Opinion · Ohio Supreme Court
State v. Mitts
81 Ohio St. 3d 223
- Type
- Opinion
- Court
- Ohio Supreme Court
- Jurisdiction
- Ohio
- Date
- 1998-03-11
- Topic
- general
A trial court is vested with discretion “to determine whether the evidence is sufficient to Scioto App. No. 21CA3974 41 require a jury instruction”
Citator
- Cited by
- 63 opinions
[This opinion has been published in Ohio Official Reports at81 Ohio St.3d 223
.]
THE STATE OF OHIO, APPELLEE, v. MITTS, APPELLANT.
[Cite as State v. Mitts, 1998-Ohio-635
.]
Criminal law—Aggravated murder—Death penalty upheld, when.
(No. 97-268—Submitted December 2, 1997—Decided March 11, 1998.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 68612.
__________________
{¶ 1} Appellant, Harry D. Mitts, appeals from his convictions and sentence
to death for the aggravated murders of Sergeant Dennis Glivar and John Bryant and
the attempted murders of Lieutenant Thomas Kaiser and Officer John Mackey.
{¶ 2} On the evening of August 14, 1994, Timothy Rhone helped his sister
and brother-in-law, Jeff Walters, move into their apartment. The apartment was on
the second floor in the same building where Mitts lived. Between 7:00 and 8:00
p.m., Rhone noticed a man, who he later learned was Mitts, carrying a gun tucked
into the small of his back. Fifteen to thirty minutes later, Mitts, who was wearing
blue target-shooting earmuffs, confronted Rhone in the hallway. According to
Rhone, Mitts pointed a “black and huge” laser-sighted gun at Rhone’s head and
“told [him] to get out or [he] was going to fucking die.” When Rhone replied that
he did not understand, Mitts said, “I’m not joking, get out now.” Rhone backed
away and asked his mother and sister to call 9-1-1 because “a man with a gun [was]
threatening to shoot people.”
{¶ 3} A short time later, Tracey Griffin and her boyfriend, John Bryant, saw
Mitts walking toward them wearing yellow glasses or goggles and carrying a gun.
Griffin knew Mitts because they lived in the same apartment complex and their
daughters had played together. Mitts’s gun emitted a light, and Griffin saw a dot
of red light appear on Bryant’s chest. Mitts said, “[N]iggers, niggers, I’m just sick
SUPREME COURT OF OHIO
and tired of niggers.” Mitts aimed directly at Bryant, Griffin heard a shot, and
Bryant fell down.
{¶ 4} Mitts then walked away, sporadically firing his gun, and later walked
back toward Griffin, still firing his weapon, but now in her direction. In the
meantime, Walters and Terry Rhone, Timothy’s brother, came out to help Bryant.
Mitts aimed his gun and shouted at them, “Leave him there, don’t move.” Walters
and Terry Rhone disregarded Mitts’s instruction and carried Bryant into their
second-floor apartment.
{¶ 5} Around 8:15 p.m., Patrolman John Cermak arrived, and a bystander
saw Mitts put a new clip in his gun. Taking “a ready [firing] position,” Mitts fired
several shots at Patrolman Cermak, forcing Cermak to drive his car up on a lawn
and take cover. Lt. Kaiser and Sergeant Dennis Glivar then arrived. After firing at
Patrolman Cermak, Mitts retreated to his first-floor apartment. Patrolman Cermak
searched for Mitts, and Lt. Kaiser and Sgt. Glivar went to the apartment building’s
second floor, where they found Griffin, Bryant, and the Rhone family. After calling
paramedics, Lt. Kaiser and Sgt. Glivar walked down to the first floor.
{¶ 6} As Lt. Kaiser and Sgt. Glivar approached Mitts’s apartment, Mitts
flung his apartment door open and opened fire with a gun in each hand. Mitts
repeatedly shot Sgt. Glivar, forcing him to drop his shotgun, and he shot Lt. Kaiser
in the chest and right hand. Lt. Kaiser switched his pistol to his left hand and forced
Mitts to retreat by firing three or four times. Lt. Kaiser returned to the Rhone
apartment, where he kept a watch on Mitts’s apartment, and radioed for police
assistance including the area S.W.A.T. team.
{¶ 7} Although wounded, Lt. Kaiser attempted for twenty to thirty minutes
to talk Mitts into surrendering, but Mitts replied, “[T]he only way we’re going to
end this is if you kill me. You have to come down, you have to do your job and
you have to kill me.” Mitts, who had overheard Lt. Kaiser’s S.W.A.T. request over
Sgt. Glivar’s abandoned police radio, additionally told Lt. Kaiser, “Go ahead, bring
2
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the S.W.A.T. team in, I have thousands of rounds of ammunition. I’ll kill your
whole S.W.A.T. team. I’ll kill your whole police department * * *.”
{¶ 8} Mitts also threatened Griffin; Mitts told Lt. Kaiser that he was “going
to come up and kill that nigger-loving bitch that’s upstairs with you.” Mitts also
told Lt. Kaiser that he had been drinking bourbon and was angry because the Grand
River Police Chief “stole [his] wife.” Eventually, Patrolman Cermak dragged Sgt.
Glivar’s body from the hallway and Patrolman Cermak and others used a ladder
and rescued Rhone’s family and Lt. Kaiser from the upstairs apartment.
{¶ 9} During the standoff, Mitts called his ex-wife, Janice Salerno, and her
husband, Grand River Police Chief Jonathon Salerno. Chief Salerno thought Mitts
was joking when Mitts told him that “it’s all over with now, I shot a couple of cops
and I killed a fucking nigger.” Chief Salerno, who believed Mitts was drunk, tried
to talk him into surrendering, but Mitts refused. Mitts claimed that he had intended
to kill both Salerno and his wife, but did not because Mitts’s daughter, Melanie,
lived with the Salernos.
{¶ 10} Around 8:40 p.m., Maple Heights Police Officer John Mackey
responded to the call for police assistance from the city of Garfield Heights. After
helping Patrolman Cermak rescue Lt. Kaiser and the Rhone family, Officer
Mackey, Sergeant Robert Sackett, and others took tactical positions in the hallway
outside Mitts’s apartment. Taking over Lt. Kaiser’s role as a negotiator, Officer
Mackey talked with Mitts for over thirty minutes, but Mitts refused to surrender
and, at various times, continued to fire shots. Using Sgt. Glivar’s shotgun, Mitts
fired twice into a mailbox across the hall, and he also emptied ten pistol shots into
that mailbox. According to Officer Mackey, Mitts’s voice appeared calm, and he
“never showed any anger or * * * animosity towards” the officers.
{¶ 11} Around 9:30 p.m., Mitts discerned Officer Mackey’s position in the
upstairs apartment from the sound of his voice and fired up the stairway and through
3
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a wall, hitting Officer Mackey’s leg with a bullet fragment. Other police officers
returned fire and rescued Officer Mackey.
{¶ 12} Around 1:00 a.m., the S.W.A.T. team injected tear gas into Mitts’s
apartment and finally subdued Mitts around 2:00 a.m. Mitts, who had been shot
during the standoff, was taken by ambulance to a local hospital, then transported
by helicopter to a trauma center at Cleveland’s MetroHealth Medical Center. At
3:43 p.m., a blood sample was drawn from Mitts, and his blood-alcohol level was
later determined to be .21 grams per one hundred milliliters.
{¶ 13} After arresting Mitts, detectives searched his apartment and found
two sets of shooting earmuffs, a yellow pair of glasses customarily used on shooting
ranges, a .44 caliber magnum revolver, a 9 mm automatic pistol, a .22 caliber pistol,
a laser gun-sight, thousands of rounds of ammunition in boxes, and two nearly
empty liquor bottles. The police later learned that Mitts had spent the afternoon
target shooting at the Stonewall Range, a firing range. Upstairs in apartment 204,
detectives found Bryant’s body.
{¶ 14} Dr. Heather Raaf, a forensic pathologist, performed autopsies on
John Bryant and Sgt. Dennis Glivar. Bryant bled to death within thirty minutes as
a result of a single gunshot wound to his chest piercing both lungs and tearing the
aorta. Sgt. Glivar died within “a few minutes” from five gunshots to the trunk
causing perforations of his lung, heart, liver, kidney, stomach, and intestines. Sgt.
Glivar also had been shot in the left shoulder and forearm. Dr. Raaf recovered
multiple bullets or fragments from Sgt. Glivar’s body and one small-caliber bullet
from Bryant’s body.
{¶ 15} A grand jury indicted Mitts for the aggravated murders of Sgt.
Dennis Glivar (Count One) and John Bryant (Count Two) and the attempted
murders of Lt. Thomas Kaiser (Count Three) and Officer John Mackey (Count
Four). As death penalty specifications, Count One charged that Mitts knowingly
murdered a peace officer in the performance of his duties, R.C. 2929.04(A)(6).
4
January Term, 1998
Both aggravated murder counts contained three separate course-of-conduct
specifications relating to the other three shooting victims. See R.C. 2929.04(A)(5).
All four counts also had firearms specifications, and Counts Three and Four added
a specification that the victims were peace officers.
{¶ 16} At trial, Mitts did not contest the evidence proving the facts, but
instead attempted to establish that he was too intoxicated to form the required intent
to kill. After a penalty hearing, the jury recommended the death penalty on both
aggravated murder counts. The trial court sentenced Mitts to death for the
aggravated murders and to terms of imprisonment for the attempted murders. The
court of appeals affirmed the convictions and sentences.
{¶ 17} The cause is now before this court upon an appeal as of right.
__________________
Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and
David Zimmerman, Assistant Prosecuting Attorney, for appellee.
David L. Doughten and John P. Parker, for appellant.
__________________
COOK, J.
{¶ 18} In this appeal, Mitts advances eleven propositions of law. Finding
none meritorious, we affirm his convictions. In accordance with the mandate of
R.C. 2929.05(A), we have considered each of Mitts’s propositions of law and have
reviewed the sentence for appropriateness and proportionality.
{¶ 19} We have previously held that R.C. 2929.05 does not require this
court to address and discuss, in opinion form, each proposition of law raised in a
capital case. See, e.g., State v. Keith (1997), 79 Ohio St.3d 514, 517
,684 N.E.2d 47, 54
; State v. Allen (1995),73 Ohio St.3d 626, 628
,653 N.E.2d 675, 680
.
Accordingly, we reject the eleventh proposition of law, a familiar attack on the
constitutionality of Ohio’s death-penalty statutes, for reasons we have often stated
5
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before. We address the remainder of the propositions of law below and for the
reasons that follow we affirm the judgment of the court of appeals.
I
The Guilt Phase
{¶ 20} In his second proposition of law, Mitts argues that the trial court
erred in not allowing Dr. Sonya McKee, a psychiatrist, to answer a hypothetical
question during her guilt-phase testimony.
{¶ 21} At trial, the defense called Dr. McKee, who testified that she had
examined Mitts and found him competent, not suffering from any mental disease
or defect, and responsible for his acts. Dr. McKee did think that Mitts was
intoxicated on the day of the offenses and suffering from impaired memory as a
result, and she answered various hypothetical questions on those points. But the
court sustained the state’s objection to a question concerning a hypothetical man,
“B,” who hated “black people [and] police officers,” then got drunk, and shot a
black man and a police officer. This question contrasted “B” with a hypothetical
person, “A,” presumably Mitts, who did not dislike blacks or police officers.
{¶ 22} Initially, we note that Mitts did not preserve this issue for review by
proffering the substance of the excluded testimony. See Evid.R. 103(A)(2); State
v. Gilmore (1986), 28 Ohio St.3d 190
, 28 OBR 278,503 N.E.2d 147
, syllabus. Even if it was properly preserved, we would find no abuse of discretion in the exclusion of this evidence. See State v. Williams (1996),74 Ohio St.3d 569, 576
,660 N.E.2d 724, 732
, citing State v. Williams (1983),4 Ohio St.3d 53
, 4 OBR 144,446 N.E.2d 444
, syllabus. Under Evid.R. 403(A), the trial court must exclude
evidence “if its probative value is substantially outweighed by the danger of * * *
confusion of the issues, or misleading the jury.” Defense counsel’s attempt to
secure Dr. McKee’s opinion contrasting two hypothetical persons was misleading
and confusing.
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January Term, 1998
{¶ 23} Moreover, the trial court could have excluded the testimony because,
except in the mitigation phase, “a defendant may not offer expert psychiatric
testimony, unrelated to the insanity defense, to show that, due to mental illness,
intoxication, or any other reason, he lacked the mental capacity to form the specific
mental state required for a particular crime or degree of crime.” State v. Cooey
(1989), 46 Ohio St.3d 20, 26
,544 N.E.2d 895, 906
; accord State v. Wilcox (1982),70 Ohio St.2d 182, 194
,24 O.O.3d 284
, 291,436 N.E.2d 523, 530
; State v. Slagle (1992),65 Ohio St.3d 597, 607
,605 N.E.2d 916, 927
; State v. Huertas (1990),51 Ohio St.3d 22, 27
,553 N.E.2d 1058, 1065
(rejecting expert witnesses as to the
effect of intoxication). Thus, we reject Mitts’s second proposition of law.
{¶ 24} By his fourth proposition of law, Mitts challenges the trial court’s
refusal to instruct the jury on voluntary intoxication when “a reasonable jury could
find that the defendant could not form the requisite intent due to * * * inebriation.”
{¶ 25} As we recognized in State v. Fox (1981), 68 Ohio St.2d 53, 54-55
,22 O.O.3d 259, 260
,428 N.E.2d 410, 411
, “[t]he common law and statutory rule in American jurisprudence is that voluntary intoxication is not a defense to any crime.” Nonetheless, “where specific intent is a necessary element, * * * if the intoxication was such as to preclude the formation of such intent, the fact of intoxication may be shown to negative this element.” Fox,68 Ohio St.2d at 55
,22 O.O.3d at 260
,428 N.E.2d at 411-412
.
{¶ 26} In denying the defense request for an instruction on intoxication, the
trial court relied on State v. Hicks (1989), 43 Ohio St.3d 72
,538 N.E.2d 1030
. In
Hicks, the trial court did not instruct on voluntary intoxication despite evidence of
intoxication. On appeal Hicks claimed that he was so intoxicated, through cocaine,
that he could not form the specific intent to kill. The Hicks court recognized that
“[t]he issue of intoxication is not raised as a defense to the element of purpose * *
* merely because the evidence suggests reduced inhibitions, impaired judgment or
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blurred appreciation by the defendant of the consequences of his conduct.” Id.
at
syllabus.
{¶ 27} It is within the sound discretion of the trial court to determine
whether the evidence is sufficient to require a jury instruction on intoxication. State
v. Wolons (1989), 44 Ohio St.3d 64
,541 N.E.2d 443
, paragraph two of the syllabus; State v. Fox,68 Ohio St.2d 53
,22 O.O.3d 259
,428 N.E.2d 410
. Evidence of intoxication is sufficient to raise the intoxication defense only where, if believed, it would support acquittal. State v. Hicks,43 Ohio St.3d at 75
,538 N.E.2d at 1034
.
{¶ 28} Here, there was evidence that Mitts was intoxicated during the police
standoff, but the jury still could not have reasonably found that he lacked the
capacity to form a specific intent to kill at the time of the murders. Testimony from
witnesses who observed Mitts before or during the shootings does not support a
finding that Mitts was so intoxicated that he did not intend what he was doing when
he shot the victims. Around 8:00 p.m., when Timothy Rhone encountered Mitts in
the hallway, Mitts displayed no signs of intoxication. Mitts held the gun
“[p]erfectly steady” when he aimed it at Rhone’s head. After 8:00 p.m., when
Griffin saw Mitts walk up, aim, and shoot Bryant, Mitts was not staggering. Daniel
O’Brien saw Mitts just after he killed Bryant and when Mitts shot at the first
responding police car. O’Brien testified that Mitts was not staggering as he walked
around, and he had no trouble ejecting the clip from his weapon, reloading, and
firing several times at a police car.
{¶ 29} Between 8:30 and 9:00 p.m., after Mitts shot Lt. Kaiser and Sgt.
Glivar, Lt. Kaiser tried to negotiate with Mitts for twenty or thirty minutes. Mitts
threatened to kill Bryant’s girlfriend, Griffin, as well as the entire police
department. By refusing to surrender and demanding that the police come to his
apartment and kill him, Mitts demonstrated that he was acting purposefully and
knew what he had done and what he was doing. At that time, Mitts said he had
been drinking, but he did not say how much and his speech was not slurred.
8
January Term, 1998
{¶ 30} Officer Mackey, who talked with Mitts even later, also noted that
Mitts said he had been drinking, but Mitts was “calm” and “never angry,” and his
speech pattern did not indicate intoxication. Further, Mitts read the label on
Glivar’s shotgun and fired it twice, although he was unfamiliar with that weapon.
Sgt. Robert Sackett, who joined in Mitts’s lengthy conversations with Officer
Mackey, thought Mitts seemed “completely sober.”
{¶ 31} Chief Salerno, who first talked with Mitts around 8:30 p.m. during
the police standoff, testified that Mitts would “giggle and laugh” at times, and at
other times would “start getting angry.” Mitts told Salerno that he had finished
drinking a bottle of bourbon and was now drinking scotch. Salerno thought Mitts
was drunk, but Mitts told him exactly what he had done, i.e., killed a black man and
shot two police officers. Detective Ronald Arco also thought Mitts was intoxicated
when he overheard Mitts on the telephone around 9:42 p.m.
{¶ 32} Police Sergeant Gary Wolske, who stayed with Mitts after he was
arrested around 2:00 a.m., described him as quiet, neither combative nor confused,
and apparently sober. A nurse who first treated Mitts testified that he displayed no
signs of intoxication. A Life Flight nurse, who saw Mitts later, thought he had been
drinking, but his speech was not impaired. Mitts indicated that he knew what he
had done because he told the nurse, “I’m a cop killer and you might as well kill me
now.” Mitts also said, “I think I killed a nigger.”
{¶ 33} Mitts’s strongest evidence of intoxication is his blood-alcohol level
of .21 grams per one hundred milliliters taken at 3:43 a.m. Although the blood-
alcohol level is evidence that Mitts was intoxicated at the time of the blood test,
more than six hours after the shootings, it does not compel an intoxication
instruction because the jury could not have inferred from it that the intoxication
precluded Mitts from forming the intent to purposefully commit the murders.
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{¶ 34} The evidence of intoxication could not have supported a verdict of
acquittal. The trial court was correct in determining that an intoxication instruction
was not required. Accordingly, we reject the fourth proposition of law.
II
Penalty Phase
A
Instruction on Nature of Life Sentences
{¶ 35} In his first proposition of law, Mitts argues that the trial court should
have instructed the jury that it could recommend that Mitts receive consecutive life
sentences on the two counts of aggravated murder. The trial judge denied Mitts’s
request for such an instruction. The court did not err by refusing to give Mitts’s
requested instruction because it is not an accurate statement of the law. See State
v. Scott (1986), 26 Ohio St.3d 92, 101
, 26 OBR 79, 87,497 N.E.2d 55, 63
. Under Ohio law, “[a] jury has no option of recommending whether life sentences should run consecutively or concurrently.” State v. Allard (1996),75 Ohio St.3d 482, 492
,663 N.E.2d 1277, 1287
, citing State v. Grant (1993),67 Ohio St.3d 465, 482
,620 N.E.2d 50, 69
; see, also, R.C. 2929.03(D)(2).
{¶ 36} Mitts next argues that the trial court’s failure/refusal to tell the jury,
in response to a question, that he could or would require that life sentences, if
recommended, be served consecutively violated Mitts’s rights under the Fifth,
Eighth, and Fourteenth Amendments to the United States Constitution. During
penalty deliberations, the jury asked the judge, “Would a verdict of life
imprisonment on count one and count two be served consecutively or
concurrently?” The court answered that these aggravated murder counts “are
separate and distinct counts. * * * [T]he matter or the question as to consecutive or
concurrent sentencing is up to the Court * * *.” Mitts contends that “[t]he jury
question implies that the life option may have been recommended had the jury been
10
January Term, 1998
assured that the judge would or could order that the sentences be served
consecutively.”
{¶ 37} In State v. Allard, 75 Ohio St.3d at 492
,663 N.E.2d at 1287
, when
faced with the same issue, we responded that “assertions regarding the jury’s
possible motives for asking about consecutive and concurrent sentences are purely
speculative” and “the trial court’s response to the jury’s question was proper, since
a jury has no option of recommending whether life sentences should run
consecutively or concurrently.”
{¶ 38} Mitts relies on Simmons v. South Carolina (1994), 512 U.S. 154
,114 S.Ct. 2187
,29 L.Ed.2d 133
. Simmons held that a trial judge violated an accused’s
due process rights by refusing to instruct the jury that a life sentence, under the facts
and the applicable law, carried with it no possibility of parole. Mitts’s reliance on
Simmons is misplaced. In Simmons, South Carolina statutes prohibited Simmons’s
release on parole. This information was relevant given the prosecution’s argument
of Simmons’s future dangerousness and the evidence that the public misunderstood
the meaning of “life imprisonment” in South Carolina. In Simmons, a plurality
reasoned that, to the extent that the jury’s misunderstanding (that Simmons could
be released on parole) pervaded the jury’s deliberations, it had the effect of creating
a false choice between sentencing petitioner to death and sentencing him to a
limited period of incarceration. Id. By contrast, in Mitts’s case the prosecutor did
not argue future dangerousness and there was no misunderstanding by the jury—
the law in Ohio is that the judge is to make the determination of whether sentences
will be served concurrently or consecutively. Moreover, counsel’s argument that
it was unrealistic to think that the trial judge would impose concurrent sentences
here is speculative. Accordingly we overrule Mitts’s first proposition of law.
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B
Merger of Capital Specifications
{¶ 39} In his third proposition of law, Mitts contends that the trial court’s
failure to merge duplicative capital specifications was prejudicial error because
significant mitigating evidence existed. Both aggravated murder counts charged
Mitts with three course-of-conduct specifications, R.C. 2929.04(A)(5). For
example, Count One, alleging the aggravated murder of Sgt. Glivar, included
specification three, a course-of-conduct specification in which Bryant was killed.
Specification four alleged a course of conduct in which Mitts attempted to kill Lt.
Kaiser, and specification five alleged a course of conduct in which Mitts attempted
to murder Officer Mackey. Count Two, alleging the aggravated murder of Bryant,
included three similar specifications concerning Sgt. Glivar, Lt. Kaiser, and Officer
Mackey.
{¶ 40} Multiple course-of-conduct specifications are duplicative and must
be merged at the sentencing phase. See State v. Jenkins (1984), 15 Ohio St.3d 164, 194-200
, 15 OBR 311, 337-342,473 N.E.2d 264, 292-296
. In fact, such multiple course-of-conduct specifications should not even be included in an indictment. In State v. Spisak (1988),36 Ohio St.3d 80, 84
,521 N.E.2d 800, 803
, this court held that “[e]ach aggravated murder count should thus contain only one specification that appellant’s acts were part of a course of conduct.” Further, if such multiple specifications are included in an indictment, the “trial court should instruct the jury in the penalty phase that those duplicative specifications must be considered merged for purposes of weighing the aggravating circumstances against the mitigating factors.” State v. Garner (1995),74 Ohio St.3d 49, 53
,656 N.E.2d 623, 630
. No such instruction was given in this case. To determine whether that omission constituted reversible error we must engage in a two-pronged analysis.Id.,
citing State v. Jenkins,15 Ohio St.3d 164
, 15 OBR 311,473 N.E.2d 264
, at
paragraph five of the syllabus. In the first prong we determine “whether the
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January Term, 1998
specifications at issue ‘ar[o]se from the same act or indivisible course of conduct,’
and were thus, in fact, duplicative.” Id.,
quoting State v. Jenkins,15 Ohio St.3d 164
, 15 OBR 311,473 N.E.2d 264
, at paragraph five of the syllabus. The court of
appeals correctly held, and the state concedes, that the specifications were
duplicative.
{¶ 41} For the second prong, we must “determine whether the jury’s
penalty-phase consideration of those duplicative aggravating circumstances
affected its verdict, and independently determine whether the merged aggravating
circumstances outweigh the mitigating factors beyond a reasonable doubt.” Id.
“[M]erging of aggravating circumstances [can] take place upon appellate review,” and “resentencing is not automatically required.” State v. Jenkins,15 Ohio St.3d 164
, 15 OBR 311,473 N.E.2d 264
, at paragraph five of the syllabus; State v. Garner,74 Ohio St.3d at 53
,656 N.E.2d at 630
; State v. Spisak,36 Ohio St.3d at 84
,521 N.E.2d at 803
.
{¶ 42} We find that the trial court’s failure to instruct the jury that the
duplicative specifications should be considered merged did not influence the jury
to recommend the death penalty rather than life imprisonment. The outcome of the
penalty hearing did not hinge on the failure to merge these three course-of-conduct
specifications. We agree with the appellate court that merger of the duplicative
course-of-conduct specifications into a single specification listing each shooting
victim would not change the nature of the evidence which the jury was statutorily
required to consider. Furthermore, the judge did not instruct the jury that its finding
of guilt of multiple specifications should be deemed to increase the weight given
the aggravating circumstances. Cf. State v. Penix (1987), 32 Ohio St.3d 369, 372
,513 N.E.2d 744, 747
.
{¶ 43} Moreover, our independent weighing of the mitigating factors
against the properly merged aggravating circumstances may be used to cure the
penalty-phase error. State v. Combs (1991), 62 Ohio St.3d 278, 286
,581 N.E.2d 13
SUPREME COURT OF OHIO 1071, 1079; Clemons v. Mississippi (1990),494 U.S. 738
,110 S.Ct. 1441
,108 L.Ed.2d 725
. Accordingly, we reject Mitts’s third proposition of law.
C
Jury Instruction Issues
{¶ 44} With his fifth proposition of law, Mitts argues that the trial court
erred by instructing the jury that its sentencing verdict was only a recommendation
and not binding on the court. Mitts’s counsel failed to object at trial and waived all
but plain error. State v. Slagle (1992), 65 Ohio St.3d 597, 605
,605 N.E.2d 916, 925
. Plain error is an obvious error or defect in the trial proceedings that affects a substantial right. Crim.R. 52(B). Under this standard, reversal is warranted only when the outcome of the trial would have been different without the error. State v. Long (1978),53 Ohio St.2d 91
,7 O.O.3d 178
,372 N.E.2d 804
, paragraph two of
the syllabus.
{¶ 45} This court has previously held that the trial court does not err by
referring to the jury’s verdict as a recommendation or by recognizing that the trial
court would make the final decision on the death penalty. See, e.g., State v.
Woodard (1993), 68 Ohio St.3d 70, 77
,623 N.E.2d 75, 80-81
; State v. DePew (1988),38 Ohio St.3d 275, 280
,528 N.E.2d 542, 550
; State v. Jenkins,15 Ohio St.3d 164
, 15 OBR 311,473 N.E.2d 264
, at paragraph six of the syllabus.
Accordingly, we overrule Mitts’s fifth proposition of law.
{¶ 46} In his sixth proposition of law, Mitts raises three additional penalty-
phase issues, but Mitts’s counsel failed to object or request additional instructions
and again waived all but plain error. State v. Williams (1977), 51 Ohio St.2d 112
,5 O.O.3d 98
,364 N.E.2d 1364
, paragraph one of the syllabus; State v. Underwood (1983),3 Ohio St.3d 12
, 3 OBR 360,444 N.E.2d 1332
, syllabus. First, Mitts argues
that the trial court erred by giving the statutory definition of “reasonable doubt,” as
contained in R.C. 2901.05(D). In doing so, the trial court referred to the “truth of
the charge.” While this specific reference is inappropriate in the penalty-phase
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January Term, 1998
context, this deficiency was not outcome-determinative. See State v. Taylor (1997),
78 Ohio St.3d 15, 29
,676 N.E.2d 82, 96
; State v. Woodard,68 Ohio St.3d at 76
- 77,623 N.E.2d at 80
; State v. Spirko (1991),59 Ohio St.3d 1, 17
,570 N.E.2d 229, 248
.
{¶ 47} Second, Mitts argues that the trial court gave an improper “acquittal-
first” instruction on its sentencing deliberations in violation of State v. Thomas
(1988), 40 Ohio St.3d 213
,533 N.E.2d 286
. The court did not instruct the jury that it could consider lesser penalties only if it first unanimously rejected the death penalty. Instead, the court instructed that if all twelve members of the jury found that the state had not proved that the aggravating circumstances outweighed mitigating factors, then it must choose between the possible life sentences. That instruction is consistent with R.C. 2929.03(D)(2) and does not constitute error. State v. Taylor,78 Ohio St.3d at 28-29
,676 N.E.2d at 95
; State v. Davis (1996),76 Ohio St.3d 107, 116-118
,666 N.E.2d 1099, 1108-1109
.
{¶ 48} Third, Mitts complains because the trial court instructed, without
objection, that the jury “must not be influenced by any consideration of sympathy
or prejudice,” as opposed to the term “mere sympathy.” Again, this issue lacks
merit. Sympathy is not a relevant sentencing criteria, and “[t]here is no practical
difference between ‘mere sympathy’ and ‘any sympathy’ in this context.” State v.
Taylor, 78 Ohio St.3d at 30
,676 N.E.2d at 96
. The court’s instruction to the jury not to consider sympathy or prejudice was a correct statement of the law. State v. Allen (1995),73 Ohio St.3d 626, 638
,653 N.E.2d 675, 687
; State v. Steffen (1987),31 Ohio St.3d 111, 125
, 31 OBR 273, 285,509 N.E.2d 383, 396
; State v. Jenkins,15 Ohio St.3d 164
, 15 OBR 311,473 N.E.2d 264
, at paragraph three of the syllabus.
Thus, we reject Mitts’s sixth proposition of law.
{¶ 49} With Proposition of Law VIII, Mitts argues that the trial court erred
in refusing to instruct the jury that “it could consider as mitigating the fact that the
appellant was highly intoxicated at the time of the offense.” The court, however,
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followed the statutory language in R.C. 2929.04(B), and accurately stated the law
by instructing the jury to consider the accused’s “history, character and
background,” as well as his lack of a criminal record and “[a]ny other factors that
are relative [sic] to the issue whether defendant should be sentenced to death.”
{¶ 50} Thus, the jury was allowed to consider all of the mitigation evidence
including Mitts’s asserted intoxication, as well as his counsel’s argument that
intoxication was a mitigating factor. The jury was not precluded from considering
any evidence as mitigating. In State v. Landrum (1990), 53 Ohio St.3d 107, 122
,559 N.E.2d 710, 727-728
, we held that a trial judge did not err by simply following
the statutory language and declining to instruct that particular evidence was a
possible specific mitigating factor. We find that Mitts’s eighth proposition of law
lacks merit.
D
Ineffective Assistance of Counsel
{¶ 51} In his seventh proposition of law, Mitts argues that his counsel’s
failure to object to improper jury instructions deprived him of his constitutional
right to the effective assistance of counsel. Reversal of a conviction or sentence on
the grounds of ineffective assistance of counsel requires that the defendant show,
first, that counsel’s performance was deficient and, second, that the deficient
performance prejudiced the defense so as to deprive the defendant of a fair trial.
Strickland v. Washington (1984), 466 U.S. 668, 687
,104 S.Ct. 2052, 2064
,80 L.Ed.2d 674, 693
. To demonstrate that counsel is deficient, appellant must show that counsel’s performance fell below an objective standard of reasonable representation. State v. Bradley (1989),42 Ohio St.3d 136
,538 N.E.2d 373
, paragraph two of the syllabus. To demonstrate prejudice, appellant must prove that there exists a reasonable probability that were it not for counsel’s error, the result of the trial would have been different.Id.
at paragraph three of the syllabus.
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January Term, 1998
{¶ 52} Mitts’s claims of ineffective assistance do not meet the Strickland
standard. Since we have previously concluded that the trial court’s “acquittal first”
instruction, “reasonable doubt” definition, and use of the term “recommendation”
were not erroneous, counsel’s performance was not deficient for failing to raise
these issues. (See discussion of Propositions of Law V and VI, above.)
{¶ 53} As we discussed under Proposition of Law III, the course-of-conduct
death-penalty specifications should have been merged. Any deficiency in counsel’s
failure to raise this issue, however, did not prejudice the defendant because, as we
determined, the failure to merge was not outcome-determinative.
{¶ 54} Mitts also raises his counsel’s failure to object to prosecutorial
misconduct. On that point, however, Mitts fails to describe specifically any alleged
prosecutorial misconduct. Hence, we reject this proposition of law.
E
Trial Court’s Sentencing Opinion
{¶ 55} In his tenth proposition of law, Mitts argues that the “trial court
improperly weighed the relevant sentencing factors” in imposing the death sentence
on Mitts.
{¶ 56} In imposing a sentence, “the assessment and weight to be given
mitigating evidence are matters for the trial court’s determination.” State v. Lott
(1990), 51 Ohio St.3d 160, 171
,555 N.E.2d 293, 305
. The fact that mitigation evidence is admissible “does not automatically mean that it must be given any weight.” State v. Steffen (1987),31 Ohio St.3d 111
, 31 OBR 273,509 N.E.2d 383
, paragraph two of the syllabus. See, also, State v. Stumpf (1987),32 Ohio St.3d 95
,509 N.E.2d 598
, at paragraph two of the syllabus. R.C. 2929.03(F) does require,
however, that the trial court state in its separate opinion its specific findings as to
the existence of the mitigating factors, the aggravating circumstances the offender
was found guilty of committing, and the reasons why the aggravating circumstances
were sufficient to outweigh the mitigating factors. R.C. 2929.03(F); State v.
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SUPREME COURT OF OHIO
Maurer (1984), 15 Ohio St.3d 239
, 15 OBR 379,473 N.E.2d 768
, paragraph three
of the syllabus.
{¶ 57} We agree with Mitts that the trial court erred by not separately
weighing the aggravating circumstances in each count of aggravated murder. State
v. Cooey (1989), 46 Ohio St.3d 20
,544 N.E.2d 895
, paragraph three of the syllabus. The trial court also incorrectly stated that no evidence of any statutory mitigating factors existed; in fact, the evidence showed that Mitts had no criminal record. See R.C. 2929.04(B)(5). Although the trial court correctly identified the aggravating circumstances, the trial court did not merge the specifications as it should have done. (See discussion on Proposition of Law III.) Nor does the trial court’s opinion explain why the aggravating circumstances outweighed the mitigating factors. See State v. Fox (1994),69 Ohio St.3d 183, 190-191
,631 N.E.2d 124, 130-131
.
{¶ 58} Despite these deficiencies in the trial court’s opinion, we find that
reversal is not required. The court of appeals already noted these defects and
determined, after an independent sentence review, that the death penalty was
appropriate. Further, our “independent review of a sentence will cure any flaws in
the trial court’s opinion.” State v. Fox, 69 Ohio St.3d at 191
,631 N.E.2d at 131
. Accord State v. Hill (1996),75 Ohio St.3d 195, 210
,661 N.E.2d 1068, 1082
; State v. Lott,51 Ohio St.3d at 170-173
,555 N.E.2d at 304-307
. Accordingly, we overrule
the tenth proposition of law.
III
Independent Sentence Assessment
{¶ 59} In his ninth proposition of law, Mitts argues that “the proven
aggravating factors * * * do not outweigh the mitigating factors,” summarizes the
mitigating evidence, and outlines various mitigating factors he draws from that
evidence. We will consider these arguments in our independent sentence review.
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January Term, 1998
{¶ 60} Pursuant to R.C. 2929.05, we independently weigh the aggravating
circumstances against the mitigating factors and determine whether Mitts’s
sentence is disproportionate to sentences in similar cases.
{¶ 61} Sgt. Glivar’s murder has two aggravating circumstances: (1) that the
victim was a peace officer in the line of duty (R.C. 2929.04[A][6]) and (2) that the
murder was part of a course of conduct involving the purposeful killing or attempt
to kill two or more persons (R.C. 2929.04[A][5]). Bryant’s murder carries only the
course-of-conduct aggravating circumstance. The evidence proves these
aggravating circumstances beyond a reasonable doubt.
{¶ 62} We find that the nature and circumstances of these offenses do not
offer the slightest mitigating value. In contrast, Mitts’s history, character, and
background are entitled to some mitigating weight. As several witnesses testified,
Mitts was respected and loved by his family and was a devoted father. See State v.
Fox, 69 Ohio St.3d at 194
,631 N.E.2d at 133
. Mitts’s brother testified that Mitts was the oldest child in the family and that while growing up Mitts looked after the younger children. Mitts’s sister described Mitts as “laid-back” and a “gentle giant,” who was very protective of his brothers and sisters. Mitts served honorably for four years in the Coast Guard, and he was gainfully employed all of his life. See State v. Lundgren (1995),73 Ohio St.3d 474, 495
,653 N.E.2d 304, 324-325
; State v. Fox, supra; State v. Simko (1994),71 Ohio St.3d 483, 496
,644 N.E.2d 345
, 350; State v. Brewer (1990),48 Ohio St.3d 50, 64
,549 N.E.2d 491, 505
. We accord all
of these factors some mitigating weight.
{¶ 63} R.C. 2929.04(B)(1) through (4) and (6) are not applicable in this
case. The victims did not “induce or facilitate” the offenses and Mitts did not act
under ”duress, coercion or strong provocation.” (R.C. 2929.04[B][1] and [2].) The
expert opinion testimony confirmed that Mitts did not suffer from any “mental
disease or defect.” (R.C. 2929.04[B][3].) Mitts was forty-two years old at the time
of the offenses and was the principal offender. (R.C. 2929.04[B][4] and [6].)
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{¶ 64} Mitts had no criminal record, and this “noteworthy” mitigating
factor in R.C. 2929.04(B)(5) is entitled to significant mitigating weight. See State
v. Fox, 69 Ohio St.3d at 195
,631 N.E.2d at 133-134
.
{¶ 65} As to “other factors” (R.C. 2929.04[B][7]), Mitts claims remorse for
his actions as well as the influence of alcohol as mitigating factors. Mitts’s
expression of remorse in his unsworn statement is entitled to some weight. See
State v. Rojas (1992), 64 Ohio St.3d 131, 143
,592 N.E.2d 1376, 1387
. As to alcohol, Mitts presented no evidence that he was an alcoholic, and voluntary drunkenness is entitled to very little mitigating weight. See, e.g., State v. Slagle,65 Ohio St.3d at 614
,605 N.E.2d at 931
.
{¶ 66} We now weigh these mitigating factors against the aggravating
circumstance(s) in each murder. “When a capital defendant is convicted of more
than one count of aggravated murder, * * * [o]nly the aggravating circumstances
related to a given count may be considered in assessing the penalty for that count.”
State v. Cooey (1989), 46 Ohio St.3d 20
,544 N.E.2d 895
, paragraph three of the
syllabus. Based on the evidence, we find that the aggravating circumstances in the
murder of Sgt. Glivar outweigh the mitigating factors. As to the murder of Bryant,
we also find that the aggravating circumstance outweighs the mitigating factors.
{¶ 67} We further conclude that the death penalty imposed for each
aggravated murder is appropriate and proportionate when compared with similar
capital cases. As to “course of conduct” murders, see State v. Allard (1996), 75 Ohio St.3d 482
,663 N.E.2d 1277
; State v. Williams (1996),74 Ohio St.3d 569
,660 N.E.2d 724
; State v. Dunlap (1995),73 Ohio St.3d 308
,652 N.E.2d 988
; State v. Loza (1994),71 Ohio St.3d 61
,641 N.E.2d 1082
; State v. Grant (1993),67 Ohio St.3d 465
,620 N.E.2d 50
; State v. Lorraine (1993),66 Ohio St.3d 414
,613 N.E.2d 212
; State v. Hawkins (1993),66 Ohio St.3d 339
,612 N.E.2d 1227
; State v. Montgomery (1991),61 Ohio St.3d 410
,575 N.E.2d 167
; and State v. Combs (1991),62 Ohio St.3d 278
,581 N.E.2d 1071
. When compared with prior cases
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January Term, 1998
involving the murder of a peace officer, the death penalty is also appropriate and
proportionate. See, e.g., State v. Zuern (1987), 32 Ohio St.3d 56
,512 N.E.2d 585
; State v. Glenn (1986),28 Ohio St.3d 451
, 28 OBR 501,504 N.E.2d 701
.
{¶ 68} Accordingly, we affirm the convictions and death penalty.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG
STRATTON, JJ., concur.
_________________
APPENDIX
{¶ 69} “Proposition of Law I: In a capital murder trial, the court must
instruct the jury that it may recommend consecutive life sentences where the
defendant has been convicted of two separate and distinct counts of aggravated
murder. The failure to instruct properly is violative of the Fifth, Eighth and
Fourteenth Amendments to the United States Constitution.
{¶ 70} “Proposition Law II: The trial court may not prohibit an expert
witness from answering a hypothetical question where it is relevant and would
assist the jury in analyzing the evidence.
{¶ 71} “Proposition of Law III: Failing to merge capital specifications
which results in jury consideration of duplicative aggravating factors cannot been
[sic] held as harmless error where significant factors in mitigation were introduced
into evidence.
{¶ 72} “Proposition of Law IV: The trial court must charge the jury on the
defense of voluntary intoxication where a reasonable jury could find that the
defendant could not form the requisite intent due to his or her inebriation. The
failure to provide the intrution [sic] is violative of the Fifth, Sixth and Fourteenth
Amendments to the United States Constitution and Article I, Sections 9 and 16 of
the Ohio Constitution.
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{¶ 73} “Proposition of Law V: The trial court may not instruct the jury that
its death verdict was only a recommendation but a life verdict was binding on the
court.
{¶ 74} “Proposition of Law VI: Inaccurate penalty phase instructions that
misguide the jury as to their duties under the law render the resultant sentence
unreliable and violative of the Fifth, Sixth, Eighth and Fourteenth Amendments to
the United States Constitution and §§ 9, 10 and 16, Article I, of the Ohio
Constitution.
{¶ 75} “Proposition of Law VII: Where trial counsel fails to object to
erroneous jury instructions and improper comments of the prosecutor, the
defendant is denied effective assistance of counsel where there is a reasonable
probability that the death sentence would not have been recommended had counsel
made the objections.
{¶ 76} “Proposition of Law VIII: The trial court may not refuse to provide
relevant mitigating instructions to the penalty phase jury. The refusal to instruct is
in contravention of the Fifth, Eighth and Fourteenth Amendments to the United
States Constitution.
{¶ 77} “Proposition of Law IX: Where the proven aggravating factors in
the evidence do not outweigh the mitigating factors present pursuant to Ohio
Rev.Code § 2929.03, a sentence of the death sentence [is] violative of the Fifth,
Sixth, Eighth and Fourteenth Amendments of the United States Constitution and
Article I, Sections 9 and 16 of the Ohio Constitution.
{¶ 78} “Proposition of Law X: The trial court improperly weighed the
relevant sentencing factors inviolation [sic] of R.C. 2929.03(F).
{¶ 79} “Proposition of Law XI: Imposition of the death sentence violates
the Sixth, Eighth and Fourteenth Amendments to the United States Constitution
and Sections 2, 9, 10 and 16, Article I, of the Ohio Constitution.”
22