finding no authority "to support the proposition that the lack of mitigating factors is an additional, constitutionally mandated element of a capital offense”
How later courts described this case
- finding no authority "to support the proposition that the lack of mitigating factors is an additional, constitutionally mandated element of a capital offense”
- noting '[m]any [Ohio] courts have agreed that the act of ending a crime due to the fear of detection is not a "complete and voluntary renunciation" '
- vacated, in part, on other grounds, 438 U.S. 909, 98 S.Ct. 3133, 57 L.Ed.2d 1153 (1978)
- defining “to coerce” as “to restrain, control or dominate, nullifying individual will or desire” by force, power, violence, or intimidation
Written by the judges who cited it.
The opinion
Oelebrezze, J.,
concurring in the first paragraph of the syllabus and the judgment. 1 write separately because, in my view, the majority has, inadvertently, further compounded the confusion engendered by the much misunderstood decision in Mullaney v. Wilbur (1975), 421 U. S. 684 .
Although the majority remarks that “ [i]t can be argued that the rationale of Mullaney is applicable to Ohio’s death sentencing procedure!,” it should be patently apparent that there is indeed an endless variety of seemingly sensible propositions which may be presented to this court for its consideration. Yet, it is equally clear that the creative efforts of counsel are for naught unless at least four of our number find the resultant argument to be compellingly rational. With reference to the cause at bar, *67 while I may recognize that the argument is plausible, I most emphatically do not recognize the “principles in Mullaney ” to be applicable to the provisions of R. 0. 2929.04(B).
The Mullaney decision represents the outcome of extended litigation concerned solely with the Maine law of homicide, and specifically with jury instructions which provided, inter alia, that if the prosecution established that a homicide was both intentional and unlawful, malice aforethought was to be conclusively implied unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation. The Supreme Court, relying upon its decision In re Winship (1970), 397 U. S. 358 , held that “* * * the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case.” Mullaney , at page 704.
I believe the distinctions between the situation present in Mullaney and the instant attack upon Ohio’s procedure for consideration of mitigating circumstances are fairly obvious. Suffice to say, as the majority decision has demonstrated at some length, Ohio does not employ a procedural device which requires a defendant to present evidence in order to contest otherwise presumed or inferred facts, thereby shifting the burden of production of evidence to the defendant. Although it is true that one already convicted of aggravated murder, with a specification thereto, must shoulder the risk of non-persuasion at the mitigation hearing, such hearing is not an adversary proceeding, and neither the prosecution nor the convicted murderer bears any burden of proof with reference to mitigating circumstances.