[This opinion has been published in Ohio Official Reports at
79 Ohio St.3d 1.]
THE STATE OF OHIO, APPELLEE, v. WILLIAMS, APPELLANT.
[Cite as State v. Williams, 1997-Ohio-407.]
Criminal law—Aggravated murder—Death penalty upheld, when.
(No. 95-2572—Submitted October 9, 1996—Decided June 11, 1997.)
APPEAL from the Court of Appeals for Summit County, No. 16418.
__________________
{¶ 1} Defendant-appellant, William J. Williams, Jr., controlled the drug
trafficking at the Kimmelbrooks housing project in east Youngstown, Ohio. After
an extended absence from the area, appellant returned to find that Alfonda R.
Madison, Sr., William L. Dent, Eric Howard, and others had taken over the drug
trade at the Kimmelbrooks project. Appellant wanted to regain control of the drug
business, so he decided to rob and kill Madison and the others.
{¶ 2} Appellant had three juvenile accomplices: his sixteen-year-old
girlfriend, Jessica M. Cherry; her sixteen- or seventeen-year-old brother, Dominic
M. Cherry; and Dominic Cherry’s seventeen-year-old “cousin” (i.e., best friend),
Broderick Boone. On August 27, 1991, the appellant bought walkie-talkies at a
Radio Shack store. The devices had a combined microphone-earphone earpiece
that left the user’s hands free. The appellant also bought batteries and duct tape.
The appellant, Dominic, and Broderick later tested the walkie-talkies.
{¶ 3} Before the murders, the appellant outlined his plan to his three
accomplices. During this meeting, the appellant drew interior and exterior
diagrams of Madison’s house. The appellant later ordered Dominic to burn these,
but Dominic burned only one diagram. In addition, the appellant supplied each
accomplice with a gun. The appellant purchased Jessica’s gun from a neighbor.
{¶ 4} On September 1, 1991, Jessica met with Madison and discussed a
drug deal. Later that night, the appellant and his three accomplices arrived at
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Madison’s home by car. The appellant armed the three juvenile accomplices with
guns and a walkie-talkie and sent them inside, while he waited outside with a
walkie-talkie. Once inside, the three accomplices drew their guns on Madison.
Then, after receiving word via walkie-talkie that the situation was secure, the
appellant, armed with a semiautomatic, entered the house carrying a duffel bag
containing handcuffs, duct tape, and gloves. Inside, the appellant handcuffed and
bound Madison and put tape over his mouth.
{¶ 5} Thirty to forty-five minutes later, Theodore Wynn, Jr., a recently
discharged Air Force sergeant, came to the door, looking for Madison and Howard,
who were roommates. Jessica answered the door and told Wynn that Madison was
not home and Howard was asleep. As Wynn walked back towards his car, the
appellant told Jessica to call Wynn back into the house because Wynn could
identify them. Inside the house, the appellant held Wynn at gunpoint and
handcuffed him.
{¶ 6} Upon the appellant’s orders, Jessica walked to a pay phone and called
and asked for Dent for the purpose of luring him to the house. When Dent arrived
with Howard, the appellant and his accomplices ambushed them and forced them
to lie down in the bathroom. The appellant strangled Madison and Wynn, and then
instructed Jessica to turn up the stereo. Going from room to room, the appellant
shot each of the four victims in the head with Madison’s gun.
{¶ 7} The group left Madison’s home, but the appellant, according to
Jessica, went back in “to make sure they were all dead.” Later, back at the
appellant’s apartment, he embraced his juvenile accomplices and rewarded them
with drugs. The appellant warned them not to tell anyone what they had done or
he would kill them.
{¶ 8} The next day, September 2, 1991, the appellant and Jessica were
driving to pick up appellant’s son in Youngstown when another car rammed theirs
and the people in the other car shot at them. Jessica and the appellant fled the scene.
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When Jessica and the appellant returned to the vicinity of the accident, officers
transported them to the Youngstown Police Department and later released them
after questioning them about the traffic accident. Later that night, the appellant,
Jessica, Dominic, and Broderick fled to Pennsylvania. The appellant and the three
juveniles returned to the Youngstown area and parted company.
{¶ 9} On September 24, 1991, Dominic turned himself in, and gave a
statement about the murders. Later, officers arrested Jessica and Broderick, and the
latter also gave statements. Following their arrests, Jessica, Dominic, and
Broderick were held at the Mahoning County Juvenile Justice Center (“JJC”).
{¶ 10} The appellant was arrested in connection with the murders. Shortly
after being arrested, he escaped from jail on October 15, 1991. While the appellant
remained a fugitive from justice, a Mahoning County Grand Jury indicted him on
four counts of aggravated murder, four counts of kidnapping, and one count of
aggravated burglary.
{¶ 11} On January 12, 1992, the armed appellant and two other
accomplices, Paul R. Keiper, Jr., and a juvenile named Eric Fields, appeared at the
JJC. The three deceived a receptionist and were permitted to enter. Once inside,
the appellant held the receptionist and a deputy sheriff hostage, demanding to see
Jessica, Dominic, and Broderick. After lengthy negotiations, the appellant
surrendered to authorities. At trial, Keiper testified that the appellant planned to
kill the three juveniles because he knew that they had made statements to the police
regarding the murders.
{¶ 12} The Mahoning County Grand Jury reindicted the appellant on twelve
counts of aggravated murder, four counts of kidnapping, and one count of
aggravated burglary. In addition, each aggravated murder charge included two
felony-murder death specifications and one death specification for multiple murder.
On the appellant’s motion, the court transferred venue to Summit County.
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{¶ 13} Jessica, Dominic, and Broderick all entered into plea agreements
with the Mahoning County Prosecutor’s Office. All three pled guilty to
delinquency by reason of complicity to aggravated murder, complicity to
aggravated burglary, and complicity to kidnapping. All three testified against the
appellant.
{¶ 14} A jury convicted the appellant on all counts and specifications. The
trial court merged the twelve aggravated murder counts into four and the three
specifications per count into a single multiple-murder specification. Following the
sentencing hearing, the jury recommended death for each aggravated murder. The
trial judge sentenced the appellant to death, and the court of appeals affirmed.
{¶ 15} The cause is now before this court upon an appeal as of right.
__________________
James A. Philomena, Mahoning County Prosecuting Attorney, and Michele
G. Cerni, Assistant Prosecuting Attorney, for appellee.
John Juhasz and Mary Jane Stephens, for appellant.
__________________
LUNDBERG STRATTON, J.
{¶ 16} We have reviewed the appellant’s nine propositions of law,
independently weighed the evidence relating to the death sentence, balanced the
aggravating circumstance against the mitigating factors, and compared the sentence
to those imposed in similar cases. As a result, we affirm the convictions and
sentences of death.
I
ALLEGED JUROR MISCONDUCT
{¶ 17} In Proposition of Law I, the appellant argues that the conduct of the
prospective jurors deprived him of his constitutional right to an impartial jury,
guaranteed by both the United States and Ohio Constitutions. Thus, the appellant
argues, the trial court should have granted his motion for mistrial during voir dire.
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The appellant claims that the trial court erred by improperly curtailing inquiry into
prospective jurors’ misconduct, and by refusing to conduct an investigation or
allow counsel to investigate. Included in the appellant’s allegations is that
prospective jurors concealed prior knowledge of the case, rumors about the case,
and anxiety concerning court security.
{¶ 18} A claim of juror misconduct must focus on the jurors who were
actually seated and not those excused. Ross v. Oklahoma (1988), 487 U.S. 81,
108
S.Ct. 2273,
101 L.Ed.2d 80. Thus, to establish a constitutional violation in this
situation, the appellant must demonstrate that one of the jurors seated was not
impartial. Further, unless a juror is challenged for cause, he or she is presumed to
be impartial. State v. Broom (1988),
40 Ohio St.3d 277, 288,
533 N.E.2d 682, 695.
{¶ 19} Appellant claims that two individuals who served on the jury, Joann
Eddleman and Martha Forsyth, concealed their misconduct on voir dire and
contends that this court should therefore presume they were biased. A court may
infer bias if it finds deliberate concealment; however, if the concealment was
unintentional, the appellant must show that the juror was actually biased. Zerka v.
Green (C.A.6, 1992), 49 F.3d 1181, 1184-1186.
{¶ 20} Because appellant did not challenge Forsyth or Eddleman on the
ground that they had concealed information, appellant waived any errors involved.
State v. Greer (1988), 39 Ohio St.3d 236, 247,
530 N.E.2d 382, 397. However, we
will examine these allegations for plain error.
{¶ 21} On voir dire the judge asked Eddleman if she knew anything about
the case, to which she replied she did not. However, according to prospective juror
Janet Parsons, Eddleman told her that a Youngstown resident had informed her that
the case “involved drugs” and the authorities had been unable to find the defendant.
However, Eddleman told Parsons that “she [Eddleman] didn’t know if that was
true.” Parsons admitted she was only “half listening” and “wasn’t paying that much
attention” to Eddleman. The appellant argues that Eddleman concealed her alleged
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conversation with the person from Youngstown. However, this court does not find
that Eddleman deliberately concealed the conversation because she had previously
indicated that she did not know whether those rumors were true. Thus, her voir dire
response was truthful—she did not know anything about the case. She was not
asked whether she had discussed the case with anyone. Therefore, Eddleman’s
answers create no presumption of bias.
{¶ 22} Appellant claims Forsyth may have concealed a conversation with
prospective juror John Gombaski. Gombaski, who was excused for cause,
allegedly overheard a conversation between court employees about the case.
Gombaski allegedly told two other prospective jurors what he had heard. While he
did not recall which two prospective jurors he told, at that point in voir dire there
were only four possibilities. When the judge read the four names, Gombaski said
Forsyth “might” ring a bell. The judge asked Forsyth whether she had heard any
discussion about the case in the courthouse. She replied that she had not, although
the venire had speculated about what type of questions would be asked. A review
of Gombaski’s and Forsyth’s voir dire does not provide a basis for finding that
Forsyth concealed information. Therefore, we presume no prejudice regarding
Forsyth.
{¶ 23} Janet Smith was the other possible prospective juror who served on
the jury and with whom Gombaski may have spoken. The trial court questioned
Smith about whether she had heard or seen any pretrial publicity about the case.
She replied that she had not. Further, the trial court asked her whether she had
heard comments about the case or discussed the case with other jurors. Again, she
replied that she had not and that she did not know anything about the case other
than what the judge told her in the courtroom. The other two prospective jurors
who might have spoken with Gombaski did not serve on the jury. Having reviewed
for plain error, we find none.
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{¶ 24} The appellant claims that juror Margaret Rohwedder was biased
because she allegedly overheard discussion about security and possible retaliation.
When questioned on voir dire, Rohwedder indicated that she had heard no such
discussion. Because appellant presented no proof that she lied, there is no merit to
the bias claim. The remaining jurors who the appellant alleged were biased did not
sit on the jury.
{¶ 25} The appellant also argues that the trial judge did not sufficiently
inquire into the extent and effect of the alleged juror misconduct. However, the
scope of voir dire is within the discretion of the trial court and varies depending on
the circumstances of each case. State v. Bedford (1988), 39 Ohio St.3d 122, 129,
529 N.E.2d 913, 920. The trial judge and counsel questioned all of the jurors
allegedly involved in the misconduct. Upon review of the voir dire, we do not find
that the trial judge unreasonably or arbitrarily restricted examination or
investigation into the preconceptions of the prospective jurors. Therefore, the trial
court acted within its discretion in overruling the appellant’s motion for mistrial.
Accordingly, we reject Proposition of Law I.
II
ALLEGED JUROR PREFERENCE FOR THE DEATH PENALTY
{¶ 26} In appellant’s second proposition of law, he claims that the trial court
wrongly overruled nine challenges for cause concerning alleged pro-death-penalty
jurors. The standard for determining whether a prospective juror may be excluded
for cause due to his or her views on capital punishment is whether that prospective
juror’s views would “ ‘prevent or substantially impair the performance of his duties
as a juror in accordance with his instructions and his oath.’ ” (Emphasis deleted.)
Wainwright v. Witt (1985), 469 U.S. 412, 420,
105 S.Ct. 844, 850,
83 L.Ed.2d 841,
849, quoting Adams v. Texas (1980),
448 U.S. 38, 45,
100 S.Ct. 2521, 2526,
65
L.Ed.2d 581, 589. This court specifically adopted that standard in State v. Rogers
(1985),
17 Ohio St.3d 174, 17 OBR 414,
478 N.E.2d 984, paragraph three of the
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syllabus, vacated and remanded on other grounds (1985), 474 U.S. 1002,
106 S.Ct.
518,
88 L.Ed.2d 452, where we held that voir dire would constitute reversible error
only upon a showing that the court abused its discretion. Id.,
17 Ohio St.3d at 178-
179, 17 OBR at 418,
478 N.E.2d at 990.
{¶ 27} The United States Supreme Court has held in Morgan v. Illinois
(1992), 504 U.S. 719, 729,
112 S.Ct. 2222, 2229-2230,
119 L.Ed.2d 492, 502-503,
that “[a] juror who will automatically vote for the death penalty in every case will
fail in good faith to consider the evidence of aggravating and mitigating
circumstances as the instructions require him to do. Indeed, because such a juror
has already formed an opinion on the merits, the presence or absence of either
aggravating or mitigating circumstances is entirely irrelevant to such a juror.
Therefore, based on the requirement of impartiality embodied in the Due Process
Clause of the Fourteenth Amendment, a capital defendant may challenge for cause
any prospective juror who maintains such views. If even one such juror is
empaneled and the death sentence is imposed, the State is disentitled to execute the
sentence.” The rationale behind this is that “a juror could, in good conscience,
swear to uphold the law and yet be unaware that maintaining such dogmatic beliefs
about the death penalty would prevent him or her from doing so. A defendant on
trial for his life must be permitted on voir dire to ascertain whether his prospective
jurors function under such misconception.” (Footnote omitted.)
Id. at 735-736,
112 S.Ct. at 2223,
119 L.Ed.2d at 507.
{¶ 28} Many times during voir dire in death penalty cases, prospective
jurors are asked for the first time to face their views about the death penalty. Often,
they have not defined in their own minds what their views are, and they are forced
to define their beliefs amidst extremely leading questioning from both parties.
Some have very strongly held views, but have never had to define them within the
context of following the law. It is the duty of the trial judge to sort through their
responses and determine whether the prospective jurors will be able to follow the
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law. We find that the trial court permitted this appellant to question the prospective
jurors both before and after the court's questions. Therefore, we find that the trial
judge properly complied with the requirements of Morgan v. Illinois.
{¶ 29} Appellant alleges that the trial court abused its discretion in denying
nine challenges for cause. Of the nine challenges, the appellant excused five
prospective jurors (Frances Scanlon, Magda Subecz, V.F. Allen, Khim Standen,
and Richard Mains) through peremptory challenges. The appellant exhausted his
peremptory challenges. Of the four prospective jurors remaining, two (Edna Lewis
and Linda Tanski) were excused for other reasons, and the two remaining jurors
(Patricia Camp and Joann Eddleman) were seated.
{¶ 30} The two allegedly biased prospective jurors who ultimately sat on
the jury were Camp and Eddleman. Juror Camp did not automatically favor the
death penalty, but the appellant argues that she was overly concerned about the
possibility of parole. A juror’s impartiality is not impaired simply because that
juror opposes parole for convicted murderers. Further, when the trial judge
explained the death penalty phase and the law involved, Camp stated that she could
consider all of the possible penalties and return the appropriate verdict. She also
stated that she did not think that all murderers should be executed. Thus, we do not
find that it was error for the trial judge to overrule the appellant’s challenge for
cause regarding Camp.
{¶ 31} Eddleman was the other juror who was challenged for cause by the
appellant and who ultimately sat on the jury. Eddleman vacillated in her responses
to questions concerning the death penalty. When questioned by the prosecutor, she
agreed that she could follow the court’s instructions and that she understood that
the death penalty was not an automatic punishment. When questioned by the
defense, she agreed that even given the three choices of death, life with parole
eligibility after twenty years, and life with parole eligibility after thirty years, she
would choose death. Yet, in response to the judge, she indicated that she
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understood the balancing process for aggravating circumstances and mitigating
factors and agreed that she could participate in that process, weigh the evidence
fairly, and make the appropriate recommendation.
{¶ 32} The transcript reveals that Eddleman appeared to contradict herself.
It is difficult from reading the transcript to determine whether Eddleman was
overstating her beliefs concerning the death penalty to defense counsel, or
understating them to the judge and prosecutor.
{¶ 33} Morgan held that answers to “general questions of fairness or
impartiality” cannot negate a statement by the prospective juror that he or she would
automatically vote for death. Morgan, 504 U.S. at 735,
112 S.Ct. at 2233,
119
L.Ed.2d at 506. However, the trial judge’s questions were more than general
inquiries regarding a juror’s ability to be fair and impartial. Instead, the judge fully
explained the penalty stage, the law of mitigation and aggravation, and the
corresponding penalties. By the end of voir dire, Camp and Eddleman fully
understood that an automatic death penalty vote is inconsistent with the law. Thus,
when they said they could follow the law, they were not unaware that “maintaining
[their] dogmatic beliefs about the death penalty would prevent [them] from doing
so.” Morgan,
504 U.S. at 735,
112 S.Ct. at 2233,
119 L.Ed.2d at 507. Indeed, they
had already said they could set their views aside.
{¶ 34} Voir dire, like the entire litigation process, is inherently adversarial.
With both parties attempting to push a prospective juror into a certain position in
order to remove him or her from the jury, it is the job of the trial judge to determine
which statements of the prospective juror reflect that individual’s true state of mind
and ability to follow the law. Hence, in the give and take of voir dire, it is often
necessary for the trial judge to step in and provide some neutral, nonleading
instructions and questions in an attempt to determine whether the prospective juror
can actually be fair and impartial. The transcript reveals only the words spoken in
the courtroom.
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{¶ 35} The United States Supreme Court has held that “deference must be
paid to the trial judge who sees and hears the juror.” Witt, 469 U.S. at 426,
105 S.Ct.
at 853,
83 L.Ed.2d at 853. Although Witt was a habeas corpus case, the principle
is equally sound in this case. A trial court’s ruling on a challenge for cause will not
be disturbed on appeal unless it is manifestly arbitrary and unsupported by
substantial testimony, so as to constitute an abuse of discretion. State v. Wilson
(1972),
29 Ohio St.2d 203, 211,
58 O.O.2d 409, 414,
280 N.E.2d 915, 920. The
trial judge had the benefit of observing Eddleman’s demeanor and body language,
while we do not. Finding no abuse of discretion, we therefore defer to the trial
judge’s discretion to determine whether Eddleman could indeed follow the law and
be fair and impartial.
{¶ 36} The appellant argues that the trial judge improperly overruled his
challenges for cause regarding seven other prospective jurors, five of whom the
appellant eventually excused through peremptories. While it is true, regarding the
right to an impartial jury, that the proper focus is on the jurors who were seated, see
Broom, supra, if the defense peremptorily excuses the biased prospective juror, but
the defense exhausts its peremptory challenges before the full jury is seated, the
erroneous denial of a challenge for cause in a criminal case may be prejudicial.
Hartnett v. State (1885),
42 Ohio St. 568, paragraph four of the syllabus; State v.
Tyler (1990),
50 Ohio St.3d 24, 30-31,
553 N.E.2d 576, 586-587.
{¶ 37} The reason for this rule is that an error by the trial judge in overruling
a challenge for cause forces the defendant to use a peremptory on a prospective
juror who should have been excused for cause, giving the defendant fewer
peremptories than the law provides. Consequently, this court need not consider the
challenges to prospective jurors Lewis and Tanski because the appellant did not
need to use a peremptory challenge on either, as both were excused for other
reasons.
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{¶ 38} As for the remaining jurors, the appellant exhausted his peremptories
in removing them. We will therefore examine the voir dire of the other five
prospective jurors (Scanlon, Subecz, Allen, Standen, and Mains). First, the
appellant points to Scanlon, who told defense counsel she would automatically vote
for the death penalty if the appellant “willfully and intentionally” murdered
someone. Similarly, Subecz told defense counsel that death is always the
appropriate penalty for intentional murders lacking “excuse or justification.”
However, defense counsel did not explain to those prospective jurors the legal
meaning of the terms “willful,” “intentional,” “excuse,” or “justification.”
{¶ 39} Second, the appellant points to prospective jurors Allen, Standen,
and Mains, who would require the appellant to show why he should not receive a
death sentence. But later, when the law was more fully explained to them, each
prospective juror stated that he or she could follow the law.
{¶ 40} It was the task of the trial judge to observe the prospective jurors and
determine whether after explanation they could indeed follow the law and be fair
and impartial. We find that the trial judge did not abuse his discretion in denying
the appellant’s challenges for cause. Accordingly, we reject Proposition of Law II.
III
SUFFICIENCY OF EVIDENCE
{¶ 41} In Proposition of Law III, the appellant argues that his convictions
were not supported by sufficient evidence and that the verdict was against the
manifest weight of the evidence. In our review of the evidence, our standard is
“whether, after viewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259,
574 N.E.2d
492, paragraph two of the syllabus, following Jackson v. Virginia (1979),
443 U.S.
307,
99 S.Ct. 2781,
61 L.Ed.2d 560. After a thorough review of the evidence, we
find it to be sufficient.
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{¶ 42} The appellant’s accomplices in the murders all testified against him
at trial. The appellant challenges their testimony as inconsistent, inaccurate, and
biased due to their plea agreements with the state. All three testified that they saw
the appellant shoot Dent and Howard. None of the accomplices saw the appellant
shoot Wynn, but all three saw the appellant walk into the bedroom where Wynn
was held, and all three then heard a shot.
{¶ 43} Jessica testified that she saw the appellant strangling Madison in the
kitchen. Later, Jessica heard the appellant say that he was going to kill Madison,
saw him enter the kitchen where he was restraining Madison, heard the appellant
say to Madison, “I’ll see you in hell,” and heard a gunshot. Jessica testified that
the appellant told her to turn up the stereo to drown out the shots. During the
planning stages, Broderick heard the appellant state his plan to kill Madison.
During the murders, Broderick, who was guarding Wynn in the bedroom, also heard
the appellant shoot Madison. Dominic testified that he saw the appellant walk into
the kitchen area and shoot Madison in the back of the head.
{¶ 44} This testimony, if believed, was enough by itself to convict. Further,
the events that occurred on the evening of January 12, 1992 at the Mahoning County
Juvenile Justice Center are strong evidence of the appellant’s guilt. After the
appellant escaped from the Mahoning County Jail, he purchased a police uniform,
armed himself, and used deception to gain entry to the JJC, allegedly with the intent
to kill his three juvenile accomplices to the murders. Paul Keiper, one of the
appellant’s accomplices on January 12, testified that the appellant told him that he
planned to kill the three juveniles. Further, Jerome E. Gibson, a fellow prisoner
while the appellant was awaiting trial at the Summit County Jail, testified that the
appellant told him he had intended to kill his three juvenile accomplices with
“explosives and guns” at the JJC.
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{¶ 45} Physical evidence included duct tape and electrical cord recovered
from the victims, the recovered murder weapon, slugs removed from the victims,
and spent shell casings.
{¶ 46} While it is true that there were inconsistencies in the testimony of
the three juvenile witnesses, this evidence must be viewed in the light most
favorable to the state. This court will not resolve evidentiary conflicts or determine
credibility. State v. Waddy (1992), 63 Ohio St.3d 424, 430,
588 N.E.2d 819, 825.
The jurors had the opportunity to fully observe and hear the testimony of each
witness. The defense pointed out inconsistencies in their testimony during cross-examination and in closing argument. It was up to the jurors to weigh these
inconsistencies and assess the witnesses’ credibility. When all the evidence is
viewed in the light most favorable to the prosecution, the jury could reasonably
have found the evidence sufficient to prove beyond a reasonable doubt that the
appellant committed the crimes charged. Accordingly, we reject Proposition of
Law III.
IV
OTHER-ACTS EVIDENCE
{¶ 47} The appellant pled guilty before trial to an escape from the
Mahoning County Jail and to the unlawful entry into the JJC. At trial, the
prosecution introduced evidence about the appellant’s armed entry into the JJC. In
Proposition of Law IV, the appellant argues that this evidence violated Evid.R.
404(B) because the evidence was not needed to prove motive or intent and because
it was offered solely to inflame the jury and to bolster the credibility of the three
juvenile witnesses. Further, the appellant argues that the evidence should have been
excluded under Evid.R. 403(A) because the prejudicial impact substantially
outweighed its probative value.
{¶ 48} Ohio Evid.R. 404(B) provides:
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“Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
{¶ 49} Other acts may prove identity by “establishing a modus operandi
applicable to the crime with which a defendant is charged.” State v. Lowe (1994),
69 Ohio St.3d 527, 531,
634 N.E.2d 616, 619. In this case, the incident at the JJC
is evidence of modus operandi. It established a “behavioral fingerprint” linking the
appellant to the crime due to the common features shared by both events.
Id. In
both instances, the appellant sent others into the building first to create a diversion
and to hold the victims at gunpoint, while the appellant waited outside until his
accomplices had secured the situation. In both instances, he used at least one
juvenile accomplice. In both instances, the appellant dressed in dark clothing from
head to toe and wore a mask and gloves. In both instances, the appellant carried
automatic firearms. In both instances, the appellant handcuffed some of his
victims’ hands behind their backs and confined them in the bathroom. These
examples demonstrate a similar method of operation, thereby establishing identity.
{¶ 50} Further, we find that the evidence of the appellant’s entry into the
JJC showed the appellant’s intent to kill the three juvenile witnesses. Evidence of
conduct designed to impede or prevent a witness from testifying is admissible as
showing consciousness of guilt. See, e.g., United States v. Cirillo (C.A. 2, 1972),
468 F.2d 1233, 1240; 2 Wigmore, Evidence (Chadbourn Rev. 1979) 133, Section
278. The three juveniles were the only eyewitnesses to the crime. The appellant
had discovered that the three juveniles had agreed to testify against him. The
appellant had told at least two persons, Keiper and Gibson, that he planned to kill
the juveniles.
{¶ 51} Thus, evidence of the incident at the JJC was admissible to show
consciousness of guilt. “ ‘It is today universally conceded that the fact of an
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accused’s flight, escape from custody, resistance to arrest, concealment,
assumption of a false name, and related conduct, are admissible as evidence of
consciousness of guilt, and thus of guilt itself.’ ” State v. Eaton (1969), 19 Ohio
St.2d 145, 160,
48 O.O.2d 188, 196,
249 N.E.2d 897, 906, vacated on other grounds
(1972),
408 U.S. 935,
92 S.Ct. 2857,
33 L.Ed.2d 750, quoting 2 Wigmore, Evidence
(3 Ed.) 111, Section 276.
{¶ 52} In addition, the appellant argues that it was error for the trial court to
refuse to give a limiting instruction. However, because the entry into the JJC
presented substantive evidence of modus operandi and consciousness of guilt, we
do not find that the court was required to give a limiting instruction. Finally, we
find that the probative value substantially outweighs the danger of unfair prejudice,
confusion of the issues, or misleading the jury pursuant to Evid.R. 403(A) and State
v. Morales (1987), 32 Ohio St.3d 252, 258,
513 N.E.2d 267, 274. Accordingly, we
reject Proposition of Law IV.
V
ALLEGED PROSECUTORIAL MISCONDUCT
{¶ 53} In Proposition of Law V, the appellant argues that the prosecutor
improperly vouched for the credibility of the state’s three juvenile eyewitnesses.
The appellant claims that the prosecutor specifically elicited from the three juvenile
witnesses that the Mahoning County Prosecutor's Office could determine the
truthfulness of the juveniles’ statements to the police in deciding whether to go
forward with the plea arrangements. The appellant failed to object to this line of
questioning by the state. Therefore, the issue is waived except for plain error, and
the appellant must demonstrate that but for the error, the outcome of the trial clearly
would have been otherwise. State v. Long (1978), 53 Ohio St.2d 91,
7 O.O.3d 178,
372 N.E.2d 804, paragraph two of the syllabus.
{¶ 54} It is improper for an attorney to express his or her personal belief or
opinion as to the credibility of a witness or as to the guilt of the accused. State v.
16
January Term, 1997
Thayer (1931), 124 Ohio St. 1,
176 N.E. 656; State v Smith (1984),
14 Ohio St.3d
13, 14 OBR 317,
470 N.E.2d 883. However, the evidence does not establish that
the prosecutor was “vouching” for the witnesses, but rather that he was exploring
the basis of the plea arrangements. In the case at bar, the state asked Jessica about
her plea bargain at the beginning of her testimony. She acknowledged, “They gave
me a plea bargain to testify against Flip Williams; and if I went back on my plea
bargain, then I would be retried as an adult and sentenced.” The appellant did not
object to the elicitation of the terms of the plea agreement. In fact, it was the
appellant who on cross-examination first introduced the idea that the truthfulness
of Jessica’s statements would be determined by the prosecutor’s office. Jessica
replied that she could not remember whether part of the agreement required the
truth of the testimony to be determined by the prosecutor’s office.
{¶ 55} When the state questioned Broderick about his plea bargain, the state
specifically asked whether, as part of the plea, there was a plea agreement that
Broderick would “give a truthful statement under oath as to what had occurred
during the kidnappings and killings of William Dent, Eric Howard, Alfonso [sic]
Madison and Theodore Wynn, Junior, including the entire course of conduct
involved, [and that] the truthfulness of that statement would be determined by the
Mahoning County Prosecutor’s Office.” Again, the appellant did not object.
Finally, the same questioning occurred with respect to Dominic, and again, the
appellant did not object.
{¶ 56} We find that any error that may have occurred from these questions
was not outcome-determinative, and therefore not plain error. While the three
juvenile witnesses were the only eyewitnesses to the murders, the jury clearly could
have believed Jessica even if the state had not highlighted her plea bargain.
Similarly, the jury could have believed Dominic and Broderick even if it had not
heard about the “truthful statement” clauses in their plea agreements. Indeed, given
the defense efforts to turn the plea agreements against the state, it is difficult to say
17
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whether the agreements helped or hurt the witnesses’ credibility. See United States
v. Arroyo-Angulo (C.A.2, 1978), 580 F.2d 1137, 1146; People v. Manning (1990),
434 Mich. 1, 18,
450 N.W.2d 534, 541. Moreover, we note that the “truthful
statement” clauses did not provide that the prosecutor’s office would determine the
truthfulness of the witnesses’ testimony. Rather, the clauses provided that the plea
bargains would fail if the prosecutors did not believe their sworn statements.
Therefore, the appellant failed to demonstrate that the outcome clearly would have
been otherwise if the jury had not learned about the truthful-statement clauses.
Accordingly, we reject Proposition of Law V.
VI
MOTION TO SUPPRESS
{¶ 57} After the murders, on September 2, 1991, the appellant was involved
in a car crash in Youngstown, Ohio. Apparently, individuals in the other car shot
at the appellant and Jessica, and all parties fled the scene. Shortly thereafter, Jessica
returned to the scene of the accident. Jessica told Officer Marvin Hunter that she
had been a passenger in one of the cars involved in the accident.
{¶ 58} Half an hour later, the appellant returned to the scene. The appellant
told Hunter that he had been driving a Pontiac when a Cadillac rammed them and
the people in the Cadillac shot at him. Appellant told Hunter that he did not shoot
back, but instead, jumped out of the Pontiac and ran. Hunter was ready to arrest
the appellant for leaving the scene of an accident, in violation of R.C. 4549.02,
when Hunter’s sergeant ordered him to take the appellant to the station for
questioning. Hunter advised the appellant that the detectives would like to see him
relative to a shooting. Hunter told the appellant that he could arrest him but would
not, and asked the appellant if he would go to the police station. The appellant
agreed and was driven to the station.
{¶ 59} Sometime after arriving at the station, Detective Gerald Maietta and
Detective William Blanchard read the appellant his Miranda rights, and had the
18
January Term, 1997
appellant sign a copy of the Miranda form. The appellant agreed to an atomic
absorption test on his hands to determine whether he had recently fired a gun. The
appellant left the station after he signed a summons for leaving the scene of an
accident. In Proposition of Law VI, the appellant argues that this detention was not
supported by probable cause, and, therefore, the positive test result should have
been suppressed as fruit of the poisonous tree. See, generally, Wong Sun v. United
States (1963), 371 U.S. 471,
83 S.Ct. 407,
9 L.Ed.2d 441.
{¶ 60} The evidence appears to show that the appellant went voluntarily to
the police station and agreed to submit to the atomic absorption test. However,
because these facts are not entirely clear, even assuming that the appellant had
actually been arrested, the arrest was justified by probable cause. R.C. 4549.02
requires a driver involved in a collision on a public street to stay at the scene until
he or she has given his or her name, address, and registration number to the other
driver, to any injured party, or to a police officer. The appellant told Officer Hunter
that he had been driving during the collision and had fled. Despite the fact that the
appellant was being shot at when he fled, Officer Hunter still had probable cause to
arrest the appellant for a violation of R.C. 4549.02. An arrest made on probable
cause does not become unreasonable under the Fourth Amendment to the United
States Constitution just because police had the ulterior motive of investigating
another crime for which they lacked probable cause. Dayton v. Erickson (1996),
76 Ohio St.3d 3,
665 N.E.2d 1091. In fact, Officer Hunter followed up on his
probable cause for leaving the scene of an accident by requiring the appellant to
sign a summons charging him with that offense. Therefore, under either scenario,
the results of the atomic absorption test were admissible. Accordingly, we reject
Proposition of Law VI.
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VII
LIMIT ON CROSS-EXAMINATION
{¶ 61} In Proposition of Law VII, the appellant claims that the trial court
improperly limited his cross-examination of Dominic Cherry. On cross-examination, Dominic testified that the police advised him of his Miranda rights
on September 24 and October 23, 1991, and that he had understood them and
waived them. Defense counsel handed Dominic a copy of a motion to suppress,
filed by Dominic’s attorney in Mahoning County Juvenile Court. The motion
sought to suppress all of Dominic’s statements “in connection with his arrest and
investigation into the crimes which occurred on or about September 2, 1991, in the
City of Youngstown … .” The motion, as proffered by the appellant, claimed
that police obtained those statements “in violation of Defendant’s Constitutional
rights as further set forth in the case of Miranda v. Arizona ….” The trial court
sustained the state’s objection to the use of the motion by the defense.
{¶ 62} Appellant claims this ruling was error. The appellant claims the
evidence was admissible pursuant to Evid.R. 608(B), which permits inquiry on
cross-examination of specific instances of a witness’s conduct to attack the
witness’s character for truthfulness or untruthfulness.
{¶ 63} We find that the trial court did not err in sustaining the state’s
objection to the use of the motion to suppress. Evid. R. 608(B) permits inquiry on
cross-examination into specific instances of the conduct of a witness for the purpose
of assessing the witness’s character for truthfulness or untruthfulness. The filing
of the motion was not clearly probative of Dominic’s character for truthfulness or
untruthfulness as required by Evid.R. 608(B). Dominic’s testimony was not
necessarily inconsistent with the motion. Dominic testified that he was “informed”
of, “understood,” and “waived” his Miranda rights. The motion, as proffered by
the appellant, claimed that police obtained Dominic’s statements “in violation of
Defendant’s Constitutional rights as further set forth in the case of Miranda v.
20
January Term, 1997
Arizona.” There could have been several technical or legal issues supporting a
motion to suppress beyond the mere fact of whether officers read the Miranda
warnings to the appellant. The vague language of the motion does not reveal the
factual detail necessary to make a determination whether the motion was probative
of Dominic’s character for truthfulness or untruthfulness.
{¶ 64} Moreover, defense counsel was in effect trying to use the motion as
a prior inconsistent statement by Dominic. However, it was not Dominic’s
statement. Dominic did not write it or sign it. Under Evid.R. 608(B), Dominic
could be impeached with his own conduct, including his own prior inconsistent
statements, but not with motions made by his attorney. Therefore, we find that
Dominic’s motion to suppress was not admissible under Evid.R. 608(B).
{¶ 65} Moreover, we reject the appellant’s argument under Evid.R. 616,
which permits a party to prove a witness’s “[b]ias, prejudice, interest, or any motive
to misrepresent.” The motion had no tendency to show bias on Dominic’s part.
{¶ 66} Finally, the appellant claims that the trial court’s ruling violated the
Sixth Amendment guarantee of the right of an accused to confront the witnesses
called against him. See Pointer v. Texas (1965), 380 U.S. 400,
85 S.Ct. 1065,
13
L.Ed.2d 923. Because the motion was not probative of Dominic’s credibility, we
reject the appellant’s Sixth Amendment claims. Accordingly, we overrule
Proposition of Law VII.
VIII
CONSTITUTIONALITY
{¶ 67} Appellant challenges the constitutionality of Ohio’s death penalty
statutes in his eighth proposition of law. We summarily reject this challenge. State
v. Poindexter (1988), 36 Ohio St.3d 1,
520 N.E.2d 568, syllabus. Ohio’s death
penalty scheme is constitutional. See, e.g., State v. Davis (1992),
63 Ohio St.3d 44,
50,
584 N.E.2d 1192, 1197; State v. Scott (1986),
26 Ohio St.3d 92, 109, 26 OBR
79, 93-94,
497 N.E.2d 55, 69. Accordingly, we reject Proposition of Law VIII.
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IX
GRAND JURY SELECTION
{¶ 68} In Proposition of Law IX, the appellant claims that the trial court
should have quashed the indictment due to irregularities in the grand jury selection
process. The appellant contends that the Mahoning County Jury Commissioners’
Office failed to comply with the procedures for jury selection established in R.C.
2313.08, 2313.12, and 2313.13 as made applicable to grand juries by R.C. 2939.02
and 2939.03.
{¶ 69} R.C. 2313.08 requires the jury commissioners in each county to
make up an annual jury list, certify it, file it in their office before the beginning of
each jury year, and certify and file a duplicate list in the office of the clerk of the
court of common pleas. R.C. 2313.12 requires jury commissioners to keep a record
of all proceedings before them or in their office, and of all persons exempted and
the time and reasons for the exemptions. R.C. 2323.13 establishes the procedures
for postponing service, temporarily excusing service, or discharging a juror from
service.
{¶ 70} In the case at bar, the jury commissioners did not file a certified
duplicate of the jury list with the clerk’s office. The appellant claims that the
indictment was invalid because the grand jury venire was selected from a jury list
that was not filed with the clerk’s office. The appellant cites McGill v. State (1877),
34 Ohio St. 228, for the proposition that any irregularity that materially affects a
substantial right of the defendant and prevents him or her from being tried by a
legally constituted jury requires that the verdict be set aside and that a new trial be
granted.
{¶ 71} The court of appeals found that the failure to follow the procedures
mandated by R.C. 2313.01 et seq. did not require the court to reverse an otherwise
valid conviction. We agree. This court has recognized that the failure to follow
the procedure set forth in R.C. 2313.01 et seq. for the selection of grand jury venires
22
January Term, 1997
does not ipso facto invalidate an otherwise valid conviction of a defendant. State
v. Fulton (1991), 57 Ohio St.3d 120, 124,
566 N.E.2d 1195, 1201.
{¶ 72} We find that the irregularity in question did not materially affect a
substantial right of the appellant. In State v. Puente (1982), 69 Ohio St.2d 136,
23
O.O.3d 178,
431 N.E.2d 987, one jury commissioner failed to keep a record of
proceedings as required by R.C. 2313.12 and established his own system for
independently determining competency of jurors. The failure to follow the
statutory jury selection procedures did not automatically require reversal of the
conviction. Accordingly, the failure in this instance to follow R.C. 2313.08, which
was far less serious than the failure in Puente, does not require reversal.
{¶ 73} The appellant claims that the commissioners’ failure to keep a record
of the reasons some potential jurors were deemed unqualified prevented him from
proving that the state violated the “fair cross-section” requirement of Duren v.
Missouri (1979), 439 U.S. 357,
99 S.Ct. 664,
58 L.Ed.2d 579. We disagree. Equal
protection forbids intentional discrimination against any distinct group in choosing
grand juries. See Fulton. However, not every grand jury has to represent a “fair
cross-section,” so long as the selection process is nondiscriminatory. Id.;
Castaneda v. Partida (1977),
430 U.S. 482,
97 S.Ct. 1272,
51 L.Ed.2d 498.
{¶ 74} To establish a prima facie case of discrimination, the appellant had
to show that a recognizable, distinct group was substantially underrepresented in
the jury pool by comparing its proportion in the population to the proportion called
to serve as grand jurors over a significant period. Fulton, 57 Ohio St.3d at 122,
566
N.E.2d at 1198-1199, quoting Castaneda v. Partida,
430 U.S. at 494-495,
97 S.Ct.
at 1280,
51 L.Ed.2d at 510-511. To make this statistical showing, the appellant did
not need to know the ostensible reasons for exemptions and disqualifications.
Accordingly, we reject Proposition of Law IX.
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X
INDEPENDENT REVIEW AND PROPORTIONALITY ANALYSIS
{¶ 75} Having considered the appellant’s propositions of law, we must
independently weigh the aggravating circumstance against the factors presented in
mitigation as required under R.C. 2929.05(A) and determine whether the sentence
of death is appropriate.
Aggravating Circumstance
{¶ 76} The jury found appellant guilty of three aggravated murder counts
as to each of his four victims. However, the trial court merged the twelve counts
into four (one for each victim). Each count carried three death specifications:
aggravated burglary, kidnapping, and multiple-murder. Before the penalty phase,
the trial court merged the felony-murder specifications into the multiple-murder
specifications and submitted only the multiple-murder specifications to the jury.
Thus, the aggravating circumstance in this case was multiple murder.
Mitigating Factors
{¶ 77} Against this aggravating circumstance, we must balance several
factors listed in R.C. 2929.04(B). We must consider the nature and circumstances
of the offense and the appellant’s history, character, and background. In addition,
we must consider the mitigating factors listed in R.C. 2929.04(B)(1) through (7).
The mitigating factors in R.C. 2929.04(B)(2), (4), (5), and (6) are not relevant to
the case at bar.
{¶ 78} We find nothing mitigating in the nature of the offense. The
appellant planned three of the murders well in advance. The appellant manipulated
and used juveniles to help carry out his executions. The appellant kidnapped and
restrained Madison in his own home. The appellant ordered Jessica to lure another
victim to the crime scene, where he kidnapped him and another. The appellant
physically and mentally tortured his victims. Finally, he went from room to room
and shot each victim in the head, execution-style.
24
January Term, 1997
{¶ 79} Pursuant to R.C. 2929.04(B)(1), we must consider whether the
victim of the offense induced or facilitated it. Three of the victims were involved
in the drug trade. Narcotics is a dangerous trade. The three chose to participate in
criminal activity. However, it cannot be said that the three victims “induced or
facilitated” the offense. While participation in criminal activity certainly carries
with it an element of serious risk, the unlawful taking of a human life cannot be
deemed less serious simply because the victim was involved in unlawful activity.
Our society’s values do not permit such a ranking of the worth of human lives.
Further, Wynn was apparently a bystander; there was no evidence connecting him
to the narcotics trade. Therefore, we find no mitigation under this factor.
{¶ 80} Concerning R.C. 2929.04(B)(3), the appellant presented some
evidence of mental disease or defect. Dr. Jeffrey L. Smalldon, a clinical
psychologist with specialized training in neuropsychological assessment, testified
on the appellant’s behalf. Smalldon examined the appellant three times for a total
of eleven hours, tested his intelligence, personality, and brain functioning.
Smalldon also read the appellant’s educational, medical, prison, and police records
and interviewed his family.
{¶ 81} Smalldon diagnosed the appellant as having a personality disorder
not fitting any of the specific categories established by the Diagnostic and
Statistical Manual (DSM-III-R) used by psychologists and psychiatrists. Smalldon
emphasized that while this disorder had antisocial features, he had not diagnosed
the appellant with a full-blown antisocial personality disorder. Smalldon believed
that the appellant’s disorder was linked to his childhood due to the lack of a father
figure and an overindulgent and protective mother. Further, Smalldon diagnosed
the appellant with a low-grade depression that resulted from the criminal
proceedings against him. Nonetheless, Smalldon found that the appellant did well
in school and had above average intelligence.
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SUPREME COURT OF OHIO
{¶ 82} While Dr. Smalldon diagnosed the appellant as having a personality
disorder, he also opined that this disorder did not affect his ability to make choices.
Smalldon testified that “[p]eople with the same personality disorder … could
engage in the entire gamut of choices available to human beings. There’s no
connection between that diagnosis and any particular behavior.” (Tr. 3029;
emphasis added.) Further, Smalldon opined that the appellant’s mental disorder
did not rise to the level of a mental disease or defect. Therefore, we find no
mitigation under R.C. 2929.04(B)(3).
{¶ 83} Under R.C. 2929.04(B)(7), we must consider any other factors that
are relevant to the issue of whether the appellant should be sentenced to death. In
the penalty phase, the appellant made a brief unsworn statement. The appellant
accepted responsibility for his chosen life of crime. However, he denied all guilt
for the crimes in question. The appellant’s mother testified about his childhood and
lack of a father figure. His daughter testified that she loves him, will maintain
contact with him, and does not want anything bad to happen to him. His trial
counsel, Jerry Ingram, was present during the JJC incident. Ingram testified at the
mitigation hearing after he had withdrawn as counsel for the appellant. Ingram
testified about how the appellant ultimately released his hostages and surrendered
at the JJC. Ingram also opined that the appellant would be at least seventy-five
years old before becoming parole eligible and most likely would never be paroled.
{¶ 84} Dr. Smalldon also testified about the appellant’s childhood.
Smalldon believed that adults had given the appellant mixed messages about
obeying the law when he was a child. His mother urged him to stay in school and
avoid the street life, but she also brewed moonshine and bribed people not to report
her. The appellant’s grandfather was incarcerated for a period of time for
murdering his common-law wife. The appellant’s mother testified that two of her
husbands abused her and the appellant knew it.
26
January Term, 1997
{¶ 85} Further, there was testimony that the appellant and his boyhood
friends aspired to be like local gangsters who personified wealth and status. In this
environment, the appellant began a life of crime at age eleven. This evidence is
entitled to some mitigating weight under R.C. 2929.04(B)(7). Growing up
fatherless in a neighborhood where gangsters were heroes, the appellant lacked the
moral training that equips most people to obey the law. The set of “values” that
permitted the appellant to execute competitors was most likely formulated in this
early environment. However, this slight evidence of mitigation in the appellant’s
history, character, and background is insufficient to overcome the aggravating
circumstance.
{¶ 86} Residual doubt was another factor the appellant argued. We find it
insubstantial. Finally, the appellant argued that he did not kill the JJC hostages
when he could have. However, the appellant had nothing to gain and much to lose
by killing the hostages. When the appellant murdered Wynn, he demonstrated that
he is capable of killing a bystander if it will advance his cause.
{¶ 87} We find that the aggravating circumstance outweighs the mitigating
factors beyond a reasonable doubt in each case. Accordingly, we find that all four
death sentences are appropriate.
Proportionality of the Death Sentence
{¶ 88} The death penalty is both appropriate and proportionate when we
compare the appellant’s case with similar capital cases. The appellant murdered
four people. He experienced an unfortunate childhood with little to no moral
guidance. However, such experiences do not mitigate the horrible crimes he
committed.
{¶ 89} Since 1986, this court has reviewed eight death penalty cases where
the R.C. 2929.04(A)(5) multiple-murder aggravating circumstance was the only
one present. See State v. Brooks (1986), 25 Ohio St.3d 144, 25 OBR 190,
495
N.E.2d 407; Bedford,
39 Ohio St.3d 122,
529 N.E.2d 913; State v. Sowell (1988),
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39 Ohio St.3d 322,
530 N.E.2d 1294; State v. Lawrence (1989),
44 Ohio St.3d 24,
541 N.E.2d 451; State v. Coleman (1989),
45 Ohio St.3d 298,
544 N.E.2d 622; State
v. Moreland (1990),
50 Ohio St.3d 58,
552 N.E.2d 894; State v. Combs (1991),
62
Ohio St.3d 278,
581 N.E.2d 1071; and State v. Awkal (1996),
76 Ohio St.3d 324,
667 N.E.2d 960.
{¶ 90} Out of the eight cases, this court has affirmed death penalties in
seven. In many of those cases, the defendant was either under significant emotional
stress or lacked substantial capacity to conform to the law due to mental disease or
defect. See, e.g., Moreland; Awkal. In this case, the appellant labored under neither
impediment. In addition, like the appellant, the defendants in Moreland and Awkal
could point to bad childhoods.
{¶ 91} Lawrence was the eighth case where the multiple-murder
aggravating circumstance was the only aggravating circumstance present. In
Lawrence, this court found that the mitigating factors outweighed a single multiple-murder aggravating circumstance and, therefore, vacated the death sentences.
However, the mitigating factors in Lawrence included provocation, post-traumatic
stress disorder rising to the level of a diminished-capacity mitigating factor under
R.C. 2929.04(B)(3), a severe depression following the death of the defendant’s
infant son, lack of a significant criminal history, the defendant’s voluntary military
service, and his care for his family. In comparison, the mitigating factors in this
case are nearly nonexistent. Moreover, this court affirmed the death penalty in
State v. Hawkins (1993), 66 Ohio St.3d 339,
612 N.E.2d 1227, a similar case
involving the murder of two drug dealers. In Hawkins, there were two aggravating
circumstances, but there also were only two victims, as compared to four victims
here.
{¶ 92} Accordingly, we conclude that the death penalty in this case is
neither excessive nor disproportionate when compared to the penalties approved in
the above cases. Therefore, the judgment of the court of appeals is affirmed.
28
January Term, 1997
Judgment affirmed.
RESNICK, F.E. SWEENEY and COOK, JJ., concur.
DOUGLAS, J., concurs in judgment only.
MOYER, C.J., and PFEIFER, J., dissent.
__________________
MOYER, C.J., dissenting.
{¶ 93} Upon review of the record and especially the transcript in this case, I
conclude that the trial court failed to adequately protect appellant Williams’s
constitutional right to be tried before an impartial jury. Accordingly, I would reverse
the trial court conviction and sentence, and grant the appellant a new trial. I therefore
respectfully dissent.
{¶ 94} Williams argues that the trial court impermissibly failed to protect his
right to an impartial jury from the twin evils of juror misconduct and juror bias in
favor of the death penalty. I agree. I do so acknowledging that the transcript in this
case reveals a crime as heinous and calculated as any that come before us. This case
represents a test for the criminal justice system because, if the right to an impartial
jury is not protected for the worst among us, it is guaranteed to none of us.
{¶ 95} The citizen jury is the bedrock upon which the edifice of American
criminal justice is constructed. Thomas Jefferson, in a letter to Thomas Paine dated
July 11, 1789, described the institution as “the only anchor, ever yet imagined by
man, by which a government can be held to the principles of its constitution.” 15
Papers of Thomas Jefferson (1958) 269. Protection of the integrity of the jury system
requires our constant vigilance. Though perfect impartiality is neither a requirement
nor an attainable goal, it must nevertheless remain the abiding objective of the justice
system, and all reasonable measures must be taken by trial courts to protect the
constitutional right of a criminal defendant to a fair and impartial jury.
{¶ 96} In his first proposition of law, Williams alleges that his jury panel was
tainted by juror misconduct. In the second proposition of law, he argues that the jury
29
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was tainted because it included some jurors who had expressed their bias in favor of
the death penalty. Either proposition, if accepted, is sufficient to support a reversal
of the court of appeals; both have merit.
I. Misconduct
{¶ 97} “The sixth amendment right to trial by jury is designed to ensure
criminal defendants a fair trial by a ‘panel of impartial, “indifferent” jurors.’ …
When possible juror misconduct is brought to the trial judge’s attention [the judge]
has a duty to investigate and to determine whether there may have been a violation
of the sixth amendment.” (Citations omitted.) United States v. Shackelford (C.A.6,
1985), 777 F.2d 1141, 1145. It is self-evident that if even one seated juror is biased
or improperly influenced, the criminal defendant has not received the impartial jury
guaranteed by the Sixth Amendment. Morgan v. Illinois (1992),
504 U.S. 719, 729,
112 S.Ct. 2222, 2230,
119 L.Ed.2d 492, 503; see Parker v. Gladden (1966),
385 U.S.
363,
87 S.Ct. 468,
17 L.Ed.2d 420. Finally, bias will be inferred if a juror is found
to have deliberately concealed material information. Zerka v. Green (C.A.6, 1995),
49 F.3d 1181, 1186.
{¶ 98} It is undisputed that if appellant’s case was decided by the full panel
of impartial jurors to which he is constitutionally entitled, he cannot win a reversal
based on the composition of the jury. My review of the record in this case causes
me to conclude that the trial judge did not discharge his duty to guarantee, to a
reasonable degree of certainty, that Williams received a fair trial by twelve impartial
jurors. As a result, we cannot know whether his panel was impartial. Williams’s
conviction should therefore be reversed and the case remanded for a new trial.
{¶ 99} When investigating whether misconduct among seated jurors tainted
the trial, it may frequently be necessary to question the behavior of unseated
venirepersons in order to ascertain the effect of their acts on the seated jurors, or the
nature of the interaction between the unseated and the seated jurors. This is
particularly true when the issue is exchange of information among prospective jurors.
30
January Term, 1997
Such consideration may require the trial judge to engage in further questioning of
venirepersons beyond simply asking prospective jurors whether they are concealing
information. Where there are substantial grounds to believe that a prospective juror
is concealing information that bears upon a juror’s impartiality, it is an abuse of
discretion for the trial court to do no more than ask a prospective juror whether he or
she can render a fair verdict. See United States v. Shackelford, 777 F.2d at 1145.
{¶ 100} The voir dire transcript in this case suggests that there was some
discussion—perhaps considerable discussion—among venirepersons regarding the
facts of the case. According to the testimony, the alleged topics of discussion
included the defendant, his family, organized crime, murder, extortion, money
laundering, prostitution, drugs, security, and fear of reprisal. Conversations
reportedly took place near the courthouse building, in the hallways, in the jury room,
and in the courtroom itself. The reported statements, and related denials of outside
knowledge, constitute substantial evidence of possible concealment by prospective
jurors. Thus, I would hold that the trial court committed reversible error in refusing
either to dismiss the challenged jurors or to investigate further.
{¶ 101} During individual voir dire, prospective juror Janet Parsons
identified juror Joann Eddleman as a person who repeated to Parsons, and to an
uncertain number of other prospective jurors, information and rumors regarding
Williams. Parsons reported that Eddleman claimed to have been told the case was
from Youngstown, that it involved drugs, and that Williams had eluded authorities
for some time. Parsons also told the trial court she believed Eddleman had obtained
her information through someone outside the venire who was a Youngstown
resident. Parsons also reported that there was another woman within earshot of the
conversation between herself and Eddleman who may have heard what was said.
This third prospective juror was never identified. Over objection, the trial court
declined to inquire further, or to permit appellant’s counsel to do so. Accordingly,
there is no way to know who, if anyone, overheard the conversation.
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{¶ 102} When Eddleman was questioned by the trial court as to whether she
knew anything else about the case, she responded, “Just what I’ve heard through
you.” Because Eddleman appeared for individual voir dire ahead of Parsons,
Eddleman was not questioned further on her denial. The trial court did not, however,
heed defense counsel’s warning that it was necessary later to requestion Eddleman
more extensively to determine whether she was concealing misconduct from the
court. Instead, the court responded sarcastically and ignored the request.
{¶ 103} I cannot agree with the reasoning of the majority when it attempts to
justify Eddleman’s response by observing that her answer was in fact truthful
because she did not know for certain that the information she had been given was
accurate. I am not convinced, as the majority apparently is, that this strained and
unlikely interpretation of Eddleman’s response eliminates legitimate concerns of
concealment and absolves the trial court of the obligation to investigate further in
defense of Williams’s constitutional rights.
{¶ 104} The questions raised about Eddleman should have been sufficient to
arouse trial court concern in themselves. They are not, however, the sole indications
that extensive discussion of potentially prejudicial information and rumors took
place in the jury room, possibly tainting other seated jurors and raising issues of
further possible concealment. Further indications include statements by, attributed
to, or about the following prospective jurors: Aristide, Blackwell, Colledge, Forsyth,
Gombaski, Hlivko, Lawrence, Rohwedder, Stout, and Tanski. The subjects of the
alleged comments include:
{¶ 105} Concerns about what appeared to be heightened security in the
courthouse for this case and fears that security might not be adequate; possible
necessity of wearing wigs, glasses, or other disguises to avoid retribution from the
defendant or his family; the rumored allegation that Williams had tried to kill one of
the witnesses; the possible involvement of the defendant in organized crime,
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prostitution, money laundering, and extortion; and the rumor that the defendant was
able to evade police for two years, hence the delay in bringing the case to trial.
{¶ 106} In particular, prospective juror John Gombaski raised concerns about
prejudicial communications and possible concealment among members of the
venire. Indeed, Gombaski was excused for cause when he admitted that what he
heard had caused him to presume Williams was guilty. Gombaski reported
overhearing court employees talking about the case and admitted that he told two
other venirepersons what he remembered of the conversation. This included
Gombaski’s perception that the case was from Youngstown, that it involved a
murder, and that it was related to organized crime (no evidence was offered of any
connection between Williams and organized crime). Though the majority chose not
to discuss the issues presented by Gombaski’s statements, I believe his testimony
raises serious questions that the trial court should have investigated as required by
the Ohio and United States Constitutions.
{¶ 107} The trial judge here, however, stifled rather than pursued further
investigation. Indeed, he instructed Gombaski not to repeat anywhere what he had
heard—including in the context of individual voir dire—and told Gombaski that he
did not even want to know the content of the statements.
{¶ 108} Later, when defense counsel returned to the issue, Gombaski said he
thought the name “Forsyth” sounded familiar as that of one of the people who had
heard his statements about murder, extortion, and organized crime. Forsyth, a
prospective juror who was seated, however, had told the court she heard nothing
from other prospective jurors concerning charges against Williams.
{¶ 109} If Gombaski is correct that he talked to Forsyth, then she lied when
she said she had heard nothing. If she lied, bias is inferred and a mistrial is
appropriate. Zerka v. Green, 49 F.3d at 1186. If, on the other hand, Forsyth is being
truthful, it was two other prospective jurors who apparently heard Gombaski’s
report. It is possible that there was no concealment among seated jurors in this case.
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Unfortunately, it is impossible to conclude with any certainty whether and to what
extent prospective jurors engaged in discussions or heard discussions about the case
because the trial judge made no attempt to verify that there were none. Rather, he
stifled further inquiry with comments such as, “we’re not going to make a career out
of this one.”
{¶ 110} The transcript contains the following conversation reflecting defense
counsel’s concern over possible concealment and the apparent indifference of the
trial court:
“The Court: John, go ahead.
“[Defense Counsel]: Judge, we’ve gone over this at lunch, it’s something
that reared it’s [sic] head yesterday. [Counsel then gave a factual recitation of the
various comments of the jurors.] …
“I would submit, Your Honor, that we need to do several things, that is, call
back the jurors that I have indicated and ask them more specific questions about
whether there were conversations and, if so, what those conversations were. Of
course, that would then lead to some inquiry as to whether or not those conversation
[sic] have left an impression upon them as, if you recall, Mr. Gombaski indicated the
previous information had left an impression on him. I also think we may need to talk
to [the jury commissioners’ office] to find out about the seating arrangements, who
the ladies—
“The Court: Why don’t we hire a detective to go up and to [sic, do] this for
us. Any statements from the prosecutor?”
{¶ 111} Minutes later the following colloquy transpired:
“[Defense Counsel]: Well, I can tell you from the research that we have done
recently … when these issues unfortunately arise … it triggers an affirmative
duty not only on the part of counsel—
“The Court: And the Court will do what it can about it to stop it. That’s all
I can do.
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“[Defense Counsel]: Well, we also have to inquire into the past, not only as
to the future.
“The Court: True. We may do that on general voir dire, we might do it
individually. But right now we’re going to finish what we are doing.”
{¶ 112} No further inquiry was undertaken.
{¶ 113} Defense counsel objected to the trial court’s apparent indifference,
and offered reasonable suggestions to remedy the perceived threats to their client’s
constitutional right to an impartial jury. As appellant observes, it would not be
necessary to “hire a detective” if the trial court had performed its duty by engaging
in individual questioning of all the prospective jurors. The constitutional
requirement does not extend to the trial judge the discretion to decline to take
protective measures to assure the defendant and the state that the jury will be
impartial. On the facts in this record, the trial judge clearly erred when he failed to
examine prospective jurors to assure defendant and the state that an impartial jury
was impaneled.
II. Bias
{¶ 114} I would also reverse this conviction on the ground that Williams was
not adequately protected from juror bias in favor of the death penalty. Of the nine
prospective jurors for whom the trial court denied defense challenges for cause based
on expression of death penalty bias, five were excused upon the exercise of
peremptory challenges by defense counsel, another was excused for personal
reasons, the number of one of the jurors was not reached, and two, Eddleman and
Camp, were seated as jurors. Appellant argues that each of these prospective jurors
was biased in favor of the death penalty. With regard to Eddleman, Scanlon, and
Subecz, I agree.
{¶ 115} In Morgan v. Illinois, the United States Supreme Court emphasized
the importance of voir dire to the right of the defendant to a fair trial. “Were voir
dire not available to lay bare the foundation of petitioner’s challenge for cause
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against those prospective jurors who would always impose death following
conviction, his right not to be tried by such jurors would be rendered as nugatory and
meaningless as the State’s right, in the absence of questioning, to strike those who
would never do so.” (Emphasis sic.) Id. at 733-734, 112 S.Ct. at 2232,
119 L.Ed.2d
at 506.
{¶ 116} In Wainright v. Witt (1985), 469 U.S. 412, 424,
105 S.Ct. 844, 852,
83 L.Ed.2d 841, 851-852, the United States Supreme Court held that a prospective
juror should be excused for cause if his views would “ ‘prevent or substantially
impair the performance of his duties as a juror in accordance with his instructions
and his oath.’ ” A prospective juror who will automatically vote for the death penalty
must be excused for cause. Morgan v. Illinois,
504 U.S. at 729,
112 S.Ct. at 2229,
119 L.Ed.2d at 502; see Ross v. Oklahoma (1988),
487 U.S. 81, 84-85,
108 S.Ct.
2273, 2276-2277,
101 L.Ed.2d 80, 87-88.
{¶ 117} Juror Eddleman again presents the greatest difficulties. The majority
admits that Eddleman contradicted herself on voir dire. Despite her repeated
statements that she would prefer death and would not consider alternative life
sentences, the majority concludes that the court’s rehabilitation of Eddleman was
successful because “the trial judge’s questions were more than general inquiries
regarding a juror’s ability to be fair and impartial.” I disagree. I believe this case
represents precisely the sort of rehabilitation the United States Supreme Court
intended to prohibit in Morgan v. Illinois when it held that general questions to a
prospective juror by the court relating to fairness or impartiality cannot negate a
statement by the prospective juror that he or she would automatically vote for death.
504 U.S. at 735-736,
112 S.Ct. at 2233,
119 L.Ed.2d at 506-507.
{¶ 118} Eddleman made many specific statements during the course of voir
dire to the effect that she would not be impartial in the penalty phase. Among them
she stated, “If he was convicted of the murders I would say no, I would not consider
that with parole.” She explained further, “Because if the murders were committed I
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don’t—I don’t believe that they should ever be released.” Again, she remarked, “I
wouldn’t—I do not believe there should even be parole considered if somebody
would have committed the murder. That’s what I mean.” Yet again, explaining her
position very specifically, she said, “So I would—well, what I’m saying, I would not
believe in the parole so therefore I would not be able to, if it was not the death
sentence, I would not feel comfortable with the 20 year and parole or the 30 year and
parole.”
{¶ 119} Next, Eddleman unambiguously affirmed that her preference for the
death penalty would be automatic. Though consistent with her previous responses,
such statements must arouse profound doubt as to whether impartiality would ever
be possible for Eddleman. The exchange was the following:
“[Defense Counsel]: You understand that you only have those three options
if you get to the point—
“Juror Eddleman: Those three options, if it came right down to it, it would
probably be the death penalty then. If there was any remote chance of them being
paroled, I would probably go with the death penalty.
“[Defense Counsel]: Automatically, just because of the possibility of parole?
“Juror Eddleman: Yes.
“[Defense Counsel]: And are you saying that even though you know that
these three alternatives should start out even in your mind? You are being honest
with me.
“Juror Eddleman: Yes.
“[Defense Counsel]: And because of what you are saying about the death
penalty being automatic, because of the eligibility of parole, you would be unable to
fairly consider life imprisonment, am I right?
“Juror Eddleman: If it was without ever a chance of parole, yes.
“[Defense Counsel]: That’s not the way it is.
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“Juror Eddleman: Since we don’t have a choice[,] I would say the death
penalty.
“[Defense Counsel]: And you say that knowing that there are these life
sentencing options that you should consider?
“Juror Eddleman: Because whenever I think about it I would think well,
maybe 30 years down the line somebody may be getting out of prison and might
meet up with one of my children or something. That’s what I’m thinking of
whenever I think of it.
“…
“[Defense Counsel]: Is your bottom line, if I have to determine the sentence
I’ll vote death because there’s eligibility for parole?
“Juror Eddleman: Yes.”
{¶ 120} In contrast, Eddleman made very few responses suggesting that she
could set aside her bias. Following the preceding exchange, the judge elicited a
general response:
“The Court: Mrs. Eddleman, do you agree that you can listen to and follow
the instructions of the Court?
“Juror Eddleman: Yes.”
{¶ 121} Then, after explaining the two phases of the trial and the sentencing
options, the court asked, “Can you follow the instructions of law?” Eddleman
answered, “Yes.”
{¶ 122} The only responses Eddleman gave to the prosecutor indicating that
she could consider the sentencing options equally were given in general terms:
“[Prosecutor]: Okay. And you would follow the court’s instructions?
“Juror Eddleman: Yes.
“[Prosecutor]: On the law?
“Juror Eddleman: Yes.
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“[Prosecutor]: You understand the death penalty is not an automatic
punishment?
“Juror Eddleman: Yes, I do.
“[Prosecutor]: If you determine guilt in the first phase you still have to hear
all the evidence in the second phase.
“Juror Eddleman: Yes.
“[Prosecutor]:Thank you very much.”
{¶ 123} The majority concludes that though it is “difficult from reading the
transcript to determine whether Eddleman was overstating her beliefs concerning the
death penalty to defense counsel, or understating them to the judge and prosecutor,”
we must defer to the determination of the trial judge, who directly observed
Eddleman’s responses, that she could be fair and impartial.
{¶ 124} In contrast, I would hold that, despite the acknowledged advantage
of the trial court in observing the demeanor of the juror, on the transcript before us,
it is not only difficult but impossible to determine whether Eddleman was overstating
her beliefs to defense counsel or understating them to the judge and prosecutor. The
majority holds that we must assume the trial court was able to make the correct ruling
based on observation of Eddleman’s demeanor. I believe that in a capital case, when
a large preponderance of specific answers suggest firmly established bias, the Ohio
and federal Constitutions require the trial judge to exercise his or her discretion to
protect the right of the accused to an impartial jury.
{¶ 125} According the United States Supreme Court, “Witherspoon and its
succeeding cases would be in large measure superfluous were this Court convinced
that such general inquiries could detect those jurors with views preventing or
substantially impairing their duties in accordance with their instructions and oath.
But such jurors—whether they be unalterably in favor of, or opposed to, the death
penalty in every case—by definition are ones who cannot perform their duties in
accordance with law, their protestations to the contrary notwithstanding.” Morgan
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v. Illinois, 504 U.S. at 734-735,
112 S.Ct. at 2232-2233,
119 L.Ed.2d at 506. If this
reasoning applies to require trial courts to afford defense counsel the opportunity to
question prospective jurors on pro-death-penalty bias, it must apply with equal force
to cases in which the trial judge permitted only inadequate questioning and refused
to remove jurors whose answers to specific questions revealed bias.
{¶ 126} The argument of the majority that voir dire is an adversarial process
is not without persuasive force. Both sides do indeed attempt to nudge the
prospective juror in the desired direction, and it is the job of the impartial judge to
sort the wheat from the chaff. A degree of deference to the trial court is clearly
appropriate. As in all cases of trial court discretion, however, there are boundaries
which it is our duty to identify. I would hold that in the case before us the trial court
has abused its discretion.
{¶ 127} Moreover, it is noteworthy that during voir dire in this case, the
adversarial nature of the proceeding expressed itself more in the relationship between
defense counsel and the judge than in the relationship between defense counsel and
prosecutor. The prosecutor engaged in very little rehabilitation, while the trial judge
played the primary role. The transcript reveals that, generally, the prosecutor would
question the prospective juror briefly after the introductory remarks of the judge,
eliciting responses tending to show that the juror believed he or she could vote for
the death penalty if need be, and that the juror believed that he or she could follow
the law and be fair. Defense counsel would then probe directly into issues of bias,
misconduct, or prejudgment of the defendant. Finally, the trial judge would then
engage in a brief and general rehabilitation of the juror. In the case of juror
Eddleman, the prosecutor did not ask her any questions at all following the specific
statements of bias elicited by defense counsel.
{¶ 128} Contrary to the image created by the majority opinion of attorney
adversaries nudging the juror toward expressions that would serve their client’s
interests, the prosecutor made no attempt to elicit specific responses from the juror
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January Term, 1997
which might tend to negate statements suggesting bias against the defendant or
predisposition in favor of the death penalty. We should be troubled by the blurring
of roles under circumstances where the trial judge may appear to have assumed the
posture of the prosecutor, rather than that of the neutral arbiter, in what is quite
naturally, as the majority observes, an adversarial proceeding.
{¶ 129} The Ohio and federal Constitutions do not allow us to prefer
deference to the discretion of the trial judge over the right of the accused to a fair
and impartial jury. When the statements of the juror are ambiguous, we must rely
on the observations of the trial judge and defer to his or her evaluation of the
truthfulness of the juror. Where statements suggesting bias predominate in quantity,
specificity, and certainty, countered by a relatively few general statements that the
juror believes he or she can follow the law and be fair, deference to the trial court
defies the constitutional requirements.
{¶ 130} Beyond the example of juror Eddleman, I note without elaboration
that of the remaining jurors removed by peremptory challenge, both prospective
jurors Scanlon and Subecz gave answers clearly indicating bias unremedied by their
general statements that they could follow the instructions of the court and be fair.
They, too, should have been dismissed for cause.
{¶ 131} In 1769, the great English scholar William Blackstone wrote, “[T]he
liberties of England cannot but subsist, so long as this palladium [the right of trial by
jury] remains sacred and inviolate; not only from all open attacks, … but also from
all secret machinations, which may sap and undermine it.” 4 Blackstone’s
Commentaries (1769) 350. Vigilance is required to protect the integrity of the jury
from infirmities that may sap and undermine it. Such infirmity is present in the
composition of the jury that sentenced Williams to death. I would therefore vacate
the conviction and sentence and grant Williams a new trial.
PFEIFER, J., concurs in the foregoing dissenting opinion.
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