State v. Rogers

• Decision Date: 30 December 1986
• Docket Number: No. 84-784,84-784
• Citation: 504 N.E.2d 52,28 OBR 480,28 Ohio St.3d 427
• Parties: , 28 O.B.R. 480 The STATE of Ohio, Appellee, v. ROGERS, Appellant.
• Court: Ohio Supreme Court

Page 427

28 Ohio St.3d 427

504 N.E.2d 52, 28 O.B.R. 480

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

No. 84-784.

Supreme Court of Ohio.

Dec. 30, 1986.

Syllabus by the Court

1. Caldwell v. Mississippi (1985), 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231, is inapplicable where the statements made to the jury during the mitigation phase of a capital trial were accurate statements of the law and were not made to induce reliance on the appellate process.

2. If defense counsel improperly characterizes the role of the jurors during the mitigation phase, then the prosecution may make a brief, corrective statement.

Appellant was convicted of the strangulation murder of seven-year-old Lisa Bates, whose body was discovered in appellant's closet. See State v. Rogers (1985), 17 Ohio St.3d 174, 478 N.E.2d 984. The jury found the existence of two statutory aggravating circumstances, i.e., that the offense was committed in the course of a kidnapping and in the course of a rape. R.C. 2929.04(A)(7).

Thereafter, the penalty phase of the trial was conducted as required by R.C. 2929.03. The jury returned a finding that the aggravating circumstances outweighed the mitigating factors and accordingly recommended the death penalty. On October 29, 1982, the trial court filed its written opinion which confirmed that the aggravating circumstances outweighed the mitigating factors, beyond any reasonable doubt. The trial court then imposed the sentence of death. Both the court of appeals and the Ohio Supreme Court affirmed the verdict and the sentence. Each court independently determined that the aggravating factors outweighed the factors in mitigation. State v. Rogers, supra.

Subsequently, the United States Supreme Court decided the case of Caldwell v. Mississippi (1985), 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231. On December 2, 1985, the United States Supreme Court vacated this court's judgment in State v. Rogers, supra, and remanded the case for further consideration in light of Caldwell v. Mississippi, supra. (Rogers v. Ohio [1985], 474 U.S. 1002, 106 S.Ct. 518, 88 L.Ed.2d 452.)

Anthony G. Pizza, Pros. Atty., James D. Bates and James E. Yavorcik, Toledo, for appellee.

John J. Callahan, Ralph DeNune III and Douglas A. Wilkins, Toledo, for appellant.

Randall M. Dana, David C. Stebbins and Randall L. Porter, Marietta, for amicus curiae, Ohio Public Defender Comn.

HOLMES, Justice.

In Caldwell v. Mississippi, supra, the United States Supreme Court held that a death sentence is invalid "when the sentencing jury is led to believe that responsibility for determining the appropriateness of a death sentence rests not with the jury but with the appellate court which later reviews the case." Caldwell, supra, 472 U.S. at 323, 105 S.Ct. at 2636. It is clear that the Mississippi jury was statutorily obligated to determine whether a defendant "should be sentenced to death," or to life imprisonment. Miss.Code Annot. Section 99-19-101.

In response to the defense counsel's assertions, the prosecution in Caldwell stated during closing argument:

" ' * * * I'm in complete disagreement with the approach the defense has taken. I don't think it's fair. I think it's unfair. I think the lawyers know better. Now, they would have you believe that you're going to kill this man and they know--they know that your decision is not the final decision. My God, how unfair can you be? Your job is reviewable. They know it. * * * [T]he decision you render is automatically reviewable by the Supreme Court. Automatically, and I think it's unfair and I don't mind telling them so.' " Id. at 325-326, 105 S.Ct. at 2637-38.

Upon appeal, the Mississippi Supreme Court narrowly upheld the above closing argument.

In reversing, the United States Supreme Court noted that the prosecutor's remarks provided the jurors with "an invitation to rely on * * * [appellate] review" which would "generate a bias toward returning a death sentence," and which "presents an intolerable danger that the jury will in fact choose to minimize the importance of its role." Caldwell, supra, at 231, 105 S.Ct. at 2640-41. Also, the court found the statutory framework of appellate review insufficient to correct the complained-of error. The court noted that: " 'Even a novice attorney knows that appellate courts do not impose a death penalty, they merely review the jury's decision and that review is with a presumption of correctness.' " Id. at 331, 105 S.Ct. at 2641, quoting Caldwell v. State (Miss.1983), 443 So.2d 806, at 816 (Lee, J., dissenting), and citing Miss. Code Annot. Section 99-19-105 (Supp.1984). Consequently, the prosecution's argument undermined the Eighth Amendment guarantee of a reliable determination of the appropriateness of death as punishment in particular cases. Id., 472 U.S. at 323, 105 S.Ct. at 2636, citing Woodson v. North Carolina (1976), 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944.

Upon review of Ohio's statutory framework and the circumstances of this case, it must be concluded that none of the above dangers expressed in Caldwell threatened the integrity of the sentencing authority of the case sub judice.

At the outset of the within analysis, it should be stated that Ohio's statutory framework for the imposition of the death penalty is altogether different from that of Mississippi, most importantly in that Ohio has no "sentencing jury." All power to impose the punishment of death resides in the trial court which oversees the mitigation or penalty phase of the trial. The duty of the trial judge is set forth in R.C. 2929.03(D)(3). ¹

Immediately obvious is that, under this provision, the jury provides only a recommendation as to the imposition of the death penalty. The trial court must thereafter independently re-weigh the aggravating circumstances against the mitigating factors and issue a formal opinion stating its specific findings, before it may impose the death penalty. R.C. 2929.03(F). It is the trial court, not the jury, which performs the function of sentencing authority. Thus, no "sentencing jury" was involved in the proceedings below. Furthermore, as actual sentencer, the trial court was "present to hear the evidence and arguments and see the witnesses" and was in a position to fully appreciate a plea for mercy. Caldwell, supra, 472 U.S. at 331, 105 S.Ct. 2640-41.

Furthermore, Ohio's sentencing procedures are not unique both because a separate sentencing hearing is utilized, and because capital sentencing authority is invested in the trial judge. See, e.g., Ala.Code Subsection 13A-5-47 (1986 Supp.) (judge is not bound by jury's advisory verdict); Ariz.Rev.Stat.Annot. Section 13-703(B), (C) and (D) (1986 Supp.) (jury is completely excluded from sentencing); Colo.Rev.Stat. Section 16-11-103(2)(c) (1985 Supp.) (trial judge may vacate a jury finding if clearly erroneous); Fla.Stat. Section 921.141(2) (1982 Cum.Supp.) (trial court independently re-weighs aggravating versus mitigating circumstances after an advisory jury verdict); Idaho Code Section 19-2515(d) (1986 Supp.) (trial court alone sentences and conducts a mitigation hearing), etc.

Florida's statutory system, which is remarkably similar to Ohio's, was expressly upheld in the case of Spaziano v. Florida (1984), 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340. Justice Blackmun, writing for the court, concluded:

"If a judge may be vested with sole responsibility for imposing the [death] penalty, then there is nothing constitutionally wrong with the judge's exercising that responsibility after receiving the advice of the jury. The advice does not become a judgment simply because it comes from the jury." Id. at 465, 104 S.Ct. at 3165.

Recently, the United States Court of Appeals for the Eleventh Circuit issued its decision in Adams v. Wainwright (C.A.11, 1986), 804 F.2d 1526. That panel reversed a Florida death sentence because it felt that the trial court's instructions violated the spirit of the Caldwell decision. We need not consider the broad reading of Caldwell set forth therein since the case before us differs in several significant respects. Neither the trial court in the present case nor the prosecutor invited the jury to rely upon later judgments. Instead, merely correct legal statements were made. Furthermore, under Ohio's framework, the trial court is not a simple "buffer where the jury allows emotion to override the duty of a deliberate determination," Cooper v. State (Fla.1976), 336 So.2d 1133, 1140, certiorari denied (1977), 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 239, but is the authority in whom resides the sole power to initially impose the death penalty. Finally, to hold that "the jury's sense of responsibility for its advisory sentence was diminished," Adams, supra, at 1529, for the single reason that the trial court informed the jury that their verdict was a mere recommendation, creates an unacceptable dilemma. Either the relevant portions of Ohio's statutory framework for imposition of the death penalty must be ruled unconstitutional or any juror who at any time has learned the legal nature of the jury's finding must be considered hopelessly prejudiced. This court cannot accept either proposition based on Caldwell.

Thus, the Sixth Amendment provides no right to a jury determination of the punishment to be imposed; nor does the Ohio system impugn the Eighth Amendment. Spaziano, supra, 468 U.S. at 464, 104 S.Ct. at 3165. See, also, State v. Buell (1986), 22 Ohio St.3d 124, 142-144, 489 N.E.2d 795, and State v. Williams (1986), 23 Ohio St.3d 16, 21-22, 490 N.E.2d 906.

Consequently, the trial court's instructions as well as the jury verdict forms, ² based as they were upon the very wording of a constitutional statutory sentencing procedure, merely gave "the jury accurate information of which both the defendant and his counsel * * * [were] aware." California v. Ramos (1983), 463 U.S. 992, 1004, 103 S.Ct. 3446, 3455, 77 L.Ed.2d 1171.

Also, the record before us differs from...