The opinion
[This opinion has been published in Ohio Official Reports at 80 Ohio St.3d 371.]
THE STATE OF OHIO v. BERRY.
[Cite as State v. Berry, 1997-Ohio-336.]
Criminal law—Aggravated murder—Death penalty—Defendant waives further
challenges to his death sentence—Standard by which competency is to be
evaluated—Execution warrant issued by Supreme Court.
(No. 93-2592—Submitted September 24, 1997—Decided December 3, 1997.)
ON MOTION to Adopt Findings of Fact and Opinion and to Issue Execution
Warrant.
__________________
{¶ 1} Wilford Lee Berry, Jr., was convicted of the aggravated murder of
Charles Mitroff and sentenced to death. His conviction and death sentence were
affirmed by the court of appeals and, in June 1995, by this court. State v. Berry
(1995), 72 Ohio St.3d 354, 650 N.E.2d 433. Berry desires to submit to execution
of his death sentence, and therefore to terminate further challenges to his conviction
and sentence. The Ohio Public Defender, who has been representing Berry, claims
that he is not mentally competent to make such a decision. The state contends that
Berry is competent.
{¶ 2} After repeated representations by Berry to this court and others that
he desired to discontinue this litigation, the state filed a motion in this court for a
competency hearing. We ordered an evaluation of Berry’s competence and
appointed Dr. Phillip J. Resnick to conduct the evaluation. See State v. Berry
(1995), 74 Ohio St.3d 1460, 656 N.E.2d 1296; 74 Ohio St.3d 1470, 657 N.E.2d
511; (1996), 74 Ohio St.3d 1492, 658 N.E.2d 1062. Dr. Resnick examined Berry
in April 1996.
{¶ 3} We articulated the standard by which Berry’s competence is to be
evaluated as follows: “A capital defendant is mentally competent to abandon any
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and all challenges to his death sentence * * * if he has the mental capacity to
understand the choice between life and death and to make a knowing and intelligent
decision not to pursue further remedies. The defendant must fully comprehend the
ramifications of his decision, and must possess the ‘ability to reason logically,’ i.e.,
to choose ‘means which relate logically to his ends.’ ” (Citations omitted.) State
v. Berry (1996), 74 Ohio St.3d 1504, 659 N.E.2d 796.
{¶ 4} Subsequently, we remanded the cause to the Court of Common Pleas
of Cuyahoga County with directions to hold a hearing on the issue of Berry’s
competence, render findings of fact, and return the case to this court for further
proceedings. State v. Berry (1996), 77 Ohio St.3d 1439, 671 N.E.2d 1279.
{¶ 5} The state called two witnesses: Dr. Resnick and Dr. Robert W.
Alcorn, a psychiatrist agreed upon by the state and the Public Defender and
appointed by the common pleas court, who examined Berry in 1997. Drs. Resnick
and Alcorn found Berry to be competent. The Public Defender also called two
witnesses: Dr. Sharon L. Pearson, a psychologist who examined Berry in 1995 at
the Public Defender’s request and found him incompetent, and Dr. Jeffrey L.
Smalldon, a psychologist who never examined Berry and had no opinion as to his
competence, but who testified generally regarding schizotypal personality disorder
and its relevance to determining a person’s competence. (The Public Defender also
proffered the testimony of attorney Alan Freedman, a specialist in appeals of capital
cases, who gave an opinion of Berry’s chances of prevailing on federal habeas
corpus; however, that testimony was not admitted.)
{¶ 6} After hearing the evidence, the trial judge found that Berry “is
competent to forgo any and all further legal challenges.” She found that Berry
understands the choice between life and death, has the capacity to make a knowing
and intelligent decision not to pursue further remedies and the capacity to reason
logically, and fully comprehends the ramifications of his decision.
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{¶ 7} She further found that Berry suffers from a mixed personality disorder
with schizotypal, borderline, and antisocial features, and that he has no mental
disease. Berry’s disorder does not prevent him from understanding his legal
position and the options available to him, or from making a rational choice between
those options. He understands that abandoning his appeals will result in his being
put to death, and he considers death preferable to life in prison.
{¶ 8} The judge found that the view of Resnick and Alcorn that Berry was
competent is “more credible and convincing” than Pearson’s view that he was not.
The judge noted that Resnick is highly experienced and “nationally recognized for
his work.” The judge regarded Pearson as “sincere” and her conclusions as
“thoughtful,” but noted her “minimal experience in the area of forensic psychiatry.”
She also found it curious that Berry’s rigidity of thought, which Pearson had
testified was the primary factor in her conclusions, was not mentioned in her written
report. The judge also based her conclusions on her own “opportunity to carefully
observe the demeanor of Mr. Berry.”1
{¶ 9} Finally, after an extensive colloquy with Berry, the judge found that
Berry has in fact voluntarily, knowingly, and intelligently decided to forgo any
future challenges to his conviction and death sentence, and that he is aware of his
constitutional right to counsel and the dangers and disadvantages of self-
representation.
{¶ 10} The hearing record was filed in this court on July 25, 1997. The
cause is now before us pursuant to our order of November 18, 1996, reported at 77
Ohio St.3d 1439, 671 N.E.2d 1279, supra, and upon the state’s motion for the
issuance of an execution warrant.
__________________
1. We note that Berry engaged in some disruptive conduct during status conferences that preceded
the evidentiary hearing, but not during the hearing itself.
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Betty D. Montgomery, Attorney General, Jeffrey S. Sutton, State Solicitor,
Simon B. Karas, Deputy Chief Counsel, Sharon McClellan and Karl Wetzel,
Assistant Attorneys General; Stephanie Tubbs Jones, Cuyahoga County
Prosecuting Attorney, and George J. Sadd, Assistant Prosecuting Attorney, urging
allowance of the motion.
David H. Bodiker, Ohio Public Defender, Joseph E. Wilhelm, Appellate
Supervisor, Death Penalty Division, and J. Joseph Bodine, Jr., Assistant Public
Defender, urging denial of the motion.
__________________
Per Curiam.
{¶ 11} We have reviewed the record and considered the arguments of the
state and the Public Defender. Based on our review, we find that Berry is competent
to forgo all further reviews of his conviction and sentence.
I. Jurisdiction
{¶ 12} The Public Defender argues that the Ohio Constitution gives us no
jurisdiction to determine Berry’s competence. Section 2(B)(1)(f), Article IV, Ohio
Constitution, grants this court original jurisdiction “[i]n any cause on review as may
be necessary to its complete determination.” However, the Public Defender argues
that, because this court has decided Berry’s direct appeal, Berry’s case is not
presently a “cause on review” before this court.
{¶ 13} State v. Steffen (1994), 70 Ohio St.3d 399, 639 N.E.2d 67,
demonstrates that the term “cause on review” is not limited to cases currently
pending on direct appeal. In Steffen, we issued an order prohibiting other Ohio
courts from granting further stays of execution to ten condemned prisoners. Each
of the ten had completed his direct appeal to this court and at least one motion for
delayed reconsideration and/or reinstatement of his appeal. Nine had also
completed one round of postconviction relief under R.C. 2953.21. Not one had any
litigation then pending before this court. See 70 Ohio St.3d at 399-405, 639 N.E.2d
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at 69-72. In Steffen, we specifically cited Section 2(B)(1)(f) to support our exercise
of jurisdiction, even though the capital cases were not then before us on appeal. Id.
at 407-408, 639 N.E.2d at 74.
{¶ 14} Similarly, we have regularly set execution dates and granted stays of
execution well after issuing our mandate in capital appeals.2 Were the Public
Defender correct, we could do neither.
II. The Test of Competence: Rees v. Peyton
{¶ 15} In Rees v. Peyton (1966), 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d
583, one Rees (a condemned prisoner) filed a petition for certiorari in the United
States Supreme Court seeking review of a federal court judgment denying habeas
corpus relief. Subsequently, Rees directed his counsel to withdraw the petition and
forgo any further attacks on his conviction and sentence. Counsel had Rees
examined by a psychiatrist, who concluded that Rees was incompetent.
{¶ 16} The Supreme Court, while retaining jurisdiction over the cause,
directed the federal district court to determine Rees’s mental competence, framing
the question as follows: “[W]hether he has capacity to appreciate his position and
make a rational choice with respect to continuing or abandoning further litigation
or on the other hand whether he is suffering from a mental disease, disorder, or
defect which may substantially affect his capacity in the premises.” 384 U.S. at
314, 86 S.Ct. at 1506, 16 L.Ed.2d at 584-585.
{¶ 17} The Public Defender contends that under Rees, if there exists even a
possibility that Berry’s mental disorder has affected his decisionmaking capacity in
any way and to any degree, this court must find him incompetent. See Rumbaugh
2. See, e.g., State v. Phillips (1995), 74 Ohio St.3d 72, 656 N.E.2d 643, reconsideration denied
(1995), 74 Ohio St.3d 1485, 657 N.E.2d 1378, stay granted (1996), 74 Ohio St.3d 1503, 659 N.E.2d
795; State v. Scudder (1994), 71 Ohio St.3d 263, 643 N.E.2d 524, reconsideration denied (1995),
71 Ohio St.3d 1459, 644 N.E.2d 1031, stay granted (1995), 71 Ohio St.3d 1488, 646 N.E.2d 464,
stay terminated (1996), 74 Ohio St.3d 1502, 659 N.E.2d 794, stay granted (1996), 74 Ohio St.3d
1515, 660 N.E.2d 470.
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v. Procunier (C.A.5, 1985), 753 F.2d 395, 405 (Goldberg, J., dissenting). We
disagree.
{¶ 18} If a mere possibility were enough to render a defendant incompetent,
there would have been no need in Rees for a competency determination by the
federal district court. Rees had been “examined by a psychiatrist who filed a
detailed report concluding that Rees was mentally incompetent.” 384 U.S. at 313,
86 S.Ct. at 1506, 16 L.Ed.2d at 584. Thus, before the decision in Rees, there was
already a strong possibility that Rees’s decision was substantially affected by his
mental condition.
{¶ 19} In Smith v. Armontrout (C.A.8, 1987), 812 F.2d 1050, the court
expressly considered this issue.3 The “next-friend petitioners” in that case, like the
Public Defender here, focused on the word “may” in the second half of the Rees
test. “Rees, they maintain, indicates through its use of the word ‘may’ that an
inmate must be found incompetent where the evidence establishes even a mere
possibility that a mental disorder substantially affected the decision.” (Emphasis
sic.) Id. at 1057.
{¶ 20} The Smith court rejected that analysis:
“[T]he petitioner’s literal interpretation of the half of the Rees test which
asks whether the prisoner suffers from ‘a mental disease, disorder, or defect which
may substantially affect his capacity,’ would conflict with a similarly literal
interpretation of the other half of the test, which asks whether the prisoner has,
rather than absolutely, certainly, or undoubtedly has, the capacity to appreciate his
position and make a rational choice. Though Rees recites these two portions of the
standard as disjunctive alternatives, there is necessarily an area of overlap between
3. The Public Defender cites In re Heidnik (C.A.3, 1997), 112 F.3d 105, in support of his position,
but Heidnik simply recites the Rees standard, without expressly considering whether a defendant
must be deemed incompetent upon a mere possibility that a mental disorder substantially affects his
capacity.
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the category of cases in which at the threshold we see a possibility that a decision
is substantially affected by a mental disorder, disease, or defect, and that of cases
in which, after proceeding further, we conclude that the decision is in fact the
product of a rational thought process.
“Furthermore, we think it very probable * * * that in every case where a
death-row inmate elects to abandon further legal proceedings, there will be a
possibility that the decision is the product of a mental disease, disorder, or defect.
Yet, Rees clearly contemplates that competent waivers are possible * * * and there
is little point in conducting a competency inquiry if a finding of incompetency is
virtually a foregone conclusion.” 812 F.2d at 1057.
{¶ 21} We agree with the Smith court’s analysis and therefore reject the
notion that the bare possibility of a mental disorder’s substantially affecting the
condemned’s decisionmaking capacity is enough to require a finding of
incompetence. Ultimately, the question is not whether a defendant “may” lack the
capacity to make a rational choice, but whether he in fact has that capacity.
{¶ 22} As for the standard we enunciated earlier in this case, it is wholly
consistent with Rees, and in fact reflects a more specific definition of the general
terms used in Rees. Thus, in our view, a defendant “has capacity to appreciate his
position,” Rees, supra, if he understands the choice between life and death, see
Franz v. State (1988), 296 Ark. 181, 189, 754 S.W.2d 839, 843; State v. Dodd
(1992), 120 Wash.2d 1, 23, 838 P.2d 86, 97, and he fully comprehends the
ramifications of his decision to waive further legal proceedings, see Cole v. State
(1985), 101 Nev. 585, 588, 707 P.2d 545, 547. And a defendant has the capacity
to “make a rational choice with respect to continuing or abandoning further
litigation,” Rees, supra, if he can make a voluntary, knowing, and intelligent
decision, Franz, supra, at 189-190, 754 S.W.2d at 844; Dodd, supra, at 23, 838
P.2d at 97; and he has the “ability to reason logically,” i.e., to choose “means which
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relate logically to his ends,” see State v. Bailey (Del.Super.1986), 519 A.2d 132,
137-138.
{¶ 23} In Whitmore v. Arkansas (1990), 495 U.S. 149, 110 S.Ct. 1717, 109
L.Ed.2d 135, when a condemned prisoner refused to pursue an appeal to the state
supreme court, the issue was whether a “next friend” could seek a writ of certiorari
on his behalf from the United States Supreme Court. Whitmore held that the would-
be “next friend” could not establish standing unless he could at least show that the
prisoner “is unable to litigate his own cause due to mental incapacity * * * or other
similar disability.” Id. at 165, 110 S.Ct. at 1728, 109 L.Ed.2d at 151. Whitmore
further held that a “next friend” may not proceed on a prisoner’s behalf “where an
evidentiary hearing shows that the defendant has given a knowing, intelligent, and
voluntary waiver of his right to proceed, and his access to court is otherwise
unimpeded.” Id.
{¶ 24} In Whitmore, the Arkansas trial court had held an evidentiary hearing
and found the defendant to have the capacity to understand the choice between life
and death and to knowingly and intelligently waive any and all rights to appeal his
sentence. See Simmons v. State (1989), 298 Ark. 193, 194, 766 S.W.2d 422, 423.
That being so, the would-be “next friend” could not make the required showing of
incapacity, and thus could not establish standing to litigate the prisoner’s case
against his will.
{¶ 25} It appears, then, that the standard used to determine competence in
Arkansas—capacity to understand the choice and to make a knowing and intelligent
waiver—has been accepted by the United States Supreme Court. See Dodd, 120
Wash.2d at 22-23, 838 P.2d at 97, citing Whitmore, 495 U.S. at 165, 110 S.Ct. at
1728, 109 L.Ed.2d at 151-152; Grasso v. State (Okla.Crim.App.1993), 857 P.2d
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802, 806. Cf. Gilmore v. Utah (1976), 429 U.S. 1012, 1013, 97 S.Ct. 436, 437, 50
L.Ed.2d 632, 633.4
III. Berry’s Mental Evaluations
{¶ 26} Dr. Sharon L. Pearson conducted the most extensive interviews. She
saw Berry three times during July and August 1995, not long after this court
affirmed his convictions and sentence. Dr. Pearson spent 4.5 hours administering
psychological tests, including the Minnesota Multiphasic Personality Inventory.
She also interviewed Berry for a total of 7.5 additional hours. Finally, Dr. Pearson
reviewed an impressive amount of background material on Berry’s mental health
history.
{¶ 27} Dr. Pearson found in Berry symptoms of a “schizotypal personality
disorder,” a “rigid thought process,” a tendency toward “extreme isolation and
withdrawal,” and a tendency to have psychotic episodes under stress. She
concluded that Berry was not competent to waive his rights. Her conclusion was
reached with reference to what she called a “clinical” definition of “competence,”
not a legal one.5
{¶ 28} Dr. Philip J. Resnick interviewed Berry for 2.75 hours and reviewed
extensive materials on his mental health history, as well as Dr. Pearson’s report.
{¶ 29} Dr. Robert W. Alcorn interviewed Berry for 1.5 hours. He did not
review any materials on Berry’s mental health history, but he did discuss Berry’s
history with Berry himself, and he also reviewed the reports of Drs. Pearson and
4. The Public Defender questions the value of Whitmore and Gilmore, asserting that those cases
turned on the issue of a next friend’s standing to press a condemned prisoner’s claims in federal
court. But the standing issue itself turns on the question of competence, and the Public Defender
does not explain why the constitutional standard of competence used in state court should differ
from that used in federal court.
5. The Public Defender’s assertion that “Dr. Pearson * * * evaluated Berry under the Rees v. Peyton
standard” is incorrect.
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Resnick; those reports related Berry’s history to such an extent that Alcorn did not
find it necessary to review the materials.
{¶ 30} Drs. Resnick and Alcorn diagnosed a mixed personality disorder
with schizotypal, borderline, and antisocial features. Dr. Alcorn explained that a
“mixed personality disorder” means that a patient exhibits features of more than
one type of disorder, but is “not clearly in one category or another.” Both
psychiatrists concluded that Berry was competent to decide against pursuing further
remedies, measured by the legal standard established by this court.
{¶ 31} None of the three experts found Berry to be psychotic.6 Dr. Resnick
testified that “psychosis is a major mental disorder in which a person is out of touch
with reality * * *.”
{¶ 32} While imprisoned in Texas in the 1980s, Berry reported
hallucinations, was diagnosed with schizophrenia, and was placed on antipsychotic
medication. However, when he stopped taking the medicine, his hallucinations did
not recur, leading Dr. Resnick to question the accuracy of the Texas diagnosis. In
1990, Dr. Robert W. Goldberg diagnosed Berry with “psychotic disorder not
otherwise specified.” The 1990 diagnosis was made in connection with Berry’s
then-upcoming aggravated murder trial, in which Dr. Goldberg was a defense
witness. Dr. Resnick testified that Berry may have been malingering in 1990, but
Resnick could give no opinion on that point. Drs. Alcorn and Pearson testified that
Berry may have brief psychotic reactions under stress. However, Dr. Resnick
pointed out that the consistency of Berry’s desire to drop his appeals and be
executed indicates that this desire is not the result of any transitory mental state.
6. The Public Defender asserts that Drs. Resnick and Alcorn based their findings of competence
wholly upon the absence of an active psychosis. They did not, however; indeed, Dr. Resnick
testified that the absence of psychosis “isn’t the only issue in determining whether or not he is
competent.”
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{¶ 33} Berry believed that when he died, he would be judged by God and
go to heaven or hell. The psychiatric profession does not regard this sort of
commonly held religious belief as a sign of mental illness, according to Dr. Alcorn.
Berry had no unusual or delusional beliefs about the afterlife. He has considered
donating his organs. Both Dr. Resnick and Dr. Alcorn concluded that he
understood the difference between life and death and the permanence of death. (Dr.
Pearson was not asked her opinion on this point.)
{¶ 34} Berry told all three doctors that he would prefer freedom to death if
he thought it a reasonable possibility. Dr. Pearson did not believe that he was being
deceptive about that, even though she also believed Berry had a compulsive desire
to be dead. Given the evidence, it seems clear that Berry understands the difference
between life and death.
{¶ 35} The Public Defender’s chief contention at the evidentiary hearing
was that, due to his mental disorder, Berry does not fully comprehend the
ramifications of his decision. Although he clearly understands that abandoning his
legal remedies will lead to his death, he does not understand that pursuing them
may mean freedom, which he says he prefers to death. This lack of understanding,
according to Dr. Pearson, results from the rigid thinking caused by his mental
disorder. Having formed the fixed notion that he has little chance of freedom, he
refuses to listen to his attorneys when they try to tell him otherwise.
{¶ 36} Berry’s “rigid thought process” was crucial to Dr. Pearson’s
conclusion that Berry was incompetent. According to Dr. Pearson, rigid thinking
is a result, and a symptom, of Berry’s schizotypal disorder. Pearson believed that
Berry’s rigidity rendered him psychologically unable to absorb information from
his attorneys if it conflicted with his preconceptions as to his chance of succeeding
in further litigation.
{¶ 37} Pearson testified that Randy Ashburn of the Public Defender’s
Office, one of Berry’s attorneys, told her Berry had a fairly good chance of success.
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She testified that she relayed that information to Berry, and she found him “very
closed to that [idea] and very committed to the way he thought, which was he did
not have any chance of prevailing.” Berry’s attorneys told Pearson that they had
tried to convey the same information to Berry.
{¶ 38} Dr. Pearson believed that Berry was “unable to take in” that
information. However, her conclusion is undermined by her concession that Berry
understands that the public defenders think his litigation can be successful.
Furthermore, Dr. Pearson conceded that it is “possible” that the rejection of his
appeals by this court and the court of appeals may have contributed to Berry’s
attitude, and when asked, “Isn’t he taking in information?” she replied, “Yes.”
{¶ 39} Moreover, Berry’s unwillingness to receive this information from
Dr. Pearson does not necessarily support her belief that he was unable to absorb
information that conflicted with his preconceptions. There was no evidence that
Dr. Pearson was giving Berry any new information; she was merely passing along
the opinion of Berry’s attorneys, of which Berry was already aware and which he
had already rejected.
{¶ 40} Moreover, Berry has not rejected the possibility of having his
conviction overturned. Berry told Dr. Resnick that he knows he is guilty of the
Mitroff murder, and that “even if he had a second trial, he would be found guilty
again, sentenced to death again and ultimately executed.” (Emphasis added.) He
told Dr. Alcorn that “the confession of Lozar [Berry’s co-defendant] would lead to
his own conviction and inevitable execution for the crime.”
{¶ 41} Thus, Berry does not want his conviction overturned, as he believes
that will lead to a result he finds undesirable, as he told Dr. Resnick, “to wait around
on death row for 20 years” only to be executed anyway. Drs. Resnick and Alcorn
stated that this was a rational choice. According to Dr. Resnick, it is common for
condemned inmates to at least “weigh whether they would prefer to be executed”
because of the “misery” associated with life in prison.
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{¶ 42} Pearson said that people with schizotypal disorder “latch onto one
issue” which becomes “the focus of the obsessive thinking and the compulsive
behavior.” Yet she then said that Berry’s desire to waive further review of his case
was his “most significant issue”—implying that there might be others.
{¶ 43} When asked on what other issues Berry had shown rigidity, Dr.
Pearson said, “I have no way of knowing.” Despite that, she offered other examples
of Berry’s rigidity.
{¶ 44} Many of her examples were unpersuasive. For instance, Dr. Pearson
testified that “there was some report of him writing threatening notes to a woman.
* * * It may represent a rigid perception that was inaccurate that he would be acting
on.” However, Dr. Pearson conceded on cross-examination that she did not know
whether Berry had rejected any information or advice from anyone with regard to
that situation so that his perception could fairly be called “rigid.”
{¶ 45} According to Dr. Pearson, Berry was “adamant” in his belief that a
lung condition he had suffered from would come back and kill him, even though it
had been surgically corrected. Berry told Dr. Pearson that his surgeon had told him
that “he was a corpse looking for a place to die.” Dr. Pearson testified that she
consulted “medical people” and medical literature and found that “once corrected
[the condition] was pretty much corrected.” She told Berry this at a later interview,
but he “did not * * * take it in.”
{¶ 46} However, Dr. Pearson is not a medical doctor. Berry’s refusal to
consider her opinion on a medical subject, as against the opinion of his surgeon,7
does not seem to be persuasive evidence of a disabling degree of rigidity. In any
case, he told Drs. Resnick and Alcorn he was not worried about his lung; while he
7. Dr. Pearson seemed to doubt Berry’s account of what his surgeon had told him, but there was no
evidence one way or the other.
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did believe his lung condition might kill him, he seemed more worried about living
a long time on death row.
{¶ 47} Dr. Pearson said Berry was rigid in his belief that “people can’t be
trusted”; yet she conceded that he did trust Cynthia Yost, one of his attorneys.
{¶ 48} Dr. Pearson said Berry is rigid in his lifelong, compulsive desire to
be dead. But Berry told Dr. Pearson he would rather be free than dead, and Dr.
Pearson conceded that Berry was not lying or being deceptive about this. Moreover,
although Berry has a history of suicide attempts, it has been nine years since Berry’s
last such attempt, and he told Dr. Resnick he thought suicide was “stupid.” And
Dr. Pearson agreed with Drs. Resnick and Alcorn that Berry does not suffer from
clinical depression, although he has so suffered in the past. (Dr. Resnick noted that
the consistency of Berry’s desire for execution indicates that his desire is not
attributable to changes in his mood.)
{¶ 49} “Defensiveness” or “minimization” occurs when a patient tries to
conceal symptoms and appear healthier than he is. All three experts detected
defensiveness on Berry’s part. For instance, in the Alcorn and Pearson interviews,
Berry initially denied ever having had hallucinations. However, he ultimately
admitted to all three doctors that he had suffered hallucinations in the past.
{¶ 50} Dr. Pearson testified that, particularly when defensiveness is
suspected, it is important to spend enough time with the patient to “wear the person
down,” because “[a]nybody can keep themselves [sic] together for a couple of
hours.” However, according to Dr. Resnick, prolonging the interview is not helpful
in detecting defensiveness. In fact, as noted, all three experts were able to detect
Berry’s defensiveness and evaluate his mental condition.
{¶ 51} Dr. Pearson administered an IQ test. Berry’s IQ was one hundred,
placing him “in the average level of intellectual functioning,” according to Dr.
Pearson’s report. Dr. Pearson testified that “Wilford is very bright and Wilford has
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a lot of intellectual ability.” She also conceded that Berry was engaging in logical
thought processes.
{¶ 52} Dr. Resnick described Berry as “articulate”; “his speech showed
clear, logical thinking and no confusion or disorganization of thoughts.” He
showed “adequate concentration, attention and memory” and exhibited “fair”
judgment. He further demonstrated reasoning ability by explaining to Dr. Resnick
why he preferred electrocution to lethal injection and giving a specific, rational
reason for his preference. Dr. Alcorn noted that Berry did well on tests measuring
concentration. None of the three experts found any evidence of organic brain
damage.
{¶ 53} All three experts were in agreement on many issues: that Berry has
a disorder, but not a psychosis; that he is defensive; that he would prefer freedom
to death; that he is logical and moderately intelligent. To the extent that they
differed, we find the conclusions of Dr. Resnick and Dr. Alcorn more credible than
those of Dr. Pearson.
{¶ 54} Dr. Resnick, the Director of the Cuyahoga County Court Psychiatric
Clinic since 1976, is an eminent authority in the field of forensic psychiatry. He is
a professor of psychiatry at the Case Western Reserve University School of
Medicine. He is also a lecturer in law and psychiatry at the Case Western Reserve
University Law School and has held “distinguished visiting professorships” at four
other institutions. He serves as Director of the Fellowship in Forensic Psychiatry
and Director of the Division of Forensic Psychiatry at the University Hospitals of
Cleveland.
{¶ 55} Dr. Resnick is a past president of the American Academy of
Psychiatry and the Law, chairman of the Ohio Psychiatric Association Forensic
Committee, vice-president of the Cleveland Psychiatric Society, a fellow of the
American Psychiatric Association, and a member of the Council on Accreditation
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for Fellowships in Forensic Psychiatry. He is certified by the American Board of
Psychiatry.
{¶ 56} Dr. Resnick has given numerous lectures on such subjects as the
detection of malingering, the insanity defense, and the psychiatric prediction of
violence. His curriculum vitae reflects fourteen major international presentations
and ninety-five major American presentations. He has written or co-authored one
book, twenty-five book chapters and contributions, and fifty articles in professional
journals. He has testified before the Judiciary Committees of the Ohio House of
Representatives and Senate and the National Commission on the Insanity Defense.
Finally, he has testified numerous times in criminal cases, in Ohio and other
jurisdictions.
{¶ 57} Dr. Alcorn is also highly experienced in forensic psychiatry. After
completing his residency in 1974, Dr. Alcorn worked for the Cuyahoga County
Court Psychiatric Clinic between 1979 and 1995. He is Medical Director of Mental
Health Services, Inc., and assistant clinical professor in the psychiatry department
of the Case Western Reserve School of Medicine. He has received specialized
education in criminal law and “psychiatry and the law,” and he is certified by both
the American Board of Psychiatry and Neurology and the American Board of
Forensic Psychiatry. His curriculum vitae indicates extensive teaching experience
and lists eight scientific presentations on subjects including malingering in criminal
cases, the insanity defense, and depression. He has testified numerous times on
competency and sanity issues.
{¶ 58} While Dr. Pearson is certainly qualified, her experience in forensic
matters is limited. Dr. Pearson has been a self-employed clinical psychologist since
1988. About twenty-five percent of her practice consists of forensic examination,
and she has testified in approximately twenty cases, about a third of which were
criminal. Dr. Pearson is also a clinical assistant professor at the Wright State
University School of Professional Psychology. Her curriculum vitae lists several
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workshops and presentations, although none seems to have specifically dealt with
forensic psychology.
{¶ 59} In our view, Dr. Pearson’s crucial testimony on the subject of
“rigidity” was unpersuasive. Moreover, we note Dr. Pearson’s failure to make any
reference to Berry’s rigidity of thought in her written report, given her testimony
that Berry’s rigidity was “the primary factor in my decision that he was not able to
waive his rights * * *.”
{¶ 60} We note that Dr. Pearson was brought into the case by the Public
Defender; the other two experts were court-appointed. Dr. Pearson did not apply
any legal standard of competence. Instead, she used the following “clinical”
definition of “competence”: “If someone has the capacity, ability to do something.
If someone is competent that means they are functional, they are capable, able.”
This definition is logically circular, and therefore analytically useless.
{¶ 61} Dr. Pearson did spend over twice as much time with Berry as Drs.
Resnick and Alcorn combined. But Dr. Resnick testified that one need not spend a
great deal of time with a patient to detect defensiveness — and both he and Dr.
Alcorn did detect it in Berry and take it into account. Moreover, Drs. Resnick and
Alcorn had the benefit of reading Dr. Pearson’s report before making their own
evaluations. It is difficult to conclude that Drs. Resnick and Alcorn failed to spend
an adequate amount of time with Berry, especially since their conclusions were, in
many pertinent respects, the same as Dr. Pearson’s.
IV. Application of the Rees Standard
{¶ 62} We find that Berry possesses the mental capacity to appreciate his
position and to make a rational choice with respect to continuing or abandoning
further litigation. While Berry does have a mental disorder, it does not substantially
affect his capacity in this respect. Rees v. Peyton, supra.
{¶ 63} Berry is unquestionably a moderately intelligent man with
demonstrated reasoning ability. He suffers from a mental disorder, but is in touch
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with reality, and his mental disorder is not of such a nature as to preclude him from
considering his options and making a voluntary, rational choice between them.
{¶ 64} Specifically, we find that Berry’s rejection of his counsel’s advice is
not attributable to his mental disorder. Berry is not using his death sentence to
fulfill a death wish produced by his disorder, as the Public Defender argues.
Instead, he prefers freedom to death, but prefers a speedy execution to incarceration
on death row during a protracted legal struggle. Moreover, he believes that, even
if his lawyers succeed in having his conviction overturned, he will simply be retried
and resentenced to death. We find that this belief of Berry’s, whether well founded
or not, is not the product of his mental disorder.
{¶ 65} We find that Berry understands the difference between life and death
and fully comprehends the ramifications of his decision to forgo further legal
proceedings. We find that he has the ability to choose means that relate logically
to his ends. We find that he is capable of making a voluntary, knowing, and
intelligent decision to forgo further legal proceedings, and that his decision to do
so is in fact voluntary, knowing, and intelligent.
{¶ 66} Pursuant to the standard enunciated in Rees v. Peyton, supra, we find
Berry competent to decide for himself whether to pursue or forgo further legal
challenges to his conviction and death sentence.
V. Claim of Judicial Bias
{¶ 67} The Public Defender claims that the trial judge who conducted the
evidentiary hearing was predisposed to find Berry competent. The portions of the
record cited by the Public Defender do not, in our view, support this accusation.
We reject this claim and find that the trial judge conducted a full and fair evidentiary
hearing.
VI. Exclusion of Testimony
{¶ 68} The Public Defender further contends that the trial judge erred in
excluding the testimony of attorney Alan Freedman regarding Berry’s chances to
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succeed in federal habeas corpus.8 We cannot agree. The actual strength of Berry’s
possible federal claim is not at issue. The question is whether Berry has the capacity
to decide for himself whether to pursue those claims. It is relevant to that
determination whether Berry is able to listen to and consider his attorneys’ opinion,
but whether their opinion is right, wrong, or arguable is not relevant at all. A
competent person may choose to forgo even the strongest legal claim.9 Cf. State v.
Torrence (1994), 317 S.C. 45, 47, 451 S.E.2d 883, 884, fn. 2: “The test is not * *
* whether the defendant in fact cooperates with counsel, but whether he has
sufficient mental capacity to do so.”
8. According to Freedman’s proffered testimony, Berry’s confession, and perhaps other evidence
as well, should have been suppressed on the ground that he was detained longer than forty-eight
hours after his arrest without being brought before a judicial officer for a probable-cause
determination. See County of Riverside v. McLaughlin (1991), 500 U.S. 44, 111 S.Ct. 1661, 114
L.Ed.2d 49.
9. Even if the strength of Berry’s McLaughlin claim were relevant, we would place little credence
in Freedman’s opinion. First, it is far from clear that the exclusionary rule will be applied to
freestanding McLaughlin claims. See Powell v. Nevada (1994), 511 U.S. 79, 85, 114 S.Ct. 1280,
1284, 128 L.Ed.2d 1, 8, fn.* (expressly reserving question); 3 LaFave, Search and Seizure (3
Ed.1996) 48, Section 5.1(f). Moreover, although McLaughlin is retroactive, see Powell, supra, the
application of the exclusionary rule to McLaughlin claims “remain[ed] an unresolved question,” 511
U.S. at 85, 114 S.Ct. at 1284, 128 L.Ed.2d at 8, fn.*, when Berry’s conviction became final in 1995;
therefore, the exclusionary rule may not be retroactively applicable to McLaughlin claims in habeas
corpus. See, generally, Teague v. Lane (1989), 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334.
Finally, the court of appeals expressly held that Berry had waived his McLaughlin claim
by failing to raise it in the trial court. See State v. Berry (Oct. 21, 1993), Cuyahoga App. No. 60531,
unreported, at 27, 1993 WL 425370. We subsequently rejected the claim without specific
explanation. 72 Ohio St.3d at 358, 650 N.E.2d at 438. A federal court would “look through” our
unexplained decision to the last explained state-court decision. Ylst v. Nunnemaker (1991), 501 U.S.
797, 111 S.Ct. 2590, 115 L.Ed.2d 706. Here, the last explained state-court decision explicitly found
a procedural default; such a finding generally precludes federal habeas review of a claim. See, e.g.,
Engle v. Isaac (1982), 456 U.S. 107, 129, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783, 801.
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VII. Claim that Postconviction Review Is Mandatory
{¶ 69} Finally, the Public Defender argues that Section 9, Article I of the
Ohio Constitution requires collateral review of all capital cases, irrespective of the
defendant’s wishes and whether he is mentally competent or not.
{¶ 70} The clause cited states: “Excessive bail shall not be required; nor
excessive fines imposed; nor cruel and unusual punishments inflicted.” (Emphasis
added.) We think it extraordinary to contend that this clause, part of Ohio’s basic
law since 1802,10 mandates the use of a form of action that did not exist until the
General Assembly created it one hundred and sixty-three years later. Even if the
clause does give rise to procedural rights, there is surely nothing in the plain English
of the clause that forbids a mentally competent person to waive those rights.
{¶ 71} The Public Defender’s reading of the clause reflects a radical
paternalism outside the mainstream of American law and inconsistent with the
human dignity of a competent adult. A competent criminal defendant may plead
guilty to a charge even though he believes himself to be innocent. North Carolina
v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162. He may testify on his
own behalf, or refuse to do so, against the advice of counsel. Jones v. Barnes
(1983), 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987, 993. He may
choose to do without counsel altogether, and represent himself. Faretta v.
California (1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562. He may decide
not to present any mitigating factors on his behalf in the penalty phase of a capital
case. State v. Tyler (1990), 50 Ohio St.3d 24, 27-29, 553 N.E.2d 576, 583-586;
People v. Lang (1989), 49 Cal.3d 991, 1029-1031, 264 Cal.Rptr. 386, 411-412, 782
P.2d 627, 652-653; People v. Silagy (1984), 101 Ill.2d 147, 175-181, 77 Ill.Dec.
792, 806-809, 461 N.E.2d 415, 429-432. However wise or foolish his decisions,
they are his.
10. See Section 13, Article VIII, 1802 Constitution.
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January Term, 1997
{¶ 72} Our law generally refuses “to imprison a man in his privileges and
call it the Constitution.” Adams v. United States ex rel. McCann (1942), 317 U.S.
269, 280, 63 S.Ct. 236, 242, 87 L.Ed. 268, 275. Therefore, absent a clear textual
warrant for doing so—and we have none here—we cannot insert such a philosophy
into the Ohio Constitution. “The same value that guarantees a defendant a right to
present mitigating evidence—‘the right of the defendant to be treated with dignity
as a human being’ * * *—also gives him the right to decide what is in his own best
interest.” State v. Tyler, supra, 50 Ohio St.3d at 29, 553 N.E.2d at 585, quoting
Bonnie, The Dignity of the Condemned (1988), 74 Va.L.Rev. 1363, 1383.
{¶ 73} Nothing in the Ohio Constitution requires us to make Berry “a pawn
to be manipulated on a chessboard larger than his own case.” Lenhard v. Wolff
(1979), 443 U.S. 1306, 1312, 100 S.Ct. 3, 7, 61 L.Ed.2d 885, 890 (Rehnquist,
Circuit Justice) (continuing stay of execution). Since he is mentally competent to
decide for himself, “[t]o deny him that would be to incarcerate his spirit—the one
thing that remains free and which the state need not and should not imprison.”
Lenhard v. Wolff (C.A.9, 1979), 603 F.2d 91, 94 (Sneed, J., concurring).
VIII. Conclusion
{¶ 74} We conclude, based on the hearing record, that Berry is competent,
in that he has the capacity to appreciate his position and make a rational choice with
respect to continuing or abandoning further litigation. Rees, supra. Furthermore,
we hold that the Ohio Constitution does not compel us to force postconviction
review upon a competent individual who has decided, for reasons of his own, not
to seek it.
{¶ 75} We therefore order that the sentence of death heretofore imposed on
Wilford Lee Berry, Jr., be carried into execution on March 3, 1998. An execution
warrant will issue immediately.
Judgment accordingly.
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MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
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