The opinion
[This opinion has been published in Ohio Official Reports at 75 Ohio St.3d 148.]
THE STATE OF OHIO, APPELLEE, v. BROOKS, APPELLANT.
[Cite as State v. Brooks, 1996-Ohio-134.]
Criminal law—Aggravated murder—Death penalty upheld, when.
(No. 94-1871—Submitted July 26, 1995—Decided March 4, 1996.)
APPEAL from the Court of Appeals for Summit County, No. C.A. 16192.
__________________
{¶ 1} On August 26, 1992, defendant-appellant Antonio Brooks,
accompanied by several other men, left Detroit, Michigan with the intent to sell
drugs in Akron, Ohio. They departed Detroit in two cars at approximately 9:00
p.m. and arrived in Akron at about 1:15 a.m. on August 27. One of the men who
traveled to Akron with Brooks was Collin Boatright (“Rabbit”).
{¶ 2} Upon arriving in Akron, some of the men established a base of
operations at the apartment of Toni Massingill. Toni’s brother, Vernon Massingill
(“Buster”), and Buster’s girlfriend also lived in Toni’s apartment. Brooks and
Rabbit stayed at Toni’s apartment after the other men left. Toni agreed to allow
Rabbit and Brooks to sell drugs from her apartment in exchange for $40 to $50 per
day plus a quantity of free drugs.
{¶ 3} While Rabbit sold the drugs, Brooks’s role was to keep track of the
money and to act as a lookout. Between 4:30 and 5:00 a.m. on August 27, Brooks
and Rabbit purchased a .38 caliber revolver from a man identified only as Byron.
Later, the two men obtained a box of bullets for the gun.
{¶ 4} That evening, Rabbit was relaxing in the ground floor apartment of
April Griffin, who lived close by Toni Massingill, at 695 Westerly. Victoria Wilson
and Sheeba Mosley were also in the apartment, and they were later joined by
Brooks.
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{¶ 5} At about 3:15 a.m. on August 28, Emanuel McMillan arrived at the
apartment. McMillan, who was dating Mosley, had come in a taxi in order to take
Mosley and her young child home. Rabbit and McMillan became embroiled in an
argument, and Rabbit followed McMillan when he left the apartment. The
argument continued outside, and in the midst of it, Rabbit shot McMillan once in
the chest. McMillan was able to stagger into the waiting taxi, and the driver sped
the wounded McMillan to a nearby hospital. Along the way, the taxi driver notified
his dispatcher and a passing police officer of the shooting.
{¶ 6} Before fleeing, Rabbit told Brooks to kill the witnesses to the
shooting. Brooks went to Toni’s apartment, retrieved the box of bullets, and loaded
the .38 caliber revolver. Brooks told Toni, “I am getting ready to kill the bitches.”
Brooks then returned to Griffin’s apartment and proceeded to shoot Griffin, Wilson,
and Mosley.
{¶ 7} After leaving the apartment, Brooks gave the murder weapon to
Buster and told him to dispose of it. Brooks then walked back to Toni’s apartment
and said, “I just killed them bitches. Y’all ain’t got nothing to worry about.”
Afterwards, Brooks went to the residence of April Woods, who also lived at 695
Westerly, in a second floor apartment.
{¶ 8} At approximately 3:30 a.m., Sergeant Robert Bennett of the Akron
Police Department arrived at the scene and entered Griffin’s apartment. There, he
found Wilson and Mosley dead in the living room and Griffin dead in a bedroom.
He also found five children alive, ranging from twenty months to five years of age.
Each of the three victims had suffered a gunshot wound to the head, and Griffin
had also suffered gunshot wounds to her hand, arm, and chest. One of the children
was lying awake next to Griffin’s body in the bedroom.
{¶ 9} When police backup units arrived, they secured the area. The police
had a description of the shooter’s clothes: black, knee-length shorts and a black
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jacket with a distinctive emblem bearing the words “Public Enemy.” The police
also received information that the gunman might be in April Woods’s apartment.
{¶ 10} Police found Brooks and a pair of black, knee-length shorts in
Woods’s apartment. On the landing outside of Woods’s apartment, another officer
found the distinctive “Public Enemy” jacket. Brooks carried no identification and
originally gave police a false name when they asked his identity. As a result, police
asked Brooks to accompany them to the station to determine his identity and to
question him about the shootings.
{¶ 11} Buster was also taken in for questioning. Based on information
provided by Buster, the police found the .38 caliber revolver, five empty .38 caliber
shells, and a box of unused .38 caliber bullets. Forensic experts subsequently
matched the empty shells to the revolver and also verified that the gun had fired
several bullets recovered from the victims’ bodies. Later in the day, Brooks waived
his Miranda rights and gave a complete taped confession to the murders of Griffin,
Wilson, and Mosley.
{¶ 12} On September 11, 1992, Brooks was charged with three counts of
aggravated murder pursuant to R.C. 2903.01(A). Each aggravated murder count
included two death penalty specifications. The first specification alleged multiple
murders as a course of conduct in violation of R.C. 2929.04(A)(5), while the second
death specification alleged that the murder victim “was purposely killed to prevent
testimony” in a criminal proceeding in violation of R.C. 2929.04(A)(8). On
January 11, 1993, Brooks proceeded to a jury trial. During the guilt phase, Brooks
denied ever shooting anyone. He testified that Buster agreed to shoot the women
after Rabbit had given Buster the gun and told Buster, “Do what you got to do.”
Despite Brooks’s testimony, on January 23, 1993, the jury convicted Brooks as
charged on all three aggravated murder counts with death penalty specifications.
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Sentencing Phase Evidence
{¶ 13} Brooks was born on April 27, 1973. In an unsworn statement,
Brooks described his troubled childhood. His mother was only thirteen years old
when Brooks was born. She was a drug addict who supported her habit by stealing.
Whenever Brooks’s mother became upset, she beat him with belts, broomsticks,
and extension cords. Brooks went to a variety of schools when he was young
because his mother moved frequently. At age twelve, Brooks first learned that his
father was alive and that Brooks had twelve brothers and six sisters. Brooks left
home at age thirteen and lived at various times with relatives, his girlfriend, or
alone. He joined a gang, quit school, and supported himself by working for a
restaurant and by selling marijuana.
{¶ 14} Psychologist Dr. John Graham testified that Brooks had a
personality disorder with antisocial, passive/aggressive, and paranoid
characteristics. His unstable and negative upbringing helped form this disorder. As
a result of his personality disorder, Brooks had terrible judgment, a poorly
developed conscience, and disregard for social standards and values, and did not
accept responsibility for his own acts. Yet Brooks, of low average intelligence,
understood right from wrong, exhibited no confused thinking or gross distortion of
reality, and displayed no psychotic symptoms.
{¶ 15} In its instructions to the jury at the conclusion of the sentencing
phase of the trial, the court stated: “You are now required to determine unanimously
that the death penalty is inappropriate before you can consider a life sentence.” The
jury charge, therefore, indicated that the jury could consider life imprisonment only
if there was unanimity in determining that Brooks should not be sentenced to death.
{¶ 16} The trial court held the mitigation hearing on February 9, 1993. On
the same day, after considering the evidence, the jury recommended the death
penalty on all three aggravated murder counts. The trial court agreed and sentenced
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Brooks to death on each murder count. The court of appeals affirmed Brooks’s
convictions and death penalty.
{¶ 17} The cause is now before this court upon an appeal as of right.
__________________
Maureen O’Connor, Summit County Prosecuting Attorney, and William D.
Wellemeyer, Assistant Prosecuting Attorney, for appellee.
Annette L. Powers and Irving B. Sugerman, for appellant.
__________________
PFEIFER, J.
{¶ 18} Appellant has raised eighteen propositions of law. We have
reviewed each and have determined that none justifies the reversal of appellant’s
convictions for aggravated murder. However, appellant’s proposition of law
regarding faulty jury instructions in the sentencing phase does have merit.
{¶ 19} Particularly, the trial judge’s instruction that the jury was required to
determine unanimously that the death penalty was inappropriate before it could
consider a life sentence was plain error. We therefore affirm appellant’s
convictions but reverse the sentence of death.
Evidentiary Issues
{¶ 20} Appellant’s propositions of law four, five, six, nine and ten raise
evidentiary issues. In proposition four, Brooks argues that prejudicial hearsay was
admitted over objection. At trial, the first police officer at the scene, Bennett,
described finding a child next to Griffin’s body. Bennett testified that the child
stated, “They hurt my mommy,” and that the child put his finger into the victim’s
nose and head wound.
{¶ 21} The child’s statement was not hearsay because it was not offered to
prove the truth of the matter asserted. Bennett was merely describing the
circumstances of how he discovered Griffin’s slain body. The child’s statement
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was not offered to prove that Griffin had been injured, but was a part of Bennett’s
description of the crime scene. Thus, proposition four lacks merit.
{¶ 22} In his fifth proposition of law, Brooks argues that the trial court
abused its discretion by refusing to permit Brooks to cross-examine Buster
Massingill about the fact that Buster had originally been charged with complicity
in the murders. As appellant points out, Evid.R. 609 is not relevant. Evid.R. 609
deals only with evidence of criminal convictions. In this case, Buster was never
convicted of complicity. Appellant argues that the cross-examination should have
been allowed under Evid.R. 608(B). Evid.R. 608(B) vests a trial court with
discretion to allow cross-examination about specific instances of conduct of a
witness “if clearly probative of truthfulness or untruthfulness.” The rule reads, in
part:
“Specific instances of the conduct of a witness, for the purpose of attacking
or supporting the witness’s character for truthfulness, other than conviction of a
crime as provided in Evid.R. 609, may not be proved by extrinsic evidence. They
may, however, in the discretion of the court, if clearly probative of truthfulness or
untruthfulness, be inquired into on cross-examination of the witness (1) concerning
the witness’s character for truthfulness or untruthfulness * * * .” (Emphasis
added.)
{¶ 23} The fact that police originally charged Buster with complicity was
not probative of Buster’s truthfulness and is not conduct by Buster. Evid.R. 608
therefore is not relevant. However, the cross-examination should have been
allowed under Evid.R. 616, which reads:
“Bias, prejudice, interest, or any motive to misrepresent may be shown to
impeach the witness either by examination of the witness or by extrinsic evidence.”
{¶ 24} Although the original charge of complicity was not evidence of
Buster’s character for truthfulness, it was evidence of a motive for him to be
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untruthful and attempt to foist blame onto appellant. Still, the error in denying the
cross-examination was harmless for the following reasons.
{¶ 25} The jury was privy to a bevy of examples of conduct probative of
Buster’s truthfulness. The trial court allowed Brooks free rein to cross-examine
Buster about all aspects of his involvement with Rabbit, Brooks, and the murders.
Brooks cross-examined Buster about his use of drugs, his hiding or losing the
murder weapon, the shells, and the bullets, and all his conversations with police.
The jury knew that Buster, with three burglary convictions, was on parole when the
murders occurred. The jury also knew that Buster, indicted for tampering with
evidence and obstruction of justice in the murders, had pled guilty and was in prison
for tampering. The jury knew that Buster had plea-bargained and agreed to testify
against Brooks. In short, the jury had concrete examples of Buster’s truthfulness,
or lack thereof, and also knew of the motivations which might have influenced his
testimony. Proposition five thus lacks merit.
{¶ 26} In his sixth proposition of law, Brooks challenges the admission of
certain brief portions of his taped confession. The transcript of the confession heard
by the jury reads as follows:
“Q. You don’t really show much remorse here, is there a reason for that,
what do you think wrong place, wrong time or are you just protecting yourself?
“A. (inaudible)
“Q. How do you feel about killing those three girls?
“A. Real bad, I just did it to protect myself.
“Q. Do you belong to any organized gangs, street gangs?
“A. Yeah.
“Q. What gang is that?
“A. Gangster Disciples, it’s a Chicago based gang.
“Q Chicago based gang, Gangster Disciples, do they have a group in
Detroit?
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“A. No.
“Q. This is just a gang that you belong to?
“A. Yes.
“Q. Anything else you can think of, Sgt. Hammond?
“Q. Have you ever killed anyone before?
“A. No, sir.
“Q. Have you ever been in jail?
“A. On Drugs.”
{¶ 27} As to most of this material, Brooks did not object at trial and waived
all but plain error. Brooks only objected to the detective’s remark that Brooks did
not show remorse. The trial court did not order the detective’s remark deleted
because it would be “kind of hard” to edit the tape. Inconvenience, however, is not
a sufficient reason to allow inadmissible evidence to go to the jury. Nevertheless,
the detective’s offhand remark did not materially prejudice Brooks. We find the
error in admitting it to be harmless.
{¶ 28} As to the other statements and comments, neither plain error nor
material prejudice resulted. By the time the confession was played, the jury was
well aware of Brooks’s criminal past. In his counsel’s opening statement in the
trial’s guilt phase, Brooks admitted that at age fourteen, he “got associated with
gangs” as “a way of self-protection.” As a result, his life “was filled with violence,
street violence, fights.” He supported himself in part by selling marijuana. His way
of life was to “live on the street, deal drugs, make ends meet.” In his testimony,
Brooks elaborated on his background and admitted that he had come to Akron to
sell cocaine. Thus, Brooks now objects to parts of the taped confession that
mirrored his trial strategy and evidence. We reject Brooks’s sixth proposition of
law.
{¶ 29} In his ninth proposition of law, Brooks argues that the trial court
erred in admitting, over objection, four gruesome photographs. Three crime scene
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photographs each depict a victim’s head and gunshot wound, although in two
photographs the wound is obscured. A coroner’s slide depicts Griffin’s head and
torso injuries.
{¶ 30} Pursuant to Evid.R. 403 the admission of photographs is left to the
sound discretion of the trial court. State v. Landrum (1990), 53 Ohio St.3d 107, 121,
559 N.E.2d 710, 726; State v. Maurer (1984) 15 Ohio St.3d 239, 5 OBR 379, 473
N.E.2d 768, paragraph seven of the syllabus; State v. Morales (1987), 32 Ohio St.3d
252, 257, 513 N.E.2d 267, 273.
{¶ 31} The two challenged photographs of Griffin are cumulative to each
other. Error in admitting them, however, was harmless. Otherwise, the trial court
did not abuse its discretion in regard to the photographs. The photos are not
inflammatory. Each crime scene photograph illustrates the testimony of police
officers and has probative value in showing the injury and the killer’s intention.
See State v. DePew (1988), 38 Ohio St.3d 275, 281, 528 N.E.2d 542, 551. The
slide illustrates the coroner’s testimony, shows Griffin’s head and torso injuries,
and demonstrates the killer’s intention. No prejudicial error occurred. See State v.
Slagle (1992), 65 Ohio St.3d 597, 602, 605 N.E.2d 916, 923; State v. Franklin
(1991), 62 Ohio St.3d 118, 125, 580 N.E.2d 1, 7.
{¶ 32} In his tenth proposition, Brooks argues that his confession was
involuntary. A court, in determining whether a confession is involuntary, “should
consider the totality of the circumstances, including the age, mentality, and prior
criminal experience of the accused; the length, intensity, and frequency of
interrogation; the existence of physical deprivation or mistreatment; and the
existence of threat or inducement.” State v. Edwards (1976), 49 Ohio St.2d 31, 3
O.O.3d 18, 358 N.E.2d 1051, paragraph two of the syllabus; see, also, State v.
Brewer (1990), 48 Ohio St.3d 50, 57, 549 N.E.2d 491, 499.
{¶ 33} Here, the evidence supports the trial court’s finding that the
confession was voluntary. During a pretrial suppression hearing, two police
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officers testified that the confession was voluntary, and Brooks presented no
evidence. At trial, Brooks testified that he had confessed because police told him
that if he did so, he would get just fifteen to eighteen years and would be on parole
in six or seven years. No other evidence supports that claim. At a suppression
hearing, the evaluation of evidence and the credibility of witnesses are issues for
the trier of fact. See State v. Fanning (1982), 1 Ohio St.3d 19, 20, 1 OBR 57, 58,
437 N.E.2d 583, 584.
{¶ 34} The evidence in this case supports the trial court’s finding that the
confession was voluntary. Police took Brooks into custody at around 6:30 a.m.,
and he remained in custody for approximately ten hours before he confessed. Until
midafternoon, police did not question him at the station except as to his identity and
to secure his consent to an atomic absorption test of his hands. Brooks claims that
he was not fed prior to his confession, but a police officer testified that he brought
Brooks a tuna sandwich and a cola at around 1:00 p.m. Brooks told the officer that
he did not like tuna. Brooks testified at trial that he had told the officer that he was
a vegetarian and allergic to tuna. Still, there is no evidence that Brooks asked for
other food, or suffered deprivation, mistreatment, or threats.
{¶ 35} By 3:30 p.m., having interviewed Buster and others, police strongly
suspected Brooks and then questioned him. Before doing so, police advised Brooks
of his Miranda rights, and he waived those rights and agreed to talk. Brooks
initially denied some or all of the murders, but when confronted with the evidence,
he confessed to all. Around 4:40 p.m., police readvised him of his rights and
secured a taped confession. After the confession, he also told a detective, “It was
kill or be killed.”
{¶ 36} Early on in his taped confession, when being asked whether
promises, threats, pressure, or coercion had been used against him to secure the
confession, Brooks stated that he did not understand what the word “coercion”
meant. A detective explained that it meant that Brooks was not being forced into
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the confession. Simply because Brooks was unsure of the definition of “coercion”
does not mean that the confession was involuntary. In fact, Brooks said he
understood and waived his rights. The tape confirmed this. The police interviewed
him for less than two hours, and Brooks appeared to be in full control of his mental
faculties. He did not appear to be under the influence of alcohol or drugs, the police
were not overzealous, and Brooks completely understood what he was doing. We
thus reject Brooks’s tenth proposition of law.
Constitutionality
{¶ 37} In his seventh proposition of law, Brooks argues that R.C.
2929.04(A)(5) and R.C. 2929.04(A)(8), which make killing two or more persons
and killing witnesses to a crime death penalty offenses, are unconstitutionally vague
and overbroad. To challenge a statute, the challenger must overcome a strong
presumption of constitutionality. State v. Warner (1990), 55 Ohio St.3d 31, 43, 564
N.E.2d 18, 30-31. Overbreadth claims relate only to First Amendment issues,
absent here. New York v. Ferber (1982), 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d
1113. This court has already determined that “R.C. 2929.04(A)(5) is not void for
vagueness under either the Eighth Amendment to the United States Constitution or
Section 9, Article I of the Ohio Constitution.” State v. Benner (1988), 40 Ohio St.3d
301, 533 N.E.2d 701, syllabus.
{¶ 38} Similarly, R.C. 2929.04(A)(8) clearly defines the situations to which
it applies. It states one of the eight situations in which the death penalty is allowed:
“The victim of the aggravated murder was a witness to an offense who was
purposely killed to prevent his testimony in any criminal proceeding and the
aggravated murder was not committed during the commission, attempted
commission, or flight immediately after the commission or attempted commission
of the offense to which the victim was a witness, or the victim of the aggravated
murder was a witness to an offense and was purposely killed in retaliation for his
testimony in any criminal proceeding.”
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{¶ 39} The statute’s applicability is sharply defined to include aggravated
murders committed to silence a witness to a crime or in retaliation for testimony.
The language of R.C. 2929.04(A)(8) “is definitive and is circumscribed to cover
only those situations which it fairly describes.” Benner, supra, 40 Ohio St.3d at
305, 533 N.E.2d at 707. Brooks’s seventh proposition of law thus lacks merit.
{¶ 40} Brooks’s eighth, thirteenth and fourteenth propositions of law also
raise constitutionality arguments. Since this court previously has considered and
decided the issues raised in those propositions of law, we summarily reject them.
State v. Poindexter (1988), 36 Ohio St.3d 1, 520 N.E.2d 568, syllabus.
Jury Issues
{¶ 41} Brooks argues in his eleventh proposition of law that the trial court
erred when it overruled his motion to prohibit the use of peremptory challenges to
exclude jurors who expressed concerns about capital punishment. In State v.
Esparza (1988), 39 Ohio St.3d 8, 529 N.E.2d 192, this court held that the use of
peremptory strikes against prospective jurors opposed to the death penalty was
proper. Apart from excluding jurors based on race or gender, prosecutors can
exercise a peremptory challenge for any reason, without inquiry, and without a
court’s control. State v. Seiber (1990), 56 Ohio St.3d 4, 13, 564 N.E.2d 408, 419.
We therefore reject Brooks’s eleventh proposition of law.
{¶ 42} In his twelfth proposition of law, Brooks argues that the trial court
erred in allowing individual voir dire only of those jurors who expressed
reservations about the death penalty. After preliminary questions and instructions,
the court divided potential jurors into groups of five, six or seven. The court and
counsel then questioned the members of each subgroup regarding their death
penalty views and whether they were exposed to any pretrial publicity. Those
potential jurors who expressed reservations about the death penalty or who
indicated a familiarity with the facts of the case were later individually questioned
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by counsel. Finally, all the potential jurors were called as one group to answer the
court’s and counsel’s more general questions.
{¶ 43} At trial, Brooks did not object to the trial court’s voir dire procedure,
and thus waived the issue but for 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. No plain
error exists. Also, the trial court did not abuse its discretion. “Determination of
issues raised in voir dire in criminal cases has long been held to be within the
discretion of the trial judge.” State v. Beuke (1988), 38 Ohio St.3d 29, 39, 526
N.E.2d 274, 285. The trial judge also has the discretion to determine “whether a
voir dire in a capital case should be conducted in sequestration.” State v. Brown
(1988), 38 Ohio St.3d 305, 528 N.E.2d 523, paragraph two of the syllabus.
{¶ 44} No basis exists to find that the trial judge abused his discretion.
Nothing suggests that the procedure affected the trial result or materially prejudiced
Brooks. We accordingly reject Brooks’s twelfth proposition of law.
Effective Assistance of Counsel
{¶ 45} In his fifteenth proposition of law, Brooks argues that the trial court
erred in appointing his original counsel to represent him on appeal without first
securing a waiver from Brooks of any issues of ineffective assistance of counsel.
First, whether that is even the job of the court, rather than Brooks’s lawyer, is
debatable. Second, Brooks cannot demonstrate that any prejudice resulted from the
trial court’s not instructing him that he had a right to different appellate counsel,
since he now has different counsel, and because this court will consider all of the
claimed ineffective-assistance issues his counsel did not raise before the court of
appeals.
{¶ 46} Brooks does raise those issues here in his sixteenth proposition of
law, asserting that his counsel’s performance was deficient in four primary
instances in the penalty phase of the trial. Reversal of a conviction on the basis of
ineffective assistance of counsel requires that the defendant show that counsel’s
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performance was deficient and that the deficient performance prejudiced the
defense, that is, deprived the defendant of a fair trial. Strickland v. Washington
(1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42
Ohio St.3d 136, 538 N.E.2d 373.
{¶ 47} Brooks claims that counsel’s first error was to allow Brooks to take
the stand for an unsworn statement in the mitigation phase of the trial. Actually,
Brooks, not counsel, had the choice whether to testify or give an unsworn statement.
See State v. Tyler (1990), 50 Ohio St.3d 24, 27, 553 N.E.2d 576, 583. In any event,
the decision to give an unsworn statement is a tactical one, a call best made by those
at the trial who can judge the tenor of the trial and the mood of the jury. By giving
an unsworn statement, a defendant trades immunity from cross-examination for a
limiting jury instruction. While subject to debate, that decision largely is a matter
of style, and is a tactical decision that does not form the basis for a claim of
ineffective assistance.
{¶ 48} Brooks next claims that his counsel erred in permitting an expert
witness to testify in mitigation. Counsel’s choice to call the psychologist, Dr. John
Graham, as a witness also fit within the “wide range of reasonable professional
assistance.” Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at
694. Graham confirmed that the deprived upbringing of Brooks had caused his
personality disorder, which supported a legitimate mitigation strategy. Graham
never blamed Brooks’s personality defect on Brooks himself, but rather saw it as a
natural outgrowth of the way he had been raised. Counsel, with little to work with,
did the best he could under the circumstances to present mitigating factors for the
jury’s consideration. See State v. Post (1987), 32 Ohio St.3d 380, 388, 513 N.E.2d
754, 762-763.
{¶ 49} Brooks also claims that counsel erred by failing to argue residual
doubt in mitigation. Again, this is a tactical matter that deserves wide latitude. The
merits of arguing residual doubt to a jury which has just unanimously determined
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that a defendant has committed the crime beyond a reasonable doubt are dubious.
When arguing for mercy for a client based upon a terrible upbringing, it was
probably best for Brooks’s counsel to avoid issues that could offend or alienate
jurors.
{¶ 50} Finally, Brooks argues that his counsel erred by failing to object to
a comment made by the prosecutor in closing argument. In his closing, the
prosecutor asked the jury to consider the effect of the murders on the children and
families of the victims. Brooks points out that no evidence was presented regarding
the effect of the murder on the victims’ families and argues that the prosecutor’s
comments were designed to arouse passion and prejudice against Brooks.
However, the jury had already heard the worst, that the victims’ children were
present when they were killed, so hearing the prosecutor’s talk of the victims’
families could hardly have been inflammatory. Also, counsel may well have
thought that objecting might unduly emphasize the brief remarks or that the jury
might find him, and by extension Brooks, unfeeling.
{¶ 51} We find that none of Brooks’s counsel’s alleged deficiencies made
any difference in the outcome of the case. Brooks did not demonstrate “a
reasonable probability that, were it not for counsel’s errors, the result of the trial
would have been different.” State v. Bradley, supra, 42 Ohio St.3d 136, 538 N.E.2d
373, at paragraph three of the syllabus. Brooks’s sixteenth proposition of law thus
lacks merit.
Prosecutorial Misconduct
{¶ 52} In part of his first and in his seventeenth proposition of law, Brooks
argues that the prosecutor engaged in misconduct by asking the jury to consider the
children and families of the victims and the effect of the murders on them in
deciding the punishment, when no evidence supported this argument. Brooks did
not object, and no prejudicial error occurred.
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{¶ 53} “[T]he touchstone of due process analysis in cases of alleged
prosecutorial misconduct is the fairness of the trial, not the culpability of the
prosecutor.” Smith v. Phillips (1982), 455 U.S. 209, 219, 102 S.Ct. 940, 947, 71
L.Ed.2d 78, 87. We find that the prosecutor’s argument that the jury consider the
victims’ families was misconduct, but harmless. See State v. Combs (1991), 62
Ohio St.3d 278, 283, 581 N.E.2d 1071, 1077. Also, the prosecutor’s comment did
not infringe any constitutional rights against victim impact evidence. Payne v.
Tennessee (1991), 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720; State v. Evans
(1992), 63 Ohio St.3d 231, 238, 586 N.E.2d 1042, 1050. We therefore reject the
seventeenth proposition of law and the relevant part of the first proposition of law.
Amendment of Indictment
{¶ 54} In his third proposition of law, Brooks argues that the trial court
erred by allowing at trial an amendment to the indictment. After the jury retired to
deliberate on guilt, the parties noted a defect in the R.C. 2929.04(A)(8) death
penalty specification common to each aggravated murder count. The specification
charged that Brooks had “committed the offense of aggravated murder as a part of
a course of conduct in which the victim of the aggravated murder was a witness to
an offense who was purposely killed to prevent testimony in any criminal
proceeding.”
{¶ 55} The deficiency was the omission of the language narrowing the
offense so as to exclude the murder of a witness killed at the same time the witness
observed an offense. Thus, the court amended the indictment’s language to
conform to R.C. 2929.04(A)(8). The trial court added to each (A)(8) specification
the further words “and the aggravated murder was not committed during the
commission, attempted commission, or flight immediately after the commission or
attempted commission of the offense to which the victim was a witness.”
{¶ 56} When the amendment was offered, defense counsel said he did not
know whether to object or not, so he simply asked the record to reflect what
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occurred. The record so reflects. The court’s verdict forms and final instructions,
given without objection, conformed to the amendment. Arguably, the failure of
Brooks to object to the indictment before trial, or even enter a precise objection at
trial, waived the issue. Crim.R. 12(B)(2) and (G).
{¶ 57} Also, under Crim.R. 7(D), the court “may at any time before, during,
or after a trial amend the indictment * * *, provided no change is made in the name
or identity of the crime charged.” See, also, R.C. 2941.30. In State v. O’Brien
(1987), 30 Ohio St.3d 122, 30 OBR 436, 508 N.E.2d 144, at paragraph two of the
syllabus, the court recognized that an indictment could be amended to include a
missing element of the offense “if the name or the identity of the crime is not
changed, and the accused has not been misled or prejudiced by the omission of such
element from the indictment.”
{¶ 58} In this case, the amendment did not expand, but rather narrowed, the
death penalty specification. The amendment did not change the specification’s
name, identity, nature, or the applicable code section. Brooks was neither misled
nor prejudiced by the original inadvertent omission of this narrowing language from
the indictment. Thus, under Crim.R. 7(D) and State v. O’Brien, proposition three
lacks merit.
Sentencing Phase Jury Instructions
{¶ 59} In its sentencing phase jury instructions, the trial court instructed the
jury as follows: “You are now required to determine unanimously that the death
penalty is inappropriate before you can consider a life sentence.” The instruction
was plainly incorrect and contrary to R.C. 2929.03(D)(2), which provides:
“If the jury unanimously finds, by proof beyond a reasonable doubt, that the
aggravating circumstances the offender was found guilty of committing outweigh
the mitigating factors, the trial jury shall recommend to the court that the sentence
of death be imposed on the offender. Absent such a finding, the jury shall
recommend that the offender be sentenced to life imprisonment with parole
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eligibility after serving twenty full years of imprisonment or to life imprisonment
with parole eligibility after serving thirty full years of imprisonment.”
{¶ 60} R.C. 2929.03(D)(2) contains no limiting language as to when a jury
may contemplate a life sentence. The jury instruction given by the trial court would
require unanimity that the death penalty was inappropriate before the jury could
even consider a life sentence. Instead of requiring the unanimity of a death
sentence, this instruction required the jury to issue a death sentence unless each
juror was convinced that the death penalty was inappropriate.
{¶ 61} The instruction is also contrary to the rationale of this court’s holding
in State v. Thomas (1988), 40 Ohio St.3d 213, 533 N.E.2d 286, which allows jurors
to consider a lesser included offense without first unanimously determining that the
defendant is not guilty of the more serious charge. This court wrote:
“If a jury is unable to agree unanimously that a defendant is guilty of a
particular offense, it may proceed to consider a lesser included offense upon which
evidence has been presented. The jury is not required to determine unanimously
that the defendant is not guilty of the crime charged before it may consider a lesser
included offense.” Id.
{¶ 62} Analogously, the jury in this case did not have to rule out the death
penalty unanimously before considering a life sentence. Unfortunately, they were
instructed exactly otherwise.
{¶ 63} The faulty jury instruction was error. Brooks’s counsel did not
object to that error at trial. That failure to object, however, does not constitute a
waiver in this case. As this court held in State v. Wolons (1989), 44 Ohio St.3d 64,
541 N.E.2d 443, paragraph one of the syllabus:
“A party does not waive his objections to the court's charge by failing to
formally object thereto (1) where the record affirmatively shows that a trial court
has been fully apprised of the correct law governing a material issue in dispute, and
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(2) the requesting party has been unsuccessful in obtaining the inclusion of that law
in the trial court's charge to the jury. (Crim.R. 30[A], construed.)”
{¶ 64} The record reflects that Brooks’s counsel requested a proper jury
instruction before the judge read the faulty one. The requested instruction read:
“You are not required to determine unanimously that the death sentence is
inappropriate before you consider the life sentences.” (Emphasis added.) Thus,
pursuant to Wolons, counsel did not waive his objection by failing to object after
the instruction was given. The question remains as to whether the error deprived
Brooks of a fair trial.
{¶ 65} In Mills v. Maryland (1988), 486 U.S. 367, 376-377, 108 S.Ct. 1860,
1866, 100 L.Ed.2d 384, 395, the United States Supreme Court held that jury
instructions that prevent one or more jurors from giving due consideration to
“factors which may call for a less severe penalty” than death violate the Eighth
Amendment prohibition against “cruel and unusual punishment.” Determining that
the jury instructions in that case had created a risk of “erroneous imposition of the
death sentence,” the court vacated the sentence of death. Id. at 375, 108 S.Ct. at
1866, 100 L.Ed.2d at 394.
{¶ 66} In Kubat v. Thieret (C.A.7, 1989), 867 F.2d 351, the court, applying
Mills, found that jury instructions similar to those used in the present case violated
the Eighth and Fourteenth Amendments and vacated the defendant’s death
sentence. Kubat involved Illinois’s death penalty statute, which explicitly provides
that the death penalty cannot be imposed if one or more jurors believes that there
are mitigating factors sufficient to preclude the death penalty. The trial court in
Kubat gave the following instruction, without objection: “If, after your
deliberations, you unanimously conclude that there is a sufficiently mitigating
factor or factors to preclude imposition of the death sentence, you should sign the
form which so indicates. If you sign that verdict form, the Court will sentence the
defendant to imprisonment.” Id. at 369.
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{¶ 67} The Kubat court reasoned that even if one juror was confused by the
jury instructions, the reliability of the verdict was undermined. If a juror believed
his one vote could not affect the ultimate result, he might acquiesce in the death
sentence. Since that possibility “risks erroneous imposition of the death sentence,”
Mills, supra, 486 U.S. at 375, 108 S.Ct. at 1866, 100 L.Ed.2d at 394, the court found
that the jury instruction violated the Eighth and Fourteenth Amendments. Kubat,
867 F.2d at 373-374.
{¶ 68} In regard to the present case, R.C. 2929.03(D)(2) facially seems to
require the jury to recommend a life sentence even if only one juror finds the death
penalty inappropriate. There is some dispute in the case law, however, as to how
much power a solitary juror has to nullify a death sentence. In State v. Jenkins
(1984), 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264, paragraph ten of the
syllabus, this court held that in returning a sentence of life imprisonment under R.C.
2929.03(D), the jury’s verdict must be unanimous. In State v. Springer (1992), 63
Ohio St.3d 167, 586 N.E.2d 96, syllabus, this court held that “[w]hen a jury
becomes irreconcilably deadlocked during its sentencing deliberations in the
penalty phase of a capital murder trial and is unable to reach a unanimous verdict
to recommend any sentence authorized by R.C. 2929.03(C)(2), the trial court is
required to sentence the offender to life imprisonment * * *.” Thus, practically
speaking, a lone juror could prevent the imposition of the death penalty.
{¶ 69} Jenkins defines what the jury’s job is—to render a unanimous
verdict. Springer simply explains what a trial court must do if a jury is deadlocked,
that is, when the jury does not properly do its job. We believe that Jenkins and
Stringer may be harmonized, and made consistent with the policy behind R.C.
2929.03(D), through a jury instruction which requires the jury, when it cannot
unanimously agree on a death sentence, to move on in their deliberations to a
consideration of which life sentence is appropriate, with that determination to be
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January Term, 1996
unanimous. That instruction would reflect the policy behind the statute noted by
this court in Springer:
“We believe that the requirement of Ohio’s death penalty statute that a life
sentence be recommended and imposed under circumstances where the death
penalty cannot be recommended or imposed represents a clear statement of policy
that an offender be sentenced to a term of life imprisonment where the trial jury is
unable to unanimously agree that the penalty of death is appropriate.” Springer, 63
Ohio St. 3d at 172, 586 N.E.2d at 100.
{¶ 70} In Ohio, a solitary juror may prevent a death penalty
recommendation by finding that the aggravating circumstances in the case do not
outweigh the mitigating factors. Jurors from this point forward should be so
instructed.
{¶ 71} We cannot know what was going on in the minds of the jurors when
they were given the duty of deciding Brooks’s fate, and we thus cannot say for
certain whether one of the jurors would have been moved enough by the mitigating
factors in Brooks’s favor, his youth and harrowing childhood, to have
recommended a life sentence. The record reflects that the jury in this case was
instructed in a manner completely contrary to law, making it less likely for Brooks
to benefit from the opinion of one juror that the death penalty was inappropriate.
As the Kubat court noted, if a juror believed his one vote could not affect the
ultimate result, he might acquiesce in the death sentence. In this case, the jury
instruction undermined the reliability of the jury verdict and risked erroneous
imposition of the death sentence, thereby materially prejudicing Brooks’s right to
a fair trial.
{¶ 72} We therefore affirm defendant’s convictions for aggravated murder,
but remand his case for resentencing consistent with this opinion.
Judgment affirmed in part
and reversed in part,
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and cause remanded.
MOYER, C.J., WRIGHT, TYACK and GRADY, JJ., concur.
DOUGLAS and F.E. SWEENEY, JJ., concur in part and dissent in part.
G. GARY TYACK, J., of the Tenth Appellate District, sitting for RESNICK, J.
THOMAS J. GRADY, J., of the Second Appellate District, sitting for COOK, J.
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DOUGLAS, J., concurring in part and dissenting in part.
{¶ 73} I concur in the judgment of the majority affirming the judgment of
the court of appeals which affirmed appellant’s convictions. I dissent from the
majority’s judgment to reverse the court of appeals with regard to appellant’s
sentence of death. I believe that the judgment of the court of appeals, both as to
conviction and the sentence of death as a penalty, was proper and should be
affirmed.
F.E. SWEENEY, J., concurs in the foregoing opinion.
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