holding that defense counsel’s failure to further question prospective jurors in voir dire was not ineffective assistance of counsel
How later courts described this case
- holding that defense counsel’s failure to further question prospective jurors in voir dire was not ineffective assistance of counsel
- holding that although it was improper for the prosecutor to comment on the defendant’s failure to testify, there was other compelling evidence of the defendant’s guilt and so he was not prejudiced or denied a fair trial
- explaining that where there is no objection to the closing argument, all but plain error is waived
- “In assessing the existence of prosecutorial misconduct, we are mindful that ‘the touchstone of this analysis is the fairness of the [proceeding], not the culpability of the prosecutor.’ ”
Written by the judges who cited it.
The opinion
Pfeifer, J.,
dissenting. This case is another example of why the felony-murder rule is often inappropriate for determining which murderers are death-worthy. See State v. Murphy (2001), 91 Ohio St.3d 516, 561 , 747 N.E.2d 765, 812 (Pfeifer, J., dissenting); State v. Carter (2000), 89 Ohio St.3d 593, 611 , 734 N.E.2d 345, 360 (Pfeifer, J., concurring).
Death penalty cases require courts to perform two general tasks. We must determine whether the defendant is the murderer. In this case, Twyford’s *373 culpability is manifest. Next, we must determine whether the defendant should be sentenced to death. In this case, the determination of death-worthiness turns on whether there was a kidnapping. See Crocker, Concepts of Culpability and Deathworthiness: Differentiating Between Guilt and Punishment in Death Penalty Cases (1997), 66 Fordham L.Rev. 21.
When kidnapping is the felony undergirding a felony-murder death sentence, distinguishing guilt and punishment is especially difficult because the line between murder and kidnapping is blurry. In State v. Logan (1979), 60 Ohio St.2d 126 , 14 O.O.3d 373 , 397 N.E.2d 1345 , syllabus, we stated:
“In establishing whether kidnapping and another offense of the same or similar kind are committed with a separate animus as to each pursuant to R.C. 2941.25(B), this court adopts the following guidelines:
“(a) Where the restraint or movement of the victim is merely incidental to a separate underlying crime, there exists no separate animus sufficient to sustain separate convictions; however, where the restraint is prolonged, the confinement is secretive, or the movement is substantial so as to demonstrate a significance independent of the other offense, there exists a separate animus as to each offense sufficient to support separate convictions.”
As in State v. Hartman (2001), 93 Ohio St.3d 274 , 754 N.E.2d 1150 ,- the kidnapping here was incidental to the murder. Twyford used deception to kidnap the victim for the express purpose of killing him. Accordingly, there was no separate animus, and there was no significance independent of the other offense. Without a kidnapping, there is no felony murder; without felony murder, there is no death sentence. The majority deals with this important issue by stating that the appellant did not “seriously dispute” the kidnapping.
An appellant’s action or inaction does not obviate our duty to conduct an independent review into the appropriateness of the sentence of death. When the felony in a felony-murder death sentence is incidental to the murder, we as a court should find the death sentence inappropriate and reverse it. I dissent.
APPENDIX
“Proposition of Law No. I: Morgan v. Illinois, 504 U.S. 719 [ 112 S.Ct. 2222 ], 119 L.Ed.2d 492 (1992), mandates that a capital defendant be permitted to voir dire potential jurors on their views of capital punishment, facts and circumstances of conviction and evidence of mitigating circumstances. Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 2, 9, 10, and 16 of the Ohio Constitution.
*374 “Proposition of Law No. II: When a trial court erroneously instructs a jury at the penalty phase regarding the factors to consider in recommending punishment and when it independently considers more than one valid aggravating circumstance, a capital defendant is denied the right to a fair trial, the right to a reliable sentencing determination, and the right to due process of law. Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 9,10 and 16 of the Ohio Constitution.
“Proposition of Law No. Ill: Where the trial court does not permit a witness to testify about capital defendant’s ability to peacefully live in prison, the trial court diminishes the reliability of the jury’s determination that death was the appropriate punishment, in violation of the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution and Article I, Sections 2, 5, 9,10,16 and 20 of the Ohio Constitution.
“Proposition of Law No. IV: When the death sentence is excessive and disproportionate to the sentences in similar cases and when it is inappropriate, the death sentence must be vacated and a life sentence imposed. Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 9,10 and 16 of the Ohio Constitution.
“Proposition of Law No. V: The state failed to introduce sufficient evidence to prove all the elements of aggravated robbery beyond a reasonable doubt, and therefore, appellant was deprived of his right to due process of law under the Fourteenth Amendment of the United States Constitution as well as Article I, Section 16 of the Ohio Constitution.
“Proposition of Law No. VI: Raymond Twyford’s convictions must be reversed and his death sentence vacated because prosecutorial misconduct throughout all phases of the capital trial violated appellant’s right to due process under the Fourteenth Amendment to the United States Constitution and Article I, Section 16 of the Ohio Constitution, and it deprived the sentencing determination of the reliability required by the Eighth Amendment to the United States Constitution and Article I, Section 9 of the Ohio Constitution.
“Proposition of Law No. VII: A capital defendant is denied a fair trial and a reliable sentencing determination when gruesome and cumulative photographs are admitted into evidence. Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 2, 9, 10 and 16 of the Ohio Constitution.
“Proposition of Law No. VIII: When the trial court permits evidence of prior criminal acts, it denies a capital defendant the right to a fair trial, an impartial jury, and to a reliable sentencing determination in violation of the Sixth and *375 Fourteenth Amendments to the United States Constitution and Article I, Sections 2, 5 and 10 of the Ohio Constitution.
Bryan H. Felmet, Jefferson County Prosecuting Attorney, and Rickard H. Ferro, Assistant Prosecuting Attorney, for appellee.
David H. Bodiker, Ohio Public Defender, J. Joseph Bodine, Jr., and Angela Greene, Assistant Public Defenders, for appellant.
“Proposition of Law No. IX: The trial court erred when it failed to suppress Twyford’s statement because the Miranda waiver was obtained unknowingly, and the confession was the product of coercion. The trial court’s action denied Twyford his rights to a fair trial, due process and a reliable determination of his guilt and sentence as guaranteed by the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution, as well as Article I, Sections 2, 9,16, and 20 of the Ohio Constitution.
“Proposition of Law No. X: When a juror is replaced with an alternate juror between the guilt and penalty phases of a trial, a capital defendant may not be sentenced to death. Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution and Article I, Sections 1, 2, 3, 5,10, and 16 of the Ohio Constitution. Ohio Rev.Code Ann. Section 2929.03(d)(2) (Anderson 1993).
“Proposition of Law No. XI: Defense counsel’s actions and omissions at Twyford’s capital trial deprived him of the effective assistance of trial counsel as guaranteed by the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 9, 10 and 16 of the Ohio Constitution.
“Proposition of Law No. XII: 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 trial and penalty phases of a capital case.
“Proposition of Law No. XIII: Ohio’s death penalty law is unconstitutional. 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 Rev.Code Ann. Sections 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04 and 2929.05, (Anderson 1996), do not meet the prescribed constitutional requirements and are unconstitutional on their face and as applied to Raymond Twyford.”