."   These comments, appellant argues, misstated the law and served to diminish the jury's sense of responsibility in recommending an appropriate sentence
                

R.C. 2929.03(D)(2) states that "[i]f the trial jury recommends that the offender be sentenced to life imprisonment * * * the court shall impose the sentence recommended of the jury upon the offender." (Emphasis added.) The trial court's instruction accurately reflected the law. At the heart of appellant's complaint, then, is that the trial court informed the jury that a recommended death sentence was reviewable by the court but did not inform them that a recommendation for a life sentence was binding upon the court.

We prefer that no reference be made to the finality of the jury's sentencing decision at all. See, e.g., State v. Rogers (1986), 28 Ohio St.3d 427, 433, 28 OBR 480, 485, 504 N.E.2d 52, 57, reversed on other grounds (1987), 32 Ohio St.3d 70, 512 N.E.2d 581. Thus, the trial court's failure to inform the jury of the binding nature of the life sentence recommendation does not constitute plain error. Additionally, we have consistently rejected the argument that an instruction informing the jury that a recommendation of death is reviewable by the trial court constitutes reversible error. See, e.g., State v. Carter (1995), 72 Ohio St.3d 545, 559, 651 N.E.2d 965, 977; State v. Woodard (1993), 68 Ohio St.3d 70, 77, 623 N.E.2d 75, 80-81. Likewise, we find no plain error in the trial court's preliminary instruction to the potential jurors in the case at bar.

Nor do we find trial counsel ineffective for failing to object to the trial court's "recommendation" language. Reversal of a conviction on the grounds of ineffective assistance of counsel requires that defendant show, first, that counsel's performance was deficient, and second, that the deficient performance prejudiced the defense so as to deprive defendant of a fair trial. Strickland v. Washington In this same proposition of law, we are told that the trial court erred by excluding prospective jurors who expressed "scruples" about the death penalty. Appellant directs his complaint first at the form of the question the trial court posed to each potential juror. The trial court asked whether "[i]n a proper case if the facts warrant it and the law permits it, could you join in signing a verdict form which might recommend to the Court the imposition of the death penalty?"

                1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693.   We find that appellant has shown neither that counsel's performance fell below an objective standard of reasonable representation nor that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different.  State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraphs two and three of the syllabus
                

Because appellant failed to object to the court's question, we apply the plain error standard and reverse only if the outcome of the trial clearly would have been different without the error. Long, 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph two of the syllabus. A prospective juror may be excused for cause because of his general opposition to the death penalty when "the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath." State v. Rogers (1985), 17 Ohio St.3d 174, 17 OBR 414, 478 N.E.2d 984, paragraph three of the syllabus, vacated and remanded on other grounds (1985), 474 U.S. 1002, 106 S.Ct. 518, 88 L.Ed.2d 452, following Wainwright v. Witt (1985), 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841.

Although it is true, as appellant now challenges, that the trial court did not use the language "prevent or substantially impair" in his question to the jurors, we find no plain error in the procedure utilized by the court. The trial court's question was designed to elicit a response that would ensure that jurors could fairly and impartially consider the death penalty in accordance with the law.

Appellant next challenges the excusal of jurors based on their responses to the trial court's question. When asked if they could recommend the death penalty if the law permitted and the facts warranted it, three jurors responded, "No * * * I don't think so," "No, I don't think I can," and "I don't think I can do that." Three other jurors responded, "That is bothering me," "That would be an uncomfortable thing for me to do," and "I have some problems with that." Each juror was excused by the trial court without further inquiry and without objection by defense counsel. Appellant argues that these jurors were erroneously excluded because they did not unequivocally state that they would not impose the death penalty.

The Sixth Amendment's guarantee of an impartial jury is violated by the exclusion of an impartial juror simply because he expresses some reservations We conclude that the trial court acted within its discretion when it excluded prospective jurors whose responses to the court's question reflected an inability to follow the law or the court's instructions in imposing the death sentence. State v. Mack (1995), 73 Ohio St.3d 502, 510, 653 N.E.2d 329, 336. We have deferred to the trial court's determination of juror bias where, similar to this case, a juror responded that she did not think she could fairly consider the death penalty. State v. Combs (1991), 62 Ohio St.3d 278, 285-286, 581 N.E.2d 1071, 1078.

                about imposing the death penalty.  Witherspoon v. Illinois (1968), 391 U.S. 510, 520-523, 88 S.Ct. 1770, 1776-1778, 20 L.Ed.2d 776, 783-785.   It is not violated, however, by the exclusion of a juror whose expressed reservations are such as to " 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.' "  Wainwright v. Witt, 469 U.S. at 424, 105 S.Ct. at 852, 83 L.Ed.2d at 851-852, quoting Adams v. Texas (1980), 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581, 589.   Because determinations of juror bias largely depend on the trial judge's assessment of the potential jurors' demeanor and credibility, deference must be paid to the trial court.  Witt, 469 U.S. at 426, 105 S.Ct. at 853, 83 L.Ed.2d at 852-853
                

The more difficult question arises in the instance of the jurors who indicated only that they would be either "bothered" or "uncomfortable" in recommending a death sentence or would find recommending the death penalty "difficult." Nothing in the printed record indicates whether their discomfort with recommending the death penalty would impair their ability to follow the law.

However, the fact that there were no objections to the removal of these prospective jurors may support the propriety of the trial court's decision. Wainwright v. Witt, 469 U.S. at 434-435, 105 S.Ct. at 857-858, 83 L.Ed.2d at 858. Although the printed record may not be clear, the reason for the excusals may well have been readily apparent to those viewing the jurors as they answered the question. Id. This conclusion is further supported by the trial court's conduct during the voir dire process. Earlier in voir dire, the trial court noted hesitation in a juror's response to the court's question and on two occasions further probed into a juror's responses to the question. Apparently,...