Summary
holding that an offender must be sentenced to life if the penalty-phase jury deadlocks
Summary of this case from Smith v. SpisakOpinion
No. 91-391
Submitted January 15, 1992 —
Decided March 11, 1992.
APPEAL from the Court of Appeals for Hamilton County, C-890703.
In December 1988, Mark B. Springer, appellant, was indicted in three separate counts for the aggravated murder of Rebecca Benton. Count One alleged that appellant purposefully murdered Benton with prior calculation and design with a death-penalty specification. Count Two charged appellant with the purposeful killing of Benton during the commission of an aggravated robbery with aggravated robbery and aggravated burglary specifications. Count Three charged appellant with the purposeful killing of Benton during the commission of an aggravated burglary with aggravated burglary and aggravated robbery specifications. Appellant was also indicted, in Counts Four and Five, for aggravated robbery and aggravated burglary, respectively.
Appellant was tried before a jury on all charges alleged in the indictment. The jury found appellant guilty on the two counts of aggravated felony murder (Counts Two and Three), and of all death-penalty specifications in connection with these two counts of aggravated murder. With respect to Count One of the indictment, appellant was found not guilty of aggravated murder (prior calculation and design), but guilty of the lesser included offense of murder. Additionally, the jury found appellant guilty of aggravated robbery and aggravated burglary as charged in the indictment.
Since appellant was found guilty on two counts of aggravated murder and specifications of aggravating circumstances in connection with each count, the jury was then required to recommend, after a full mitigation hearing, the sentences to be imposed upon appellant for his aggravated-murder convictions. After hearing all evidence in mitigation, the jury began its sentencing deliberations on September 13, 1989 at 12:00 p.m., and deliberations continued until the jury recessed that evening.
See, generally, R.C. 2929.03.
The jury resumed its deliberations on September 14. At approximately 3:40 p.m., the trial judge received a note from the jury indicating that the jury was "stalemated" and was, thus, unable to reach a unanimous verdict recommending one of the three available sentencing options for each of appellant's aggravated-murder convictions. the trial judge then gave the jury a supplemental instruction similar to the one approved by this court in State v. Howard (1989), 42 Ohio St.3d 18, 537 N.E.2d 188, paragraph two of the syllabus, and the jury resumed its deliberations for approximately two more hours before adjourning for the evening.
R.C. 2929.03(C)(2) provides:
"If the indictment or count in the indictment contains one or more specifications of aggravating circumstances listed in division (A) of section 2929.04 of the Revised Code, and if the offender is found guilty of both the charge and one or more of the specifications, the penalty to be imposed on the offender shall be death, life imprisonment with parole eligibility after serving twenty full years of imprisonment, or life imprisonment with parole eligibility after serving thirty full years of imprisonment, shall be determined pursuant to divisions (D) and (E) of this section, and shall be determined by one of the following:
"(a) By the panel of three judges that tried the offender upon his waiver of the right to trial by jury;
"(b) By the trial jury and the trial judge, if the offender was tried by jury." (Emphasis added.)
The trial judge instructed the jury as follows:
"Now, at this time the Court would like to give you some additional instructions that may help you in the course of your dilemma. The principle [ sic] mode provided by our constitution and laws for deciding questions of facts in criminal cases is by jury verdict. In a large portion of cases absolute certainty cannot be attained or expected, although the verdict must reflect the verdict of each individual juror and not mere acquiescence in the conclusion of your fellows. Now each question submitted to you should be examined with proper regard and defense [ sic, deference] to the opinion of others. And you should consider it desirable that the case be decided. You were selected in the same manner and from the same source as any future jury would be. There is no reason to believe the case will ever been [ sic] submitted to a jury more capable, impartial, or intelligent than this one. Likewise there is no reason to believe that more or clearer evidence will be produced by either side. It is your duty to decide the case if you can conscientiously do so. You should listen to one another's arguments with a disposition to be persuaded. Do not hesitate to re-examine your views and change your position if you are convinced that it is erroneous. If there is disagreement all jurors should re-examine their positions, given that a unanimous verdict has not been reached jurors for any of the verdicts should consider whether their doubt is reasonable, considering that it is not shared by others equally honest who have heard the same evidence and with the same desire to arrive at the truth. And under the same oath.
"Likewise jurors for any of the verdicts should ask themselves whether they might not reasonably doubt the correctness of the judgment not concurred in by all, the other jurors."
On September 15, the jury resumed its deliberations. At 11:00 a.m., deliberations were interrupted for the trial judge to respond to an inquiry by the jury as to whether the jurors were required to consider recommending a lesser sentence, i.e., a life sentence, if they were unable to unanimously recommend the sentence of death. This question was answered affirmatively and the jurors resumed deliberations. Shortly thereafter, deliberations were again interrupted for the trial judge to respond to yet another written communique from the jury with the following inquiry: "[I]f I feel the death penalty is the only decision I can fairly reach, must I change that decision just to reach a unanimous decision with the rest of the jurors * * *?" This question was answered affirmatively and, later, upon receiving one or more similar inquiries, the trial judge instructed the jury, in part, as follows:
"* * * I'd like to say at this time when in dealing with human affairs, problems of life must be reconciled between give and take. Page 6 [of the sentencing charge] says you shall recommend the sentence of death if you unanimously, and that means all twelve, find by proof beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors. Now, if you do not so find you shall unanimously, which means all twelve, recommend either a sentence of life imprisonment with parole eligibility after serving 20 full years of imprisonment or life imprisonment with parole eligibility after serving 30 full years of imprisonment. Page eleven [of the sentencing charge] says, however, you should not surrender honest convictions in order to be congenial or to reach a verdict solely because of the opinion of other jurors. If you feel that it is impossible for you to reach a decision in this case, please report it to the Court. You will now be excused to resume your deliberations."
After further deliberations, the jury announced that it was hopelessly deadlocked and could not unanimously recommend any sentence. Subsequently, the trial judge discharged the jury upon the express determination that there was no probability the jurors would unanimously agree upon a verdict.
Thereafter, on October 12, 1989, the trial court sentenced appellant to a term of life imprisonment with parole eligibility after serving thirty full years of imprisonment for each of appellant's two aggravated-murder convictions. The trial court also sentenced appellant for the murder, aggravated robbery and aggravated burglary convictions.
Appellant appealed to the court of appeals solely from the imposition of his sentences for aggravated murder. In his only assignment of error, appellant argued that the trial court erred by not imposing lesser sentences authorized by R.C. 2929.03(C)(2) for the aggravated-murder convictions, to wit: life imprisonment with parole eligibility after serving twenty full years of imprisonment. Appellant did not appeal his aggravated murder convictions or his conviction or sentence for murder, aggravated robbery, or aggravated burglary.
In response, appellee argued that the trial court was correct in imposing the sentences of life imprisonment with parole eligibility after serving thirty full years of imprisonment.
The court of appeals held that the trial court had no authority to impose sentence on Counts Two and Three of the indictment without a unanimous recommendation by the trial jury and that, therefore, the trial court should have declared a mistrial as to the guilt and penalty phases of appellant's trial on the two counts of aggravated felony murder. The court of appeals reversed the trial court's entry of conviction on Counts Two and Three of the indictment and remanded the cause to the trial court for a new trial on these two counts of aggravated murder with specifications.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Arthur M. Ney, Jr., Prosecuting Attorney, and Ronald W. Springman, for appellee.
Edward O. Keller, for appellant.
Randall M. Dana, Public Defender, and David C. Stebbins, urging reversal for amicus curiae, Ohio Public Defender.
The issue before us is whether the court of appeals erred in determining that the trial court had no authority to sentence appellant on Counts Two and Three of the indictment to terms of life imprisonment with parole eligibility after serving thirty full years of imprisonment. For the reasons that follow, we find that the trial court had authority to sentence appellant to the terms of life imprisonment without a sentencing recommendation by the trial jury and, therefore, we reverse the judgment of the court of appeals.
The framers of Ohio's death-penalty statute clearly did not contemplate the possibility of a hung jury in the penalty phase of a capital murder trial as is convincingly demonstrated by the absence of a provision in the statute governing the imposition of sentence under circumstances where, as in the case at bar, the trial jury is unable to unanimously recommend any sentence for the capital offense(s). Therefore, we are called upon today to establish the procedure governing the imposition of sentence under these circumstances.
R.C. 2929.03(C)(2) authorizes the imposition of one of three possible punishments for a defendant who has been found guilty of aggravated murder and one or more of the statutory aggravating circumstances in connection with the aggravated murder. The possible penalties authorized by R.C. 2929.03(C)(2) are death, life imprisonment with parole eligibility after serving twenty full years of imprisonment, or life imprisonment with parole eligibility after serving thirty full years of imprisonment. R.C. 2929.02(C)(2) provides that the sentence to be imposed upon the offender is to be determined in accordance with the provisions of R.C. 2929.03(D) (absent a question concerning the age of the offender).
With regard to the determination of the appropriate sentence to be imposed upon a defendant who has been tried before a jury and is subject to a possible penalty authorized by R.C. 2929.03(C)(2), R.C. 2929.03(D)(2) requires that the trial jury determine whether the aggravating circumstance(s) of which the offender was found guilty outweigh, beyond a reasonable doubt, any factor(s) present in mitigation. R.C. 2929.03(D)(2) provides that if the jury unanimously finds that the aggravating circumstance(s) outweigh any mitigating factor(s) beyond a reasonable doubt, the jury shall recommend that the offender be sentenced to death. Absent such a recommendation, the offender may not be sentenced to death. R.C. 2929.03(D)(2) withholds authorization for the death penalty absent a unanimous death-penalty recommendation by the trial jury.
R.C. 2929.03(D)(2) provides:
"Upon consideration of the relevant evidence raised at trial, the testimony, other evidence, statement of the offender, arguments of counsel, and, if applicable, the reports submitted pursuant to division (D)(1) of this section, the trial jury, if the offender was tried by a jury, shall determine whether the aggravating circumstances the offender was found guilty of committing are sufficient to outweigh the mitigating factors present in the case. If the trial jury unanimously finds, by proof beyond a reasonable doubt, that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors, the trial jury shall recommend to the court that the sentence of death be imposed on the offender. Absent such a finding, the jury shall recommend that the offender be sentenced to life imprisonment with parole eligibility after serving twenty full years of imprisonment or to life imprisonment with parole eligibility after serving thirty full years of imprisonment.
"If the trial jury recommends that the offender be sentenced to life imprisonment with parole eligibility after serving twenty full years of imprisonment or to life imprisonment with parole eligibility after serving thirty full years of imprisonment, the court shall impose the sentence recommended by the jury upon the offender. If the trial jury recommends that the sentence of death be imposed upon the offender, the court shall proceed to impose sentence pursuant to division (D)(3) of this section."
R.C. 2929.03(D)(2) also requires that if the jury is unable to unanimously recommend the sentence of death, the trial jury shall recommend that the offender be sentenced to life imprisonment with parole eligibility after serving twenty full years of imprisonment, or life imprisonment with parole eligibility after serving thirty full years of imprisonment. R.C. 2929.03(D)(2) provides that if the jury recommends one of the life imprisonment sentencing options, the trial court shall impose sentence in accordance with the jury's recommendation.
We believe that the requirement of Ohio's death penalty statute that a life sentence be recommended and imposed under circumstances where the penalty of death cannot be recommended or imposed represents a clear statement of policy that an offender be sentenced to a term of life imprisonment where the trial jury is unable to unanimously agree that the penalty of death is appropriate. Therefore, in our judgment, in cases where, as here, the jury becomes hopelessly deadlocked during its sentencing deliberations and is unable to unanimously recommend any sentence, including death, the penalty of death is clearly unauthorized and one of the two remaining (authorized) sentencing options must be imposed upon the offender by the trial court. To hold otherwise would be to permit one aberrant or rogue juror to frustrate the policy of the law by merely withholding his or her vote from an otherwise unanimous recommendation of life imprisonment in the hope that the defendant would be retried and that a future jury would unanimously recommend the penalty of death. It is our job to promote, not frustrate, the purposes of the law.
Accordingly, we hold that when a jury becomes irreconcilably deadlocked during its sentencing deliberations in the penalty phase of a capital murder trial and is unable to reach a unanimous verdict to recommend any sentence authorized by R.C. 2929.03(C)(2), the trial court is required to sentence the offender to life imprisonment with parole eligibility after serving twenty full years of imprisonment, or life imprisonment with parole eligibility after serving thirty full years of imprisonment. The trial court in the case at bar complied with this requirement in sentencing appellant on Counts Two and Three of the indictment to terms of life imprisonment with parole eligibility after serving thirty full years of imprisonment.
Given our holding today, it is clear that the court of appeals erred in reversing appellant's two aggravated-murder convictions and in remanding the cause to the trial court for a new trial in which the state could once again seek imposition of the sentence of death on Counts Two and Three of the indictment. The jury in this case decided (by its indecision) that the penalty of death is inappropriate and, as we have explained, the policy of Ohio's death-penalty statute requires that, under these circumstances, a sentence of life imprisonment be imposed upon the offender. Where a jury is unable to choose between the two available life imprisonment sentencing options, it is incumbent upon the trial court to impose sentence without the benefit of a recommendation.
Furthermore, we note, in passing, that appellant's aggravated-murder convictions were never appealed to the court of appeals.
For the foregoing reasons, we reverse the judgment of the court of appeals and reinstate appellant's conviction and sentence on Counts Two and Three of the indictment.
Judgment reversed.
MOYER, C.J., SWEENEY, HOLMES, WRIGHT, H. BROWN and RESNICK, JJ., concur.