Summary
In State v. Bell, 48 Ohio St.2d 270, 358 N.E.2d 556 (1976), modified, 438 U.S. 637, 98 S.Ct. 2977, 57 L.Ed.2d 1010 (1980), the Ohio Supreme Court noted that the evidence was sufficient to find that the appellant had assisted and acted to complete the murder.
Summary of this case from Scott v. PeriniOpinion
No. 76-499
Decided December 22, 1976.
Criminal law — Aggravated murder — Imposition of death penalty — Waiver of jury trial — R.C. 2929.03(C)(1), (2) and (E) — Constitutionality — Mitigation hearing — Relevant factors.
1. A defendant is not coerced or impelled to waive his constitutional right to jury trial by R.C. 2929.03(C)(1), (2) and (E), under the provisions of which an offender who waives a jury trial need persuade only one member of the three-judge panel at the mitigation hearing to avoid imposition of the death penalty.
2. Relevant factors such as the age of the defendant and prior criminal record are among those to be considered by the trial judge or three-judge panel in determining whether the existence of a mitigating circumstance pursuant to R.C. 2929.04(B) (2) and (3) was established by a preponderance of the evidence.
APPEAL from the Court of Appeals for Hamilton County.
On October 16, 1974, at about 11:00 p.m., police discovered Julius Graber lying in the woods in Spring Grove Cemetery in Hamilton County critically injured from a shotgun wound to the back of his head. He was pronounced dead on arrival at the hospital.
Approximately one week thereafter, Willie Lee Bell, defendant-appellant, was arrested for the murder of Julius Graber. Samuel Hall, Bell's companion, was arrested the day after Graber's body was discovered. Bell was then a minor of 16 years of age, and Hall was an adult. Following proceedings in the Juvenile Division of the Court of Common Pleas, Bell was bound over to the Hamilton County Grand Jury and was indicted jointly with Hall on two counts of aggravated murder, under R.C. 2903.01, with specifications of aggravated robbery and of kidnapping pursuant to R.C. 2929.04(A)(7). Bell entered pleas of not guilty and not guilty by reason of insanity.
Bell and Hall were tried separately. The trial court found Bell to be sane and competent to stand trial, overruled a motion to suppress any inculpatory statements, and accepted Bell's waiver of trial by jury and request to be tried by a three-judge panel.
The record tends to reveal the following series of events. On October 16, 1974, Bell and Hall went to a community center in Cincinnati, following which they went to Hall's home to borrow his brother's Grand Prix Pontiac automobile. In that car, Bell and Hall proceeded to Victory Parkway, where they observed a 1974 blue Chevrolet. When the Chevrolet turned into a parking garage, Hall, driving his brother's car, did the same, and followed it to the second level of the garage. After the Chevrolet was parked, Hall got out of the Pontiac with a 20-gauge "sawed-off" shotgun and accosted the Chevrolet's driver, 64-year-old Julius Graber. Graber was forced into the trunk of his own vehicle, and Hall drove that car, with Bell following in the Pontiac, and parked it near his home. Bell parked the Pontiac at Hall's home, and then drove Graber's Chevrolet toward Spring Grove Cemetery. After driving past the cemetery, Bell stopped, reversed direction, and then backed the car into a lane that went inside the cemetery premises.
At this point, Robert Pierce, Jr., a resident of an apartment building near the cemetery, had just returned from work and was sitting in the parking lot of the building listening to his car radio. Pierce observed a vehicle stopped in the cemetery with its parking lights on. He heard two car doors close, one after the other, turned his radio down to listen, and then heard a voice plead "Don't shoot me. Don't shoot me." Pierce turned his radio off, and shortly thereafter heard one shot, followed, after an interval, by a second shot. He then saw the interior light of the car go on, and a man enter the parked car on the passenger side and move behind the wheel. Pierce heard two car doors close, saw the interior light go off, and then watched the car leave the cemetery, without any lights on. Pierce called the police, around 10:50 p.m., who subsequently discovered Graber.
Hall and Bell drove to Dayton, where they spent the night in the Graber Chevrolet. The following morning, Bell driving, they stopped at a service station to ask directions for finding work. After questioning the attendant, Bell and Hall left, but shortly returned. Hall then thrust a shotgun at the attendant, Kenneth B. Hardin, took the keys to Hardin's automobile, forced him into the trunk of his car, and drove it away from the station. Bell followed in Graber's Chevrolet. The Hardin car, however, was stopped by a State Highway Patrolman, and when Hardin pounded on the trunk lid, he was discovered and released by the officer. Hall was arrested, and the shotgun was found and removed from the car's interior. Meanwhile, Bell, who was still following, proceeded back to Cincinnati, abandoned the Chevrolet on Beatrice Avenue, and returned to his residence on Preston Avenue.
Approximately one week later, following the interrogation of Hall and other investigative effort, Cincinnati police appeared at the Bell residence. Bell was taken to police headquarters to answer questions in connection with the Hall investigation and was given his Miranda warnings. When the answers to preliminary questions indicated a possible connection with Hall, Bell was again given his Miranda warnings. Approximately one hour later, Bell was given his Miranda warnings a third time on a printed "Notification of Rights" form, whereupon he signed the "Waiver of Rights" portion. Bell was asked to make a recorded statement, and was advised that he could have his mother present. Although Bell indicated that he did not want his mother present, the officer called Bell's mother to tell her that her son was involved in a homicide, a kidnapping and an armed robbery, and that he was going to be charged with the offenses. An offer was made to transport her to headquarters to be with her son when he made his statement, but she declined.
A recorded statement was taken from Bell which was eventually received in evidence. It confirmed most of the above factual details, but denied any intention of Bell to take part in a homicide. Bell conceded his presence during the kidnapping of Graber, but claimed he was not aware of the shotgun until Hall got out of the Pontiac in the parking garage to threaten Graber with it. Bell conceded driving Graber's car to the cemetery and backing into the cemetery lane, but insisted that it was Hall who removed Graber from the trunk, and that it was Hall who took Graber into the bushes. Bell said he then heard a shot and Graber pleading for his life. After the first shot, according to Bell's recorded statement, Hall ran back to the vehicle to get another shotgun shell and then returned to the bushes, whereupon Bell heard the second shot. Hall then drove Bell to Dayton where the incident with the service station attendant occurred. In his statement, Bell attributed the active part of the incident to Hall, but admitted following Hall in Graber's Chevrolet for some 20 minutes before Hall was stopped by the highway patrolman.
Additional expert testimony identified a shell casing found at the scene of the homicide as having been fired from the shotgun found in the car Hall was driving at the time of his arrest in Dayton, and also identified a latent fingerprint from the outside window on the driver's side of the Graber car as being that of Bell's.
After Graber had been pronounced dead at the hospital, where attendants discovered that he had secreted money and other valuables in his shoes, his body was taken to the morgue. A post-mortem examination revealed that death had resulted from a wound to the rear of the head inflicted by a shotgun shell at near-contact range. Testimony established that the head and hand wounds Graber received were consistent with the theory that the fatal shot was fired while Graber's hands were clasped behind his head.
The defense offered only one witness, a Columbus police officer who had interrogated and taken several statements from Hall. The statements were not, however, offered in evidence at the trial, and the case went to the panel on the basis of the evidence presented by the prosecution.
At the conclusion of trial, the panel unanimously found Bell guilty of aggravated murder as charged on the second court of the indictment, and guilty of the specification to the second count, that the aggravated murder was committed during a kidnapping. Bell was also found guilty of the third and fourth counts of aggravated robbery and of kidnapping, respectively.
Following pre-sentence and psychiatric examination, a mitigation hearing was held pursuant to R.C. 2929.03 et seq. The panel found that none of the mitigating circumstances specified in R.C. 2929.04(B) had been established by a preponderance of the evidence. Bell was sentenced to 7 to 25 years on the kidnapping charge; to 7 to 25 years on the aggravated robbery charge, to run consecutively with the first sentence; and to death by electrocution on the aggravated murder charge.
The Court of Appeals affirmed the judgment of the trial court, and the cause is now before this court as a matter of right.
Mr. Simon L. Leis, Jr., prosecuting attorney, Mr. Robert Hastings, Jr., and Mr. William P. Whalen, Jr., for appellee.
Mr. H. Fred Hoefle and Mr. Thomas A. Luken, for appellant.
Appellant Bell raises ten propositions of law. The first three of these assert that Ohio's statutory scheme for the imposition of the death penalty is unconstitutional. That issue was decided by this court in State v. Bayless (1976), 48 Ohio St.2d 73, and need not be reconsidered here. Those propositions of law are overruled.
Appellant asserts in his fourth proposition of law that he was unconstitutionally coerced into waiving his right to trial by jury by the provisions of R.C. 2929.03(C)(1), (2) and (E) which provide that if a defendant is tried by jury and convicted, then the trier of fact at the mitigation hearing is the one trial judge who presided over the jury trial; but, if the defendant is tried by a three-judge panel following a waiver of a jury trial, then the trier of fact at the mitigation hearing is the same three-judge panel.
Appellant contends that this statutory scheme coerces defendants, and coerced him, into waiving their right to trial by jury. Before a three-judge panel can impose the death penalty, it must unanimously find that the defendant has failed to establish the existence of one or more of the mitigating circumstances enumerated in R.C. 2929.04(B). Thus, if tried before a panel, a defendant need convince only one judge out of three that such mitigation existed. If, however, a defendant elects a jury trial, he must convince the sole trial judge at the penalty proceedings that a mitigating circumstance existed. Appellant asserts that this scheme impels defendants to select trial by panel, rather than by jury, because the dread of the death sentence is an overwhelming consideration.
A statutory scheme which deliberately or unintentionally chills the right to trial by jury cannot constitutionally be tolerated. Appellant relies on United States v. Jackson (1968), 390 U.S. 570, in which the United States Supreme Court held that a federal statute had such an impermissible chilling effect because it allowed the death penalty in kidnapping cases where trial was by jury, but did not permit the death penalty where trial was by the court.
However, unlike the statute in Jackson, the death penalty is possible under the Ohio statute under both alternatives, and it may be avoided under both alternatives. Thus, we are confronted with only the arguably greater possibility of the avoidance of the death penalty by the requirement of unanimity within the panel, and not with its absolute avoidance as in Jackson.
Although appellant asserts that there is a greater possibility of convincing one of three judges on a panel of a mitigating factor than one judge alone, by the same logic, there is also a greater possibility of convincing one or more of 12 jurors of the absence of evidence of guilt beyond a reasonable doubt than so convincing one of three judges. If the first consideration inclines against a jury trial, then the latter inclines toward one. The balance struck by these competing considerations is for the judgment of the defendant and competent trial counsel.
As noted, this statutory scheme furnishes a choice for defendants. Presumably, if no choice were offered, coercion would not be alleged by appellant. We see nothing unreasonable or coercive in the statute: there are pros and cons with respect to each alternative. If a defendant feels uncomfortable with a jury as the trier of fact at trial and the trial judge as the trier of fact at the mitigation hearing, then he may elect a three-judge panel as the trier of fact for all the proceedings. We see nothing objectionable in providing the defendant with a choice, absent, of course, an allegation of ineffective trial counsel. No such allegation was here made.
Further, the Court of Appeals concluded from statistics in Hamilton County that, in actual practice, this statutory scheme does not coerce or impel a defendant to waive jury trial. We are presented with no contrary evidence. Appellant's fourth proposition of law is overruled.
Appellant asserts in his fifth proposition of law that a statement by a juvenile cannot be used against him at trial unless both he and his parents or guardian were informed of his Miranda constitutional rights, and unless the minor was given the opportunity to consult with his parents, guardian or attorney as to whether he should waive those rights.
Appellant cites Indiana case law and apparently concedes that this proposition has no support in Ohio authorities. We decline his invitation to alter existing Ohio law. We perceive no requirement in Miranda that the parents of a minor shall be read his constitutional rights along with their child, and that, by extension, both parent and child are required to intelligently waive those rights before the minor makes a statement. Appellant's mother was given every opportunity to be with her son, and, after declining, her presence cannot be forced by police.
When a minor is sought to be interrogated, the question of whether he intelligently and voluntarily waives his rights cannot always be decided by the same criteria applied to mature adults. See Haley v. Ohio (1948), 332 U.S. 596; In re Gault (1967), 387 U.S. 1. Such criteria necessarily varies with certain factors as the age, emotional stability, physical condition, and mental capacity of the minor. Appellant was adjudicated competent to stand trial as an adult, and thus is not afforded as much protection as a very young or disabled child who is not as capable of intelligently waiving his rights.
We are impressed with the meticulous care with which the police approached appellant's rights. Appellant was advised of his rights three times, and, the last time, was asked whether he understood them. He indicated that he did, and signed a waiver of those rights. Appellant was informed further by the officer that he could have his mother present while making his statement, but he indicated he did not wish her present. The officer nonetheless phoned appellant's mother and informed her that her son was being held for involvement in a homicide, an armed robbery and a kidnapping, and asked further if she would like to be present when her son gave a statement. The officer offered her transportation to and from police headquarters, but she declined this offer along with the opportunity to be present at the interrogation. After being informed of this conversation, appellant again declined to have his mother present when he gave his statement.
Upon review of the record, we find that the prosecution satisfied its burden of proving that the inculpatory statement by the minor appellant was made pursuant to an intelligent and voluntary waiver of his constitutional rights of which he was fully advised, giving due regard to the requirement that a minor be given even more scrupulous attention to the issues of voluntariness and understanding than an adult. Appellant's fifth proposition of law is overruled.
In his sixth proposition of law, appellant asserts that a juvenile's statement is involuntary and may not be used against him if both he and his parents or guardian have not been advised that he may suffer the death penalty with the use by the prosecution of the statement, and if he and his parents or guardian have not been advised that he may lose the protection of the Juvenile Court.
We find this proposition without merit. Appellant has cited no authority from any jurisdiction that supports it. The officer related to appellant's mother all of his knowledge at that point: that appellant was being held in connection with a homicide, a kidnapping and an armed robbery. Any further advice by the officer concerning the death penalty or Juvenile Court would have been pure, and perhaps improper, speculation since appellant had not yet given his statement. Accordingly, the sixth proposition of law is overruled.
Appellant argues in his seventh proposition of law that one who participates in an armed robbery and a kidnapping is not guilty of aggravated murder where the other participant takes the victim out of his presence and deliberately kills him, absent evidence of the first participant's purpose to kill, or that he aided and abetted the actual slaying with the intent that the victim die.
Clearly there is ample evidence that appellant affirmatively assisted and acted to complete the murder. Appellant's denial could be reasonably disbelieved after considering all relevant circumstances, especially that Hall was arrested the next day with a would-be victim in the trunk and appellant following in another car, presumably attempting to carry out the same scheme of murder.
The foregoing evidence is sufficient to sustain a finding of guilt because, under R.C. 2923.03(A)(2) and (F), one who aids and abets another in committing an offense is guilty of the crime of complicity, and may be prosecuted and punished as if he were the principal offender.
But, in this capital case, this proposition need not be overruled solely on the above grounds. The panel was not required to accept appellant's version of the murder. As the trier of fact, it was within the province of the panel to determine which was the credible evidence. Thus, the gist of appellant's seventh proposition is that the conviction of aggravated murder was contrary to the manifest weight of the evidence. Upon review of the entire record, we hold that there was ample credible evidence from which the panel could have concluded that appellant actively participated in the murder. Appellant's own statement confirms his involvement in the kidnapping and the armed robbery, and concedes further that, after he drove into the cemetery, he asked Hall what was going to be done next. The court could reasonably disbelieve, as we do, that Graber lay quietly with his hands behind his head while Hall left him alone to return to his car to reload his shotgun. Evidence of bruises on Graber's body, appellant's statement to police, the physical circumstances of the slaying, and the testimony of the eyewitness Pierce all would have justified the panel's rejection of appellant's version and its conclusion that Bell either committed, or actively assisted in, the murder. The seventh proposition of law is therefore overruled.
Appellant in his eighth proposition of law contends that where the prosecutor fails to advise the defense counsel of the names, addresses and criminal records of witnesses after proper discovery requests, the trial court should not permit those witnesses to testify over objection, or, alternatively, should grant motions to strike such testimony. This proposition is not well taken. The record shows that in most instances the prosecution did not have such information, but orally communicated the information to defense counsel as it was acquired. The trial court carefully examined the possibility of prejudice to appellant, and concluded that no such prejudice existed. This proposition of law is overruled.
Appellant asserts in his ninth proposition of law that a minor is "mentally deficient" within the meaning of R.C. 2929.04(B)(3), and therefore cannot be sentenced to death after a conviction of aggravated murder with specifications. The Revised Code does not define "mental deficiency"; therefore, unless usurped by a judicial definition, the term must be accorded its common, everyday meaning, keeping in mind that the statutory language defining mitigating circumstances must be strictly construed against the state and liberally construed in favor of the accused. See R.C. 2901.04(A).
However, we do not agree that a minor is per se "mentally deficient" within the meaning of R.C. 2929.04(B)(3). Such an intention by the General Assembly could have easily been provided for by clear and simple language. Upon review of the statute, we do not believe the General Assembly intended that a 17-year-old defendant is conclusively "mentally deficient." The ninth proposition of law is overruled.
In his tenth proposition of law, appellant alternatively argues that even if a minor is not per se "mentally deficient," for purposes of R.C. 2929.04(B)(3), the circumstances of this case establish by a preponderance of the evidence that the offense was a product of his mental deficiency, and that the imposition of the death penalty was error.
In considering this proposition, we will not limit ourselves, as appellant has, to the mitigating circumstances of mental deficiency. R.C. 2929.04(B) states:
"Regardless of whether one or more of the aggravating circumstances listed in division (A) of this section is specified in the indictment and proved beyond a reasonable doubt, the death penalty for aggravated murder is precluded when, considering the nature and circumstances of the offense and the history, character, and condition of the offender, one or more of the following is established by a prepondence [ sic] of the evidence:
"(1) The victim of the offense induced or facilitated it.
"(2) It is unlikely that the offense would have been committed, but for the fact that the offender was under duress, coercion, or strong provocation.
"(3) The offense was primarily the product of the offender's psychosis or mental deficiency, though such condition is insufficient to establish the defense of insanity."
The purpose of mitigation is to recognize that the punishment assigned for a criminal act may, for ethical and humanitarian reasons, be tempered out of consideration for the individual offender and his crime. State v. Woods (1976), 48 Ohio St.2d 127. The belief no longer prevails that every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender. Williams v. New York (1949), 337 U.S. 241, 247.
We will examine each of the three mitigating circumstances provided for in R.C. 2929.04(B) to determine if the evidence established that such a mitigating factor existed.
We need not spend much time or effort, though, in discussing R.C. 2929.04(B)(1) as there was no evidence whatsoever that the victim induced or facilitated the crime.
However, the two remaining mitigating circumstances merit consideration. It has been alleged that the mitigating circumstances under R.C. 2929.04(B) are unconstitutionally narrow because a number of very important factors, such as the age and criminal record of the defendant, appear to be irrelevant under the statute. We believe, however, that the Ohio statutory scheme can withstand this attack. The Ohio statutes, properly construed, permit the trial judge or panel to consider these factors at the mitigation hearing. Such a statutory construction is evident as R.C. 2929.04(B) states that "the death penalty * * * is precluded when, considering the nature and circumstances of the offense and the history, character, and condition of the offender" (emphasis added), one or more of the mitigating circumstances is established. This conclusion is buttressed by the requirement that these statutory provisions be liberally construed in favor of the accused.
As used in R.C. 2929.04(B)(2), the terms "duress" and "coercion" are to be construed more broadly than when used as a defense in criminal cases. See State v. Woods (1976), 48 Ohio St.2d 127.
There was evidence in the psychiatric reports that appellant was perhaps easily led by Hall. When combined with appellant's age, it is conceivable that all characteristics could establish the mitigating circumstance defined by R.C. 2929.04(B)(2). However, we believe the panel was justified and correct in finding that this mitigating circumstance was not established by the evidence. Even if it were believed that appellant was apprehensive of Hall and was "forced" to go along with the crimes, the hard fact remains that appellant could have very easily quit the scheme while following in another car. Further, it must be remembered that appellant and Hall were engaged in the same type of scheme the very next day when Hall was arrested. We agree with the panel that, after considering all relevant factors, the second mitigating circumstance was not established.
The third and final mitigating circumstance in the statute concerns the offender's psychosis or mental deficiency. While rejecting appellant's claim that a minor defendant is per se "mentally deficient," we do hold that a defendant's age is a primary factor in determining the existence of a mental deficiency. Senility, as well as minority, may well be relevant, and therefore properly considered, in determining whether the offense was a product of mental deficiency.
The sum of the evidence and testimony of the psychiatrists, psychologists, probation department, school authorities and others fails to sustain appellant's position that he suffered from a mental deficiency. Appellant's situation was unpleasant but not unfamiliar: an unsatisfactory home, absence of family or other supervision, drug involvement, and inability to cope with school demands. Even when considered together with defendant's minority, all the factors do not establish a "mental deficiency" for purposes of R.C. 2929.04(B)(3). Although appellant's environment was indeed undesirable, such conditions do not excuse or even mitigate aggravated murder. To hold otherwise would set a dangerous and misleading precedent for future defendants. We therefore agree with the panel and the court below that the aggravated murder was not the product of appellant's psychosis or mental deficiency, and therefore overrule appellant's tenth proposition of law.
Accordingly, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE and W. BROWN, JJ., concur.