State v. Scott

• Decision Date: 20 August 1986
• Docket Number: No. 85-1209,85-1209
• Citation: 26 Ohio St.3d 92,497 N.E.2d 55,26 OBR 79
• Parties: , 26 O.B.R. 79 The STATE of Ohio, Appellee, v. SCOTT, Appellant.
• Court: Ohio Supreme Court

Page 92

26 Ohio St.3d 92

497 N.E.2d 55, 26 O.B.R. 79

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

No. 85-1209.

Supreme Court of Ohio.

Aug. 20, 1986.

John T. Corrigan, Pros. Atty., George J. Sadd, William E. Gerstenslager and Ann T. Mannen, Cleveland, for appellee.

Hyman Friedman, County Public Defender, Marillyn Fagan Damelio and Robert Ingersoll, Cleveland, for appellant.

PER CURIAM.

In order to determine the propriety of the death sentence imposed on appellant, we are required to undertake a three-prong analysis. First, we must answer the specific issues raised by the appellant with respect to the proceedings below. Second, we must independently weigh the aggravating circumstances in this cause against any factors which mitigate against the imposition of the death sentence. Last, we must independently consider whether appellant's sentence is disproportionate to the penalty imposed in similar cases.

In his first proposition of law, appellant contends that the trial judge wrongfully abused his discretion in refusing to declare a mistrial pursuant to a joint motion made by both parties. This contention is premised upon the following comments made by the trial judge during voir dire:

"[THE COURT]: Now ladies and gentlemen, I have given you about as much as the Court really knows about the case, and there has been some--I know, some publicity or notoriety about it at the time that it occurred. I only know that because I happened to see an article printed in the newspaper at the time. You know that the victim is Vinnie Price [sic ], and it's the Court's understanding that she was a storekeeper, and that the allegations concerning the robbery apparently occurred at her store.

"Mr. Gerstenslager, do you have an idea of the neighborhood in which the store--the address of the store; I don't--

"MR. GERSTENSLAGER [assistant prosecutor]: 84th [sic ] and Quincy.

"THE COURT: 84th [sic ] and Quincy. Not only was Mr. Scott--at least from the newspaper reports that I think that I had read--was involved in this, there were three other--

"MR. EISNER [defense counsel]: Objection--

"THE COURT:--individuals who--pardon?

"MR. EISNER: Your Honor, I object.

"THE COURT: Come to the sidebar."

Shortly after this statement was made, defense counsel moved the court for a mistrial on the basis that the court's mention of a report linking the defendant to the crime for which he was charged irreparably tainted the prospective jurors. Counsel for the prosecution "reluctantly" joined the motion for mistrial. The court overruled the joint motion for mistrial, but administered a lengthy cautionary instruction to the prospective jurors stressing that their judgment must be based solely upon the evidence adduced at trial. The judge also cautioned the jurors against being unduly influenced by any remarks the court may have made.

Pursuant to R.C. 2945.36(D), a trial judge may discharge a jury without prejudice to the prosecution by the consent of the prosecuting attorney and the defendant. However, this action is subject to the discretionary judgment of the trial judge. State v. Sallee (1966), 8 Ohio App.2d 9, 220 N.E.2d 370 ; State v. Palmieri (App.1938), 28 Ohio Law Abs. 398, 46 N.E.2d 318, appeal dismissed (1939), 135 Ohio St. 30, 18 N.E.2d 985 . In State v. Wade (1978), 53 Ohio St.2d 182, 373 N.E.2d 1244 , this court set forth the following analytical criteria to determine whether a trial judge's remarks were prejudicial so as to require a mistrial:

"(1) The burden of proof is placed upon the defendant to demonstrate prejudice, (2) it is presumed that the trial judge is in the best position to decide when a breach is committed and what corrective measures are called for, (3) the remarks are to be considered in light of the circumstances under which they were made, (4) consideration is to be given to their possible effect upon the jury, and (5) to their possible impairment of the effectiveness of counsel." Id. at 188, 373 N.E.2d 1244.

When analyzed under this test, the trial judge's comments do not appear to require the declaration of a mistrial. The judge's alleged prejudicial comment was made at a point when the court was examining prospective jurors regarding their exposure to pretrial publicity. The judge's comment did not concern the appellant's guilt or innocence but, rather, noted the fact that the news media had reported appellant's involvement with the crime. Thus, the remark at issue, when analyzed in light of the circumstances under which it was made, did not cast an aspersion upon appellant's innocence.

Further, the lengthy instruction which the trial judge gave to the prospective jurors after issuing this comment was such as to minimize any prejudicial effect this comment may have had upon the jurors.

Therefore, we find that appellant's first proposition of law is without merit.

In his next proposition of law, appellant argues that the trial court wrongfully excluded prospective jurors who expressed some opposition to the imposition of the death penalty, but did not state unequivocally that under no circumstances would they follow the court's instructions in this regard.

Appellant initially argues that pursuant to this court's decision in State v. Jenkins (1984), 15 Ohio St.3d 164, 180, 473 N.E.2d 264, a juror must express an irrevocable commitment to vote against the death penalty regardless of the circumstances and facts of the case in order to be properly excluded under R.C. 2945.25(C). This is said to be a more stringent test than is required under the United States Constitution pursuant to Wainwright v. Witt (1985), 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841.

Appellant's initial premise that Jenkins requires a more stringent test than is required pursuant to Witt is misplaced. The Jenkins decision was predicated upon an earlier United States Supreme Court case, Witherspoon v. Illinois (1968), 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 , wherein the court established the following two-part test to determine whether a prospective juror may be removed based upon his objection to the imposition of the death penalty:

" * * * (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt. * * * " (Emphasis sic.) Id. at 522-523, at fn. 21, 88 S.Ct. at 1776-1777, at fn. 21.

The United States Supreme Court reestablished and somewhat clarified the Witherspoon standard in Wainwright v. Witt, supra. Therein, the court, 469 U.S. at 419, 105 S.Ct. at 852, 83 L.Ed.2d at 852 dispensed with the reference to " 'automatic' " decision making and the " 'unmistakable clarity' " standards of Witherspoon. Instead, the Witt court held that the proper standard was "whether the juror's views would 'prevent or substantially impair the performance of his duties as a juror in accordance with his instruction and his oath.' " Id., at 424, 105 S.Ct. at 852-853, 83 L.Ed.2d at 851-852.

In State v. Rogers (1985), 17 Ohio St.3d 174, 178, 478 N.E.2d 984, this court reevaluated Jenkins in light of the United States Supreme Court's modification of the Witherspoon standard in Witt. The Rogers court concluded that the Witt standard was applicable to this jurisdiction. Rogers is currently on remand to this court for review of issues unrelated to the matter at hand. Accordingly, Rogers is dispositive of this issue.

The testimony of each of the excluded jurors demonstrates that their views on the death penalty would prevent or substantially impair the performance of their duties in accordance with their instructions and oath. ¹ The fact that the defense counsel was able to elicit somewhat contradictory viewpoints from these jurors during his examination does not, in and of itself, render the court's judgment erroneous.

The Witt court noted that " * * * there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law. * * * [T]his is why deference must be paid to the trial judge who sees and hears the juror." Id., 469 U.S. at 425 - 426, 105 S.Ct. at 852-853, 83 L.Ed.2d at 853. Accordingly, appellant's proposition concerning the exclusion of these prospective jurors is overruled.

Appellant asserts, in his next proposition of law, that the trial court failed to properly exclude four prospective jurors whose pro-death penalty convictions rendered them unfit to properly serve in a capital offense case.

In our view, this failure cannot be said to have prejudicially affected the outcome of this trial since none of these jurors served on the panel that tried the instant case. As noted by the court of appeals below, three of these jurors, Mark Moravcik, Joseph Nemeth and Richard Stasienko were dismissed upon other grounds. Lance Bradesku was excused pursuant to a peremptory challenge by defense counsel. Moreover, the defendant did not exhaust his available peremptory challenges before expressing satisfaction with the jury. Hence, appellant may not argue that the use of a peremptory challenge to exclude Bradesku prejudicially affected his defense.

In his next proposition of law, appellant contends that the trial court, in an instruction to the jury, wrongfully expanded the statutory definition of reasonable doubt, thereby diminishing the requisite burden of proof.

The instruction giving rise to this alleged error followed a reading of the statutory definition of "reasonable doubt" as contained in R.C. 2901.05(D). The trial judge then stated:

"All of the evidence should be examined carefully and conscientiously by you, and, if after a full and impartial consideration of all the evidence, you are firmly convinced beyond a reasonable doubt of the truth of the charge or charges, then the...