# State v. Joseph > Ohio Supreme Court · August 30, 1995 · 73 Ohio St. 3d 450 URL: https://www.frixlaw.com/law-library/cases/6772271 ## Case - **Full name:** The State of Ohio v. Joseph - **Court:** Ohio Supreme Court - **Decided:** August 30, 1995 - **Citations:** 73 Ohio St. 3d 450; 653 N.E.2d 285 - **Precedential status:** Published - **Opinion:** Concurring in part by Cook - **Judges:** Cook, Deshler, Douglas, Moyer, Pfeifer, Resnick, Sweeney, Tenth, Wright - **Cited by:** 241 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6772271 ## How later opinions describe it (automated extraction) - explaining that an appellant waives any challenge to an indictment which was not made before or during trial - affirming conviction where there was no indication that the failure to disclose was willful ## Opinion text Cook, J., concurring in part and dissenting in part. Like Chief Justice Moyer and Judge Deshler, I dissent from the majority opinion as to the sentence of death. I write separately because, unlike them, I find the flawed indictment to be harmless error. I do agree, however, with Chief Justice Moyer’s dissent on the sufficiency-of-the-evidence issue. Given that the decisional law defines “principal offender” with respect to the penalty phase as an “actual killer,” and that this jury was misled throughout the proceedings that to reach a sentence recommendation it need not resolve the issue of whether Joseph or Bulerin was the actual killer (or that they both were), I cannot concur in the imposition of the death penalty. Future cases with similar evidence — with two potential killers present at a murder and no witness as to which one killed the victim or whether it was a joint effort — ought to merit further instruction beyond what was given here. The trial court should instruct in such a case that “principal offender,” as used in the death-penalty specification, means one who actually kills the victim; not one who just aids and abets in the commission of the aggravated murder. *471 APPENDIX “Proposition of Law No. I[:] An indictment that fails to set forth an offense for which the sentence of death may be imposed is invalid as to the capital offense and the death sentence which resulted is void. “Proposition of Law No. II[:] The proper remedy for the state’s willful failure to disclose that its chief witness has been granted immunity is a mistrial or the striking of the witnesses [sic] testimony. “Proposition of Law III[:] When a death sentence is both unreliable and inappropriate it must be vacated and a life sentence imposed. “Proposition of Law IV[:] When the death sentence is excessive and disproportionate to the sentence in similar cases, the death sentence must be vacated and a life sentence imposed. “Proposition of Law V[:] When every single potential juror in a capital trial has been exposed to pre-trial publicity and victim impact evidence, it is an abuse of discretion for the trial court to deny the defendant’s motion for change of venue. “Proposition of Law VIE:] A trial court denies a capital defendant the right to a fair trial and to due process of law [when] it erroneously instructs the jury during the guilt-innocence phase of a capital case. “Proposition of Law VII[:] Erroneous instructions at the penalty phase of a capital case result in an unreliable determination of the proper penalty in a capital trial. “Proposition of Law YIII[:] When a trial court fails to consider mitigating evidence presented during the penalty phase of a capital case and considers erroneous aggravating circumstances in making its determination to impose the death sentence the death sentence must be vacated. “Proposition of Law IX[:] When a prosecutor’s pattern of misconduct throughout both phases of a capital trial and closing argument deprive a capital defendant of a fair trial the appropriate remedy is a new trial. “Proposition of Law X[:] A reviewing court may not apply a new rule of law in an ex post fact [sic ] manner when the new rule reduces the state’s burden of supporting a capital conviction. “Proposition of Law XI[:] A conviction for aggravated murder may not be sustained when the evidence presented does not meet the legal requirements to prove the elements of the crime. “Proposition of Law XII[:] When the trial court allows a capital jury to hear prejudicial irrelevant evidence, a mistrial should be declared. *472 “Proposition of Law XIII[:] The failure to object to numerous errors at trial, to adequately address substantial capital issues, and to prepare a meaningful penalty phase case deprives a capital defendant of the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution, Article I, Sections 10 and 16 of the Ohio Constitution. “Proposition of Law XIV[:] When the trial court refuses to instruct a jury to select one of the available life sentences after the jury informs the court that it is deadlocked on the death penalty, a capital defendant is denied the right to a fair trial and a reliable sentencing determination in violation of the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 5‘, 6 and 16, Article I of the Ohio Constitution. “Proposition of Law XV[:] When a trial court in a capital trial erroneously denies a challenge for cause against a juror who is biased, reversible error occurs when the defendant is forced to use a peremptory challenge to remove the juror. “Proposition of Law XVT[:] Exhibits that have been admitted into evidence in the guilt-innocence phase of a capital case can only be readmitted in the penalty phase if they are relevant to the aggravating circumstances proved in the guilt-innocence phase or to mitigating factors presented in.the penalty phase. “Proposition of Law XVTI[:] A criminal defendant has a right to be present at all proceedings, including in-chambers conferences, unless he voluntarily absents himself from the proceeding. “Proposition of Law XVIII[:] When a trial court permits the admission of expert opinion testimony that is not properly qualified or based on reasonable scientific certainty, a capital defendant is denied his right to a fair trial and to due process of law in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Section 16, Article I of the Ohio Constitution. “Proposition of Law XIX[:] When a trial court admits into evidence statements by a defendant which were not knowingly, voluntarily and intelligently given, the defendant is denied his rights to a fair trial and against self-incrimination in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 2, 9, 10 and 16 of the Ohio Constitution. “Proposition of Law XX[:] When gruesome and prejudicial photographs are admitted into evidence even though their prejudicial effect outweighs their probative value, a capital defendant is denied his rights to a fair trial, due process of law and a reliable sentencing determination as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, Article I, Sections 10 and 16 of the Ohio Constitution. “Proposition of Law XXI[:] A trial court should refuse to allow the introduction or admission of evidence unless the state can clearly show that the evidence it *473 seeks to introduce is related to the defendant or the crime with which he is charged. “Proposition of Law XXII[:] A witness may testify as an expert if the witnesses [sic] testimony is based on reliable scientific, technical, or other specialized information to the extent that the testimony reports the result of a procedure, test, or experiment and the testimony is reliable. “Proposition of Law XXIII[:] Evidence is not admissible against a defendant unless the state first establishes that a foundation exists to tie the evidence to the defendant. “Proposition of Law XXTV[:] Absent any indication that a witness is hostile, an adverse witness or a witness identified with an adverse party, questioning by use of leading questions on direct examination is prohibited. “Proposition of Law XXV[:] Hearsay evidence which lacks any indication of trustworthiness is inadmissible. “Proposition of Law XXVT[:] A capital defendant is denied a fair trial when the trial court refuses to permit the voir dire to be video taped. “Proposition of Law XXVII[:] When a trial court unduly restricts voir dire related to mitigation and sentencing issues, a capital defendant is denied a fair trial and reliable sentencing determination. “Proposition of Law XXVIII[:] The statements from the prosecutor that the jury’s verdict at the penalty phase was only a recommendation violated the Eighth and Fourteenth Amendments to the United States Constitution as well as Article I, Sections 2, 9, 10 and 16 of the Ohio Constitution. “Proposition of Law XXIX[:] A trial court deprives a capital defendant the right to a fair and impartial jury when it asks questions during an individual sequestered voir dire which tend to ‘death qualify’ the jury. “Proposition of Law XXX[:] The trial court erred to the prejudice of appellant Joseph in allowing the prosecutor to perempt jurors with reservations about the death penalty. “Proposition of Law XXXI[:] A capital defendant is denied the right to a fair trial and to due process of law when the trial court refuses to allow alternating voir dire. “Proposition of Law XXXII[:] After a witness testifies, the trial court should conduct an in camera inspection of the witness’s written statement with the defense counsel and the prosecuting attorney present and participating to determine any inconsistencies between the witness’s testimony and any prior statement. (Ohio R.Crim.P. 16(B)(1)(g) applied.) *474 “Proposition of Law XXXIII[:] When a trial corat, on its own, orders the Grand Jury transcripts to be transcribed and then treats the transcripts as if they were witness statements pursuant to Ohio R.Crim.P. 16(B)(1)(g), the Grand Jury transcripts should be turned over to defense counsel for inspection. “Proposition of Law XXXIV[:] On direct appeal as of right to the court of appeals in a capital case, a capital appellant is entitled to the review of his entire record by the court of appeals. “Proposition of Law XXXV[:] The state has an obligation to preserve evidence used to secure a conviction in a capital case. “Proposition of Law XXXVI[:] The Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10 and 16, Article I of the Ohio Constitution establish the requirements for a valid death penalty scheme. Ohio Revised Code, Section[s] 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04 and 2929.05, Ohio’s statutory provisions governing the imposition of the death penalty, do not meet the prescribed requirements and thus are unconstitutional, both on their face and as applied.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6772271. Public record. Not legal advice.