concluding that trial court did not err by refusing to consider criminal defendant’s pro se motions when counsel represented defendant, because criminal defendant “‘has no corresponding right to act as co-counsel on his own behalf’”
How later courts described this case
- concluding that trial court did not err by refusing to consider criminal defendant’s pro se motions when counsel represented defendant, because criminal defendant “‘has no corresponding right to act as co-counsel on his own behalf’”
- concluding that counsel were not ineffective in a rape case when counsel chose not to request the appointment of a forensic pathologist and relied, instead, upon cross-examination of the state's expert to rebut evidence of the crime
- finding that, although the prosecutor in question may be liable for sanction, even complete sanction, that in the face of overwhelming physical evidence defendant could not prove prejudice
- holding trial counsel not ineffective where they “decided not to request the appointment of a forensic pathologist, choosing instead to rely on their cross-examination of the state’s expert in order to rebut the evidence of rape”
Written by the judges who cited it.
The opinion
Locher, J.,
dissenting. I vigorously disagree with the outcome of this case. A careful review of the appellant’s arguments and the record fails to reveal the presence of any error sufficiently prejudicial to warrant the reversal of the appellant’s death sentence.
I
Initially, it was not error for the trial court to admit into evidence some of the photographic slides taken of the victim’s body. The standard to be applied by trial courts in the admission of gruesome photographs was enunciated by this court in State v. Maurer (1984), 15 Ohio St. 3d 239 , 15 OBR 379, 473 N.E. 2d 768 , at paragraph seven of the syllabus:
“Properly authenticated photographs, even if gruesome, are admissible in a capital prosecution if relevant and of probative value in assisting the trier of fact to determine the issues or are illustrative of testimony and other evidence, as long as the danger of material prejudice to a defendant is outweighed by their probative value and the photographs are not repetitive or cumulative in number.”
Generally, “the admission of photographs is left to the sound discretion of the trial court.” Maurer, supra, at 264 , 15 OBR at 401, 473 N.E. 2d at 791 ; see, also, Evid. R. 403 and 611(A). In State v. Hymore (1967), 9 Ohio St. 2d 122, 128 , 38 O.O. 2d 298, 302, 224 N.E. 2d 126, 130 , we stated that a “trial court has broad discretion in the admission * * * of evidence and unless it has clearly abused its discretion and the defendant has been materially prejudiced thereby, this court should be slow to interfere.” An abuse of discretion by a trial court connotes “ ‘not merely error of judgment, but perversity of will, passion, prejudice, partiality or moral delinquency.’ ” State, ex rel. Shafer, v. Ohio Turnpike Comm. (1953), 159 Ohio St. 581 , 590-591, 50 O.O. 465 , 469, 113 N.E. 2d 14 , 19.
It simply cannot be said that the trial court in the case sub judice abused its discretion by admitting the photographic slides in question. After viewing each of the slides in camera prior to trial, the court applied the Maurer standard and ruled that certain of the slides offered by the prosecutor could be admitted as having probative value in excess of the danger of material prejudice to the appellant, while the others had to be rejected as being either repetitive, cumulative, or of insufficient probative value. Also, the error cited by the majority, namely, the “portrayal of the identical subject matter in two slides, one from a relative distance and the other from close proximity of the subject matter,” does not amount to a clear abuse of discretion by the trial court.
Additionally, to say that the admission of two repetitive photographs is error is absurd in the light of our decision in State v. Morales (1987), 32 Ohio St. 3d 252 , 513 N.E. 2d 267 . In Morales , this court upheld the admission of no fewer than thirty-one photographs of the victim’s bloody, bruised and broken body, all of which were unquestionably more gruesome than those of the victim herein. It is difficult to reconcile the fact that the court today finds the admission of two similar photographs to be repetitive and cumulative with the fact that the court did not find such error in the admission of so many photographs of the same subject in Morales .
*17 II
The majority’s assertion that the prosecutor committed an egregious error during closing argument in the mitigation phase of the trial is likewise without foundation. The prosecutor made the following statements to the jury:
“The State of Ohio gave you the evidence to work with. * * * You want aggravating circumstances, look at the slides. If you want the projector, we’ll send it back with you. Here’s the rope that he killed her with, here’s the blue box knife he had with him, there’s the panty hose he used to tie her hands. You tell me when you put those on the scales and you consider what he did to Elizabeth Hendren that these [mitigatr ing] factors he’s talking about have to mean that those pieces of evidence prove less than proof beyond a reasonable doubt that those aggragating [sic] circumstances outweigh the mitigating factors.”
In general, prosecutors are allowed a certain amount of latitude in closing argument. See, e.g., State v. Byrd (1987), 32 Ohio St. 3d 79, 82 , 512 N.E. 2d 611, 616 ; State v. Maurer, supra, at 269 , 15 OBR at 404-405, 473 N.E. 2d at 794-795 ; State v. Woodards (1966), 6 Ohio St. 2d 14, 26 , 35 O.O. 2d 8, 14, 215 N.E. 2d 568, 578 . This is because prosecutors have a duty to represent the state as zealously and aggressively as they can, just as defense counsel are expected to defend their clients to the utmost.
With this in mind, it is difficult to see why the prosecutor’s comments in this case constitute prosecutorial misconduct. There was nothing per se erroneous about what he said, since his comments were both within the record and substantiated by the evidence. The comments were not, as the majority maintains, intended to prejudice the jury against the appellant. Instead, the comments were clearly directed at reminding the jury of the evidence proving the existence of the aggravating circumstance. R.C. 2929.03 (D)(1) provides in part that:
“The court, and the trial jury if the offender was tried by jury, shall consider * * * any evidence raised at trial that is relevant to the aggravating circumstances the offender was found guilty of committing or to any factors in mitigation of the imposition of the sentence of death, * * * and the arguments, if any, of counsel for the defense and prosecution, that are relevant to the penalty that should be imposed on the offender.” (Emphasis added.)
The prosecutor’s references to the slides, the rope, the knife and the panty hose were merely a review of the evidence against the appellant which supported his conviction for aggravated murder. The statute obligated the jury to consider this evidence. To say that a prosecutor cannot remind the jury of the existence of such evidence is to render the prosecutor unable to rebut the defendant’s evidence of mitigating factors and to render the jury incapable of intelligently weighing the aggravating circumstances against the mitigating factors. Thus, it can only be said that the prosecutor was doing his job when he made the statements in question.
The majority contends that the prosecutor’s comments prejudiced the jury against the appellant because they reminded the jury of the gruesome slides of the victim shown earlier in the trial. However, it was not error for the prosecutor to mention the slides because they were evidence supporting the existence of the aggravating circumstance of rape. The slides were properly admitted by the trial court because their probative value outweighed the danger of prejudice to the appellant. Their evidentiary value re *18 mained undiminished at the time the references to them were made, because they were still relevant to the issue of whether the aggravating circumstance of rape outweighed the mitigating factors beyond a reasonable doubt. Therefore, the prosecutor did not commit an egregious error when he referred to the slides during closing argument.
III
Even if it is assumed that the prosecutor’s reference to the slides was error, such error was not materially prejudicial to the appellant. The comments in question were limited to a single instance, and were so innocuous that they were not objected to by the appellant’s counsel. Furthermore, the trial court specifically instructed the jury afterwards that the arguments of counsel were not to be considered as evidence.
Under these circumstances, it is very unlikely that the prosecutor’s comments induced the jury to give the appellant a harsher sentence than it would have given otherwise. The heinous nature of the appellant’s crime and the overwhelming evidence of his guilt more than justified the jury’s recommendation that the appellant be sentenced to death. As the appellant said in his unsworn statement during the penalty phase, he felt that the jury’s verdict was “fair and honest,” that “what I have done was a senseless act,” and that “I would have come to the same conclusion if I were sitting on the jury.”
Taking all of the facts and circumstances of this case into account, it is clear that the appellant was not deprived of his constitutional rights or of a fundamentally fair trial.
IV
Finally, the majority applies what amounts to a cumulative-error test in reversing the appellant’s sentence. In essence, the majority holds that a death sentence may now be vacated when the cumulative effect of errors in both the guilt and mitigation phases of a capital prosecution deprives the defendant of a fair trial.
This court has recently held that a conviction must be reversed when cumulative errors in the admission of evidence materially prejudice the defendant. State v. DeMarco. (1987), 31 Ohio St. 3d 191 , 31 OBR 390, 509 N.E. 2d 1256 . However, a capital prosecution is significantly different from an ordinary criminal proceeding. As recommended by the United States Supreme Court in Gregg v. Georgia (1976), 428 U.S. 153 , Ohio’s statutory scheme provides for bifurcated trials in capital cases. See R.C. 2929.03. Today’s decision erodes the bifurcation intended by the General Assembly by stating that “matters which occur in the guilt phase carry over and become part and parcel of the entire proceeding.” The majority thus creates a precedent that will open a new avenue of appeal for many defendants, and that will encourage defendants to argue that their death sentences should be vacated because of the cumulative effect of the trivial mistakes that inevitably occur over the length of a capital prosecution.
V
For all the above reasons, I would affirm the appellant’s sentence. There is simply nothing in the record which convinces me that the prosecutor committed reversible error in either stage of the trial, and it seems to me that the majority exaggerates the prejudicial effect, if any, of his conduct. Also, it occurs to me that many of our decisions in criminal cases, including this one, express a lack of concern for the victims of the crimes involved. Even in the face of overwhelming evidence of *19 the defendant’s guilt, we often appear to be more concerned with procedural niceties and protecting the rights of the criminals than with protecting society from the criminals. What is needed is a more equitable approach that balances the rights of criminals to a fair trial against the rights of our citizens to be safe from crime. In the instant case, the appellant received a fair trial. In view of his overwhelming guilt, the reversal of his death sentence will only cause a further loss of faith in our criminal justice system, particularly among the families of the victims of similar crimes.
Accordingly, I dissent.
Holmes, J., concurs in the foregoing dissenting opinion.