"Appellant was not entitled to a 'rebuttal' ... mental examination prepared by a second psychologist or psychiatrist of his own choosing also at state expense."
How later courts described this case
- "Appellant was not entitled to a 'rebuttal' ... mental examination prepared by a second psychologist or psychiatrist of his own choosing also at state expense."
Written by the judges who cited it.
The opinion
H. Brown, J.,
dissenting. I believe that the majority’s interpretation of R.C. 2929.03(D)(1) is unconstitutional, forces ineffective assistance of counsel, violates the statutory capital sentencing scheme in Ohio and, in the present case, results in a denial of the defendant’s rights under the Fifth Amendment.
I
When the trial court denied defense counsel’s motion for appointment of an independent psychologist-expert, 3 counsel was faced with one of *17 two choices. Pursuant to R.C. 2929.03 (D)(1), counsel could request a mental examination and presentence investigation report to uncover evidence concerning defendant’s character, background, mental capacity or other factors in mitigation. Counsel’s other option was to abandon possible discovery of some mitigating factors.
In a criminal case, defense counsel has a duty to investigate “* * * the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in .the event of conviction.” 1 A.B.A. Standards for Criminal Justice (1986 Supp.) 4.53, Standard 4-4.1. It is only after thorough investigation and discovery of facts relevant to potential mitigating factors that counsel can make an informed decision concerning what evidence will be presented to the sentencer. Thus, counsel’s decision to request the reports and obtain updated information was warranted, based upon defendant’s chaotic upbringing and previous psychological reports which reached conflicting conclusions about defendant’s mental functioning.
But there is a Catch 22. Once counsel makes a request under R.C. 2929.03(D)(1) (according to the majority), anything and everything in the resulting reports must go to the jury, even though defense counsel cannot possibly know, when the request is made, what prejudicial matter will be found in the reports. The majority’s view of R.C. 2929.03(D)(1) opens wide the evidentiary door, allowing into evidence any information contained in the reports regardless of relevancy or prejudice. Under this interpretation, control over what is placed before the jury is taken out of the hands of the trial judge and turned over to psychologists, social workers and probation department employees.
In the instant case, the reports contained information which was prejudicial to defendant, rebutted the existence of mitigating factors not raised by defendant and introduced into evidence information which the state could not have otherwise placed before the jury.'
The reports refer to statements by the defendant that he was an alcohol abuser, had used illicit drugs including heroin and Dilaudid (a morphine deriv- • ative), had never been employed, had set fires for amusement and had a long history of juvenile adjudications and criminal convictions. The presentence investigation report stated the probation officer’s belief that defendant’s prior criminal arrest record had “* * * escalated rapidly both in frequency and assaultiveness” and that the defendant may be viewed as “* * * at least a moderate physical threat to the community” who had not been deterred from crime by incarceration or probation. None of this would have been admissible, absent the majority’s interpretation of R.C. 2929.03(D)(1).
The most serious error which occurred when the jury was required to consider the information in these presentence reports was this: the state was allowed to rebut mitigating factors which had not been raised by defendant. Under Ohio’s statutory scheme, a defendant has the burden of going forward with evidence of any factors in mitigation of the imposition of the sentence of death and the court is required to give defendant “* * * great latitude in the presentation of evidence of * * * factors in mitigation of the imposition of the sentence of death.” See R.C. 2929.03(D)(1) and 2929.04(C). The Eighth and Fourteenth Amendments require that the sentencer not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and the circumstances of the offense that the defendant proffers as a basis for punishment less than death. *18 Lockett v. Ohio (1978), 438 U.S. 586, 604 .
The right to present mitigating evidence belongs to the defendant. If the defendant fails to present evidence concerning the factors listed as mitigating in R.C. 2929.04(B), no comment • may be made upon the omitted factors. State v. DePew (1988), 38 Ohio St. 3d 275, 289 , 528 N.E. 2d 542, 557 . It follows that evidence concerning mitigating factors not raised by a defendant may not be given to the jury.
In this case, defendant elected not to raise the mitigating factors listed in R.C. 2929.04(B)(1), (2), (5) and (6). The trial court properly refrained from instructing the jury on these factors in its oral charge. However, the court ■also instructed the jury that they must consider the written presentence investigation and psychological reports in determining defendant’s sentence. These reports contained statements rebutting the existence of the potentially mitigating factors listed in R.C. 2929.04(B)(1), (2), (5) and (6). Indeed, the presentence investigation report listed each mitigating factor of R.C. 2929.04(B)(1) through (7) in separate paragraphs. Thus, the jury was given the conclusions of Jean C. Meyer, Unit Supervisor, and Lindsey Whitehead, Division Supervisor, as to whether each of the statutory mitigating factors was present in the case. 4 Since the defendant chose not to proffer evidence concerning the above factors, evidence concerning these factors should not have been placed before the jury. Further, the prosecuting attorney commented on the presentence report statements in his closing argument and called the court-appointed psychologist as a witness. Allowing the state to rebut mitigating factors which were not raised by the defendant violates Ohio’s statutory sentencing scheme.
It also transforms the nonexistence of mitigating factors into aggravating circumstances not specifically enumerated in R.C. 2929.04(A)(1) through (8). Submission to the jury of nonstatutory aggravating factors in the penalty phase of a capital trial is not permitted. State v. Johnson (1986), 24 Ohio St. 3d 87 , 24 OBR 282, 494 N.E. 2d 1061 . It tips the scales in favor of death and does violence to the principle that the imposition of a sentence of death cannot be the result of arbitrary or capricious sentencing. Gregg v. Georgia (1976), 428 U.S. 153 ; Proffitt v. Florida (1976), 428 U.S. 242 ; Furman v. Georgia (1972), 408 U.S. 238 .
II
The majority did not need to interpret R.C. 2929.03(D)(1) so as to make it unconstitutional.
R.C. 2929.03(D)(1) states in part:
“* * * The court, and the trial jury if the offender was tried by a jury, shall consider any report prepared pursuant to this division and furnished to it and 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 * * *.” (Emphasis added.)
Factors in mitigation of the imposition of the sentence of death are only those' factors raised by the defendant. *19 Since the reports contained statements which were not relevant to the mitigating factors raised by defendant, those parts of the report should not have been considered by the jury.
Ill
Even if R.C. 2929.03(D)(1) is read as the majority urges, defendant’s Fifth Amendment privilege against compelled self-incrimination was violated because he was not advised before the psychological examination that he had the right to refuse to answer questions and that his statements could be used against him at the capital sentencing proceeding. Estelle v. Smith (1981), 451 U.S. 454 ; Miranda v. Arizona (1966), 384 U.S. 436 . Although defendant herein requested the exam and the petitioner in Smith, supra, did not, defendant was equally entitled to Miranda warnings because he did not proffer the report and was not personally made aware that the report would be used against him to support a sentence of death.
The psychological report states, “Prior to beginning the examination of Mr. Esparza, I explained to him the purpose of the evaluation and the lack of confidentiality inherent in the evaluation process.” This statement is inadequate under Miranda because the examiner failed to warn defendant that his statements could be used against him and that he had the right to refuse to answer questions. “Just as the Fifth Amendment prevents a criminal defendant from being made ‘ “the deluded instrument of his own conviction,” ’ * * * it protects him as well from being made the ‘deluded instrument’ of his own execution.” (Citations omitted.) Smith, supra, at 462 . The-Fifth Amendment privilege is directly involved in the instant cause because the defendant exercised his right not to testify and the state used his disclosures against him. If, as the majority contends, the statements made by a criminal defendant during mental examinations may be used against the defendant in support of the death penalty, Miranda requires that the defendant must be constitutionally warned.
For the foregoing reasons, I respectfully dissent.
Wright, J., concurs in the foregoing dissenting opinion.
The trial court denied defense counsel’s motion for appointment of an independent psychologist-expert because “* * * Section 2929.024 * * * [does] not extend to the hiring of independent psychiatrists or psychologists for the use of the Defendant in mitigation proceedings.” The court’s ruling contains no finding that the requested expert services were not reasonably necessary for the proper representation of the defendant and thus was in error. See R.C. 2929.024 and State v. Jenkins (1984), 15 Ohio St. 3d 164 , 15 OBR 311, 473 N.E. 2d 264 , paragraph four of the syllabus.
With all due respect, it is the jury, and not such personages as Jean C. Meyer and Lindsey Whitehead, which is charged with the responsibility to evaluate mitigating factors in a capital case. And it is the trial judge who should decide what evidence may be considered by the jury.