State v. Spivey

Decision Date22 April 1998
Docket NumberNo. 97-414,97-414
Citation81 Ohio St.3d 405,692 N.E.2d 151
PartiesThe STATE of Ohio, Appellee, v. SPIVEY, Appellant.
CourtOhio Supreme Court

Paul J. Gains, Mahoning County Prosecuting Attorney, and Janice T. O'Halloran, Assistant Prosecuting Attorney, for appellee.

John B. Juhasz, Youngstown, and Patricia A. Millhoff, Akron, for appellant.

DOUGLAS, Justice.

Appellant presents a number of issues for our consideration. (See Appendix, infra.) We have considered appellant's propositions of law and have reviewed the death sentence for appropriateness and proportionality. Upon review, and for the reasons that follow, we affirm the judgment of the court of appeals and uphold the sentence of death.


We have held, in cases too numerous to cite, that this court is not required to address and discuss, in opinion form, each and every proposition of law raised by the parties in a death penalty appeal. We continue to adhere to that position today. Here, appellant raises a number of issues that have previously been addressed and rejected by this court under analogous circumstances in some of our prior cases. In addition, most of the arguments raised by appellant have been waived. Further, many of appellant's arguments merit no discussion given the events at trial and the governing law. Upon a review of the record and the arguments advanced by appellant, we fail to detect any errors requiring reversal of appellant's convictions and death sentence. We address and discuss, in detail, only those issues that merit further discussion.


On October 2, 1989, appellant waived his right to trial by jury and elected to be tried by a three-judge panel. Appellant executed a written jury waiver and the trial judge (Judge Economus) questioned appellant in open court, with counsel present, concerning the waiver. The waiver was also signed by appellant's attorneys as witnesses. The signed jury waiver form was filed in the cause and made part of the record. The procedure fully complied with the requirements of R.C. 2945.05. See State v. Pless (1996), 74 Ohio St.3d 333, 658 N.E.2d 766, paragraph one of the syllabus.

In his first proposition of law, appellant contends that the trial court erred by accepting his waiver of the right to trial by jury. Specifically, appellant contends that the trial court had information that appellant suffered from "numerous intellectual deficiencies" and that the court had an "absolute duty" to conduct a more thorough inquiry into whether appellant knowingly, intelligently, and voluntarily waived his right to trial by jury. We reject appellant's argument in this regard.

First, we note that the trial court strictly adhered to the requirements of R.C. 2945.05 and, thus, fully satisfied its duties with respect to appellant's jury waiver. Second, not only did the trial court fully comply with R.C. 2945.05 in accepting the jury waiver, but the court also questioned appellant concerning the written waiver even though no such questioning was required. See State v. Jells (1990), 53 Ohio St.3d 22, 25-26, 559 N.E.2d 464, 468 ("There is no requirement in Ohio for the trial court to interrogate a defendant in order to determine whether he or she is fully apprised of the right to a jury trial. The Criminal Rules and the Revised Code are satisfied by a written waiver, signed by the defendant, filed with the court, and made in open court, after arraignment and opportunity to consult with counsel."). See, also, State v. Eley (1996), 77 Ohio St.3d 174, 182, 672 N.E.2d 640, 649. At the time of the waiver, the trial court asked appellant in open court whether appellant understood that by waiving the right to trial by jury he would be tried by a three-judge panel. The trial court questioned appellant as to whether appellant understood that his guilt would have to be proven beyond a reasonable doubt. The trial court asked appellant whether appellant understood that the death sentence would be imposed if a three-judge panel unanimously found appellant guilty of aggravated murder and the attendant death-penalty specification and if the panel also unanimously found that the aggravating circumstance outweighed the mitigating factors beyond a reasonable doubt. Appellant responded affirmatively to each question asked of him, indicating that he fully understood the consequences of the waiver. Additionally, the jury waiver form itself apprised appellant of the nature and consequences of his decision to waive a jury trial.

Therefore, the record is clear that the trial judge at the time appellant waived the right to trial by jury strictly adhered to the requirements of R.C. 2945.05 and, in fact, went beyond the scope of the statute to ensure that appellant understood the nature and consequences of the waiver. The trial judge also specifically found, and we agree, that appellant's waiver of the right to trial by jury was "voluntarily made with full knowledge of the consequences thereof." Contrary to appellant's assertions, nothing more was required to have effectuated a valid waiver of the right to trial by jury.

Accordingly, appellant's first proposition of law is not well taken.


In his third proposition law, appellant contends that the three-judge panel erred by accepting the pleas of no contest without first inquiring into his competency. In this proposition, appellant does not assert that he was legally incompetent during the trial court proceedings but, instead, complains that the panel did nothing to determine whether he was competent to enter the pleas. Additionally, appellant contends that the panel's Crim.R. 11(C) inquiry into whether he understood the nature and consequences of the no contest pleas should have been more thorough. None of these issues was raised at trial or on appeal to the court of appeals. Thus, appellant has waived all but plain error with respect to these matters.

Former R.C. 2945.37(A) provided that "[a] defendant is presumed competent to stand trial, unless it is proved by a preponderance of the evidence in a hearing under this section that because of his present mental condition he is incapable of understanding the nature and objective of the proceedings against him or of presently assisting in his defense." See, also, Dusky v. United States (1960), 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824, 825 (A defendant is competent to stand trial if the defendant " 'has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding' " and if the defendant " 'has a rational as well as factual understanding of the proceedings against him.' "). Additionally, "[t]he right to a hearing on the issue of competency rises to the level of a constitutional guarantee where the record contains 'sufficient indicia of incompetence,' such that an inquiry into the defendant's competency is necessary to ensure the defendant's right to a fair trial." State v. Berry (1995), 72 Ohio St.3d 354, 359, 650 N.E.2d 433, 439.

Here, appellant never specifically requested a hearing on the issue of competency. Nevertheless, appellant apparently argues that the trial court should have sua sponte conducted a hearing on the issue prior to accepting the pleas of no contest. However, appellant does not point to anything in the record indicating that he was incompetent at the time he entered the pleas of no contest, and our review of the record has revealed no indicia of incompetency that would have required a hearing on that matter.

Appellant also argues that the panel "put on the blinders to any issue of competence" and told defense counsel that "it [the panel] had better not see a motion for competence." However, appellant's assertions are not supported by the record. Appellant has provided us with no citation to the record where defense counsel was allegedly told not to request a hearing regarding competency. Additionally, we have independently reviewed the entire record and find that no such comment was made. Moreover, even if the comment had been made, it was still the responsibility of counsel to raise the issue of competency if counsel truly believed that competency was an issue. The record does reflect that when an issue concerning appellant's sanity arose while the case was pending before Judge Economus, defense counsel made appropriate motions for sanity evaluations and the appropriate examinations were conducted. A report of one of the examinations specifically included a finding that appellant was competent to stand trial. Further, appellant had previously been examined by a psychologist in 1988 in connection with an unrelated criminal case, and the report of that examination indicated that appellant was not only competent to stand trial, but that he understood the notion of plea bargaining. We have no doubt whatsoever that if appellant's trial attorneys in the case at bar had any reason to believe that appellant was legally incompetent, they would have filed an appropriate motion to request a hearing on the issue of appellant's competency.

Appellant also argues that the panel was required to do more than it did during its Crim.R. 11(C) colloquy with appellant to ensure that he understood the nature and consequences of his pleas. We disagree. The record is clear that appellant manifestly understood the consequences of entering his pleas of no contest. Indeed, when appellant submitted his written plea to each count to the panel, defense counsel informed the panel that he (counsel) had "gone over it [the written plea] in its entirety and read it to my client." Counsel also stated that appellant "questioned me about various parts about it and I answered his questions." The panel then proceeded to address appellant personally as required by Crim.R. 11, and the panel adhered meticulously to all relevant requirements of that rule. See Crim.R. 11(C)(2) and (3). In this regard, we are absolutely convinced that the panel did not err by...

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