Opinion · Ohio Supreme Court
State v. Cowans
87 Ohio St. 3d 68
- Type
- Opinion
- Court
- Ohio Supreme Court
- Jurisdiction
- Ohio
- Date
- 1999-10-20
- Topic
- general
holding that a temporary breakdown in communication was insufficient to establish good cause for substitute appointed counsel | recognizing "a probation officer may search a probationer's home without a warrant and upon less than probable grounds" | explaining that reviewing courts must defer credibility matters "to those 'who see and hear what goes on in the courtroom' " | recognizing "a probation officer may search a probationer's home without a warrant and upon less than probable cause" | rejecting claim that “a trial court must always inquire into the competence of defendants who refuse to present mitigation” | trial judge's observations of defendant's conduct provided support for conclusion that defendant's competence did not warrant further inquiry | Fulford illustrates principle that competency is a factual determination best left to the trial judge's observations of the defendant's conduct | trial judge's observations of defen dant's conduct provided support for conclusion that defendant's competence did not warrant further inquiry | “[A]n appellate court will affirm a trial court’s finding of competency when the record contains some competent, credible evidence supporting such a finding” | attorney’s honest appraisal of the unlikelihood of a defendant prevailing at trial is not good cause for substitution | the jury may not draw “ ‘draw an inference based * * * entirely upon another inference, unsupported by any additional fact or another inference from other facts’ ” | a trial court did not abuse its discretion when it allowed a video recreation of a bloodhound’s path in tracking a suspect to be admitted into evidence | a trial court did not abuse its discretion when it allowed a video recreation of a bloodhound’s path in tracking a suspect to be admitted into evidence | even if counsel "had explored plea options based on a belief that [their client] might be guilty, counsel's belief in their client's guilt is not good cause for substitution" | the jury may not draw “ ‘draw an inference based * * * entirely upon another inference, unsupported by any additional fact or another inference from other facts’ ” | record reveals appellant had multiple discussions with counsel and considered their advice
Citator
- Cited by
- 104 opinions
[This opinion has been published in Ohio Official Reports at87 Ohio St.3d 68
.]
THE STATE OF OHIO, APPELLEE, v. COWANS, APPELLANT.
[Cite as State v. Cowans, 1999-Ohio-250
.]
Criminal law—Aggravated murder—Death penalty upheld, when.
(No. 97-1312—Submitted December 2, 1998—Decided October 20, 1999.)
APPEAL from the Court of Common Pleas of Clermont County, No.
96-CR-005394.
__________________
{¶ 1} Jessie J. Cowans, appellant, was convicted of the aggravated murder
of Clara Swart and sentenced to death.
{¶ 2} Mrs. Swart, a sixty-nine-year-old widow, lived alone in a rural section
of Clermont County. One day in July 1996, when her son, Timothy, was taking
some items to the side of the road to be picked up as trash, Cowans drove up and
asked if he could take a glider-type swing that Timothy had placed by the road.
Timothy agreed and helped him load the swing onto his truck.
{¶ 3} On Wednesday, August 28, 1996, Mrs. Swart’s neighbor Mildred
Kilgore went to Mrs. Swart’s house. Kilgore found Mrs. Swart standing outside
talking to a man who looked like Cowans. When Kilgore approached, Mrs. Swart
told the man that she was leaving with her friend, and he left. After he had gone,
Mrs. Swart and Kilgore went inside, and Mrs. Swart said, “Oh, I’m scared. * * *
He made me so nervous. * * * He scared me so bad.” Kilgore asked, “Who was
it, Clara?” Mrs. Swart replied, “It was the man who came and got the chair [sic]
off the garbage a few weeks ago.”
{¶ 4} At 8:00 a.m. on Thursday, August 29, a Clermont County Senior
Services bus arrived at Mrs. Swart’s house to pick her up. When Mrs. Swart did
not respond to the sound of the driver’s horn, the driver went to the door and
knocked. She heard some noise inside the house, but Mrs. Swart did not answer
SUPREME COURT OF OHIO
the door; nor did Mrs. Swart answer her telephone when the Senior Services office
called. Mrs. Swart’s son came to visit her later in the day and found her body.
{¶ 5} Mrs. Swart had been strangled with a purse strap, which was still
around her neck. An electrical cord had been tied around her neck and to the handle
of the refrigerator, and her hands had been tied with a telephone cord. She was still
wearing her wedding ring and earrings. Officers found a palm print on a plastic
bag covering a blender in Mrs. Swart’s kitchen.
{¶ 6} After talking to Kilgore, sheriff’s investigators began to consider
Cowans a suspect. Investigators discovered that Cowans was on parole, so they
called in his parole officer, Sandra Higgins, to help them obtain Cowans’s
fingerprints.
{¶ 7} The investigators believed that they lacked enough evidence to obtain
a search warrant for Cowans’s house. However, Higgins decided to search it herself
in order to determine whether Cowans had violated his parole. Two deputies helped
her. One of the deputies testified that he found an Emmett Kelly clown figurine in
the closet of Cowans’s bedroom. The figurine was later identified as belonging to
Mrs. Swart. Subsequently, the deputies obtained Mrs. Cowans’s permission to
continue searching. In the closet, they found a small wooden car.
{¶ 8} While searching a wooded area behind Cowans’s house, a deputy
found other items taken from Mrs. Swart’s house, including a wooden jewelry box.
The little wooden car found in Cowans’s house appeared to have been broken off
the lid of that box.
{¶ 9} On the afternoon of September 2, Deputy Sheriff Jim DeCamp used a
T-shirt belonging to Cowans to scent a bloodhound at Mrs. Swart’s residence. Once
scented, the dog appeared to track the scent from Mrs. Swart’s backyard, over a
fence, and for a short distance into a wooded area. The dog then lost the scent.
After being rescented with the shirt, the dog appeared to follow it to the vicinity of
a fallen tree where the handler was told that other deputies had found Mrs. Swart’s
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personal property. At this location, which was near the back end of Cowans’s
property line, the dog was pulled off the scent. Again the dog was rescented and it
continued to Cowans’s Chevrolet Blazer, which was parked at his house.
{¶ 10} Mamie Trammel, one of Cowans’s neighbors, testified that she had
a conversation with Cowans two days after the murder. Trammel testified that
when she asked Cowans if he had heard about the murder, he said, “Yeah, isn’t that
terrible * * * to hang a lady by the refrigerator with her hands behind her back.”
This detail had not been made public by the sheriff’s department.
{¶ 11} Cowans was arrested on September 2. Deputy Sheriff Robert Evans
drove him to the Clermont County Jail on a route that led past Mrs. Swart’s house.
Evans slowed down as he passed the house, as he later testified, “just to see what
Mr. Cowans would do.” Staring at the house, Cowans began to talk about the case.
He complained that, as an “ex-con,” he was being “singled out.” Evans testified
that Cowans said he had heard on the news that Mrs. Swart “was hung” and had
later heard that she was strangled—information that had not yet been made public.
Cowans also said “that he had been there [at Mrs. Swart’s house] on one occasion
* * * for the purpose of picking up a swing.”
{¶ 12} While confined in jail, Cowans discussed the charges against him
with a fellow inmate, Marvin A. Napier. He told Napier at first that “he had chased
some kids out of his backyard” and they “threw [some items] down on the ground.
And he * * * went through some stuff and left what he didn’t want and took what
he did want.”
{¶ 13} Napier testified that Cowans later admitted to killing and robbing
Mrs. Swart and gave details consistent with the facts of the case. For example,
Napier testified that Cowans said he had found Mrs. Swart in the bathroom and
“jerked [her] up off the toilet.” This was consistent with the fact that investigators
found urine in the toilet bowl. Napier also testified that Cowans said he had tied
Mrs. Swart with the phone cord, strangled her with a purse strap, and “ransacked”
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the house; also, that an “old people’s bus” arrived while he was there, and “[t]hey
knocked on the door.”
{¶ 14} Napier further testified that Cowans said he left Mrs. Swart’s house
and walked home through the woods, that he went through the stolen property as
he went, and that he left most of it in the woods as “junk” but brought home “[s]ome
clown figurines” and some jewelry. Cowans allegedly told Napier “that he wished
he’d have took the earrings and the wedding band off the lady’s finger.”
{¶ 15} Cowans was indicted on four counts of aggravated murder. Count
One alleged murder with prior calculation and design under R.C. 2903.01(A).
Counts Two through Four alleged felony-murder under R.C. 2903.01(B). Each
count carried four death specifications: one under R.C. 2929.04(A)(5), alleging that
Cowans had a prior murder conviction, and three felony-murder specifications
under R.C. 2929.04(A)(7). Other counts charged kidnapping under R.C.
2905.01(A)(2) (to facilitate commission of felony), kidnapping under R.C.
2905.01(A)(3) (with purpose to terrorize or inflict serious physical harm),
aggravated robbery, and aggravated burglary.
{¶ 16} Cowans was convicted of all counts and specifications. (The prior-
conviction specification was tried to the court pursuant to R.C. 2929.022.) After
the verdict of guilty was announced, Cowans continued to profess his innocence
and refused to attend or participate in the sentencing phase. He refused to present
mitigating evidence and asked that the witnesses who were prepared to testify in
mitigation also refuse to cooperate. The jury recommended the death sentence, and
the trial judge imposed it.
{¶ 17} The cause is now before us upon an appeal as of right.
__________________
Donald W. White, Clermont County Prosecuting Attorney, Daniel J. Breyer,
Chief Assistant Prosecuting Attorney, and David H. Hoffmann, Assistant
Prosecuting Attorney, for appellee.
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January Term, 1999
Carol A. Wright and Kristin Burkett, for appellant.
__________________
ALICE ROBIE RESNICK, J.
{¶ 18} We have reviewed the appellant’s propositions of law and
independently assessed the evidence presented through both the guilt and penalty
phases of the trial. Based upon our review, we affirm Cowans’s convictions and
sentence of death.
I. Request to Replace Appointed Counsel
{¶ 19} In his first proposition of law, Cowans claims that a breakdown in
communications between him and his court-appointed counsel was so serious as to
entitle him to have new counsel appointed, and that the trial court’s refusal to do so
violated Cowans’s Sixth Amendment right to counsel.
{¶ 20} The trial court appointed two attorneys, including the Clermont
County Public Defender, to represent Cowans. Cowans requested new counsel,
claiming that the public defender was pressing an unwanted plea bargain upon him.
The trial court granted this first request for new counsel, discharged the appointees,
and chose Bruce S. Wallace and Michael P. Kelly to represent Cowans.
{¶ 21} At a hearing on February 19, 1997 (about a month before voir dire
began), Cowans asked the trial court to appoint new counsel to replace Wallace and
Kelly. Cowans explained that he believed Wallace and Kelly thought he was guilty.
Cowans also accused Wallace and Kelly of “wanting me to plead guilty and lie *
* *.” When the court inquired about this allegation, Kelly stated that he and
Wallace had never told Cowans that they thought he was guilty, and never asked
him to lie:
“[N]ever once has Mr. Wallace or I or Larry [Handorf, the court-appointed
defense investigator] advised Mr. Cowans that we think he is guilty. At no time
did that phrase ever pass between us. * * * [W]e did what all attorneys do with
clients, discuss evidence and discuss theories. * * * We have given him theories of
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evidence. It is not unusual in theories — approaches to deal with evidence — it is
not unusual for attorneys and clients to disagree on approaches, and we have had
some differences on approaches. But we have not said those things, nor have we
ever asked Mr. Cowans to tell an untruth under oath or any other wise [sic].”
{¶ 22} The trial court found that Cowans’s attorneys were representing him
diligently, and refused to appoint new counsel “without more reasons” than Cowans
had given. Cowans’s attorneys informed the court during the hearing that Cowans
had “demanded that we file” a motion to withdraw, and that therefore they would
do so.
{¶ 23} Defense counsel filed a “motion for new counsel” on Cowans’s
behalf, for the sole reason that Cowans lacked “confidence in his present counsel”
and therefore could not “adequately communicate with counsel and assist in the
presentation of his case.” At a hearing, Kelly informed the court that he and
Wallace had visited Cowans in jail to discuss the state’s case against him and to
propose a defense strategy. Kelly said, “[T]here was a very loudly expressed
dispute over some of those items”; after that, Cowans refused to speak to his
attorneys except to ask them to file a motion for new counsel.
{¶ 24} Cowans told the court that he and his attorneys were “not getting
along,” and complained that Kelly “would come over to the jail * * * and talk to
me about that palm print.” Cowans refused to explain further. The trial judge again
denied the motion and indicated that he found no substantive reason why counsel
should be replaced. Cowans told the court, “I’m not going to cooperate with this
man.” When the court denied Cowans’s request, Cowans asked for a new judge.
Cowans also indicated that he could not proceed pro se because he knew nothing
about the law.
{¶ 25} On March 6, 1997, Kelly and Wallace filed a motion to withdraw on
the ground that Cowans had refused to speak with them. This new motion stated
that, although counsel had previously believed they could represent Cowans
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effectively, they could no longer do so. Having just learned of Cowans’s
incriminating statements to Napier, counsel now believed they could not adequately
prepare to rebut that testimony without Cowans’s cooperation.
{¶ 26} Cowans contends that the trial court should have granted his motion
for new counsel or the later motion of Wallace and Kelly to withdraw.
{¶ 27} “An indigent defendant has no right to have a particular attorney
represent him and therefore must demonstrate ‘good cause’ to warrant substitution
of counsel.” United States v. Iles (C.A.6, 1990), 906 F.2d 1122, 1130
. “[T]he trial judge may * * * [deny the requested substitution and] require the trial to proceed with assigned counsel participating if the complaint * * * is unreasonable.” State v. Deal (1969),17 Ohio St.2d 17
,46 O.O.2d 154
,244 N.E.2d 742
, syllabus. The trial court’s decision is reviewed under an abuse-of-discretion standard. Iles,906 F.2d at 1130, fn. 8
.
{¶ 28} Cowans’s chief complaint was that his attorneys thought he was
guilty. However, counsel deny ever expressing such a belief to Cowans. Even if
counsel had explored plea options based on a belief that Cowans might be guilty,
counsel’s belief in their client’s guilt is not good cause for substitution. “ ‘A lawyer
has a duty to give the accused an honest appraisal of his case. * * * Counsel has
a duty to be candid; he has no duty to be optimistic when the facts do not warrant
optimism.’ ” Brown v. United States (C.A.D.C.1959), 264 F.2d 363, 369
(en banc), quoted in McKee v. Harris (C.A.2, 1981),649 F.2d 927, 932
. “ ‘If the rule were otherwise, appointed counsel could be replaced for doing little more than giving their clients honest advice.’ ” McKee,649 F.2d at 932
, quoting McKee v. Harris (S.D.N.Y.1980),485 F.Supp. 866, 869
.
{¶ 29} For the same reasons, counsel’s discussion of the palm print with
Cowans was not good cause for substitution of counsel. Counsel would have
rendered ineffective assistance had they not tried to discuss such important
evidence with their client.
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{¶ 30} Cowans also contends that the trial court should have given him new
counsel because his refusal to speak with Kelly and Wallace rendered them unable
to properly prepare his defense. Authority exists for the proposition that a
“complete breakdown in communication” between the defendant and appointed
counsel can constitute “good cause” for substitution. See, e.g., United States v.
Calabro (C.A.2, 1972), 467 F.2d 973, 986
; cf. Iles,906 F.2d at 1130, fn. 8
(“total
lack of communication” is a factor to be considered in determining whether trial
court abused its discretion by denying substitution).
{¶ 31} While the court could have found that there had been a “complete
breakdown” or “total lack of communication” between Cowans and his counsel at
the time counsel filed their motion to withdraw on March 6, the record indicates
that this temporary lack of communication did not continue after the motion to
withdraw was denied. “[T]he record is replete with references to [counsel’s]
discussions with the defendant * * *.” Iles, supra, at 1132
. On March 24, 1997,
when the jury was taken to view the crime scene, Cowans waived his right to be
present in the following words: “Under the advice of my [c]ounsel, no, I waive that
right, sir.” This suggests that Cowans regarded his court-appointed attorneys as his
counsel and shows that he considered their advice in making this decision.
{¶ 32} When Cowans missed part of the voir dire, one of his attorneys later
went over the transcript of the missed hearing with him. When Cowans decided
not to be present during the adjudication of the prior-conviction specification,
counsel told the court that Cowans “was very cooperative * * * and was willing to
discuss the matter with [counsel].” On other occasions when Cowans waived his
right to be present at hearings, the record indicates that he discussed this decision
with counsel. The record also indicates that counsel reviewed the autopsy report
with Cowans and discussed with him at length whether he should testify or remain
silent. Finally, Cowans and his attorneys discussed “on several occasions” his
decisions to waive mitigation, forgo an unsworn statement, and wear his jail
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January Term, 1999
uniform to court.
{¶ 33} Under the circumstances of this case, we cannot find that the trial
judge abused his discretion in denying substitution of counsel. Cowans’s first
proposition of law is overruled.
II. Search by Parole Officer
{¶ 34} When parole officer Higgins searched Cowans’s home, she found
evidence of his guilt—property stolen from Mrs. Swart. In his second proposition
of law, Cowans claims this evidence should have been suppressed. Cowans
contends that Higgins’s warrantless search of his home violated the Fourth
Amendment, because the parole officer was acting on behalf of the police to
perform a search that police could not lawfully have performed themselves.
{¶ 35} On September 2, 1996, Higgins went to the Clermont County
Sheriff’s Office to help investigators obtain Cowans’s fingerprints. After
discussing the fingerprints with Higgins, deputies asked her to come with them to
the crime scene. She rode with the deputies, leaving her car behind. Investigator
Barry Jacobson went on to Cowans’s house; Higgins waited outside Mrs. Swart’s
house with the other deputies.
{¶ 36} When Jacobson returned, he told Higgins and the deputies that he
had spoken with Cowans’s wife inside the house. Jacobson said he had “looked
around” but had seen no incriminating evidence in plain sight. He told Higgins
“that they had decided not to conduct any more search [and] didn’t think there was
anything they could do.”
{¶ 37} Jacobson also said that Cowans had not come home the night before,
and that Cowans’s wife had indicated that Cowans might have gone to Kentucky.
Higgins found this news “alarming” because she knew, from an earlier conversation
with Cowans, that he wanted to move to Kentucky.
{¶ 38} Higgins thereupon “informed the deputies that it was my duty to go
back and search the residence.” The deputies did not ask her to do so, she testified;
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she made this decision “on [her] own.” Two deputies went along; Higgins testified
that it is usual for law enforcement officers to accompany parole officers on
searches.
{¶ 39} Higgins told Mrs. Cowans that she was there to conduct a search.
Mrs. Cowans admitted Higgins and the deputies and showed them to Cowans’s
bedroom.
{¶ 40} Higgins testified that she conducted the search personally, although
the deputies helped. She found marijuana, which she testified caused her “some
concern.” A deputy found the clown figurine. The figurine, Higgins testified,
“didn’t cause me any concern [at first] because I didn’t know what it was.”
(Higgins apparently knew that a clown figurine had been stolen but erroneously
thought the stolen figure was smaller.) The deputies warned her not to touch it.
Higgins testified that she would not have seized the clown had the deputies not been
there.
{¶ 41} Although she did not “physically take hold of” the clown, Higgins
testified that she was responsible for its seizure: “I seized it * * * [b]ecause I was
the one conducting the search * * * .”
{¶ 42} Higgins “continued to search for a few more minutes”; then the
deputies summoned Jacobson. After Jacobson arrived, the search continued with
Mrs. Cowans’s written consent, and deputies found the little wooden car in
Cowans’s bedroom.
{¶ 43} After a hearing, at which Higgins was the sole witness, the trial court
denied Cowans’s motion to suppress the fruits of Higgins’s search. Cowans
contends that the clown and car should have been suppressed because Higgins’s
search violated the Fourth Amendment. Although the car was found as part of
Jacobson’s search, after Mrs. Cowans consented thereto, Cowans contends it was
inadmissible as well, since the deputies would not have obtained Mrs. Cowans’s
consent to search further had they not first found the clown.
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{¶ 44} Cowans concedes that a probation officer may search a probationer’s
home without a warrant and upon less than probable cause. See Griffin v.
Wisconsin (1987), 483 U.S. 868, 877-878
,107 S.Ct. 3164, 3170-3171
,97 L.Ed.2d 709, 719-720
. Moreover, the same rule applies to a parole officer’s search of a parolee’s home. See, e.g., United States v. Hill (C.A.3, 1992),967 F.2d 902
, 909- 910; Latta v. Fitzharris (C.A.9, 1975),521 F.2d 246, 249-251
.
{¶ 45} Nonetheless, Cowans argues that Higgins’s search was illegal
because Higgins was not acting “to achieve her own legitimate objectives.” Rather,
he claims, the deputies investigating the murder were using Higgins as a “stalking
horse” to perform a search they could not lawfully perform themselves.
{¶ 46} If law enforcement rather than parole supervision was the primary
purpose of Higgins’s search, many authorities would indeed hold the search illegal.
“[A] probation [or parole] search may not be used as a subterfuge for a criminal
investigation.” United States v. Watts (C.A.9, 1995), 67 F.3d 790, 793-794
, citingLatta, supra.
Accord United States v. Martin (C.A.6, 1994),25 F.3d 293, 296
.
{¶ 47} We recognize that after Whren v. United States (1996), 517 U.S. 806
,116 S.Ct. 1769
,135 L.Ed.2d 89
, the Fourth Amendment does not forbid “pretextual” searches. See United States v. Conway (C.A.9, 1997),122 F.3d 841, 845
(concurring opinion); People v. Woods (1999),2 Cal.4th 668
,88 Cal.Rptr.2d 88
,981 P.2d 1019
. However, the pretext doctrine may still apply to searches not
requiring probable cause, such as searches by parole officers. See 4 LaFave, Search
& Seizure (3 Ed.1996) (Supp.1999), at 78-79, Section 10.10. For purposes of this
opinion, we assume it does.
{¶ 48} Based upon the testimony presented and the trial court’s assessment
of the credibility of the witnesses, the trial court made a factual finding that Higgins
was not acting as a stalking horse for the deputies. Instead, the court found, she
“had her own objectives in conducting the search.” We are bound by that finding
unless the record contains insufficient evidence to support it. We find, in this case,
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that there was sufficient evidence on the record to support the trial court’s finding.
{¶ 49} Higgins testified that she made the decision to search by herself: “I
was the one conducting the search[;] it was my search.” There is no evidence that
the deputies asked or encouraged Higgins to search. Cowans argues that Jacobson
“was more than happy to provide assistance” to Higgins. But Jacobson did not
testify at the suppression hearing, and the hearing record contains no basis for
speculation about his state of mind. Besides, it is Higgins’s, not Jacobson’s, state
of mind that is at issue. See State v. Hill (App.1983), 136 Ariz. 347, 349
,666 P.2d 92, 94
. The question is whether Higgins was trying to investigate possible parole
violations or to help the deputies circumvent the warrant requirement.
{¶ 50} Cowans argues that Higgins’s seizure of the clown shows that her
purpose was not really parole supervision, since she would not have seized it had
the deputies not been there to explain its significance to the murder investigation.
But, since the murder was a parole violation as well as a crime, the clown was
evidence of a parole violation; hence, her seizing the clown does not necessarily
suggest an ulterior law-enforcement motive. The trial court could have drawn that
inference, perhaps, but it did not, and thus we cannot.
{¶ 51} Nor does the deputies’ assistance taint Higgins’s search.
“[C]ollaboration between a [parole or] probation officer and police does not in itself
render a [parole or] probation search unlawful.” Watts, supra, 67 F.3d at 794
. Accord United States v. Cardona (C.A.1, 1990),903 F.2d 60, 66
; United States v. Coleman (C.A.7, 1994),22 F.3d 126, 129
; United States v. Butcher (C.A.9, 1991),926 F.2d 811, 815
, quoting People v. Kanos (1971),14 Cal.App.3d 642, 649
,92 Cal.Rptr. 614, 617
. See, generally, LaFave, supra, at 792-793, Section 10.10(e); 2
Hall, Search & Seizure (2 Ed.1993) 213, Section 25:17.
{¶ 52} Admittedly, “it ‘is often difficult to distinguish cases of valid
cooperation from cases of impermissible collusion between parole and police
authorities.’ ” LaFave, supra, at 795, quoting Note (1976), 51 N.Y.U.L.Rev. 800,
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January Term, 1999
829. But Higgins testified that she conceived and executed the search and that her
concern was with parole violations, and the trial judge believed her. As the
determinations rest mainly on the trial court’s assessment of witness credibility, we
defer to the finding and overrule Cowans’s second proposition of law.
III. Video of Bloodhound’s Path
{¶ 53} When Deputy DeCamp and the bloodhound attempted to track
Cowans’s scent from Mrs. Swart’s house, Investigator Mike Robinson went with
them. A week later, Robinson retraced their path, making a videotape as he walked
to illustrate the general path the dog had taken in following the scent. The videotape
was introduced at trial, supported by testimony by Robinson. In his third
proposition, Cowans contends that this video was irrelevant and unfairly prejudicial
because it was not an exact illustration of the dog’s path.
{¶ 54} Cowans points out that the dog lost the scent at least once, relatively
early on in the tracking and had to be rescented, an event not shown on the video.
The record indicates that the dog lost the scent at least twice during the tracking
process. Moreover, Robinson’s path as shown on the video was more direct and
admittedly faster than the dog’s route.
{¶ 55} Nevertheless, introduction of the video was not so prejudicial that its
admission rises to the level of an abuse of discretion. The video showed only the
general contours of the dog’s path, and the officer readily admitted this. Robinson
fully explained to the jury that the video did not precisely show each deviation in
the dog’s path. “An exhibit is not necessarily incompetent because it fails to show
some exact thing in connection with the subject under investigation, provided it
shows some matter bearing directly upon the matter under investigation, with an
explanation of how it differs from that which is being investigated.” Cleveland
Provision Co. v. Hague (1912), 20 Ohio C.C.(N.S.) 34, 41 Ohio C.C. 223
, 230, affirmed (1912),87 Ohio St. 483
,102 N.E. 1121
. See, also, State v. Palmer (1997),80 Ohio St.3d 543, 564-566
,687 N.E.2d 685
, 704-705.
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{¶ 56} When an exhibit is offered for purposes of illustration, the trial court
has discretion to determine whether it is helpful or misleading to the trier of fact.
See, generally, Palmer, 80 Ohio St.3d at 566
, 687 N.E.2d at 705; 2 McCormick on
Evidence (4 Ed. Strong Ed.1992) 9-10, Section 212. Cowans has not shown an
abuse of discretion. Consequently, his third proposition is overruled.
IV. Evidence of Defendant’s Status as Parolee
{¶ 57} In his fourth proposition, Cowans contends that evidence of his
status as a parolee should have been excluded.
{¶ 58} The defense filed a motion in limine to preclude the state from
introducing evidence of Cowans’s previous murder as a “similar act” under Evid.R.
404(B). The trial court granted the motion. Cowans also elected to try the R.C.
2929.04(A)(5) prior murder specification to the court under R.C. 2929.022(A).
Accordingly, there was no direct reference during the guilt phase to Cowans’s prior
conviction. The trial court did, however, permit Higgins to testify that she was
Cowans’s parole officer. Cowans contends that this testimony “undercut” the trial
court’s earlier ruling and prejudiced him.
{¶ 59} We cannot agree. At no time during the guilt phase did the trial
court, the parties, or any witness refer to the basis for Cowans’s parolee status. The
jury was informed only that Cowans was a parolee. The jury never learned that he
had a prior murder conviction or even a felony conviction until the sentencing
phase. In addition, the trial court instructed the jury not to consider Cowans’s
parolee status as character evidence.
{¶ 60} Moreover, Cowans’s status as a parolee was relevant in the guilt
phase, even though the nature of his previous crime was not. Higgins searched
Cowans’s house and found property that had been stolen from Mrs. Swart. Higgins
was able to search Cowans’s house because she was his parole officer. Without
knowing her relationship to Cowans, the jury could not have understood why
Higgins was searching Cowans’s house. Cf. State v. Allen (1995), 73 Ohio St.3d 14
January Term, 1999 626, 632,653 N.E.2d 675, 683
. Thus, Higgins’s position as Cowans’s parole
officer was, as the trial court put it, “inextricably intertwined” with her testimony
about the search. Accordingly, Cowans’s fourth proposition is overruled.
V. Stacking Inferences
{¶ 61} In his fifth proposition of law, Cowans contends that State’s Exhibit
58, a photograph showing a BB pistol in Cowans’s truck, was inadmissible because
the state’s theory as to the relevance of the pistol required the jury to draw an
inference from another inference.
{¶ 62} A trier of fact may not draw “[a]n inference based * * * entirely
upon another inference, unsupported by any additional fact or another inference
from other facts[.]” Hurt v. Charles J. Rogers Transp. Co. (1955), 164 Ohio St. 329
,58 O.O. 122
,130 N.E.2d 820
, paragraph one of the syllabus. However, “[a]n inference * * * based in part upon another inference and in part upon facts is a parallel inference and, if reasonable, may be indulged in * * * .”Id.,
paragraph two
of the syllabus.
{¶ 63} Cowans argues that the state began with a fact — the absence of
defense wounds — and from that fact drew an inference that Mrs. Swart’s killer
used a weapon to subdue her. Then, Cowans argues, the state drew a second
inference—that the BB gun found in Cowans truck was the weapon used.
{¶ 64} We agree. The state’s theory involves a string of inferences. First,
the state must infer from the lack of defensive wounds that Mrs. Swart was
somehow frightened into submission. Second, the state infers from the testimony
of Cowans’s wife that Cowans, at some time, had possession of the BB gun found
in his truck. From these two inferences, which are admittedly supported by separate
and independent facts, the state builds its theory with additional inferences,
unsupported by additional facts or reasonable parallel inferences. In order to
connect the gun to the crime, the state must infer that Cowans had possession of the
gun on the day of the crime, that he carried the gun to Mrs. Swart’s residence, that
15
SUPREME COURT OF OHIO
he brandished the gun, and that the gun caused Mrs. Swart to submit to Cowans
during her own murder by strangulation.
{¶ 65} The state argues that the second inference (that Cowans used the BB
gun found in the truck during the crime) is not based entirely upon the first inference
(that a weapon was used to subdue Mrs. Swart) but upon three additional facts.
First, the dog tracked Cowans’s scent from Mrs. Swart’s house to the truck; and
second, the gun was found in the truck; and third, that gun was not ordinarily kept
in the truck.
{¶ 66} The first alleged fact is that the dog tracked Cowans’s scent from
Mrs. Swart’s house to the truck. However, this is in itself an inference rather than
a fact. The record contains ample testimony from the state’s witness
acknowledging that an officer can only infer that the dog is following the scent it
was asked to follow even under the best of circumstances. Further, in setting forth
this proposition, the state ignores the fact that at least twice between the Swart
residence and the truck, the dog lost Cowans’s scent and had to be rescented with
his shirt. Compounding this, the last time the dog was rescented it was near
Cowans’s property line in an area he was known to have frequented and from there
appeared to track his scent to the truck. Without some additional factual basis, the
state’s conclusion that this last portion of the tracking somehow connects the truck
to Cowans on the day of the murder is an unreasonable inference.
{¶ 67} Absent any direct connection between the truck and the Swart
residence, the fact that a BB gun was found in the truck does not support a
reasonable inference that Cowans used the gun to intimidate Mrs. Swart during the
course of a murder. Third, the fact that the gun was normally kept in a drawer could
support an inference that Cowans moved the gun to the truck, but it does not
establish it as fact.
{¶ 68} Because we agree that the state’s theory regarding the gun’s
relevance would require the factfinder to draw an inference from an inference, we
16
January Term, 1999
find merit in Cowans’s contention that the picture of the gun was impermissibly
admitted into evidence. We also, however, hold that under the facts of this case,
the admission was harmless error. Because the use of a gun was not a critical
element of the crime, and because the state advanced other theories of why Mrs.
Swart may not have suffered defensive wounds, which were supported by
admissible evidence, we find that admitting the picture of the BB gun was harmless
error.
VI. Defendant’s Refusal to Present Mitigation
{¶ 69} After the jury found him guilty, Cowans specifically refused to let
his counsel present any evidence in mitigation; moreover, he instructed his family
and friends not to cooperate with his defense team’s efforts to find mitigating
evidence. Cowans also declined to make an unsworn statement to the jury,
explaining that he did not trust “a jury that found me guilty on something I didn’t
do” to give him “a fair shake.”
{¶ 70} Cowans’s refusal to present any mitigating evidence in the penalty
phase is the subject of his sixth, seventh, and eighth propositions of law.
A. Eighth Amendment
{¶ 71} Cowans in his sixth proposition of law argues that the Eighth
Amendment forbids the imposition of a death sentence by a sentencer who has not
been apprised of possible mitigating factors, even where the defendant himself
opposed their presentation. That, however, is an argument we have rejected. The
Eighth Amendment compels no one to present mitigation against his will. See State
v. Tyler (1990), 50 Ohio St.3d 24, 27-29
,553 N.E.2d 576, 583-586
; State v. Ashworth (1999),85 Ohio St.3d 56, 61-66
,706 N.E.2d 1231, 1236-1239
.
{¶ 72} Indeed, we recently noted in Ashworth, 85 Ohio St.3d at 63
,706 N.E.2d at 1237-1238
, that “a rule requiring the presentation of mitigating evidence
would be impossible to enforce,” because no court could compel a defendant to
cooperate with his counsel in gathering and presenting such evidence. This case
17
SUPREME COURT OF OHIO
aptly illustrates the point: Cowans not only refused to present mitigating evidence,
he actually blocked his counsel’s acquisition of such evidence by instructing his
family and friends not to cooperate with counsel.
B. Ineffective Assistance
{¶ 73} In his seventh proposition of law, Cowans contends that, by
acquiescing in his instructions not to present mitigating evidence, his counsel
denied him their effective assistance.
{¶ 74} Cowans concedes that legal ethics normally require an attorney to
“abide by a client’s decisions concerning the objectives of representation.” ABA
Model Rule of Professional Conduct 1.2(a). Indeed, DR 7-101(A)(1) provides: “A
lawyer shall not intentionally * * * [f]ail to seek the lawful objectives of his client
through reasonably available means permitted by law and the Disciplinary Rules *
* *.”
{¶ 75} Despite this, Cowans argues that counsel’s obligation to present
mitigation in a capital case supersedes the obligation to let the client choose his
own course of action.1
{¶ 76} We disagree. Like other courts, we have rejected the notion that an
attorney renders ineffective assistance by declining, in deference to a client’s
desires, to present mitigation. Tyler, supra;
State v. Keith (1997),79 Ohio St.3d 514, 536-537
,684 N.E.2d 47, 67
. Accord State v. Koedatich (1988),112 N.J. 225, 332-335
,548 A.2d 939, 995-996
; Kirksey v. State (1996),112 Nev. 980, 995-996
,923 P.2d 1102, 1112
, and cases cited therein.
C. Validity of Waiver
{¶ 77} In his eighth proposition of law, Cowans contends that the trial court
should have (1) held a hearing to determine his competence to waive mitigation,
1. Cowans cites People v. Deere (1985), 41 Cal.3d 353
,710 P.2d 925
,222 Cal.Rptr. 13
, and two California cases decided on authority of Deere. However, People v. Bloom (1989),48 Cal.3d 1194
,259 Cal.Rptr. 669
,774 P.2d 698
, overruled Deere on the relevant issue.
18
January Term, 1999
and (2) taken steps to ensure that his waiver was knowing and voluntary.
1. Competence
{¶ 78} The principal contention of Cowans’s eighth proposition is that,
whenever a capital defendant declines to present evidence in mitigation, the trial
court must determine on the record whether he has the mental capacity to appreciate
his position and make a rational choice with respect to presenting mitigation vel
non.
{¶ 79} However, a capital defendant’s decision to forgo mitigation “does
not by itself call his competence into question.” Tyler, 50 Ohio St.3d at 29
,553 N.E.2d at 585
. Accord State v. Berry (1995),72 Ohio St.3d 354, 361
,650 N.E.2d 433, 440
(Berry I). Therefore, “absent a request by counsel, or any indicia of incompetence, a competency evaluation is not required.”Ashworth, supra,
85 Ohio St.3d at 62
,706 N.E.2d at 1237
, citing Tyler,50 Ohio St.3d at 29
,553 N.E.2d at 585
.
{¶ 80} Cowans argues that Tyler is inconsistent with our recent decision in
State v. Berry (1997), 80 Ohio St.3d 371
,686 N.E.2d 1097
(Berry II). In Berry II,
a condemned prisoner, having exhausted his direct appeals, wished to waive further
challenge to his convictions and sentence. We ordered a hearing on the issue of
Berry’s competence and found him competent only after reviewing the hearing
record.
{¶ 81} When a capital defendant decides to waive his right to present
mitigation (Tyler), or to review of a conviction and sentence (Berry II), a court must
inquire into his competence to do so if some reason, other than that decision, exists
to question competence. Thus, in Rees v. Peyton (1966), 384 U.S. 312
,86 S.Ct. 1505
,16 L.Ed.2d 583
, the court denied a condemned prisoner leave to withdraw
his certiorari petition, since his attorney had submitted a psychiatric report calling
the prisoner’s competence into question.
{¶ 82} Conversely, where no independent reason to question competence
19
SUPREME COURT OF OHIO
exists, no hearing is required. Thus, in Hammett v. Texas (1980), 448 U.S. 725
,100 S.Ct. 2905
,65 L.Ed.2d 1086
, the court permitted a condemned prisoner to
withdraw his petition; the difference was that nobody questioned Hammett’s
competence. The decision to forgo challenging his death sentence was not
sufficient of itself to require an evaluation.
{¶ 83} Tyler is no more inconsistent with Berry II than Hammett is with
Rees. In Berry II we had reason to question Berry’s competence other than his
desire to be executed, that being Berry’s history of hallucinations and a diagnosis
of a psychotic disorder before his aggravated murder trial. 80 Ohio St.3d at 377,
686 N.E.2d at 1102
; see, also, Berry I,72 Ohio St.3d at 367
,650 N.E.2d at 444
(Wright, J., dissenting). In Tyler, on the other hand, there was nothing in the record to raise any question as to the defendant’s competence.50 Ohio St.3d at 29
and 38-39,553 N.E.2d at 585
and 593-594.2
{¶ 84} Hence, we reject Cowans’s claim that a trial court must always
inquire into the competence of defendants who refuse to present mitigation. No
such inquiry need take place unless some reason exists to doubt the defendant’s
competence.
{¶ 85} It remains to ask whether, in this case, anything in the record actually
raised a question as to Cowans’s competence.3 On this point, we take our guidance
from the trial judge, who stated in his sentencing opinion that Cowans “evidenced
no mental instability.”
{¶ 86} The record shows, and the trial judge noted in his opinion, that
2. Tyler did not hinge on any affirmative showing of Tyler’s competence. Rather, we asked whether
there was any reason to doubt his competence. 50 Ohio St.3d at 29
,553 N.E.2d at 585
. Since Tyler
cited no basis for questioning competence other than his decision to waive mitigation, it followed
that no hearing was necessary.
3. Cowans makes no claim that any actual indicia of incompetence are to be found in the record,
preferring instead to argue that we should require competency hearings as a matter of course for all
defendants who want to waive mitigation.
20
January Term, 1999
Cowans was uncooperative and disruptive at certain times during this case. At the
beginning of the case, Cowans expressed a belief that he had no chance of a fair
trial because his first set of assigned counsel thought he was guilty. He asked that
counsel be replaced because they allegedly discussed plea-bargain options with
him, and he expressed a fear that the originally appointed counsel would control
anyone else from that counsel’s office, so that appointing new counsel from the
same office would be “just like hanging me * * *.”
{¶ 87} After the court appointed new counsel, Cowans proceeded to
challenge these counsel as well, claiming they were trying to pressure him into
pleading guilty. When the court refused Cowans’s second request for new counsel,
Cowans refused to accept the court’s decision and stood up as if to leave the
courtroom. When the trial judge asked Cowans for his assurance that he would not
be disruptive, Cowans repeated his demand for new counsel rather than answering.
The judge therefore had him removed.
{¶ 88} Brought back to court for a subsequent hearing, Cowans doggedly
repeated his demands for new counsel, accused the judge of bias, and became angry
because someone was, or appeared to be, laughing at him.
{¶ 89} Subsequently, however, Cowans cooperated with his counsel (see
discussion of Cowans’s first proposition of law, supra) and created no further
problems until the guilt-phase verdicts were read. When Cowans found that he had
been convicted, he directed a profane outburst at the court and jury, and then
expressed his wish to leave the courtroom. The court ordered Cowans taken to a
room in the courthouse basement equipped with closed-circuit TV and audio, so he
could see and hear the rest of the proceedings. After the jurors returned to the jury
room, a deputy reported to the judge that Cowans had disabled the TV and was
asking to be taken back to jail.
{¶ 90} Next, Cowans refused to take part in the R.C. 2929.022 evidentiary
hearing on the prior-conviction specification. His counsel explained that Cowans
21
SUPREME COURT OF OHIO
wished to boycott the remainder of the trial because he felt that “the jury that’s
already found him guilty of 20 counts * * * would be biased against him when it
came to any mitigation,” and that the court was also biased.
{¶ 91} The trial court ordered that Cowans be returned to the basement
room with the closed-circuit TV. In disrespectful and sometimes foul language,
Cowans protested that he regarded the court as a “kangaroo court” and did not want
to be in the courthouse at all.
{¶ 92} Minutes later, Cowans’s counsel informed the court that Cowans
was refusing to watch the proceedings and was demanding that the audio be turned
down. He was also physically resisting the three deputies guarding him.
{¶ 93} Despite this behavior, the trial judge found, “While disruptive, the
Defendant evidenced no mental instability but rather acted out his pique.”
(Emphasis added.)
{¶ 94} In a wide variety of situations, we have affirmed that factual
determinations are best left to those who see and hear what goes on in the
courtroom. See, e.g., State v. Wilson (1972), 29 Ohio St.2d 203, 211
,58 O.O.2d 409, 414
,280 N.E.2d 915, 920
(deferring to trial judge’s determination of challenge for cause); State v. Fanning (1982),1 Ohio St.3d 19, 20
, 1 OBR 57, 58,437 N.E.2d 583, 584
(weight of evidence and witness credibility are for trier of fact); State v. Morales (1987),32 Ohio St.3d 252, 255
,513 N.E.2d 267, 271
(effect on jury of spectator’s emotional outburst is fact question for trial court); State v. Bradley (1989),42 Ohio St.3d 136, 143
,538 N.E.2d 373, 381
(trial counsel were in better
position than reviewing court to determine how jurors should be questioned).
{¶ 95} Similarly, when a trial court must decide whether to hold a hearing
on the defendant’s competence to stand trial, reviewing courts “give weight * * *
to the trial judge’s opportunity to observe the defendant * * *.” Commonwealth v.
Hall (1982), 15 Mass.App. 1, 3
,443 N.E.2d 121, 122
.
{¶ 96} Maggio v. Fulford (1983), 462 U.S. 111, 117
,103 S.Ct. 2261, 2264
,
22
January Term, 1999
76 L.Ed.2d 794, 799-800
, illustrates the principle. There, it was held that “[t]he trial judge’s observation of [the defendant’s] conduct” provided record support for the conclusion that “there was insufficient question as to [the defendant’s] competence to warrant” further inquiry. Accord People v. Danielson (1992),3 Cal.4th 691, 727
,13 Cal.Rptr.2d 1, 21
,838 P.2d 729, 749
; People v. Morino (Colo.App.1987),743 P.2d 49, 52
; State v. Zorzy (1993),136 N.H. 710, 715
,622 A.2d 1217, 1219-1220
; State v. Edwards (S.D.1997),572 N.W.2d 113, 117-118
.
{¶ 97} We think the trial court’s factual finding in this case ought to receive
the same respect. “Face to face with living witnesses, the original trier of the facts
holds a position of advantage from which appellate judges are excluded. * * * How
can we say the judge is wrong? We never saw the witnesses.” Boyd v. Boyd (1930),
252 N.Y. 422, 429
,169 N.E. 632, 634
.
{¶ 98} Likewise, we never saw Cowans, and thus can hardly say that the
trial judge here was wrong when he said that Cowans “evidenced no mental
instability.” Limited to reviewing the black-and-white record, we are in no position
to second-guess factual determinations made by a trial judge, which may be based
on a person’s demeanor, conduct, gestures, tone of voice, or facial expressions.
(The judge here took specific notice of Cowans’s demeanor, which “would range
from smiling and relaxed * * * to angry and vocal when he was denied a request
or his position was challenged.”)
{¶ 99} Indeed, it is noteworthy that nobody on the spot thought Cowans’s
behavior raised any question as to his competence. Defense counsel, who appear
to have done a diligent job of defending a difficult client, made no suggestion that
Cowans might lack the competence to waive mitigation.
{¶ 100} That competence, as we have recently held, is measured by the
following test: “A [capital] defendant is mentally competent to forgo the
presentation of mitigating evidence * * * if he has the mental capacity to
understand the choice between life and death and to make a knowing and intelligent
23
SUPREME COURT OF OHIO
decision not to pursue the presentation of evidence. The defendant must fully
comprehend the ramifications of his decision and must possess the ability to reason
logically, i.e., to choose means that relate logically to his ends.” Ashworth, 85 Ohio St.3d at 69
,706 N.E.2d at 1241
.
{¶ 101} The defendant’s behavior here did not inherently raise questions
concerning his capacity to understand the difference between life and death, to fully
comprehend the ramifications of his decision, or to reason logically. Moreover, the
trial judge, based on his observations of this defendant, and having the defendant’s
displays of temper in mind, found that these displays resulted from pique, not
mental instability. Thus, in order to find error, we would have to second-guess the
express factual determination of the trial judge. This we decline to do. We
therefore find that the trial court was not required to order a competency hearing
sua sponte.
2. Knowing and Voluntary Waiver
{¶ 102} Cowans also suggests, in this proposition of law, that the trial court
failed to determine whether his waiver of the right to present mitigating evidence
was knowing and voluntary.
{¶ 103} In State v. Ashworth (1999), supra, at paragraph one of the syllabus,
we held that a waiver of the presentation of mitigating evidence must be knowing
and voluntary, and that to ensure this, the trial court must conduct an inquiry of the
defendant on the record.
{¶ 104} Pursuant to Ashworth, the record must affirmatively demonstrate
that (1) the court has informed the defendant of the right to present mitigating
evidence, (2) the court has explained what mitigating evidence is, (3) the defendant
understands the importance of mitigating evidence, (4) the defendant understands
the use of mitigating evidence to offset the aggravating circumstances, (5) the
defendant understands the effect of failing to present mitigating evidence, and (6)
the defendant wishes to waive mitigation. Ashworth at 62
,706 N.E.2d at 1237
.
24
January Term, 1999
{¶ 105} Our primary reason for requiring this procedure was to ensure that
a defendant understood the importance of presenting mitigating evidence, discussed
these issues with counsel, and confirmed in open court that he or she wished to
waive presentation of mitigating evidence. Only then could the trial court, and this
court, be assured that the defendant knowingly and voluntarily waived this
substantial and important right to show the jury or three-judge panel why the death
penalty should not be imposed in his or her particular case.
{¶ 106} Although the trial court in this case did not have the benefit of our
decision in Ashworth, the procedures used in this case to advise Cowans of the
potential consequences of his decision were substantially similar to those adopted
in Ashworth. The transcripts of the sentencing hearing reflect that the court
engaged in communications with the defendant over a two-day period. These
communications included apprising him that he had a right to present testimony
and make a statement, explaining to him that his attorneys had prepared to present
witnesses, inquiring why Cowans did not want to present mitigating evidence, and
informing him that if he presented no evidence the jury would probably impose the
death penalty.
{¶ 107} This colloquy complies with many of the requirements set forth in
Ashworth. Further, defense counsel stated that they had discussed the issue with
Cowans and that he had not arrived at his decision lightly.
{¶ 108} Yet, the trial court failed to address all six Ashworth requirements
in its colloquy with Cowans. Most notably, there was no explanation of what
mitigating evidence is, and no finding on the record that Cowans fully understood
the ramifications of failing to present mitigating evidence or desired to waive his
rights.
{¶ 109} While this procedure fell short of that established in Ashworth, we
hold that our ruling in Ashworth is prospective only. We cannot hold the trial court
accountable for not following a procedure that was not established, or even
25
SUPREME COURT OF OHIO
foreshadowed, when the case was tried.
{¶ 110} We are not holding today that substantial compliance is enough to
satisfy the requirements of Ashworth; however, the trial court here, like the trial
court in Ashworth, did engage the defendant in a colloquy concerning the waiver of
mitigation, even though no guidelines were in place when Cowans was tried. Given
the content of the trial court’s colloquy, there is nothing to indicate that Cowans did
not knowingly and voluntarily relinquish his right to present mitigating evidence.
Since the decision in Ashworth is prospective only, the failure to comply with all
of the procedural requirements set forth in Ashworth is not error in this case.
{¶ 111} To sum up: Cowans’s desire to waive mitigation did not
automatically require a competency hearing, nor did the record create a doubt as to
his competence such as to require a competency hearing; the record indicates that
Cowans’s waiver was knowing and voluntary; and, although the specific procedural
requirements of State v. Ashworth were not complied with in full, they are
prospective only and hence do not apply here. Accordingly, Cowans’s eighth
proposition of law is overruled.
VII. Other Issues
{¶ 112} In his ninth proposition of law, Cowans complains that the guilt-
phase evidence was reintroduced in the penalty phase.
{¶ 113} However, the trial court may admit evidence raised at trial that is
relevant to the nature and circumstances of the aggravating circumstances in the
penalty phase. See State v. DePew (1988), 38 Ohio St.3d 275
,528 N.E.2d 542
, paragraph one of the syllabus; State v. Mason (1998),82 Ohio St.3d 144, 165
,694 N.E.2d 932, 954
, citing State v. Woodard (1993),68 Ohio St.3d 70, 78
,623 N.E.2d 75, 81
. At trial, Cowans did not identify any specific evidence to which he objected. Thus, he has waived any objection relating to the relevance of specific items. Cf. State v. Getsy (1998),84 Ohio St.3d 180, 201
,702 N.E.2d 866, 887
.
{¶ 114} In his tenth proposition of law, Cowans raises already-settled issues
26
January Term, 1999
about the constitutionality of Ohio’s death-penalty statutes. These issues are
summarily overruled. See, generally, State v. Poindexter (1988), 36 Ohio St.3d 1
,520 N.E.2d 568
; State v. Spisak (1988),36 Ohio St.3d 80
,521 N.E.2d 800
.
VIII. Independent Review
{¶ 115} We must now independently review Cowans’s death sentence.
Initially, we note that the four counts of aggravated murder, all of which involved
the same victim, merge. See, e.g., State v. Huertas (1990), 51 Ohio St.3d 22, 28
,553 N.E.2d 1058, 1066
.
{¶ 116} R.C. 2929.05(A) requires that we determine whether the evidence
supports the finding of aggravating circumstances, whether the aggravating
circumstances outweigh the mitigating factors beyond a reasonable doubt, and
whether the death sentence is proportionate to the penalty imposed in similar cases.
{¶ 117} The evidence supports the finding of aggravating circumstances.
Cowans was convicted of an aggravating circumstance under R.C.
2929.04(A)(5)—having a prior conviction of an offense involving “the purposeful
killing of or attempt to kill another * * *.” Cowans had been convicted of murder,
R.C. 2903.02, in 1978. The state proved this specification with a certified copy of
the judgment of conviction and the testimony of Cowans’s parole officer.
{¶ 118} Cowans was also convicted of three separate aggravating
circumstances under R.C. 2929.04(A)(7): aggravated burglary, aggravated robbery,
and kidnapping. The evidence supports the finding of these aggravating
circumstances as well. There can be no doubt that Clara Swart—tied up, robbed,
and murdered in her own home—was the victim of a kidnapping, aggravated
robbery, and aggravated burglary.
{¶ 119} The evidence was more than sufficient to prove that Cowans
committed these acts. Items belonging to Mrs. Swart were found inside Cowans’s
house and on or near his property. The bloodhound tracked Cowans’s scent from
Mrs. Swart’s house to the tree where some of the victim’s personal property had
27
SUPREME COURT OF OHIO
been dumped, and from there to Cowans’s truck.
{¶ 120} Cowans’s palm print on the plastic bag places him inside Mrs.
Swart’s house. Yet Cowans did not enter the house on the July day when he took
the discarded swing, and it is unlikely that he went inside on August 28, the day of
Kilgore’s visit. Since that was the day Mrs. Swart told Kilgore she was afraid of
Cowans, one can reasonably infer that she had not invited him in.
{¶ 121} Cowans tried to mislead Deputy Evans by implying that he was at
Mrs. Swart’s house only once. He also hinted to Mamie Trammel that she should
say that he was at her house on the morning of August 29, which Trammel testified
was not so. Cowans stated twice (to Trammel and to Evans) that Mrs. Swart had
been “hung,” a detail not disclosed to the news media. Finally, he admitted his guilt
to Marvin Napier.
{¶ 122} Cowans expressly refused to present any mitigation or make an
unsworn statement in the penalty phase. Nor have we found in the guilt phase any
of the other mitigating factors listed in R.C. 2929.04(B)(1) through (B)(6). Nor do
we find therein any other reason not to sentence Cowans to death. See R.C.
2929.04(B)(7).
{¶ 123} Nothing in the nature and circumstances of this case, as revealed at
the guilt phase, constitutes a mitigating factor. The record shows that Cowans was
unemployed at the time of the murder and wanted to leave Ohio, but this deserves
no weight in mitigation. The record shows that Cowans once worked at a restaurant
in Kentucky, but there is no evidence concerning his work record or any other
evidence going to his history or background.
{¶ 124} We note that Cowans’s wife testified on his behalf in the guilt
phase. We infer that she loves him, and that is a mitigating factor, but it deserves
no appreciable weight in this case. We also agree with the trial court that Cowans’s
kindness to animals deserves no weight in this case.
{¶ 125} The state proved four aggravating circumstances at trial. Cowans
28
January Term, 1999
is a recidivist murderer who invaded his victim’s home, tied her up, and killed her
to steal a few trinkets. Mitigation is nearly nonexistent. We conclude that the
aggravating circumstances in this case outweigh any mitigating factors beyond a
reasonable doubt.
{¶ 126} Cowans’s death sentence, we find, is proportionate to sentences
approved in similar cases. See State v. Tyler, supra
(robbery-murder); State v. Jackson (1991),57 Ohio St.3d 29
,565 N.E.2d 549
(robbery-murder); State v. Waddy (1992),63 Ohio St.3d 424
,588 N.E.2d 819
(kidnapping, aggravated burglary); State v. Cook (1992),65 Ohio St.3d 516
,605 N.E.2d 70
(kidnapping, aggravated robbery); State v. Allen (1995),73 Ohio St.3d 626
,653 N.E.2d 675
(robbery-murder); State v. Otte (1996),74 Ohio St.3d 555
,660 N.E.2d 711
(felony- murder, multiple-murder); State v. Spivey (1998),81 Ohio St.3d 405
,692 N.E.2d 151
(felony-murder).
{¶ 127} For all of the foregoing reasons, the judgment of the court of
common pleas imposing the sentence of death on Jessie J. Cowans is affirmed.
Judgment affirmed.
DOUGLAS, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ.,
concur.
MOYER, C.J., dissents.
__________________
MOYER, C.J., dissenting.
{¶ 128} In State v. Ashworth (1999), 85 Ohio St.3d 56
,706 N.E.2d 1231
, paragraph one of the syllabus, we held that “when a defendant wishes to waive the presentation of all mitigating evidence, a trial court must conduct an inquiry of the defendant on the record to determine whether the waiver is knowing and voluntary.” (Emphasis sic.) We also held that a defendant must be competent to forgo the presentation of mitigating evidence.Id.,
paragraph two of the syllabus. I
cannot concur in the refusal of the majority to apply these principles to the case at
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bar.
{¶ 129} We further recognized in Ashworth that a “trial court should be
cognizant of actions on the part of the defendant that would call into question the
defendant’s competence.” Id. at 62
,706 N.E.2d at 1237
. In the penalty phase of a
capital case, where the decision to be made is one of life and death, any indicium
of incompetence should be explored to ensure that a defendant is capable of making
a knowing and intelligent waiver of this critical right.
{¶ 130} In the case at bar the trial court should have ordered a competency
hearing and expressly determined whether Jesse Cowans knowingly and
voluntarily waived his right to present mitigating evidence. Cf. State v. Ashworth.
Because these critical procedural safeguards were not employed in this capital case,
I respectfully dissent.
I
Competency
{¶ 131} A defendant is mentally competent to forgo the presentation of
mitigating evidence in the penalty phase of a capital case if (1) he has the mental
capacity to understand the choice between life and death, (2) he has the mental
capacity to make a knowing and intelligent decision not to pursue the presentation
of evidence, (3) he fully comprehends the ramifications of his decision, and (4) he
possesses the ability to reason logically and to choose means that relate logically to
his ends. See Ashworth, paragraph two of the syllabus; State v. Berry (1996), 74 Ohio St.3d 1504
,659 N.E.2d 796
.
{¶ 132} The majority cites State v. Tyler (1990), 50 Ohio St.3d at 29
,553 N.E.2d at 585
, for the proposition that waiver of mitigation, in and of itself, does
not call into question a capital defendant’s competence. I concurred in Tyler, and
now conclude that all capital defendants who instruct their counsel to waive
mitigation should be evaluated for competency. Furthermore, I believe Cowans
should have been examined for competency under the precedent established in
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January Term, 1999
Tyler and Ashworth. That precedent, recognized by the majority, provides that a
court must inquire into the competence of a capital defendant who decides to waive
the right to present mitigation evidence, if some reason exists to question
competence, other than the waiver decision itself.
{¶ 133} Cowans’s circumstance is not one where the sole indicium of
incompetence is that the capital defendant decided to waive mitigation. Rather,
Cowans’s behavior at trial, which the trial court acknowledged to be disruptive,
combined with his apparently illogical choice to waive mitigation after having been
found guilty, while never expressing a desire for imposition of the death penalty
over life in prison, and all the while maintaining his innocence, should have alerted
the trial court to the possibility that Cowans lacked competence to knowingly and
voluntarily waive his right to present mitigation evidence.
{¶ 134} In Tyler, the defendant indicated to the jury that he would prefer a
death sentence to life imprisonment. Acknowledging and accepting his fate, despite
his protestation of innocence, Tyler told the jury that “to serve a life sentence ‘for
a murder that I didn’t commit’ would be as bad or worse than, death.” Tyler at 27
,
553 N.E.2d at 583. Tyler told the jury that whether or not they believed him to be
guilty, “if it [sic] is any kindness in your heart at all, then you have got to still give
me a death verdict, because life in the penitentiary is death.” Id.
{¶ 135} The reasoned choice to waive mitigation made by Tyler is clearly
distinguishable from the decision made by Cowans. Tyler fully realized that the
presentation of mitigating evidence could potentially dissuade the jury from
sentencing him to death. He chose not to present mitigating evidence precisely
because he feared that the jury would consider the evidence and decide to sentence
him to life in prison, a fate he considered worse than death.
{¶ 136} In contrast, Cowans never indicated that he would prefer a death
sentence to life in prison. Rather, Cowans had a fixed and unshakable belief that
any further participation in the sentencing or mitigation process would be
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completely futile, as demonstrated repeatedly throughout the trial.
{¶ 137} During the reading of the verdict but before the jury left the
courtroom, Cowans directed an outburst riddled with obscene language at the court
and at the jury in which he repeatedly demanded to be removed from the courtroom.
The court ordered that the defendant be taken into the court basement, to a room
equipped with closed-circuit TV and sound, so that he could hear and see the
remainder of the court proceedings. After the jurors completed reading the verdict
forms and returned to the jury room, the court deputy approached the trial judge
and reported under oath that Cowans had disabled the closed circuit TV set,
including the sound, and was asking to be taken back to the jail.
{¶ 138} At the evidentiary hearing regarding the prior murder specification,
Cowans again refused to be a part of the proceedings:
“Defense Counsel: * * * He has indicated he no longer wishes to be present
in the courtroom for any proceedings. He doesn’t want to be present for the
evidentiary hearing * * *[,] he does not want to be present for the mitigation
hearing, nor does he want to be present for sentencing. His reasoning as expressed
to me, on the mitigation phase, is that it is inherently biased because the jury that’s
already found him guilty of 20 counts, that would be biased against him when it
came to any mitigation. And therefore, he doesn’t choose to participate in that
phase of it. And also, since he has stated he believes that the process by which the
recommendation of the jury is obtained and given to the court is biased, that he does
not wish to participate in the sentencing. * * *
“***
“The Court: You do not wish to be present for this hearing?
“The Defendant: I don’t want to be a part of none of this kangaroo * * *.
“The Court: All right. Sir, then at this point in time, we’ll have him
removed from the courtroom.
“***
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January Term, 1999
“We’ll put him downstairs at this stage.
“***
“The Defendant: No, no, no, don’t man. What do I — * * * Man, what do
I — I don’t want to be a part of none of this s* * *, it’s kangaroo.
“The Court: You have a right to hear what’s going on, Mr. Cowans.
“The Defendant: I’m cool; I’m cool.
“The Court: Mr. Cowans, do you understand you have the right to a
hearing?
“The Defendant: I don’t want to be a part of none of your kangaroo court.
I don’t want to be nowhere in the courthouse.
“***
“The Court: All right. You have the right, sir, to participate in this hearing
if you wish, sir.
“The Defendant: Yeah, kangaroo court.”
{¶ 139} The court then put Cowans back into the room with closed-circuit
TV and audio hookup. A few minutes later, Cowans’s counsel informed the court
that Cowans was requesting that the sound on the audio be turned down. He was
refusing to watch, had his back to the screen, and was struggling with three deputies
while demanding to be returned to the jail immediately.
{¶ 140} As demonstrated above, Cowans exhibited behaviors and beliefs
that should have put the trial court on notice that Cowans’s thinking might be less
than rational. Cowans’s disruptive behavior could have been a misguided protest
against the criminal justice proceedings against him, grounded in rational thought.
However, his behavior could also have been the result of mental instability. His
outbursts demonstrate a potential inability to control his behavior and reveal a
feeling of futility that could be produced from a mental disorder affecting his
competency to execute a valid waiver.
{¶ 141} Moreover, the record demonstrates that Cowans repeatedly made
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comments consistent with the unreasonable belief, approaching paranoia, that
everyone involved in the trial was working against him. In addition to the
comments previously quoted, which demonstrate an extreme distrust of the jury,
the judge, and the prosecutor, Cowans exhibited an inflexible belief from the very
beginning of his case that even his assigned counsel believed that he was guilty and
that he had no real chance of getting a fair trial.
{¶ 142} Prior to the jury voir dire, Cowans asked that his first set of counsel
be dismissed because they discussed plea-bargain options with him, and he
expressed a fear that anyone else from that counsel’s office would be controlled by
the originally appointed counsel. Cowans told the court that appointing other
counsel from the same office would be “just like hanging me, Your Honor, you
might as well hang me.”
{¶ 143} He continued his protests against assigned counsel saying, “[t]he
reason I am coming at this, this man keeps pushing me to plea bargain. Now if you
give me an attorney from his office, he will still be running the show behind the
scenes. I think, you know, I beg the Court to at least think about that.” Cowans’s
appointed counsel told that court that he hadn’t even started to talk to Cowans about
plea-bargain possibilities. Counsel stated, “I hadn’t even said the words plea
bargain. * * * I am more than willing to work with Mr. Cowans. I don’t know,
he obviously felt that I was trying to pressure him, but I certainly wasn’t and I am
more than happy to have him reject the plea bargain and go forward at trial.”
{¶ 144} In an abundance of caution, the court decided to allow Cowans’s
motion to appoint new counsel, and Cowans proceeded to challenge the second set
of counsel as well. Again, Cowans expressed a belief that counsel were working
against him, trying to pressure him into pleading guilty to the murder.
“The Defendant: They want—they feel I am guilty, you know. I feel they
can’t represent me to best of their ability because they feel I am guilty.
“***
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January Term, 1999
“The Defendant: It is not about liking them. They are wanting me to plead
guilty and lie. * * *”
{¶ 145} Again, Cowans’s counsel informed the court that Cowans’s fears
were unfounded. Counsel told the court that they had never advised Cowans that
they thought he was guilty. “[W]e did what all attorneys do with clients, discuss
evidence and discuss theories * * * and we have had some differences on
approaches. But we have not said those things, nor have we ever asked Mr. Cowans
to tell an untruth under oath or any other wise [sic].”
{¶ 146} When the court refused Cowans’s second request to have counsel
removed, Cowans appeared unable to accept the court’s determination. He
remained fixated on his belief that counsel was working against him and that his
only hope was to have new counsel appointed. The court’s attempts to move
Cowans past that issue and onto other necessary matters was futile. Because
Cowans was unresponsive with the court and would not give up the notion that he
should have new counsel appointed, the trial court had him removed from the
courtroom.
{¶ 147} A week later, when Cowans was returned to the courtroom for
further proceedings, he continued to exhibit a fixation on the idea that his own
counsel believed him to be guilty and were working against him. During this
communication with the court, Cowans also indicated a belief that the prosecuting
attorney was out to get him, that someone was laughing at him, and that the court
itself was biased against him. His inappropriate behaviors escalated:
“The Defendant: Your Honor, prosecution is going to say stuff like that.
They would rather me keep counsel that ain’t going to be able to represent me to
their fullest, because that would be in their benefit.
“***
“The Court: Mr. Cowans, let me advise you, again, sir, that you have the
right to sit here and participate in this trial.
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SUPREME COURT OF OHIO
“The Defendant: Participate how? Participate in hanging me?
“The Court: I just told you, Mr. Cowans.
“***
“The Defendant: The man is going to laugh at me.
“The Court: Did I just tell you before, not too long ago —
“The Defendant: The man is going to laugh at me.
“The Court: — you are leaving this Courtroom if you continue this?
“The Defendant: The man is going to laugh at me.
“The Court: If he laughs, sir, so what? So what if he laughs at you?
“The Defendant: So, now, I see what it’s really about.
“The Court: At this point in time, sir, he shouldn’t be laughing at you. But
the point of the matter is, you are not to react this way.
“The Defendant: Why not? I’m fighting for my life, man.
“The Court: You are going to leave this courtroom if you keep it up, Mr.
Cowans.
“The Defendant: I want the Judge to tell me what I’m supposed to do now
to get new counsel. I want new counsel. I don’t want this man as my counsel.
“The Court: Mr. Cowans, at this point in time, I’m indicating that this is
the counsel that you are going to have to work with, sir.
“The Defendant: So, what do we do now during trial? I don’t want this
man as my counsel. I don’t want this man representing me in anything. Now,
what?
“The Court: Do you wish to represent yourself, Mr. Cowans?
“The Defendant: How? I don’t know s* * * about law. How?
“The Court: Then I suggest you cooperate.
“The Defendant: Cooperate with a man that’s trying to down me? Come
on, Your Honor.
“The Court: You have Mr. Wallace, also, Mr. Cowans.
36
January Term, 1999
“The Defendant: Yeah, okay. I see what this is about.
“The Court: Anything else?
“The Defendant: Yeah. I feel that you might as well be in their pocket.
Are they paying you to down me or something? Is the prosecution paying you,
Your Honor?
“The Court: Anything else?
“The Defendant: Must be.
“The Court: Do you have anything else you want to add about this motion,
sir, before we leave?
“The Defendant: I would like new counsel.”
{¶ 148} Additionally, Cowans expressed his distrust of the woman who
would have controlled the stun belt, which Cowans had the option of wearing rather
than appearing before the jury in shackles. Cowans told the court that he would not
wear the belt if she was in control of it because he thought that she seemed to have
a “personal problem” with him.
{¶ 149} The defendant’s outbursts, fixations, and apparent feelings of
persecution should have put the court on notice that there was a least a possibility
that Cowans was incompetent to make a rational decision to waive mitigation.
Expression of his beliefs could have been based on a rational attempt to control or
manipulate the criminal proceedings. They could also have been based on a mental
disorder creating paranoia.
{¶ 150} In order to avoid the very argument raised by defendant in this
appeal, the trial court should have ordered a competency hearing to determine
whether, in fact, the defendant was competent to waive this essential right. Because
the record does not reveal that Cowans’s decision to waive mitigation has a rational
connection to any of his stated goals or choices, Cowans’s competency to waive
mitigation remains in question.
{¶ 151} The majority is satisfied with the trial court’s evaluation that
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SUPREME COURT OF OHIO
Cowans evidenced “no mental instability but rather acted out his pique.” My
review of the record causes me to conclude that the conclusion of the trial court was
not obvious from Cowans’s conduct. Particularly where an accused may receive
the penalty of death, trial courts should be most cautious in making their own
conclusion regarding the competence of the defendant to make rational decisions
regarding the trial of his or her own case.
{¶ 152} As has been demonstrated by an increasing number of cases in Ohio
and nationwide, failing to conduct a timely competency hearing when a capital
defendant desires to waive mitigation will likely lead only to more appeals, longer
delays, and diminished confidence that the death penalty is being used only in truly
appropriate cases. In addition to preserving the defendant’s rights, the trial courts
can promote judicial economy by avoiding foreseeable appeals, and can promote
faith in the system, by making it a practice to order competency hearings whenever
there is any indication that the defendant’s competency to execute a knowing and
voluntary waiver may be affected.
II
Knowing and Voluntary Waiver
{¶ 153} I agree with the majority that the colloquy requirements adopted in
Ashworth should be strictly followed and that substantial compliance should not be
deemed sufficient. This court has long recognized the mandatory nature of such
procedural safeguards, and, in recent years, we have vacated the death sentence in
two cases when the trial court failed to strictly adhere to procedural requirements:
State v. Pless (1996), 74 Ohio St.3d 333
,658 N.E.2d 766
, paragraph one of the syllabus; and State v. Green (1998),81 Ohio St.3d 100
,689 N.E.2d 556
, syllabus.
{¶ 154} However, I also believe that these requirements should be applied
not only prospectively but in all cases. The colloquy requirements outlined in
Ashworth are procedural requirements this court deemed necessary to ensure that a
waiver of mitigation has been made knowingly and intelligently.
38
January Term, 1999
{¶ 155} The trial court below made no determination on the record
regarding Cowans’s understanding and waiver of rights. Unlike the trial court in
Ashworth, the trial court here failed to define “mitigating evidence,” and the record
does not indicate that Cowans fully understood the importance of mitigating
evidence and its use to offset aggravating circumstances. Rather, the record shows
that Cowans repeatedly agreed to whatever the court asked, often without even
waiting until the statement was complete. This does not demonstrate an
understanding of the importance of mitigation or of waiving the right to present any
mitigating evidence.
{¶ 156} Further, the court did not fully outline the consequences of
Cowans’s decision to forgo the presentation of mitigating evidence. While the
court did state that without mitigating evidence the jury would “probably” come
back with a death penalty verdict, this does not adequately represent the
significance of the waiver. As reflected in the jury instructions given by the court,
a death penalty verdict was not only “probable” but required by law if aggravating
circumstances existed and no mitigation was presented. See Emerson v. Gramley
(C.A.7, 1996), 91 F.3d 898, 906
.
{¶ 157} In Ashworth, there were several discussions between the trial court
and the defendant regarding the mandatory nature of imposing the death penalty if
no mitigation evidence was presented. Nothing in the record of this case, however,
indicates that Cowans understood the compulsory nature of the jury instructions
that would be presented in this regard.
{¶ 158} In order to fully understand the importance of mitigating evidence
and its use to offset the aggravating circumstance(s), it is also necessary that the
defendant understand the possible mitigation evidence available in his or her own
case. Id.,
91 F.3d at 906
. Defense counsel stated that they had discussed the issue
with Cowans and that he had not arrived lightly at his decision; however, nothing
in the record indicates that counsel fully explained the specific mitigating evidence
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available to Cowans. The court should have inquired both of Cowans, and of
defense counsel, whether counsel had explained the specific mitigating evidence
available and whether Cowans understood how that evidence might offset the
aggravating circumstances of the crime.
{¶ 159} Further, because of the specific concerns raised by this defendant
on the record, the court should have explained that the jury, despite having found
him guilty, was legally obligated to find that the death penalty was not appropriate
if any mitigating evidence outweighed the aggravating circumstances. It may also
have been helpful to specifically address that the state has the burden to prove,
beyond a reasonable doubt, that the aggravating circumstances outweigh the
mitigating factors and that juries cannot legally recommend the death penalty solely
because they find a defendant guilty of the underlying charges.
{¶ 160} The court made no findings of fact as to Cowans’s understanding
and waiver of rights, and the record in this case does not demonstrate that Cowans
did, in fact, knowingly and voluntarily waive his rights to mitigation. Therefore,
regardless of whether the specific procedural guidelines set forth in Ashworth are
applied to this case or applied only prospectively, the record in this case does not
indicate that Cowans knowingly and voluntarily waived his mitigation rights.
{¶ 161} Based on the foregoing reasons, I would hold that Cowans’s
competency to waive mitigation was never established, and his former waiver is
therefore void. In addition, even if Cowans had been deemed competent to waive
mitigation, the record does not establish that Cowans’s waiver was knowing and
intelligent. Therefore, I would affirm his conviction, but would reverse the death
sentence and remand for resentencing.
__________________
40