State v. Lorraine

• Decision Date: 16 June 1993
• Docket Number: No. 90-1927,90-1927
• Citation: 613 N.E.2d 212,66 Ohio St.3d 414
• Parties: The STATE of Ohio, Appellee, v. LORRAINE, Appellant.
• Court: Ohio Supreme Court

Page 414

66 Ohio St.3d 414

613 N.E.2d 212

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

No. 90-1927.

Supreme Court of Ohio.

Submitted Jan. 12, 1993.

Decided June 16, 1993.

Dennis Watkins, Trumbull County Pros. Atty., and Peter J. Kontos, Asst. Pros. Atty., for appellee.

James Kura, Ohio Public Defender, Richard J. Vickers and JoAnn Bour-Stokes, Asst. Public Defenders, Columbus, for appellant.

ALICE ROBIE RESNICK, Justice.

A

Appellant alleges in his first proposition of law that the trial court applied an incorrect standard of mitigation as to his capacity to conform his conduct to the requirements of the law.

Appellant failed to raise this issue in the court below and, as such, he has waived the alleged error. State v. Moreland (1990), 50 Ohio St.3d 58, 552 N.E.2d 894; State v. Broom (1988), 40 Ohio St.3d 277, 533 N.E.2d 682. Nevertheless, we examine the merits of appellant's allegations, as R.C. 2929.05(A) requires review of this issue. Appellant alleges that the trial court used the insanity standard in its sentencing opinion instead of the mitigation standard. The mitigation standard is:

"Whether, at the time of committing the offense, the offender, because of a mental disease or defect, lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law[.]" R.C. 2929.04(B)(3).

Contrary to appellant's assertion, the trial court did use the proper standard, as shown by its reference to "the question of mental disease or defect and the lack of substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law."

Appellant's expert witness stated that appellant did not have a mental disease but that his personality disorder could be interpreted as a mental defect. The psychiatrist for the state testified that appellant did not suffer from any mental disease or defect. The trial court agreed with the opinion of the state's expert and used the proper test. Additionally, the court stated that it "found little credible evidence to give much weight to this factor." Appellant has failed to show error. Accordingly, this proposition is not well taken.

Appellant in his second proposition of law contends that he was denied a fair trial because the trial court refused to instruct the jury concerning mercy and prohibited him from asking the jury to err on the side of mercy.

This court has previously considered a similar issue. We held in State v. Jenkins (1984), 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264, paragraph three of the syllabus:

"The instruction to the jury in the penalty phase of a capital prosecution to exclude consideration of bias, sympathy or prejudice is intended to insure that the sentencing decision is based upon a consideration of the reviewable guidelines fixed by statute as opposed to the individual juror's personal biases or sympathies."

In California v. Brown (1987), 479 U.S. 538, 543, 107 S.Ct. 837, 840, 93 L.Ed.2d 934, 941, the court stated:

"An instruction prohibiting juries from basing their sentencing decisions on factors not presented at the trial, and irrelevant to the issues at the trial, does not violate the United States Constitution. It serves the useful purpose of confining the jury's imposition of the death sentence by cautioning it against reliance on extraneous emotional factors, which, we think, would be far more likely to turn the jury against a capital defendant than for him."

While the court in Brown was specifically considering the issue of sympathy, its reasoning is applicable also to a plea for mercy.

Permitting a jury to consider mercy, which is not a mitigating factor and thus irrelevant to sentencing, would violate the well-established principle that the death penalty must not be administered in an arbitrary, capricious or unpredictable manner. Brown, supra, at 541, 107 S.Ct. at 839, 93 L.Ed.2d at 939; Gregg v. Georgia (1976), 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859; Furman v. Georgia (1972), 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. The arbitrary result which may occur from a jury's consideration of mercy is the exact reason the General Assembly established the procedure now used in Ohio.

R.C. 2929.03(D)(2) provides that "[i]f the trial jury unanimously finds, by proof beyond a reasonable doubt, that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors, the trial jury shall recommend to the court that the sentence of death be imposed on the offender." (Emphasis added.) This statutory requirement eliminates the subjective state of mind the issue of mercy generally adds to a jury's deliberation.

Mercy, like bias, prejudice, and sympathy, is irrelevant to the duty of the jurors. Appellant's counsel therefore was not allowed to plead for mercy, although he was permitted to plead for appellant's life based upon the statutory mitigating factors. Accordingly, this proposition is not well taken.

Appellant alleges in his third proposition of law that the court of appeals applied an incorrect harmless-error standard in reviewing prosecutorial misconduct. Appellant also alleges that the trial court improperly considered mitigation factors not in evidence. Specific allegations of errors and misconduct are considered in other propositions of law.

Appellant alleges in his fourth proposition of law that he was deprived of a fair trial by the misleading definitions of "aggravating circumstances" and "mitigating factors" used by the trial judge and the prosecutor during voir dire.

During voir dire the prosecutor stated to several prospective jurors that aggravating circumstances are "bad things" and that mitigating factors are "good things." The trial judge also used these terms.

The use of these terms was never objected to by defense counsel. Since there was no objection to these terms, appellant has waived any error. State v. Wade (1978), 53 Ohio St.2d 182, 7 O.O.3d 362, 373 N.E.2d 1244. Moreover, plain error was not established, i.e., no showing that, but for these terms, the outcome of the trial would have been different. Accordingly, this proposition is not well taken.

In his fifth proposition of law appellant alleges that the trial court unreasonably restricted voir dire.

The manner in which voir dire is to be conducted lies within the sound discretion of the trial judge. Appellant contends that the trial judge abused his discretion by not permitting him to inquire of potential juror Sara Perry as to her views on the death penalty. We find that Perry stated, unequivocally, that she would not sign her name to any document that would have the effect of sentencing the defendant to death. Perry stated: "I have mulled over it in my mind and come at it in various ways, and deep inside me, Sara cannot sign her name or whatever you have to do to put another human being to death." The prosecution's motion to excuse her for cause was granted by the court. Defense counsel neither asked to question the juror nor did he object to her dismissal. His failure to object waived any error. Moreover, there has been no showing that the court abused its discretion in dismissing this juror.

A thorough review of the voir dire examination fails to exhibit that the trial court unreasonably or arbitrarily restricted examination. The voir dire in this case comprised 1,442 pages of transcript. In State v. Durr (1991), 58 Ohio St.3d 86, 89, 568 N.E.2d 674, 678, we stated that "[a]lthough R.C. 2945.27 affords the prosecution and defense the opportunity to conduct a reasonable examination of prospective jurors, * * * the trial court reserves the right and responsibility to control the proceedings of a criminal trial pursuant to R.C. 2945.03, and must limit the trial to relevant and material matters with a view toward the expeditious and effective ascertainment of truth." Accordingly, this proposition is not well taken.

Appellant in his sixth proposition of law alleges various instances of prosecutorial misconduct. Specifically, appellant first objects to the following comment the prosecutor made while objecting to a question of defense counsel: "Your Honor, I'm going to object. It's hearsay. Let the Defendant testify, Your Honor." This passing reference to appellant's failure to testify can only be regarded as harmless, in view of the overwhelming evidence of aggravating circumstances and the dearth of mitigation.

Appellant next challenges the prosecutor's comments on his unsworn statement, during closing arguments. This court has previously considered this issue in State v. DePew (1988), 38 Ohio St.3d 275, 285, 528 N.E.2d 542, 554, wherein we stated that "the prosecution may comment that the defendant's statement has not been made under oath or affirmation, but such comment must be limited to reminding the jury that the defendant's statement was not made under oath in contrast to the testimony of all other witnesses." The prosecutor's comment went beyond these limits by referring not only to credibility but also to appellant's silence on particular issues and to the lack of cross-examination. However, this misconduct was harmless beyond a reasonable doubt.

Appellant also contends that he was prejudiced by the prosecutor's "appeal to community sentiment" in both voir dire and closing argument. As this court noted in State v. Williams (1986), 23 Ohio St.3d 16, 20, 23 OBR 13, 17, 490 N.E.2d 906, 911, "[a] request that the jury maintain community standards is not equivalent to the exhortation that the jury succumb to public demand * * *." The evidence in this case was so overwhelming that none of the prosecutor's comments, even if error, amounted to prejudicial error. This court held in State v. Jenkins (1984), 15 Ohio St.3d 164, 217, 15 OBR 311, 357, 473 N.E.2d 264, 310, at fn. 49, that instances of prosecutorial misconduct can be harmless when they are incidental and isolated.

Appellant next...