State v. Tyler

• Decision Date: 28 March 1990
• Docket Number: No. 88-717,88-717
• Citation: 553 N.E.2d 576,50 Ohio St.3d 24
• Parties: The STATE of Ohio, Appellee, v. TYLER, Appellant.
• Court: Ohio Supreme Court

Page 24

50 Ohio St.3d 24

553 N.E.2d 576

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

No. 88-717.

Supreme Court of Ohio.

Submitted Sept. 12, 1989.

Decided March 28, 1990.

John T. Corrigan, Pros. Atty., and Melody A. White, for appellee.

Randall M. Dana, Ohio Public Defender, David C. Stebbins, Joann Bour-Stokes, Stephen P. Deffet and Bryan Stewart, Columbus, for appellant.

Margery Malkin Koosed, urging reversal for amicus curiae, Ohio Death Penalty Task Force.

PER CURIAM.

R.C. 2929.05(A) requires us to undertake a three-prong analysis of death penalty cases. First, we will review the specific issues raised by appellant with regard to the proceedings below. Second, we will independently weigh the aggravating circumstances in the case against any factors that mitigate against imposing the death sentence. Third, we will independently consider whether appellant's sentence is disproportionate to the penalty imposed in similar cases.

I Supplemental Instruction

Appellant's first proposition of law deals with a supplemental instruction given the jury during its deliberations in the penalty phase. On the second day of deliberations, the jury asked the trial judge what it should do if it was divided on the question of penalty "and neither group is willing to change * * *." The judge responded with a supplemental instruction conforming to the instruction this court approved in State v. Maupin (1975), 42 Ohio St.2d 473, 482, 71 O.O.2d 485, 490, 330 N.E.2d 708, 714, at fn. 3. ¹

Appellant advances two arguments on this issue. His first contention is that a supplemental charge urging jurors to attempt to reach a verdict is per se improper in the penalty phase of a capital case, because R.C. 2929.03(D)(2) requires that, when a sentencing jury is deadlocked, it must impose a life sentence. However, we rejected that contention in State v. Henderson (1988), 39 Ohio St.3d 24, 31-32, 528 N.E.2d 1237, 1244-1245.

Appellant's second contention is that the charge at issue here was coercive and misstated the law. The trial court instructed: " * * * [S]ince the trial of this case has been expensive in time, effort and money, the Court urges you to make every reasonable effort to agree on a verdict. You may consider that this case must at some time be decided and that you were selected in the same manner and from the same sources from which any future jury must be selected."

Since the sentencing recommendation must be made by the trial jury, R.C. 2929.03(C)(2)(b), there could have been no retrial of the penalty phase before a different jury in the event of deadlock. See State v. Penix (1987), 32 Ohio St.3d 369, 513 N.E.2d 744. Thus, we agree with appellant's contention that the supplemental instruction was erroneous.

However, the instruction was not coercive. This, we believe, rendered the error harmless. In Maupin, we noted that an instruction "that the case must at sometime be decided * * * " was "technically inaccurate." We nonetheless regarded it as noncoercive and therefore "nonprejudicial." Maupin, supra, 42 Ohio St.2d at 485, 71 O.O.2d at 492, 330 N.E.2d at 716.

The words of Fulwood v. United States (C.A.D.C.1966), 369 F.2d 960 (Burger, J.), which we quoted in Maupin, are instructive here as well:

" * * * The statement that some other jury would have to decide the case if this one could not was accurate as a generality and, in any event, could have had no coercive impact on the jury. If they already knew what would likely happen if they deadlocked, it was surplusage; if they did not know, this information, far from being coercive, would have had the effect of reducing the pressure on them to reach a verdict." Fulwood, supra, at 963, quoted in Maupin, supra, 42 Ohio St.2d at 485, 71 O.O.2d at 492, 330 N.E.2d at 716.

We have noted above that the instruction at issue here was not accurate, as a "generality" or otherwise. But "in any event"--that is, regardless of its accuracy vel non--it "could have had no coercive impact on the jury." Indeed, such a charge would tend to "reduc[e] the pressure * * * to reach a verdict." Cf. Jones v. Norvell (C.A.6, 1973), 472 F.2d 1185 (supplemental charge held coercive because it suggested that retrial to another jury was not possible).

Moreover, we note that the instruction here, like that approved in Maupin, was directed to all jurors, not just the minority, and instructed the jurors to decide the case only if they could conscientiously do so. See Maupin, supra, 42 Ohio St.2d at 484-485, 71 O.O.2d at 491, 330 N.E.2d at 716.

We hold that the supplemental charge was not coercive, and accordingly overrule appellant's first proposition of law.

II Defendant's Refusal to Call Mitigation Witnesses

In appellant's second proposition of law, he argues that the trial court should not have allowed him to withhold mitigating evidence.

As the penalty phase began, appellant's counsel informed the court that he had arranged for five witnesses to testify for appellant. However, appellant instructed his counsel to call no witnesses. Instead, he chose to rely entirely upon his unsworn statement.

In his statement, appellant discussed the evidence of guilt at length and insisted that he was innocent. He told the jury several times that it had "killed" him by convicting him, and that to serve a life sentence "for a murder that I didn't commit" would be as bad as, or worse than, death. For instance, he said:

" * * * But do you honestly feel that I'm guilty?

"If you do, then you have got to come back with a chair verdict. But if you don't, if it is any kindness in your heart at all, then you have got to still give me a death verdict, because life in the penitentiary is death."

Appellant concedes that his counsel were obliged to do as he told them. Nonetheless, he argues that the Eighth Amendment was violated when the trial court took no steps to see that the witnesses testified.

According to appellant, to allow a capital defendant to withhold mitigating evidence from the sentencer defeats "the state's interest in a reliable penalty determination * * *." People v. Deere (1985), 41 Cal.3d 353, 364, 222 Cal.Rptr. 13, 20, 710 P.2d 925, 931. See, also, State v. Koedatich (1988), 112 N.J. 225, 330-332, 548 A.2d 939, 993- 995. As one commentator has noted, this argument assumes that the state has an "interest in assuring that the death penalty is not imposed in cases in which it is permissible but in which it might not have been imposed by a fully informed sentencer." Bonnie, The Dignity of the Condemned (1988), 74 Va.L.Rev. 1363, 1382.

However, "[t]his asserted societal interest is not rooted in the Constitution." Id. The individualized consideration of all relevant mitigating factors proffered by the defendant is "a constitutionally indispensable part of inflicting the penalty of death." Woodson v. North Carolina (1976), 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (plurality opinion), quoted in Bonnie, supra, at 1382-1383. But this constitutional mandate "derives from the right of the defendant to be treated with dignity as a human being--the foundational value of the eighth amendment." Bonnie, supra, at 1383. It does not drive from a "societal interest in promoting leniency or in reducing the number of death sentences * * *." Id. at 1383-1384.

That this is so is shown by Woodson's identification of the evil to be avoided by individualized sentencing. A process that does not take mitigating factors into account "treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death." Woodson, supra. See, also, Sumner v. Shuman (1977), 483 U.S. 66, 74-75, 107 S.Ct. 2716, 2722, 97 L.Ed.2d 56.

The constitutional requirement that mitigation be considered is not, then, based on any societal interest, but is "rooted solely in a desire to protect the defendant's interests * * *," Bonnie, supra, at 1383--specifically, his interest in not being treated as one of "a faceless, undifferentiated mass." That interest is protected by giving the defendant an opportunity to introduce the mitigating evidence available to him, and requiring the sentencer to consider it. See People v. Silagy (1984), 101 Ill.2d 147, 181, 77 Ill.Dec. 792, 809, 461 N.E.2d 415, 432. But where he chooses to forgo that opportunity, no societal interest counterbalances his right to control his own defense. ²

Moreover, we note that the California Supreme Court has recently repudiated Deere. "To the extent that Deere * * * suggests that failure to present mitigating evidence in and of itself is sufficient to make a death judgment unreliable, it is based on a mistaken understanding of the Eighth Amendment's reliability requirement and its reasoning in that regard is hereby disapproved." People v. Bloom (1989), 48 Cal.3d 1194, 1228, fn. 9, 259 Cal.Rptr. 669, 690, fn. 9, 774 P.2d 698, 719, fn. 9.

Both appellant and amicus suggest that Bloom applies only to cases where the defendant exercises his right to represent himself, as did the defendant in Bloom. We disagree. The entire case against respecting the defendant's choice rests upon the proposition that withholding mitigation makes the sentencing process unreliable. A defendant's self-representation could hardly make an otherwise unreliable death sentence reliable.

In any case, while Bloom involved a self-represented defendant, Deere did not. It seems to us that, were the suggested distinction valid, the Bloom court would have distinguished Deere instead of disapproving its reasoning. See People v. Lang (1989), 49 Cal.3d 991, 1029-1032, 264 Cal.Rptr. 386, 411-413, 782 P.2d 627, 652-653 Bloom to ineffective assistance claim by represented defendant).

The same value that guarantees a defendant a right to present mitigating evidence--"the right of the defendant to be treated with dignity as a human being," Bonnie, supra, at 1383--...