Record and brief — Ohio v. Huertas

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DOCKET

No. 89-1944-CSY

Title: Ohio, Petitioner

Ediberto Huertas

Court: Supreme Court of Ohio

Counsel for petitioner: White,Gregory A.

Counsel for respondent: Dana,Randall M.

052590 rec’d 40 pet 061190 rec’d 40 corr’d pet

Note Proceedings and Orders

Status: GRANTED

Docketed:

May 25, 1990

Entry Date

1 May 25 1990

3 Jul 9 1990

4 Jul 9 1990

2 Jul 11 1990

6 Oct 1 1990

7 Oct 1 1990

8 Oct 9 1990

9 Oct 15 1990

10 Oct 19 1990

12 Oct 26 1990

11 Oct 29 1990

13 Oct 29 1990

14 Nov 5 1990

15 Nov 8 1990

16 Nov 13 1990

17 Nov 13 1990

18 Nov 15 1990

19 Nov 15 1990

20 Nov 15 1990

21 Nov 15 1990

22 Nov 23 1990

23 Nov 29 1990

24 Dec 3 1990

25 Dec 3 1990

26 Dec 11 1990

G Petition for writ of certiorari filed.

X Brief of respondent Ediberto Huertas in opposition filed.

G Motion of respondent for leave to proceed in forma

pauperis filed.

DISTRIBUTED. September 24, 1990

Motion of respondent for leave to proceed in forma

pauperis GRANTED.

Petition GRANTED.

REE KEKE EEE EEE EEE EEE EEE EEE EERE EKER RHEE

G Motion of respondent for appointment of counsel filed.

DISTRIBUTED. Oct. 26, 1990.

D Motion of respondent to dismiss writ of certiorari as

improvidently granted filed.

Brief of petitioner Ohio opposing motion to dismiss filed.

Motion for appointment of counsel GRANTED and it is

ordered that Joann Bour-Stokes, Esq., of Columbus, Ohio,

is appointed to serve as counsel for the respondent in

this case.

DISTRIBUTED. Nov. 2, 1990. (Motion of respondent to

dismiss writ of certiorari as improvidently granted).

Motion of respondent to dismiss writ of certiorari as

improvidently granted DENIED.

Brief amicus curiae of California filed.

Joint appendix filed.

Brief of petitioner Ohio filed.

G Motion of Washington Legal Foundation, et al. for leave

to file a brief as amici curiae filed.

Brief amicus curiae of United States filed.

Record filed.

* Certified copy of original record, 2 boxes, received.

G Motion of Appellate Committee of the California District

Attorneys Association for leave to file a brief as

amicus curiae filed.

SET FOR ARGUMENT WEDNESDAY, JANIT'ARY 16, 1991. (2ND CASE)

CIRCULATED.

Motion of Washington Legal Foundation, et al. for leave

to file a brief as amici curiae GRANTED.

Motion of Appellate Committee of the California District

Attorneys Association for leave to file a brief as

amicus curiae GRANTED.

X Brief of respondent Huertas filed.

» V1

No. 89-1944-CSY

Entry Date Note Proceedings and Orders

27 Dec 17 1990 G Motion of Barbara Babcock, et al. for leave to file a

brief as amici curiae filed.

28 Dec 17 1990 G Motion of National Legal Aid and Defender Association

for leave to file a brief as amicus curiae filed.

29 Dec 17 1990 G Motion of National Association of Criminal Defense

Lawyers, et al. for leave to file a brief as amici

curiae filed.

30 Dec 17 1990 G Motion of Murder Victims’ Families for Reconciliation

for leave to file a brief as amicus curiae filed.

31 Dec 17 1990 G Motion of National Jury Project for leave to file a

brief as amicus curiae filed.

32 Jan 7 1991 Motion of Barbara Babcock, et al. for leave to file a

brief as amici curiae GRANTED.

33 Jan 7 1991 Motion of National Legal Aid and Defender Association

for leave to file a brief as amicus curiae GRANTED.

34 Jan 7 1991 Motion of National Association of Criminal Defense

Lawyers, et al. for leave to file a brief as amici

curiae GRANTED.

35 Jan 7 1991 Motion of Murder Victims’ Families for Reconciliation

for leave to file a brief as amicus curiae GRANTED.

36 Jan 14 1991 Motion of National Jury Project for leave to file a

brief as amicus curiae GRANTED.

37 Jan 16 1991 ARGUED.

PETITION —

FOR WRIT OF

CERTIORARI

een ee Pavel. Tes

ae-18e8

CASE NO:

IN THE UNITED STATES SU

OCTOBER TERM, [989

STATE OF OHIO,

PETITIONER,

Vs.

EDIBERTO HUERTAS,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF OHIO

Gregory A. White

PROSECUTING ATTORNEY

LORAIN COUNTY, OHIO

226 MIDDLE AVENUE,

4TH FLOOR,

ELYRIA, OH 44035

BY:

Jonathan E. Rosenbaum

CHIEF COUNSEL,

CRIMINAL DIVISION

(216) 329-5389

COUNSEL FOR PETITIONER

QUESTION PRESENTED FOR REVIEW

Whether the Ohio Supreme Court

has wrongfully interpreted

Booth v. Maryland (1987), 107

S. Ct. , and South Carolina

v. Gathers (1989), 109 S. Ct.

, to require exclusion of

all victim testimony during the

penalty phase of a capital

trial and by further ho'ding

that the effect of the victim’s

death on the surviving family

members is not relevant to the

defendant’s personal

responsibility and moral guilt

when the defendant intimately

knew his victim, his victim’s

family, and of the trauma his

decision to kill would cause.

ee, ee i a

A) TABLE OF CONTENTS

Statement of Claimed Jurisdiction..

Constitutional Provisions and

Statutes |

Statement of the Case and POSES « « cc

ee :

Appendix

B) TABLE OF AUTHORITIES

Cases cited:

Booth v. Maryland (1987),

ee ee ee nent caked éeeee i, 8

9, 10, 11, 12, 13,

14, 15, 16, 17, 20, 21

Enmund v. Florida (1982)

458 U.S. 782, 801

ee ee ee 12

State v. Huertas, (1990),

‘ gg § tg & a a.

Ss Bee S28

South Carolina v. Gathers (1989),

ee es es ee 66 ohh ned 60% & i.

8, 9, 10, 11, 12

14, 15, 16, 17, 19, 20, 21

8th Amdendment of the

)

| CONSTITUTIONAL PROVISIONS AND STATUTES:

: Pe a a eee eee 2

;

14th Amendement of the

ME eae eee 2

| OHIO REVISED CODE SECTIONS:

| 2903.01

| eae G asks ese on neens

| 2929.022

2929.03

2929.04

WWDNND NY

II!

OPINION BELOW

The opinion creating the issue

presented to this Court was rendered by

the Ohio Supreme Court in Case No.

88-1627 and published under the following

citation:

State v. Huertas (1990), 51 Ohio

St. 3d 22.

This case was a reversal of a

decision made by the the Ninth District

Court of Appeals for Lorain County, Ohio,

No. 4202.

STATEMENT OF CLAIMED JURISDICTION

Jurisdiction is invoked under:

28 U.S.C. 1257(3) and

Supreme Court R. 17.1(C)

The Ohio Supreme Court rendered its

decision in this case on May 9, 1990 at

1:00 p.m.

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

U.S. Constitutic:. Amendment VIII

Excessive bail shall not

be required, nor excessive

fines imposed, nor cruel and

unusual punishments inflicted.

U.S. Constitution Amendment XIV,

Section 1

Section 1. All persons

born or naturalized in the

United States, and subject to

the jurisdiction thereof, are

citizens of the United States

and of the State wherein they

reside. No State shall make or

enforce any law which shall

abridge the privileges or

immunities of citizens of the

United States; nor shall any

State deprive any person of

life, liberty, or property,

without due process of law; nor

deny to any person within its

jurisdiction the equal

protection of the laws.

Ohio Revised Code Section 2903.01

Ohio Revised Code Section 2929.02

Ohio Revised Code Section 2929.022

Ohio Revised Code Section 2929.03

Ohio Revised Code Section 2929.04

STATEMENT OF THE CASE AND FACTS

The respondent, Ediberto Huertas,

the victim, Sgt. Ralph Harris, Jr. USAF,

and Elba Ortiz knew each other

intimately. The respondent grew up with

the victim. The victim referred to the

respondent’s parents as Mom and Pop. All

three attended high school together.

Everyone concerned knew the victim had a

son, Ralph Harris, III.

The respondent had an extramarital

affairc with Elba Ortiz and fathered

children with her. The victim married,

divorced, and was the father of one son

who resided with the victim’s parent’s

while Sgt. Ralph Harris, Jr. was away on

duty with the Air Force.

While on leave, the victim began to

date Elba Ortiz. The respondent became

aware of the relationship. The respondent

threatened to kill the victim if he did

not stop seeing Elba Ortiz. These threats

took place at the home where the victim’s

son and mother resided in the presence of

the victim’s mother.

Sgt. Ralph Harris, Jr. did not stop

seeing Elba Ortiz despite the

respondent’s threat to “waste him."

On June 6, 1986, the respondent

broke into Elba Ortiz’s home and stabbed

Sgt. Ralph Harris, Jr. The respondent

then attempted to kill Elba Ortiz. Sgt.

Harris came to her aid and the respondent

fled.

Sgt. Ralph Harris, Jr. subsequently

died of the stab wounds inflicted by the

respondent.

Respondent was convicted of

— —

Aggravated Murder with Capital

Specifications.

At the penalty phase the respondent

presented two (2) main theories of

mitigating evidence. Firstly, that he was

intoxicated from the use of marijuana,

cocaine, and alcohol. Secondly, the

respondent called members of his family

to demonstrate their love for the

respondent and some of the tribulations

of his youth.

In rebuttal, the State offered

testimony of the surviving parents of the

victim concerning the loss they

experienced and the loss their grandson

experienced.

The defense was aware that Mrs.

Ralph Harris, Sr. could not request the

death penalty because of religious

convictions. Trial counsel specifically

engaged in the following examination in

———

an attempt to demonstrate that she was

not in favor of the jury imposing the

death penalty.

Q Mrs. Harris, you have

indicated to Mr. Rosenbaum; and

you have indicated to Mr.

Willets, that you don’t want

Eddie to get the death penalty,

haven’t you?

MR. ROSENBAUM: Objection.

THE COURT: Overruled.

om I told Mr. Rosenbaum that

I am not the Judge and I’m not

the Jury; and it’s left up to

the Courts.

Q But you don’t want him to

get the death penalty, do you?

A And God; and that’s what I

mean.

MR. ROSENBAUM: Your

Honor, she answered the

question.

THE COURT: Sustained.

Q Did you answer my

question, Mrs. Harris?

A Yes, I did.

Q Mrs. Harris, did you think

of Eddie Huertas as a son,

also?

A Yes, I thought of all of

them the same way.

Q They were all that close?

A Because I loved all the

kids that was at my house.

Q As a Christian, you have

the ability to forgive?

MR. ROSENBAUM: Objection.

THE COURT: Well,

overruled.

Go ahead.

A As a Christian.

Penalty Phase Tr. at 270-271.

In response to the defense

eliciting testimony that one of the

victim’s parents did not desire the

respondent to suffer the death

penalty, the State called the

victim’s other parent to state to

the contrary.

The respondent was convicted of

two (2) counts of Aggravated Murder

with various capital specifications.

The jury recommended the death

penalty to the Court. The Honorable

Floyd D. Harris, Judge imposed the

death penalty on March 10, 1987.

The Ninth District Court of

Appeals affirmed the conviction and

death penalty in two (2) separate

opinions rendered on July 6, 1988.

The Supreme Court of Ohio

vacated the death penalty, but

affirmed the conviction. It remanded

the case for resentencing in an

opinion rendered on May 9, 1990 at

1:00 p.m.

The first ruling adverse to the

petitioner that affected and created

the issue presented in this petition

occurred in the opinion rendered by

the Ohio Supreme Court and attached

in the Appendix.

The Ohio Supreme Court

concluded that Booth v. Maryland

(1987), 107 S. Ct. 2529 and South

Carolina v. Gathers (1989), 109 S.

Ct. 2207 prohibited the introduction

of any type of victim impact

testimony.

In Booth v. Maryland

(1987), 42 U.S. 496,

decided after the trial of

the instant case but

before the court of

appeals issued its

opinion, the United States

Supreme Court held that

the introduction of victim

impact evidence in the

penalty phase of a capital

trial is constitutionally

impermissible.

State of Ohio v. Huertas (1990), 61 Ohio

St. 3d 22 at 24.

Justice Douglas correctly stated in

his dissenting opinion that the majority

has interpreted Booth, supra, and

Gathers, supra, to preclude all victim

impact testimony.

DOUGLAS, By stating"***

the Booth [v. Maryland (1987),

482 U.S. 496] court held that

the admission of victim impact

evidence ih the sentencing

phase of a capital jury trial

is constitutional error,” and

“*#** Booth prohibits

consideration of victim

evidence," today’s majority

creates a constitutional ban on

the admission of any victim

impact evidence and, thereby,

the majority contravenes the

express language in Booth.

ane

South Carolina v. Gathers

(1989), 490 U.S. , 104

L.Ed. 2d 876, 109 S. Ct. 2207,

was decided shortly after

Booth. In the case at bar, the

majority views Gathers as a

mere application of the

constitutional standards

announced in Booth. I disagree.

Gathers further explained the

tenth footnote in Booth.

Therefore, Gathers should have

dispelled any belief that Booth

created a constitutional ban on

the use of victim impact

evidence, or that the use of

any such evidence is

constitutionally impermissible.

For purposes of the

present appeal, the majority

has apparently dismissed

Gathers and certain relevant

language in Booth. In so doing,

the majority states: "*** we

find no grounds on which to

distinguish Booth and Gathers,

and we are thus compelled to

follow those cases, vacate the

sentence of death, and remand

for imposition of a life

sentence ***." Today’s majority

opinion does not follow Booth

or Gathers

By what the majority views as

“following” Booth and Gathers,

the majority opinion creates an

automatic vacating of the death

sentence anytime victim impact

evidence is a tted in the

sentencing ph@se of a capital

jury trial. Because I do not

believe that the United States

Supreme Court intended such a

result, I urge that honorable

court, should this matter be

appealed, to review this case

which so plainly misconstrues

both Booth and Gathers.

State of Ohio v. Huvuertas (1990), 51 Ohio

St. at -35.

— oe

The Ohio Supreme Court not only

erroneously excluded all victim testimony

based upon Booth and Gathers, but also

erroneously concluded that this Court’s

holding in Booth and Gathers precludes

victim impact testimony in situations

wherein the murderer intimately knew the

victim and his family.

The Ohio Supreme Court erroneously

concluded that neither Gathers nor Booth

permit the jury to consider victim impact

testimony when the murderer knew the

victim’s death would traumatize surviving

relatives as a result of the assailant’s

personal knowledge and acquaintance with

the victim and hfs family.

The Ohic Supreme Court held that it

is not relevant to the offender’s

personal responsibility or moral guilt

that the offender knowingly killed

another human being with relatives who he

knew would suffer as a result of the

decision to kill.

Appellant’s Knowledge of

Victim’s Family

Booth and Gathers prohibit

introduction of victim impact

evidence which is not

"“celated(d] directly to the

circumstances of the crime ***"

Booth, supra, at 507, fn. 10;

Gathers, supra, at , 104 L.

Ed. 2d at , 109 §. Ct. at

' 2211. Impliedly, there may be

an exception to the Booth rule

when the victim impact evidence

relates to the circumstances of

the crime. (See Booth, supra,

at fn. 10) It is urged that the

instant case falls under this

exception because appellant was

acquainted with the victim and

| his family.

The purpose of the Booth

| rule is to insure that the

jury, in its sentencing

decision, considers only that

evidence which “has some

bearing on the defendant’s

‘personal r€&sponsibility and

moral guilt.’ ***”" Booth,

supra, at 502, quoting Enmund

v. Florida (1982), 458 U.S.

, B01. Im most cases, the

mere fact that the killer knows

his victim does not make him

more or less deserving of the

death penalty. For example, if

appellant and Ralph Harris had

not been friends, and all other

circumstances had been the

same, we doubt that anyone

would consider the crime less

heinous. In order to bring in

victim impact evidence under

the "circumstances of the

crime" exception to Booth, the

State must show a connection to

the defendant’s "personal

responsibility and moral

guilt."

State v. Huertas, supra, at 26.

It is more heinous to callously

disregard the known effect the "decision

to kill" will have upon survivors

acquainted with the victim. The Ohio

Supreme Court concludes that the known

impact to the victim’s family was not

worthy of consideration or relevant to

the decision to kill or pertinent to the

appellant’s character.

The prosecution was

certainly ertitled to rebut the

validity of appellant’s

asserticns. However, the

Harris’ testimony does not

serve this purpose. Their

testimony did not relate to

appellant’s character, and

family or drug problem. It was

not rebuttal testimony.

State v. Huertas, supra at 25-26.

;

)

;

Through an insensitive and narrow

focus the Ohio Supreme Court has

belittled the known suffering that the

decision to kill will cause to the

Surviving family members to the level of

irrelevance. Clearly, it is more heinous

to kill when you know the death will

affect and traumatize others besides the

victim. It is clearly more heinous to

kill when others will be affected than it

is if the offender does not know of the

existence of surviving. family members.

The Ohio Supreme Court has construed

Booth and Gathers to blanketly preclude

victim impact testimony even when the

offender was aware of the victim’s family

and the trauma he will cause by his

decision to kill. The decision to kill

and knowingly leave grieving surviving

relatives acquainted with the offender is

relevant to the offender’s personal

Oe OE eS et ee ee

responsibility and moral guilt. Hence, it

is relevant to the "appellant’s

character" and the circumstances of the

crime, contrary to the conclusion reached

by the Ohio Supreme Court’s majority.

VII

ARGUMENT

The Ohio Supreme Court has

misconstrued this Court’s holding in

Booth v. Maryland (1987), 107 S. Ct. 2529

and South Carolina v. Gathers (1989), 109

S. Ct. 2207. The Ohio Supreme Court, in

this case, has wrongfully concluded that

the devastating impact upon the surviving

family is irrelevant to the circumstances

of the crime and the personal

responsibility and moral guilt of the

killer when the killer knew that the

death would traumatize the surviving

family members.

The Ohio Supreme Court has ruled

that this "evidence" concerning the known

trauma the death will cause to the

Survivors known to the killer can not be

admitted based upon this Court’s ruling

in Booth, supra, and Gathers, supra.

The Ohio Supreme Court has totally

missed the underlying rationale of this

Court’s decisions in Booth and Gathers.

This Court held that it was

unconstitutional to permit the jury to

hear victim impact testimony only if the

offender was unaware of this evidence at

the time of the decision to kill. There

is no harm or constitutional prohibition

in presenting to the jury victim impact

testimony of which the killer was aware

at the time he made his decision to kill.

This evidence which proves that the

killer callously elected to create

grieving relatives to further his own

goals is obviously related to the

i pt i i Ee ee lf ——

a ) ll

circumstances of the crime and the

offender’s personal responsibility and

moral guilt.

Our capital cases have

consistently recognized that

"(flor purposes of imposing the

death penalty ... [the

defendant’s) punishment must be

tailored to his personal |

ee and moral |

guilt."

***

As in Booth, “[(a]jllowing the

jury to rely on [this |

information] ... could cesult |

in imposing the death sentence

because of factors about which

the defendant was unaware,

***

and that were irrelevant to the

decision to kill.” Id., at 505

107 S.Ct., at 2543.

Gathers, supra at 2210-2211.

It is obvious, therefore, that the

key issue in this Court’s analysis in

Gathers was entirely overlooked by the

Ohio Supreme Court. The “key” for

tailoring the punishment to an individual

| defendant is, was he aware of the victim

impact testimony at the time he made the

decision to kill. If the offender was

aware of the victim matters encompassed

by the impact testimony at the time he

made the decision to kill, it it

admissible. If he was not, the evidence

is constitutionally prohibited.

There is no evidence whatever

that the defendant read

anything that was printed on

either the tract or the voter

card. Indeed, it is extremely

unlikely that he did so. The

testimony at tricl was that

Gathers went through Haynes’

bags very ee: "just

throwing [his belongings)

everywhere, looking through

things,” App. 27, and that he

spent not more than a minute

doing so. Id., at 28. The

crime took place, moreover, at

night, along a dark path

through a wooded area. Id., at

17; Record 621-622, 926-927.

Nor did the assailants have

flashlights. Id., at 622-623.

Under these circumstances, the

content of various papers the

victim happened to be carrying

when he was attacked was purely

fortuitous, and cannot provide

any information relevant to the

defendant’s moral culpability.

Notwithstanding that the papers

had been admitted into evidence

for another purpose, their

content cannot be said to

relate directly to the

circumstances of the crime.

Gathers, supra, at 2211.

Since the respondent intimately knew

the victim, his parents, and his son, all

of the victim impact evidence offered in

this trial at the penalty phase was

constitutionally permissible. Since the

respondent’s counsel sought the view of

one of the surviving parents regarding

the death penalty, it was permissible for

the State to seek the opinion of the

other parent.

The penalty phase of a capital jury

trial is not solely the mitigation phase.

The suffering of the victim’s family

(when the victim’s family is known to the

offender prior to the decision to kill)

is every bit as relevant to the

circumstances of the crime or the

offender’s personal responsibility and

moral guilt as is the offender’s family’s

relationship with the offender. If the

—_—

Lal

—_ —

offender elects to proceed with testimony

by his family members, it should be

permissible for the State to do the same

with the family of the victim if they

were known to the offender prior to the

decision to kill.

This case presents this court with

the unique opportunity to express and

define just when victims may be included

in capital litigation and our system of

justice pursuant to Booth v. Maryland,

supra, and South Carolina v. Gathers,

supra. The facts are unique because the

offender intimately knew the victim and

his family. It further presents to this

Court an opportunity to clear up a

misinterpretation of this Court’s holding

in both of these cases, which has far

reaching consequences to the surviving

victims of murder in Ohio.

The grieving and surviving victims

—S. t" 9? ee

of murders deserve to be included and

protected in our system of justice. This

case presents The United States Supreme

Court a unique chance to define the

balance struck between the rights of the

defendant and the inclusion of victims in

our system of justice without overruling

Booth or Gathers. This case also presents

this Court with the opportunity to

overrule these cases if it so desires.

Respectfully submitted,

GREGORY A. WHITE

Prosecuting Attorney

Larain Count Ohio

: +4 \L—

Counsel

al Division

Hiddle Avenue,

oor

Elyria, Ohio 44035

(216) 329-5389

a eS eee Ee, Oe

CERTIFICATE OF SERVICE

I, Jonathan E. Rosenbaum hereby

certify, pursuant to U.S. Sup. Ct. R.

28.3 that three copies of the foregoing

Petition for Writ of Certiorari to The

Supreme Court of Ohio were sent to

Randall M. Dana, Ohio Public Defender, 8

East Long Street, llth Floor, Columbus,

Ohio, 43266-0587, on this ge. day of

May, 1990 by depositing the three copies

in a United States mail box with first

class postage affixed thereto. A copy of

an Appearance Form entering my appearance

is and was attached.

J E. ROSENBAUM

Cc Counsel,

Cr al Division

;

res

APPENDIX

a LSS = SS

THE STATE OF OHIO, APPELLEE

Vv.

HUERTAS, APPELLANT.

[Cite as State v. Huertas (1990), 51 Ohio

St. 3d 22.)

Criminal law-Aggcravated

gurder-Expressions of opinion by witness

of appropriateness of particular sentence

violate defendant’s constitutional right

to have sentencing decision made by the

jury and judge, when.

O.Jurc 3d Criminal Law Sections 1842,

1845.

Expressions of opinion by a witness as to

the appropriateness of a particular

sentence in a capital case violate

the defendant’s constitutional right

to have the sentencing decision made

by the jury and judge.

(No.88-1627-Submitted January 9,

1990-Decided may 9, 1990.)

APPEAL from the Court of Appeals for

Lorain County, No. 4202.

Appellant, Ediberto ("Eddie") Huertas,

was convicted of the June 7, 1986 murder

of Ralph Harris, Jr., and sentenced to

death.

Appellant attended high school with

Elba Ortiz and Harris in Lorain, Ohio.

The three became friends. Before his

scheduled graduation, appellant dropped

out of school. Harris apparently

completed school and went into the Air

Force. Appellant and Ortiz developed a

"shaky, on and off" relationship while in

high school. Though they never married,

the couple had two daughters while Ortiz

was still in school.

Appellant ended the relationship

with Ortiz, and entered into what was

apparently a common-law marriage with his

wife, Arlene. This marriage produced

three children. About a year and a half

after he married Arlene, appellant

resumed a relationship with Ortiz.

Appellant eventually separated from his

wife and lived with Ortiz intermittently

@uring the early part of 1986. There was

tension, caused by appellant’s refusal to

Givorce his wife, and by his involvement

with other women.

In May 1986, Harris came home on

leave from the Air Force and began dating

Ortiz. On May 31, appellant went to visit

Harris, who was staying with his parents.

Appellant told Harris to stop dating

Ortiz because Ortiz was “his woman."

Barris ceplied, “Your woman is Arlene.

Elba is single; and I’a@ single.” In the

conversation, appellant told Barris “(hile

didn’t want to end their friendship this

way” but he “was going to waste hia” if

he didn’t stop seeing Ortiz. Harris

responded, "Well, you know where I live.”

Appellant came back to the Harr «

house an hour later. Appellant claimed

that Ortiz did not want to see Harris

anymore. Harris said, "if (sic) Elba says

that, Elba is going to have to tell me

herself." When Harris again refused to

promise not to see Ortiz, appellant said,

"I still say I’m going to have to waste

you, *** You know, you know I don’t do -

. I don’t do it fair, *** but I’m going to

waste you.” Appellant admitted these

conversations, but denied threatening

harris.

On the evening of June 6, appellant

went home after work, “had a few beers"

and smoked marijuana. Sometime after ten

he went to a bar with a female friend.

His roommate, Danny Lopez, joined them an

hour or so later. Sometime after

midnight, appellant purchased cocaine and

——————— ee !rtcC(it OO OO OC OO TCO CU

ingested it. Appellant and Lopez

continued their rounds of Lorain-area

bars until after two in the morning. By

his admission, appellant consumed six to

nineteen beers, six to ten shots of rum,

and a quarter to a half gram of cocaine.

Lopez estimated that they smoked five or

six marijuana cigarettes.

That same evening, Ortiz and Harris

went to a concert, returning to her

apartment at about eleven. Ortiz invited

Harris to spend the night. She got a call

from appellant as she was getting ready

for bed. Appellant seemed intoxicated. He

told her he still loved her and wanted to

come to the apartment. She refused,

telling him that Harris was spending the

night there. Angry, she hung up the

phone. Appellant called back, but Ortiz

refused to talk. Harris took the phone

off the hook.

At about three in the morning,

Harris and Ortiz were awakened by a noise

at the door. Harris got up to

investigate. From the bedroom, Ortiz saw

someone in the hallway with a knife. She

heard appellant say, “Come on now," and

Harris say, "Calm down, Eddie." She heard

them struggle. Then appellant said, "I

got you,” and "I got to go get Elba."

Ortiz tried to close the bedroom door,

but appellant was pushing against it with

"half his shoulder and “arm in" the room.

Ortiz braced against the wall and held

the door closed with her feet. Appellant

put a hole in the door. Ortiz heard

Harris throw something. Then the house

became quiet.

Ortiz came out of the bedroom and

found Harris injured. She drove him to

the hospital, where he was admitted at

3:25 a.m. with a serious stab wound. In

an > ett Wie ee

the emergency room, Harris was

interviewed at about 3:45 a.m. by

Detective Charles Shuster of the Lorain

police. Harris gave a tape-recorded

statement describing appellant’s attack

on his.

Ralph Harris died at 2:00 that

afternoon. The cause of death was loss of

blood and resulting complications.

Police found appellant’s

fingerprints on the storm windows through

which he entered the apartment. His shoe

heel matched the hole in the bedroom

door. Appellant’s shirt had bloodstains

matching Ralph Harris’ (sic) blood type.

Appellant was indicted on one count

of aggravated murder with prior

calculation and design, one count of

aggravated murder in the course of

committing an aggravated burglary, two

counts of attempted aggravated murder,

—————— OT

and one count of aggravated burglary.

There were two specifications to each of

the aggravated murder counts: murder

committed during an aggravated burglary,

and surder committed as pact of a course

of conduct involving the purposeful

hilling or attempted killing of two or

more persons. The state dropped the two

attempted murder counts before trial.

Appellant testified in his own

defense. He admitted going to Ortiz’s

apartment, but claimed he was unable to

recall what had happened there, except he

remembered Harris saying, “You got me.”

Be claimed that he did not plan to kill

anyone. He admitted to being angry that

night because Ortiz and Harris “were

making love in our bed.” He also admitted

to having a problem with drugs and

alcohol since he was seventeen.

Appellant was found guilty of all

= ee OT OS

charges and specifications. Following the

mitigation hearing, the jury determined

that the iggravating circumstances

outweighed the mitigating factors and

recommended a sentence of death on both

counts. The trial court accepted this

recommendation. Appellant was given a

sentence of ten to twenty-five years’

imprisonment on the aggravated burglary

count. The Court of Appeals for Lorain

County affirmed the conviction and

sentence. :

SUPREME COURT, JANUARY TERM, 1990

Opinion, per H. Brown, J.

This cause is before the court on an

appeal as of right.

Gregory A. White, prosecuting

attorney, and Jonat =. Rose » for

appellee.

Rendell M. Dana, public defender,

Joann Bour-Stokes, Richard J. Vickers,

end Sharon #. Hainley, for appellant.

BH. BROWN, J. For the reasons which

follow, we affirm appellant’s conviction,

but vacate the sentence of death and

remand for imposition of a life sentence

in accord with State v. Penix (19867), 32

Ohio St. 3d 369, 513 N.E£. 2d 744.

Admission of Victim Impact Evidence

In his second proposition of low,

appellant challenges the use of victia

impact evidence at the penalty phase of

his trial.

In the instant case, appellant

frequested # presentence investigation

feport pursuant to R.C. 2929.03(D)(1).

The repo. contained « summary of an

interview with the victia’s parents,

Ralph, Sc., and Elizabeth Harris, in

which Mr. Harcis expressed the view that

appellant should be Sentenced to death.

This report was admitted into evidence.

The prosecution also called mr. and Mrs.

Harris as rebuttal witnesses.

Mcs. Harris testified concerning the

victim’s good character. When asked if

she was proud of her son, she replied,

"Oh, God, how proud I was, a child that

never give me no problem, no nothing, no

drinking, no smoking, nothing but go to

church and come back, ***." She described

the effect on the victim’s son?; "I hate

to take him to the graveyard. He always

wants to go. He think[(s] he [is] going to

see his dad." Mr. Harris testified, in

response to a question from the

prosecutor, that he believed appellant

should get the death penalty.

In Booth v. Maryland (1987), 482

U.S. 496, decided after the trial of the

instant case but before the court of

appeals issued its opinion, the United

States Supreme Court held that the

introduction of victim impact evidence in

the penalty phase of a capital trial is

constitutionally impermissible. victim

impact evidence is defined in Booth as

including evidence which describes the

personal characteristics of the victim,

the emotional trauma suffered by the

victim’s family, or the family members’

opinions and characterizations of the

defendant and the crime. Id. at 502. The

court reasoned that "[t}he prospect of a

*‘mini-trial’ on the victim’s character

*** could well distract the sentencing

jury from its constitutionally required

task - determining whether the death

penalty is appropriate in light of the

background and record of the accused and

the particular circumstances of the

Crime. ***" (Emphasis added.) Id. at 507.

The holding of Booth was reaffirmed in

ee OR i ee i

South Carolina v. Gathers (1989), 490

U.S. ___, 104 L. Ed. 2d 876, 109 S.ct.

2207.

In State v. Post (1987), 32 Ohio st.

3d 380, 383, 513 N.E. 2d 754, 758, we

noted that the admission of victim impact

evidence at capital trials was not

expressly permitted by the Ohio statutes.

However, in Post and two subsequent

cases, State v. Sowell (1988), 39 Ohio

St. 3d 322, 530 N.E. 2d 1294, and State

v. Brewer (1990), 48 Ohio St. 3d 50, 549

N.E. 2d 491, we found the admission of

such evidence harmless in bench trials

where there was no indication that the

three-judge panel relied on the victim

impact evidence in arriving at its

sentence. See, e.g., Post, supra, at 384,

513 N.E. 2d at 759.

Four arguments have been advanced by

the state to distinguish the present case

from Booth and Gathers. These are: (1)

Ohio’s use of a sentencing system where

the jury’s recommendation of a death

penalty is not binding on the trial

judge, (2) distinctions between the

victim impact evidence in the instant

case and that presented in Booth, (3) the

victim impact evidence in this case was

presented to rebut appellant’s mitigation

evidence, and (4) Booth and Gathers allow

for victim impact evidence where the

killer is acquainted with the victian.

Jury Recommendation

The prosecution argues that Booth v.

Maryland, supra, is distinguishable from

the instant case because an Ohio jury’s

recommendation of death is not binding on

the trial judge, while a Maryland jury

makes the final determination of

sentence. Compare Md. Ann. Code (1987),

* ben Oe

Article 27, Section 413(K)(1), with R.c.

2929.03(D)(3). We are urged to extend

Post to jury trials and require the

defendant to show that the sentencing

judge was influenced by victim impact

evidence before the sentence may be

reversed.

We find this argument unpersuasive

for two reasons. First, the Booth court

held that the admission of the victim

impact evidence in the sentencing phase

of a capital jury trial is constitutional

error. Second. in Gathers, Supra, the

Booth rule was applied to a case decided

under South Carolina’s Capital punishment

Statutes, which use a "recommendation"

System similar to Ohio’s. See s.c. Code

Ann. (1985), Section 16-3-20(c).

Distinctions Based on Quality

of the Evidence

The court below found the admission

of the victim impact statement to be

harmless error because it was much

shorter than that at issue in Booth, and

because it contained Statements blaming

Elba Ortiz for "deceiving" the victim,

which the court viewed as "favorable" to

appellant. We do not agree.

It is true that the written victim

impact statement at issue in Booth was

longer and more detailed than that

involved in the instant case, see Booth

at 509-515, but Booth prohibits

consideration of victim impact evidence.

In Gathers, supra, the court, without

reference to any presentence

investigation reports or statements by

Surviving family members, held that it

was constitutional error for the

Prosecutor, in his closing argument, to

draw inferences about the victim's good

character based on the contents of his

pockets.

Further, even if the quantity and

quality of the evidence were somehow

| relevant under Booth and Gathers, we

would still find it necessary to vacate

the sentence of death. Mrs. Harris’s

grief-stricken, emotional testimony is

compelling even in a cold transcript; it

is almost impossible to believe that a

jury could hear it and remain unaffected.

Rebuttal of Mitigating Evidence

The prosecution argues that the

Harrises’ testimony was offered to rebut

appellant’s mitigating evidence. During

the penalty phase of the trial, appellant

| Presented testimony from his family and

4 an expert, Dr. Thomas Haglund, to the

q general effect that appellant was

' basically a good person whose crime was,

in part, caused by his problems with

drugs and alcohol. Appellant himself, in

an unsworn statement, expressed remorse

and begged forgiveness.

The prosecution was certainly

entitled to rebut the validity of

appellant’s assertions. However, the

Harrises’ testimony does not serve this

purpose. Their testimony did not relate

to appellant’s character, his family or

drug problem. 2 It was not rebuttal

testimony.

Appellant’s Knowledge of

Victim’s Family

Booth and Gathers prohibit

introduction of victim impact evidence

| j which is not "relate[{d] directly to the

" circumstances of the crime. ***" Booth,

Supra, at 507, fn. 10; Gathers, supra, at

, 104 L. Ed 2d at 883, 109 S. ct. at

2211. Impliedly, there may be an

exception to the Booth rule when the

victim impact evidence relates to the

circumstances of the crime. (See Booth,

Supra, at fn. 10.) It is urged that the

instant case falls under this exception

because appellant was acquainted with the

victim and his family.

The purpose of the Booth rule is to

ensure that the jury, in its sentencing

decision, considers only that evidence

which "has some bearing on the

defendant’s ‘personal responsibility and

moral guilt.’ **«*" Booth, supra, at 502,

quoting Enmund v. Florida (1982), 458

U.S. 782, 801. In most cases, the mere

fact that the killer knows his victim

does not make him more or less deserving

of the death penalty. For example, if

appellant and Ralph Harris had not been

friends, and all other circumstances had

been the same, we doubt that anyone would

Pome the crime less heinous. In order

to bring in victim impact evidence under

el aeade oe a 9

the "circumstances of the crime"

exception to Booth, the state must show

a connection to the defendant’s "personal

responsibility and moral guilt."4

Testimony Recommending a

Death Sentence

Finally, the type of evidence given

by the victim’s family in this case goes

beyond that considered in Booth and

Gathers, supra. Here, a family member

offered his opinion on what the

appropriate sentence would be for the

defendant.

A distinction should be drawn, in

considering victim impact evidence,

ee ee

ce ees

between (1) evidence relating to the

victim’s character, (2) evidence relating

; 20

to the circumstances of the crime, and

(3) evidence consisting of the opinions

of the victim’s family as to an

appropriate punishment for the defendant.

The dissenting justices in Booth and

Gathers, supra, argue that evidence of

the suffering caused by a particular

crime can be considered relevant to the

defendant’s culpability or moral guilt.

See Gathers, supra, at , 104 L. Ed.

2d at 887-888, 109 s. ct. at 2214-2215

(O’Connor, J., dissenting); Booth, supra,

at 519-520 (Scalia, J., dissenting). Such

evidence is Specifically required to be

considered by the sentencing court in

- Some non-capital cases. R.C. 2947.051.

However, statements by a member of the

victim’s family recommending a particular

Runishment, such as Mr. Harris’s penaltv

phase testimony, have nothing to do with

culpability or moral built. They are

simply opinions on the appropriate

sentence given by someone who, though

having a great personal interest in the

outcome, is not a member of the jury.

These opinions go to the ultimate issue,

usurp the jury’s function and undermine

the defendant’s right to trial by an

impartial court.

Opinions with respect to an

appropriate punishment distract the jury

from its constitutional and statutory

obligation to weigh mitigating factors

against aggravating circumstances. Such

opinions, if credited, eoubé ashe

imposition of punishment dependent upon

whether the victim’s family believed in

Or was opposed to capital punishment (and

not “the background and record of the

accused and the particular circumstances

of the crime").

We therefore hold that expressions

EE ————<

of opinion by a witness as to the

appropriateness of a particular sentence

in a capital case violate the defendant’s

constitutional right to have the

sentencing decision made by the jury and

judge.

After reviewing the arguments

presented, we find no grounds on which to

distinguish Booth and Gathers, and we are

thus compelled to follow those cases,

vacate the sentence of death, and remand

for imposition of a life sentence in

accord with Penix, supra.

Voluntary Intoxication

Appellant called Dr. Thomas Haglund

as an expert witness in the guilt phase

to testify on the effects of intoxication

and the ability of an intoxicated person

to suffer a blackout. The prosecution

objected, and the court refused to permit

o~ a » “

GORI REL GT RE POM I AT

Dr. Haglund to testify. Defense counsel

proffered the testimony to negate the

existence of prior calculation and

design. In his first proposition of law,

appellant contends that he was prevented

form presenting evidence that he was

incapable of forming specific intent as

permitted by State v. Fox (1981), 68 Ohio

St. 2d 53, 22 0.0. 3d 259, 428 N.E. 2d

410.

A defendant may present nonexpert

testimony in an effort to prove that he

was "’"so intoxicated as to be mentally

unable to intend anything ([i.e.]

unconscious)[{.]"’" State v. Wilcox

(1982), 70 Ohio St. 2d 182, 194, 24 0.0.

3d 284, 291, 436 N.E. 2d 523, 530,

quoting State v. Jackson (1972), 32 Ohio

St. 2d 203, 206, 61 0.0. 2d 433, 434, 291

N.E. 2d 432, 433; see, also, Fox, supra.

However, Ohio law does not recognize the

defense of "diminished capacity."

Wilcox, supra, paragraph one of the

syllabus. Further, except in the

mitigation phase, a defendant may not

introduce expert psychiatric testimony

unrelated to the insanity defense for the

purpose of showing that he lacked the

capacity to form the specific mental

state required for a particular crime.

Id. at paragraph two of the syllabus;

State v. Cooey (1989), 46 Ohio St. 3d 20,

544 N.E. 2d 985, paragraph one of the

syllabus.

The arguments which appellant makes

are the same as those advanced in Cooey.

If accepted, they "would bring into Ohio

law, under another guise, the diminished

capacity defense we rejected in Wilcox.

wee" Cooey, supra, at 26, 544 N.E. 2d at

906. Appellant has not proffered any

argument which would persuade us to

= “I a . EE ————

depart from the Wilcox rule, and so we

reject his second proposition of law on

authority of Cooey and Wilcox, supra.

Appellant advances a related

contention in his twelfth proposition of

law. He claims that "[i]nsufficient

evidence existed for prior calculation

and design in this case because

[appellant] *** was intoxicated at the

time of the offense."

The mere fact that a defendant is

intoxicated does not make him incapable

of acting with prior calculation and

design. Intoxication "is often

voluntarily induced for the sole purpose

of nerving a wicked heart to the firmness

requisite for the commission of a crime

soberly premeditated, or as an excuse for

such crime. ***" Nichols v. State (1858),

8 Ohio St. 435, 439-440.

We have reviewed the testimony and

find that there was sufficient evidence

from which reasonable minds could find

prior calculation and design. A week

before the killing, appellant threatened

to "waste" Ralph Harris, Jr., if he

continued to see Elba Ortiz. On the night

he killed Harris, appellant, though

intoxicated, was able to secure a knife,

drive across town, break into the

apartment, stab Harris, dispose of the

knife, and drive himself home. While

appellant testified that he suffered a

"blackout" from his intoxication, it is

apparent that the jury chose not to

believe him.

Because there was "substantial

evidence upon which a jury could

reasonably conclude that all the elements

of an offense have been proven beyond a

reasonable doubt[,]" State v. Eley

(1978), 56 Ohio St. 2d 169, 10 0.0. 3d

340, 383 N.E. 2d 132, syllabus, we reject

appellan:’s twelfth proposition of law.

II!

Multiple Murder Convictions

In his third proposition of law,

appellant claims that his convic*ion and

sentencing on two counts of aggravated

murder for a single killing violated R.C.

2941.25 and the Double Jeopardy Clauses

of the Ohio and Unites States

Constitutions. Though this issue was not

raised at trial or in the court below,

the prosecution has conceded that

appellant cannot be convicted twice for a

single offense. Accordingly, we hold

that, on remand, appellant should be

given only a single life sentence for the

aggravated murder offense. é

Appellant also contends that the

jury improperly "double counted” the

aggravated circumstances when weighing

them against the mitigating evidence. In

view of our disposition of appellant’s

death sentence, we need not consider this

contention.

Exclusion of Jurors for Cause

In his eighth proposition of law,

appellant argues that the trial court,

over defense objection, improperly

excused three prospective jurors, Penny

Potts, Ina Hammond, and Cheryl Yagielo,

for cause because they expressed

opposition to the death penalty.

Mrs. Potts said that she was “not

totally opposed” to capital punishment,

but “would much rather go with the

sentence to prison and hope that they

changed." "I hope they come out with a

better attitude than to kill them,

whatever you want to call it," she

stated. She agreed that voting for a life

sentence would be easier than voting for

the death penalty. After the prosecutor

challenged her for cause, the following

exchange took place:

"THE COURT: *** Would you be able to

follow exactly my instructions, or would

you let your own views get in the way?

"We can’t always take the easier

route. Sometimes we have to do what is

required and you would have to follow,

it’s really the law of Ohio that I am

giving you.

"You think you would be able to do

this?

"MRS. POTTS: Probably not.

"But my views would probably come

back and get in the way."

"THE COURT: You would be in

conflict?"

"MRS. POTTS: Yes, sir."

Mrs. Hammond said she would try to

a —_

be impartial and follow the judge’s

instructions, but did not really believe

in the death penalty. Even if other

jurors voted for the death penalty, she

admitted, "I guess I would say I wouldn’t

vote for it, to be honest with you.”

Ms. Yagielo was not opposed to the

death penalty, but expressed doubts that

she, personally, “could send someone to

their death." When asked if there was any

circumstance under which she could vote

for the death penalty, she answered,

"No." The judge excused Ms. Yagielo for

cause without allowing defense counsel to

voir dire her.

The standard for excusing a

prospective juror based upon the juror’s

views on capital punishment is whether

those views would “prevent or

substantially impair the performance of

his duties as a juror in accordance with

—_=- —_n ee le Slee EE

his instructions and oath." (Emphasis

added.) State v. Rogers (1985), 17 Ohio

St. 3d 174, 17 OBR 414, 478 N.E. 2d 984,

paragraph three of the syllabus, vacated

and remanded on other grounds (1985), 474

U.S. 1002. "*** The determination of

jurors bias necessarily involves a

judgment on credibility, the basis of

which often will not be apparent from an

appellate record. Wainwright v. Witt

(1985), 469 U.S. 412, 429. For this

reason, '***deference must be paid to the

trial judge who sees and hears the

juror.’ Id. at 426. ***" State v. Depew

(1988), 38 Ohio St. 3d 275, 280, 528 N.E.

2d 542, 549-550.

Applying these standards, we discern

no abuse of the trial court’s discretion.

All three prospective jurors indicated

that their views on the death penalty

would, at least, substantially impair

: | eueei

their ability to follow the judge’s

instructions. Though it would have been

better practice for the court to allow

defense counsel to voir dire Ms. Yagielo,

her unequivocal statement that she could

never vote for the death penalty is, in

itself, a sufficient basis to support her

removal. We therefore reject appellant’s

eighth proposition of law.

Restrictions on Voir Dire Inquiry

In his sixth proposition of law,

appellant contends that the trial judge

unduly restricted his inquiry into

jurors’ views on the death penalty during

individual voir dire. This issue was not

raised in the court of appeals, and could

be considered waived. State v. Williams

(1977), 51 Ohio St. 2d 112, 5 0.0. 3d 98,

364 N.E. 2d 1364, vacated in part (1978),

438 U.S. 911; Toledo v. Reasonover

(1965), 5 Ohio St. 2d 22, 34 0.0. 2d 13,

213 N.E. 2d 179, paragraph two of the

syllabus.

Normally, we would be reluctant to

consider an issue of this importance to

be waived in a capital case. However, in

view of our disposition of appellant’s

death sentence, any error in the process

of "death qualifying" the jury has been

rendered moot, and we therefore decline

to address the issue.°

Public Voir Dire

In his seventh proposition of law,

appellant contends that he was denied a

right to a fair trial because the judge

conducted the voir dire in public.

Initially, the trial court excluded

the press and public from the voir dire

proceedings pursuant to a motion by

appellant. On the first day, two

potential jurors were excused for medical

reasons, and nineteen potential jurors

were questioned. At the beginning of the

second day, an attorney for the Lorain

Journal appeared in court and asked the

court to reconsider its exclusionary

order. Appellant and the state opposed

this motion.

After hearing arguments, the court

rescinded its previous ruling, stating

that, "[wle have gone through 19

prospective Jurors; and I found nothing

that would be so embarrassing that there

is a further need for sequestration."

Appellant was granted a continuance in

order to make an interlocutory appeal.

The court of appeals dismissed it for

lack of a final appealable order. Voir

dire was resumed after a delay of about a

month.

The constitutional guarantee of open

public proceedings in criminal trials

extends to voir dire examinations. State,

ex rel. The Repository, v. Unger (1986),

28 Ohio St. 3d 418, 421, 28 OBR 472,475,

504 N.E. 2d 37,40. Proceedings may be

closed in rare circumstances, and only

for cause shown that outweighs the value

of openness. Press-Enterprise Co. v.

Superior Court (1984), 464 U.S. 501.

Appellant claims that it was

contrary to his “ultimate life/liberty

interest" to allow the press and public

to attend voir dire. However, appellant

has failed to demonstrate prejudice, or

to discredit the trial judge’s finding

that voir dire had revealed "nothing that

would be so embarrassing that there is a

further need for sequestration." In the

absence of such a showing, the strong

presumption in favor of an open public

trial is controlling. Press-Enterprise,

Supra, at 509-510. We reject appellant’s

seventh proposition of law.

VII

Admission of Victim's Taped

Statement

In his fourteenth Proposition of

law, appellant challenges the

admissibility of the tape recording of

Ralph Harris, Jr.’s statement to

Detective Shuster.

Harris gave the statement about half

an hour to forty-five minutes after the

Stabbing. Harris was "very agitated" and

"in serious pain." Harris was still under

the stress of the Stabbing and "had not

calmed down." Over defense objection, the

tape was admitted as an excited utterance

under Evid. R. 803(2) and played to the

jury.’

To be admissible under Evid. R.

803(2) as an excited utterance, a

— = —: ——_— "a iil a, i i i

= | _—_— 2a

Statement must concern “some occurrence

startling enough to produce a nervous

excitement in the declarant," which

occurrence the declarant had an

Opportunity to observe, and must be made

"before there had been time for such

nervous excitement to lose a domination

over his reflective faculties. ***"

Potter v. Baker (1955), 162 Ohio St. 488,

55 0.0. 389, 124 N.£.2d 140, paragraph

two of the syllabus, quoted in State v.

Wallace (1988), 37 Ohio st. 3d 87,89, 524

N.E. 2d 466,469. Appellant does not

dispute that the statement concerns his

attack on Harris, that Harris had an

Opportunity to observe the event, or that

being stabbed in the liver is an

"occurrence Startling enough to produce a

nervous excitement ***." He does dispute

the trial court’s finding that Harris was

still in a state of nervous excitement

when the statement was made.

Harris made his statement while

doctors were treating him. Clearly, he

was agitated over the stabbing and the

resultant need for emergency medical

care, as both Detective Shuster’s

testimony and the sound of Harris’s voice

on the tape demonstrate. There was ample

evidence to support the trial court’s

finding that the statement was admissible

as an excited utterance. Accordingly, we

reject appellant’s fourteenth proposition

of law.

VIII

Voluntary Manslaughter as a

Lesser Included Offense

In his fifth proposition of law,

ppellant argues that the trial court

should have given an instruction on

voluntary manslaughter as a lesser

included offense. The court gave an

a i i ok el

_™ ye ws —_-.. ~~ | _ -_ .

eae eae el x bee: 9 D

instruction on the lesser included

offense of murder, but did not give a

requested voluntary manslaughter

instruction.

"Voluntary manslaughter" is defined

in R.C. 2903.03 as knowingly causing the

death of another "while under the

influence of sudden passion or ina

sudden fit of rage, either of which is

brought on by serious Provocation

occasioned by the victim that is

reasonably sufficient to incite the

person into using deadly force ***." we

have previously held that voluntary

manslaughter is a lesser included offense

of murder, and that a trial court commits

reversible error by failing to give an

instruction when the elements of

manslaughter are raised by the evidence.

State v. Solomon (1981), 66 Ohio St. 2a

214, 20 0.0. 3d 213, 421 N.E. 2a 139. The

eee ee ee

——err ee }

persuasiveness of the evidence does

not control; the instruction must be

given if "under any reasonable view of

the evidence it is possible for the trier

of fact to find the defendant not guilty

of the greater offense and guilty of the

lesser offense ***." State v. Wilkins

(1980), 64 Ohio St. 24 382, 388, 18 0.0.

3d 528, 532, 415 N.E. 24 303, 308.

At trial, appellant argued that

being told on the phone by Elba Ortiz

that Ralph Harris was sleeping with her

constituted "sufficient Provocation" to

require a voluntary manslaughter

instruction. Even if we were to accept

this questionable argument, appellant had

more than sufficient time to cool down

after the telephone conversation was

completed. The trial court therefore

Properly denied the instruction.

Appellant’s present counsel appears

——— SS ss eS i

i Oi ne) gg ii

to have abandoned this atgument, and now

urges that a voluntary manslaughter

instruction was required because

appellant’s intoxication rendered him

unable to form the specific intent

required for aggravated murder and

murder. This is a reformulation of the

diminished Capacity defense which

appellant presents in his first

Proposition of law, and which we have

already determined to be devoid of merit.

Accordingly, we reject appellant’s fifth

Proposition of law.

Miscellaneous Issues

In his ninth, tenth, fifteenth, and

Sixteenth propositions of law, appellant

contests several alleged errors occurring

in the guilt phase of his trial. These

issues were not raised in the court of

appeals and have therefore been waived.

Williams, supra; Reasonover, supra.

Additionally, our review of the record

reveals no basis upon which to invoke the

plain error rule and reverse appellant’s

conviction.

In his fourth, eleventh, thirteenth,

and nineteenth propositions of law,

appellant asks that we reverse his death

sentence based on several alleged errors

in the penalty phase of his trial. In

view of our reversal of appellant’s death

sentence, these issues are moot.

In his seventeenth, eighteenth,

twentieth and twenty-first propositions

of law, appellant attacks the

constitutionality of Ohio’s capital

punishment scheme. These arguments have

been rejected in previous cases. See

State v. Spisak (1988), 36 Ohio St. 3d

80, 521 N.E. 2d 800; State v. Poindexter

(1988), 36 Ohio St. 3d 1, 520 N.E. 3d

os ™ ——

568; State v. Steffen (1987), 31 Ohio St.

34 111, 31 OBR 273, 509 N.E. 2d 383;

State v. Buell (1986), 22 Ohio St. 3d

124, 22 OBR 203, 489 N.E. 2d 795; State

v. Jenkins (1984), 15 Ohio St. 3d 164, 15

OBR 311, 473 N.E. 20d 264. In addition,

appellant has no standing to attack the

death penalty because we have vacated his

death sentence. Accordingly, we reject

these propositions of law.

Conclusion

For the foregoing reasons, we vacate

appellant’s felony murder conviction,

affirm his remaining convictions for

aggravated murder with prior calculation

and design and aggravated burglary, and

we vacate his sentence of death. We

remand the case for imposition of a life

sentence.

Judgement affirmed in part,

)

reversed in part,

Diets Dette ee ee ee 8 as Mi

and cause remanded.

MOYER, C.J., SWEENEY, HOLMES

and WRIGHT, JJ., concur.

MOYER, C.J., concurs separately.

DOUGLAS and RESNICK, JJ., separately

dissent.

MOYER, C.J., comcurring. I concur

separately for two reasons. The first is

to add my voice to that of Justice

Resnick who, in her dissent, urges the

United States Supreme Court to reconsider

its opinions in Booth v. Maryland (1987),

462 U.S. 496, and South Carolina v.

Gathers (1989), 490 U.S. _, 104 L. Ed.

2d 8676, 109 S. Ct. 2207, in order to give

the state courts clear direction with

respect to the admissibility of victim

impact statements in the sentencing phase

of a death penalty case. The fact that

the majority and two dissenters in this

— —

case all interpret the opinions and

footnotes in Booth and Gathers

differently demonstrates the uncertainty

of the law in this area.

The second reason I concur

separately is to dispel any notion that

"see today’s majority creates a

constitutional ban on the admission of

any victim impact evidence ***," as

asserted in the dissent by Justice

Douglas in this case. Footnote 10 in

Booth, referred to in Justice Douglas’

dissent, simply does not apply to the

facts in this case, and the majority

opinion, therefore, obviously should not

be characterized to apply to facts

referred to in footnote 10. Under the

holdings of both Booth and Gathers

referred to in the majority opinion, we

Simply have no discretion, when presented

with the facts in this case, to decide

that the use of the victim impact

statement herein did not violate those

holdings.

We can only hope that the United

States Supreme Court will soon provide us

with an opinion, free of footnotes with

statements of substantive law, that will

permit the greater use of victim impact

statements in the sentencing phase of

death penalty cases.

DOUGLAS, J., dissenting. By stating

"ae* the Booth [v. Maryland (1987), 482

U.S. 496] court held that the admission

of victim impact evidence in the

sentencing phase of a capital jury trial

is constitutional error,” and "*** Booth

prohibits consideration of victim impact

evidence," today’s majority creates a

constitutional ban on the admission of

any victim impact evidence and, thereby,

the majority contravenes the express

—— ss UU Ul od

language in Booth.

If Booth is viewed as Creating a

constitutional ban on the admission of

victim impact evidence, how can that view

be justified in light of footnote 10 in

Booth, which provides:

"Our disapproval of victim impact

statements at the sentencing phase of a

capital case does not mean, however, that

this type of information will never be

relevant in any context. Similar cypes of

information may well be admissible

because they relate directly to the

circumstances of the crime. Facts about

the victim and family also may be

relevant in a noncapital criminal trial.

Moreover, there may be times that the

victim’s personal characteristics are

relevant to rebut an argument offered by

the defendant. See, e-g-, Fed. Rule Evid.

404(a)(2) (prosecution may show peaceable

OE ———— lr

eae eee ee ee _

— SO ee ee

—_— = Rt et vr

mature of victim to rebut charge that

victim was aggressor). The trial judge,

of course, continues to have the Primary

responsibility for deciding when this

information is sufficiently relevant to

some legitimate consideration to be

admissioic. and when its probative value

outweighs any prejudicial effect. cé£.

Fed. Rule Evid. 403." Id. at 507-S08.

Obviously, Booth, by its own terms,

does not create a constitutional ban on

the admission of victim impact evidence.

Therefore, in the case at bar, it is

error for the majority to create such a

ban by relying on Booth. In my view,

Booth stands for the proposition that the

use of victim impact evidence in the

sentencing phase of a capital trial is

constitutionally impermissible only when

that evidence creates a substantial risk

that the sentencing decision will be

based upon arbitrary or irrelevant

consideration.

South Carolina v. Gathers (1989),

490 U.S. , 104 L. Ed. 2d 876, 109 S.

Ct. 2207, was decided shortly after

Booth. I disagree. Gathers further

explained the tenth footnote in Booth. In

the case at bar, the majority views

Gathers as a mere application of the

constitutional standards announced in

Booth. Therefore, Gathers should have

dispelled any belief that Bocth created a

constitutional ban on the use of victim

impact evidence, or that the use of any

such evidence is constitutionally

impermissible.

For purposes of the present appeal,

the majority has apparently dismissed

Gathers and certain relevant language in

Booth. In so doing, the majority states:

"eee we find no grounds on which to

distinguish Booth and Gathers, and we are

thus compelled to follow those cases,

vacate the sentence of death, and remand

for imposition of a life sentence***.”

Today’s majority opinion does not follow

Booth or Gathers.

In the case sub judice, the evidence

of appellant’s guilt is overwhelming.

Appellant requested that Harris stop

dating Elba Ortiz. When Harris apparently

refused to comply with the request,

appellant stated that he "was going to

waste” Harris. Approximately one hour

later, appellant repeated his threats

stating: "I still say I’m going to have

to waste you. *** I don’t do it fair,***

but I’m going to waste you.”

Appellant knew Harris was spending

the night with Elba Ortiz at Ortiz’s

apartment. Harris and Ortiz were awakened

by a noise at the door. Harris got up to

investigate. Appellant stabbed warris

with a knife and attempted to kill ortiz.

Harris died after describing appellant’s

attack on hin. Appellant’s shirt had

blood stains matching Harris’ blood type.

Police found appellant’s fingerprints on

the storm windows through which he

entered the apartment. Appellant’s shoe

heel matched a hole in the bedroom door

of Ortiz’s apartment. Appellant admitted

going to Ortiz’s apartment.

In my judgment, the proof of

appellant’s guilt is overwhelming and,

further, it is my judgment that appellant

would have been sentenced to death

regardless of the victia impact evidence.

Accordingly, I find that if the admission

of the victia impact evidence was error,

that error was harmless beyond a

reasonable doubt. See State v. Williams

(19863), 6 Ohio st. 34 261, 6 OBR 345, 452

N.E. 2d 1323, paragraph six of the

syllabus. It is also interesting to note

that appellant objected to some, but not

all, of the victim impact evidence,

thereby waiving error, if any, involved.

See e.g., State v. Broom (1988), 40 Ohio

St. 3d 277, 288-289, 533 N.E. 2d 682,

695-696. Because Booth and Gathers

prohibit the admission of victim impact

evidence only when that evidence creates

a substantial risk that the capital

sentencing decision will be based upon

arbitrary or irrelevant considerations, I

would affirm the sentence of death since

the evidence in the present case created

no such risk.

Unfortunately, the majority opinion

in the case at bar leaves no room to even

consider whether the error was harmless

and thus non prejudicial to appellant’s

rights. By what the majority views as

ee a

—— =

—

"following" Booth and Gathers, the

majority opinion creates an automatic

vacating of the death sentence anytime

victim impact evidence is admitted in the

sentencing phase of a capital jury trial.

Because I do not believe that the United

States Supreme Court intended such a

result, I urge that honorable court,

should this matter be appealed, to review

this case which so plainly misconstrues

both Booth and Gathers.

ALICE ROBIE RESNICK, J., dissenting.

Today’s holding, as well as the holdings

in Booth v. Maryland (1986), 482 U.S.

496, and South Carolina v. Gathers

(1969), 490 U.S. _—_, 104 L. Ed. 2d 876,

109 S. Ct. 2207, is a step backward in

the sentencing process in Ohio and the

country. It was not until 1980 that Ohio

enacted legislation concerning victims

and the effect the crimes had on their

"76 ere ee ee es i

a ee

lives. R.C. 2947.051 Provides "(ijn all

Criminal cases in which a person is

convicted *** the court shall, prior to

sentencing the offender, order the

preparation of a victim impact statement

by the department of Probation." Prior to

this time victims were not considered at

all during the sentencing process. This

has been changed by the foregoing

legislation. As Justice Scalia stated in

his dissent of Booth, supra, at 520,

"citizens have found one Sided and hence

unjust the criminal trial in which a

parade of witnesses comes forth to

testify to the pressures beyond normal

human experience that drove the defendant

to commit his crime, with no one to lay

before the sentencing authority the full

reality of human suffering the defendant

has produced-which (and not moral guilt

alone) is one of the reasons society

deems his act worthy of the prescribed

penalty.”

The majority in Booth, supra, at

504, stated, "[iJ}n such a case, it is the

function of the sentencing jury to

"express the conscience of the community

on the ultimate question of life or

death.’" How can this be done without the

sentencing authority knowing all the

facts Surrounding both the defendant and

the victim? Further, the conscience of

the community cannot properly be

expressed if the sentencing authority

lacks knowledge of the effect of the

defendant’s crime had on the community

and especially the family, friends, and

associates of the victim. I am not

intimating that such information should

be provided to the fact-finders in the

guilt phase of the trial. But in the

penalty phase a statement prepared by the

a i ie | iii

department of probation should be

included and not be deemed prejudicial.

In light of recent victim rights

legislation it is time that both Booth,

supra, and Gathers, supra, be

reconsidered so that when the sentencing

authority is making that determination of

whether or not to impose the death

penalty it will be on an equal footing

with the sentenc'ng process in all other

criminal cases. Victim impact statements

are appropriate in the penalty phase of

the prvuceedings espec‘ally in view of the

fact that aggravated murder is the most

heinous crime that can be committed. Why )

should the rights of a victim !> less

important? Based upon the majority’s

holding the sentence of life or death is

determined in a vacuum. The sentencing

jury is not permitted to know anything

about the personal characteristics of the

victim. An appropriate, fair and just

determination cannot be made without this

information.

Based upon the foregoing I would

find that the admission of the victim

impact statement was not prejudicial

eccor and I would therefore affirm the

judgment of the court of appeals in its

entirety.

STATE OF OHIO, APPELLEE

HUERTAS, APPELLANT

FOOTNOTES

1 The victim’s child, Ralph Harris

III, was the product of a previous

relationship.

: For example, in his

Cross-examination of Arlene Huertas, the

Prosecutor attacked her claim that

appellant was a good father by eliciting

testimony that appellant never paid child

support.

’ Mics. Harris also gave an account

of the altercation between Ralph, Jr.,

and appellant a week before the murder

which duplicated her testimony in the

guilt phase. Since the jury had already

found appellant guilty of aggravated

@urder with prior calculation and design,

—E— LS ee le ee

it 1s apparent that it had already

accepted her version of events and

discredited appellant’s conflicting

testimony. Further, appellant presented

no testimony in the penalty phase which

called Mrs. Harris’s account into

question.

For example, if the defendant’s

motive for committing murder was to

inflict emotional trauma on the victim’s

family, victim impact evidence would be

relevant to the defendant’s personal

responsibility and moral guilt. See,

e.g., State v. Morales (1987), 32 Ohio

St. 3d 252, 513 N.E.2d 267 (murder

committed as part of revenge plot against

victim’s older brother).

> The "diminished capacity” defense

has been defined by one commentator as

arising when "a sane defendan*’s mental

abnormality at the time of the crime

. )

prevented him from entertaining the

specific mental state prescribed by

statute. ***" Arenella, The Diminished

Capacity and Diminished Responsibility

Defenses: Two Children of a Doomed

Marriage(1977), 77 Colum. L. Rev.827,

828. If asserted successfully ina

jurisdiction where it is recognized, it

"results in the reduction of the offense

to one with a lesser maximum penalty

which does not require proof of the

specific intent at issue." Id. at 829.

For a more complete discussion of

the diminished capacity defense, see

Wilcox, supra, at 184-199, 24 0.0. 3d at

286-294, 436 N.E. 2d at 525-533.

° Even if we were to reverse the

death sentence based on this issue,

appellant’s conviction would not be

affected. See Loc*hart v. McCree (1986),

476 U.S. 162.

a a

U The tape could not be admitted

under Evid. R. 804(B)(2) as a statement

under belief of impending death. There is

no indication that Harris believed death

was imminent, or was even aware that his

condition might be life-threatening. In

response to a question from Det. Shuster,

he stated that he did not know the

seriousness of his injuries.

STATE OF OHIO ) IN THE COURT OF

) ss: APPEALS NINTH

COUNTY OF LORAIN ) JUDICIAL

DISTRICT

STATE OF OHIO C.A. NO. 4202

Plaintiff-Appellee

v. APPEAL FROM

JUDGMENT ENTERED

IN THE COMMON

FLEAS COURT

COUNTY OF

LORAIN, OHIO

CASE NO. 32753

EDIBERTO HUERTAS

Defendant-Appellant

le de ee a

DECISION AND JOURNAL ENTRY

seen,

Dated: July 6, 1988

This cause was heard upon the record

in the trial court. Each error assigned

has been reviewed and the following

disposition is made:

QUILLIN. J.

This is a capital case. Defendant

appeals his convictions for aggravated

Murder, the accompanying specifications

to the aggravated murder convictions,

aggravated burglary, and the imposition

of the death penalty. We affirm.

On June 7, 1986, between 3:15 and

3:30 a.m., defendant, Ediberto Huertas,

entered the apartment of Elba Ortiz. The

victim, Ralph Harris, Jr., confronted

Huertas in the hallway of the apartment.

Huertas fatally stabbed Harris.

In order to understand the events

that transpired in the early morning

hours of June 7, ~ some background

information is helpful. Huertas was

closely acquainted with both Ortiz and

Harris. Huertas began a sexual

relationship with Ortiz during high

school and fathered two daughters as a

result. Although Huertas lived with Ortiz

and their daughters for various periods

of time, he never married Ortiz. Huertas

did however marry Arlene Huertas in

as ed ——

November 1982. Huertas had three children

with Arlene. Huertas continued to see and

have sexual relations with Ortiz even

during his Marriage to Arlene. Huertas

and Arlene were Separated and living

apart at the time of Harris’ death.

Huertas and Harris met and became

friends while in school. Ortiz was also

acquainted with Harris. After Harris

joined the United States Air Force and

was transferred overseas, he maintained

contact with both Huertas and Ortiz.

On May 15, 1986, Harris came home on

leave. About a week after returning home,

Harris began dating Elba Ortiz. Huertas

soon became aware of this. aA week prior

to “the killing, ortiz called Huertas at

about 4:00 a.m. and asked him to come to

her apartment. Ortiz and Huertas

discussed their relationship which

Huertas wished to continue. Ortiz told

Huertas that , although she still loved

him, she wanted to Stay with Harris.

On the morning of May 31, 1986,

Huertas called on Harris at Harris’

parents’ house. Harris’ mother overheard

their conversation. Huertas asked Harris

to quit seeing Ortiz. Harris refused.

Huertas then told Harris that he did not

wish to end their friendship this way,

but, if Harris did not Stop seeing Ortiz,

he, Huertas, would waste Harris. Huertas

then left and returned an hour later.

Huertas said that he had been to see

Ortiz and that she said that she did not

wish to see Harris anymore. Harris

responded that he would have to hear it

from Ortiz herself. Huertas then made the

following reply, "Well, I see you don’t

want us to be friends. I still say I’m

going to have to waste you. You’ know I

don’t do it fair, but I’m going to waste

you.” With that, Huertas left.

On the evening of June 6, Harris

took Ortiz to a concert in Cleveland.

They returned to Ortiz’s apartment at

about 11:00 p.m. Huertas called Ortiz at

around 3:00 a.m. the following morning.

Huertas wanted to come over and discuss

their relationship. Ortiz told Huertas

that he could not come over as Harris was

there with her. Huertas asked if they

were sleeping together and Ortiz said

yes. Huertas became angry, and Ortiz hung

up on him. Huertas called back minutes

later. Harris laid the receiver on the

floor until Huertas hung up.

Ortiz and Harris went to bed only to

be awakened a short time later by sounds

in the apartment. Huertas had lowered the

window on the door to Ortiz’s apartment,

unlocked the door, and let himself in.

Harris left the bedroom to investigate

the noise. Huertas met Harris in the

hallway outside the bedroom. Ortiz heard

Huertas say, "Come on, now." Ralph

Pleaded, "Calm down, Eddie." A struggle

ensued and Ortiz heard Huertas say, "I

got you. I got to go get Elba." Ortiz ran

to the bedroom door where she braced

herself to keep the door closed. Huertas

managed to squeeze his arm through the

door and swing at Ortiz. Huertas

repeatedly kicked the bedroom door in an

effort to gain entrance. Ortiz then heard

@ crash and everything became quite.

Apparently, Harris managed to throw a

fish stand at Huertas which caused him to

flee. Ortiz rushed Harris to the hospital

where he died later that day due toa

severe loss of blood caused by a stab

wound which penetrated his liver. 7

The Lorain police arrested Huertas

at his apartment that same morning. The

ee —_—_———— , ee

police did not recover the murder weapon,

however, it was speculated that Huertas

used a "Rambo" type hunting knife which

was last seen by Huertas and his roommate

in their apartment the day prior to

Harris’ murder.

The grand jury indicted Huertas for

aggravated burglary and two counts of

aggravated murder. Each of the aggravated

murder counts included the Same two death

penalty Specifications. The first

aggravated murder count charged Huertas

with purposely killing Ralph Harris, Jr.

with prior calculation and design. The

second aggravated murder count charged

Huertas with purposely killing Ralph

Harris, Jr. while committing aggravated

burglary. The first death penalty

Specification alleged that Huertas

murdered Harris while committing

aggravated burglary. The second death

penalty specification alleged that

Harris’ murder was part of a course of

conduct involving the purposeful killing

Or attempt to kill two or more persons.

After his arrest, and throughout the

trial, Huertas maintained that due to his

consumption of alcohol and drugs during

the evening prior to the attack on

Harris, he was able to recall little that

happened after his initial phone

conversation with Ortiz. Huertas took the

stand on his own behalf during the guilt

phase of his trial. He admitted that he

killed Harris, but did not recall it. He

only remembers Harris saying "you got

me."

The jury found Huertas guilty of

aggravated burglary, and both counts of

aggravated murder. In addition, the jury

found Huertas guilty of both

specifications under each of the

aggravated murder counts.

During the penalty phase, both the

state and Huertas presented witnesses.

Huertas gave an unsworn statement in

which he expressed his remorse and asked

Harris’ forgiveness. The jury determined

beyond a@ reasonable doubt that the

aggravating circumstances of which

Huertas was found guilty outweighed the

mitigating factors and recommended that

Huertas be sentenced to death for both

aggravated murder convictions. The trial

court conducted an independent review and

also found beyond a reasonable doubt that

the aggravating circumstances outweighed

the mitigating factors. The court

accepted the jury’s recommendation and

sentenced Huertas to death on both

aggravated murder convictions.

Ohio law requires that we undertake

@ three-part review. R.c. 2929.05(A).

Pirst, we must consider the claims of

error raised by Huertas. Second, we must

independently weigh the evidence

disclosed in the record and determine

whether the aggravating circumstances

Outweigh the mitigating factors beyond a

reasonable doubt. State Vv. Jenkins

(1984), 15 Ohio st. 34 164, 206. Finally,

we must decide whether the sentence of

death is appropriate after considering

whether the sentence is excessive or

disproportionate to the penalty imposed

in similar cases within Our jurisdiction.

Por the reasons set forth below, we

affirm the convictions and uphold the

sentence of death.

ASSIGNMENT OF ERROR I

"The trial court erred by

permitting the introduction of

a victim impact statement at

the sentencing phase of

defendant’ trial in violation

of the Eighth and Fourteenth

Amendments to the United States

Constitution."

Prior to the penalty phase of the

trial, Huertas requested a pre-sentence

investigation report as provided in R.C.

2929.03(D)(1). The report contained

a oe

statements by Ralph and Elizabeth Harris,

the victim’s parents, and Elba Ortiz. The

state moved to admit the pre-sentence

report into evidence. Although Huertas

made objections not here relevant, no

objection was directed to the inclusion

of the above statements.

—— on 3

Huertas now contends that the

statements of the victim’s parents and

Ortiz contained in the pre-sentence

reports were, in essence, a victim impact

statement and should not have gone to the

jury. On the basis of Booth v. Maryland

(1987), 482 U.S. , 96 L. Ed. 2d 440,

and State v. Post (1987), 32 Ohio St. 3d

380, Huertas argues that the trial court

erred in permitting the jury to view that

part of the pre-sentence report which

contained the Harris’ and Ortiz

statements.

In Booth the trial court admitted,

over specific objection, a lengthy victim

impact statement which Provided two types

of information:

"*eePirst, it described the

personal characteristics of the

victims and the emotional

impact of the crimes on the

family. Second, it set forth

the family member’s opinions

and characterizations of the

Crimes and the defendant.***."

Booth, Supra, at , 96 L. Ed. 2d at

448 >.

The United States Supreme Court held that

because of the potential risk that a

victim impact statement may lead the jury

to impose the death penalty in an

arbitrary and capricious manner its

introduction during the penalty phase of

a capital murder trial violates the

Eighth Amendment of the United States

Constitution. td. at , 96 L. Ed. 2a

448, 452.

In Post, the Ohio Supreme Court

reviewed, in light of Booth, the

defendant’s contention that he was

prejudiced by the introduction of a

victim impact statement ina trial to

three judges. The court held that,

although the panel erred in admitting the

victim impact Statement, no reversal was

warranted as the record did not

demonstrate that the panel gave any

weight to the statement in arriving at

their sentencing decision. Therefore, the

defendant was mot prejudiced by the

admission of the Statement. Post, Supra,

at 383-84.

In light of Booth and Post, we

conclude that the trial court erred in

admitting victim statements into

evidence. However, we cannot Say that his

error mandates reversal.

The portion of the Ppresentence

report which contains the Statements is

quite short, containing only two

paragraphs totaling less than one page in

length; and, as Opposed to Booth, the

Statements inthe cause sub judice are

both unfavorable and favorable to

Huertas. The report author interviewed

both of Harris’ Parents. While Harris’

father stated that he felt Huertas should

get the death penalty, the victim's

mother stated that, "God has the only

tight to punish (Huertas]." In addition,

the parents apparently laid much of the

blame on Ortiz, whom they felt "deceived"

their son. The remainder of the statement

of Harris’ parents is non-accusatory and

non-condemning. The report author also

interviewed Elba Ortiz and included her

Statement in the pre-sentence report. For

the most part, Ortiz’s Statement is

Simply a repeat of her testimony about

the events leading up to and including

Harris’ death. Ortiz said that Huertas

appeared drunk the night he killed

Harris, and that he was drinking all the

time and may have suffered a blackout. It

was precisely Huertas’ defense that he

suffered a blackout on the night of

Harris’ death. Finally, Ortiz stated that

she didn’t feel Huertas should get the

death penalty.

The victim impact Statement admitted

in Booth is a lengthy report describing

the emotional and personal problems the

Crime caused the victims’ Children; it

also contains comments emphasizing the

Outstanding qualities of the victims. A

Majority of the Supreme Court believed

that the introduction of such a statement

Created an unacceptable risk that the

death penalty might be imposed

arbitrarily and capriciously. However, we

cannot say that the questioned statements

in this case create such a risk. Indeed,

one might argue that Huertas had more to

gain than lose through its introduction.

we conclude that Huertas was not

prejudiced by the introduction in the

pre-sentence report of the brief

statements of Harris’ parents and Ortiz.

The assignment of error is

overruled.

ASSIGNMENTS OF ERROR

"II. The trial court

arbitrarily denied the

defendant procedural due

process when the trial

| court reversed a prior

Fe order.

"III.The trial court denied

defendant a fair trial and

an impartial jury in

violation of the Sixth and

Fourteenth Amendments;

United States Constitution

and Article I, Section 10,

Ohio Constitution."

Huertas moved that the potential

jurors be sequestered during the death

qualification stage of voir dire, and

that the public be excluded from the

courtroom during this stage. The state

concurred in the motion and it was

granted by the trial court. On the first

day of death qualification questioning,

nineteen potential jurors were asked

individually and in Private if they held

any racial prejudices;? Or attitudes,

Opinions or beliefs concerning the death

penalty, which would prevent them from

being an impartial juror and applying the

law of the State of Ohio to the facts of

the case.

Prior to beginning the second day of

the death qualification voir dire, the

Lorain Journal Company appeared before

the court and asked that the court

reconsider its order excluding the public

from the death qualification stage of

voir dire. Both Huertas and the state

objected to the appearance. However, the

court permitted all the parties the

opportunity to present arguments. The

court then rescinded its previous ruling

regarding the exclusion of the public,

and suspended further voir dire until

Huertas could appeal the order to this

court. We dismissed Huertas’

interlocutory appeal for lack of a final

appealable order. Prior to resuming the

death qualification stage of voir dire,

the trial court stated its reasons for

rescinding its prior order excluding the

public. The court found that after having

examined nineteen prospective jurors

nothing had arisen so embarrassing as to

justify the exclusion of the public from

the courtroom.

Huertas contends that the trial

a _— EE

court’s decision permitting the Lorain

Journal Company to appear and move the

court for reconsideration, without first

giving him notice and an opportunity to

prepare argument, denied him of his

procedural due process rights. In

addition, Huertas argues that by opening

the death qualification stage of voir

dire to the public, he was denied a fair

trial by an impartial jury.

Sequestration of jurors during the

death qualification stage of voir dire is

a matter within the discretion of the

trial court. State v. Mapes (1985), 19

Ohio St. 3d 108, paragraph three of the

Syllabus. Likewise, whether voir dire

should be conducted in private is also

within the trial court’s discretion. This

discretion, however, should be applied

sparingly against the presumption of

openness. State, ex rel. The Repository,

a )

v. Unger (1986), 28 Ohio st. 3d 418, 419,

421. This "presumption of openness may be

Overcome only by an Overriding interest

based on findings that closure is

essential to preserve higher values and

is narrowly tailored to serve that

interest." Press-Enterprise Co. Vv.

Superior Court of California (1984), 464

U.S. 501, 510; Unger, supra, at 421. We

find nothing in the record to support

Huertas’ claim of prejudice.

The assignments of error are

overruled.

ASSIGNMENT OF ERROR IV

"The trial court erred and

denied defendant his right to

obtain witnesses in his’ favor

aS guaranteed by the Sixth and

Fourteenth Amendments, United

States Constitution and Article

I, Section 10, Ohio

Constitution."

Huertas argues that his

constitutional rights to obtain witnesses

in his favor pursuant to the Sixth

Amendment to the United States

Constitution and Section 10, Article I of

the Ohio Constitution were violated by

the trial court’s denial of his attempt

to present the testimony of two

witnesses: Mary Ann Amato, who was a

jury commissioner, and Dr. Thomas

Haglund.

Mary Ann Amato

Prior to trial, Huertas challenged

the jury selection Process claiming,

among other things not now pertinent,

that the wrong official drew the names

from the jury wheel. Huertas attempted to

call Mary Ann Amato, one of the jury

commissioners, to the Stand. At this

point, the court interrupted defense

counsel and suggested that he call the

deputy clerk of court who actually drew

the names for the jury array from the

jury wheel. This was done. The claim of

error is frivolous.

Dr. Haglund

Huertas attempted to introduce the

testimony of pr. Haglund, a Psychologist,

during the guilt phase of the trial.

Huertas sought to have Dr. Haglund

testify as to the phenomena of blackouts

caused by excessive consumption of

alcohol and drugs. The trial court ruled

that it would instruct the jury on the

defense of voluntary intoxication, but

would not permit expert testimony on the

Possible effects of blackouts.

The determination as to whether or

not an expert’s testimony is relevant and

will assist the trier of fact is within

the trial court’s discretion. State v.

Buell (1986), 22 Ohio st. 34 124, 133.

There was testimony that Huertas consumed

large amounts of alcohol and drugs during

the evening and early morning hours of

June 6-7. Dr. Haglund’s opinion that

Huertas may have suffered a blackout was

based on police reports and from

interviews with Huertas, in which Huertas

told Haglund of his abusive use of

alcohol and drugs since high school.

The trial court correctly perceived

that the claim of blackouts, to the

extent it differed from the defense of

intoxication, was in reality the defense

of diminished capacity.

In State v. Wileos (1982), 70 Ohio

St. 2d 182, the Ohio Supreme Court

rejected the defense of diminished

capacity saying at page 194:

"***Unlike the notion of

partial or relative insanity,

conditions such as

intoxication, medication,

epilepsy, infancy, or senility

are, in varying degrees,

susceptible to quantification

or objective demonstration, and

- to lay understanding. As the

Ninth Circuit observed in

Wahrlich v. Arizona, 479 F. 2d

1137, 1138 (Sth Cir.),

certiorari denied, 414 U.S.

etait hiattatidiseeeaene

1011, 94S. ct, 375, 38 L. Ed.

2d 249 (1973);

""Exposure to the effects of

age and of intoxicants upon

State of mind is a part of

common human experience which

fact finders can understand and

apply; indeed, they would apply

them even if the State did not

tell them they could. The

esoterics of PSychiatry are not

within the Ordinary ken.’

"It takes no great expertise

for jurors to determine whether

an accused was "so intoxicated

as to be mentally unable to

intend anything (unconscious), ’

Jackson, supra, at page 206

whereas e ability to

assimilate and apply the finely

differentiated psychiatric

concepts associated with

diminished Capacity demands a

sophistication (or as critics

would Maintain a sophistic

bent) that jurors (and officers

of the court) Ordinarily have

not developed. We are convinced

as was the Bethea court, that

these ‘significant evidentiary

distinttions’ preclude treating

diminished capacity and

voluntary intoxication as

functional equivalents for

Purposes of partial exculpation

from criminal responsibility."

The trial court did not err

excluding Dr. Haglund’s testimony.

The assignment of error is

| overruled.

ASSIGNMENT OF ERROR V

' "There was insufficient

evidence which, if believed,

would support a finding of

guilt beyond a reasonable

doubt."

Huertas attacks his conviction on

the aggravated burglary charge. R.C.

2911.11(A)(3) reads in part:

q "No person, by force, ***shall

7 trespass in an occupied

structure, as defined in

section 2909.01 of the Revised

Code, or in a separately

secured or separately occupied

portion thereof, with purpose

to commit therein***any felony,

when any of the following

apply:

eae

"The occupied structure

involved is the permanent or

temporary habitation of any

person, inwhich at the time

any person is present or likely

to be present.”

een

openi

force

State

App. Nos. 10125 and 10166, unreported.

Huert

"Force" is defined in R.C.

2901.01(A) as:

"xetany violence, compulsion,

or constraint physically

exerted by any means upon or

against a person or thing."

It has been held that even

the

ng of unlocked doors constitutes

sufficient to satisfy the statute.

v. Lane (1976), 50 Ohio App. 2d 41;

v. Johnson (Aug. 27, 1981), Summit

The evidence at trial showed,

and

as did not deny, that access was

gained to Ortiz’s apartment by sliding

down the window on her door and unlocking

the door. Huertas argued that this was an

authorized means of entrance into Ortiz’s

apartment, as it was the method he

used

to let his daughters into

had

the

apartment a week before the attack on

Harri

not

6. Ortiz testified that Huertas did

have permission to enter her locked

i i

apartment the night of Harris’ murder.

We will not reverse a jury verdict

where, as here, there is substantial

evidence upon which a jury could

reasonably conclude that all the elements

of an offense have been proven beyond a

reasonable doubt. State v. Eley (1978),

56 Ohio St. 24 169, syllabus.

The assignment of error is

Overruled.

ASSIGNMENT OF ERROR VI

"The trial court erred when it

shifted the burden of proving

intoxication on the defendant

in Violation of defendant’s

right to due Process under the

Fourteenth Amendment, United

States Constitution."

R.C. 2901.05(A) reads in part:

"***The burden of going forward

with the evidence of an

affirmative defense, and the

burden of proof, by a

Preponderance of the evidence,

for an affirmative defense, is

upon the accused."

The United States Supreme Court has

ruled that R.c. 2901.05 does not violate

the due process Clause of the Fourteenth

Amendment. Martin y. Ohio (1987), 480

U.S. __, 94 L. Bd. 24 267. Voluntary

intoxication has long been regarded an

affirmative defense in Ohio, and

therefore comes under R.C. 2901.05. State

Vv. Vargo (1927), 116 Ohio St. 495; Long

Vv. State (1923), 109 ohio St. 77. The

trial court correctly instructed the jury

that Huertas had the burden of proving

the defense of voluntary intoxication.

The assignment of error is

Overruled.

ASSIGNMENT OF ERROR VII

"The trial court erred to the

prejudice of defendant in

failing to instruct the jury on

the lesser included offense of

voluntary manslaughter."

The rule in Ohio as to when a charge

On a lesser included offense is required

is set forth in State v. Davis 91983), 6

Ohio St. 3d 91, 95.:

"seéemerely because one offense

can be a lesser included

offense of another does not

mean that a court must always

instruct on both offenses where

the greater offense is charged.

However, such an instruction is

required where ‘***the trier

of fact could reasonably find

against the state and for the

accused upon one or more of the

elements of the crime charged,

and for the state and against

the accused on the remaining

elements, which by themselves,

would sustain a conviction upon

a lesser included offense."

"hee "

The crime of voluntary manslaughter,

pursuant to R.C. 2903.03, is a lesser

included offense of aggravated murder and

murder, State v. Muscatello (1978), 55

Ohio St. 2d 201. R.C. 2903.03(A) reads:

"No person, while under the

influence of sudden passion or

in a sudden fit of rage, either

of which is brought on by

serious provocation occasioned

by the victim that is

reasonable sufficient to incite

the person into using deadly

force, shall knowingly cause

the death of another."

wats a ——

Hvertas contends that the events

which occurred during the two weeks prior

to Huertas’ [sic] murder provide

sufficient evidence to establish the

mitigating circumstance of extreme

emotional stress, and therefore the court

should have instructed the jury on

voluntary manslaughter. We disagree.

In denying Huertas’ request for

instructions on the lesser included

offense of voluntary manslaughter, the

trial court ruled:

"eeeiwWie have absolutely no

evidence as to any altercation

between the victim and this

defendant, the victim, Harris.

"And the statute is quite clear

there must be serious

provocation occasioned by the

victim; and the evidence is

totally lacking. There is

absolutely no evidence. The

Court has to have some evidence

before we can charge; and I

assumed that would be tied in;

but your client states that,

basically, he remembers

nothing.

"Therefore, that is not

= eS a ™

evidence as to any

Provocation."

AS amended in 1982, Ohio’s voluntary

manslaughter statute requires an

instruction if the jury could reasonably

find at the time of the act that the

defendant was “under the influence of

Sudden passion or in a sudden fit of

rage, either of which is brought on by

serious provocation occasioned by the

victim." First, we can find no evidence

in the record tict Huertas was seriously

Provoked by the victim, Harris. Instead,

Huertas knew for two weeks that Harris

was seeing Ortiz. He testified that

during that time he was not upset with

Harris. Second, even assuming that

Harris’ courting of Ortiz could seriously

Provoke Huertas, evidence of sudden

Passion or a sudden fit of rage without

time or Opportunity for reflection or for

Passions to cool is also required under

the statute. State v. Pierce (1980), 64

Ohio St. 2d 281; Muscatello, supra. There

is no evidence in the record that Huertas

flew into a sudden fit of rage after

calling Ortiz. Huertas testified that he

was so intoxicated that he remembers

little after hanging up the phone. While

evidence of voluntary intoxication was

admissible to show that Huertas could not

form the necessary “purpose” or specific

intent to commit aggravated murder or

murder, State v. Fox (1981), 68 Ohio St.

2d 53, it was not evidence of a

mitigating circumstance justifying a

charge on the lesser included offense of

voluntary manslaughter.

The assignment of error is

overruled.

ASSIGNMENT OF ERROR VIII

"The trial court erred by

ruling that statements made in

response to a police officer’s

questions were merely an

excited utterance and therefore

admissible as an exception to

the hearsay rule.”

Prior to trial, Huertas moved to

suppress the statement Harris made at the

hospital to Detective Shuster identifying

his assailant. The trial overruled

Huertas’ motion holding that Harris’ tape

recorded statement would be admitted

pursuant to the excited utterance

exception to the hearsay rule. Evid. R.

803(2).

Given Huertas’ admission in opening

statement and testimony that he did stab

Harris, any possible error in the

admission of Harris’ statement was

harmless beyond a reasonable doubt. State

v. DeMarco (1987), 31 Ohio St. 3d 191;

State v. Bayless (1976), 48 Ohio St. 2d

73.

The assignment of error is

overruled.

~~, eC t—‘URl?

re Pee = - - —— - - + -™

ASSIGNMENT OF ERROR Ix

"The trial court denied

-defendant his right to appear

and defend in person and with

counsel in violation of the

Sixth and Fourteenth

Amendments, United States

Constitution and Article Be

Section 10, Ohio Constitution."

Huertas moved, Prior to trial, for

Permission to act as co-counsel in his

Own defense. The court denied permission.

The Ohio Supreme Court Addressed the

hybrid counsel issue in State v. Thompson

91987), 33 Ohio st. 34 1. The court held

that a defendant "has the right either to

appear pro se or to have counsel, he had

no corresponding right to act as

co-counsel on his own behalf." Id., at 7.

The assignment of error is

overruled.

"The trial court erred by

failing to dismiss the

indictment in violation of

defendant’s rights under the

Fifth, Sixth, Eighth and

Fourteenth Amendments, United

States Constitution and Article

I, Sections 9, 10, and 16, Ohio

Ol EEE

Constitution."

"a.

"3.

"4.

The Ohio death penalty

Statutes are

unconstitutional because

there is no compelling

State interest sufficient

to deny defendant his

fundamental right to life.

The Ohio death penalty

Statutes are

unconstitutional because

they deny the accused the

rights to the effective

assistance of counsel in

trial before an impartial

jury.

The Ohio death penalty

Statutes provide

guidelines for the

imposition of the death

penalty that are vague and

indefinite and therefore

unconstitutional.

The Ohio death penalty

statutes place an

unconstitutional burden of

proof on the defendant and

infringe upon his right to

be free from

self-incrimination.

The Ohio death penalty

Statutes are

unconstitutional because

they fail to have a

meaningful basis

distinguishing between

life and death sentences,"

Huertas concedes that his challenges

to Ohio’s death penalty statutes have

Previously been considered and rejected

by the Ohio Supreme Court. See State v.

Jenkins (1984), 15 Ohio st. 34 164; State

Vv. Maurer (1984), 15 Ohio St. 3d 239;

and State v. Buell (1986), 22 Ohio st. 34

124. Huertas asserts these issues on

appeal to preserve them for further

appeal to the Ohio Supreme Court, and, if

necessary, the United States Supreme

Court.

The assignment of error is

overruled.

Having addressed each of Huertas’

assignments of error, we are now

required, pursuant to R.c. 2929.05, to:

"*t*treview and independently

weigh all of the facts and

other evidence disclosed in the

record in the case and consider

the offense and the offender to

determine whether the

aggravating circumstances the

offender was found guilty of

committing outweigh the

mitigating factors in the

case,***,"

The aggravating circumstances which

were proved beyond a reasonable doubt

were the following: (1) the offense was

part of a course of conduct involving the

purposeful killing or attempt to kill two

Or more persons; (2) the offense was

committed while the offender was

committing aggravated burglary. R.C.

2929.04(A)(5) and (7).

R.C. 2929.04(B8) provides that, in

weighing the mitigating factors, the

sentencing authority:

"***shall consider, and weigh

against the aggravating

circumstances proved beyond a

reasonable doubt, the nature

and circumstances of the

offense, the history,

character, and background of

the offender, and all of the

following factors:

"(1) Whether the victim of the

offense induced or

facilitated it;

"(2) Whether it is unlikely

that the offense would

—

have been committed, but

for the fact that the

. offender was under duress,

coercion, or strong

provocation;

"(3) Whether, at the time of

: committing the offense,

q the offender, because of a

. mental disease or defect,

lacked substantial

pom mar ots | to appreciate the

criminality of his conduct

or to conform his conduct

to the requirements of the

law;

"(4) The youth of the offender;

"(S) The offender’s lack of a

significant history of

prior criminal convictions

and delinquency

adjudications;

"(6) If the offender was a

participant in the

offense but not the

principal offender, the

degree of the offender's

participation in the

offense and the degree of

the offender's

participation in the acts

that led to the death of

the victim;

"(7) Any other factors that are

relevant to the issue oi

whether the offender

should be sentenced to

death.”

100

)

During the penalty phase, Huertas

introduced evidence concerning a number

of mitigating factors. Huertas attempted

to characterize the crime as one of

passion brought on by weeks of being

taken on an emotional roller coaster ride

by Elba Ortiz. There was testimony that

Huertas could not bear to have Ortiz

sleep with another man in the bed they

had purchased together.

Members of Huertas’ immediate family

testified as to his background and

upbringing. Huertas came to Lorain from

Brooklyn, New York, at an early age with

the Ascensios, whom he believed to be his

parents. Huertas found out as a teenager

that his real mother and father were

involved in drugs and criminal

lifestyles, and that the Ascensios were

actually his grandparents. Nonetheless,

101

Huertas had a relatively normal childhood

being raised by his grandparents and he

concurred with their testimony that he

received much love and affection while

growing up.

Huertas also presented evidence that

he had abused alcohol and drugs since

high school and, as a result of his

prolonged abuse, experienced blackouts as

he didon the night Harris was’ killed.

Elba Ortiz testified that she noticed

that Huertas was drinking significant

amounts on the weekends prior to Harris’

death. On the other hand, Huertas’

grandparents and his workplace

supervisor, people who observed Huertas

on almost a daily basis, saw nothing in

his behavior to cause any concern that

Huertas may be having a problem with

@rugs and alcohol.

Other factors presented in

102

seein

i i i i i Me

mitigation were Huertas’ age, lack of

Significant Prior criminal convictions

and delinquency adjudications, good work

record, good behavior while confined in

the Lorain County Correctional Pacility,

TD. 8 -

and the reciprocal love between Huertas

and his five children. Finally, Huertas

gave an unsworn Statement in which he

expressed Femorse for killing Ralph

Harris, Jr., whom he considered a close

friend and asked Harris’ family for

forgiveness.

Huertas was twenty-seven at the time

of the attack. His characterization of

the crime as one of Passion induced by

sudden provocation is mot supported by

the evidence. ortiz told Huertas over a

week earlier that she wished to continue

seeing Harris. This led Huertas to

threaten Harris. Huertas armed himself

Prior to leaving his apartment, drove

103

- — - =

_ eee

= s-

— Se a UL

across town to Ortiz’s apartment, entered

Stealthily, attacked Harris and Ortiz,

left the scene, and disposed of the

murder weapon.

Huertas contends that the evidence

demonstrates no significant Criminal

history. While it is true that Huertas

had no prior felony convictions, the

pre-sentence report does demonstrate

problems involving the disregard for the

private Property of others and, more

Significantly, violations concerning the

brandishing of a knife or Similar weapon.

At seventeen, Huertas was convicted of

Criminal trespass. Also that year,

Huertas was convicted of assault. As an

adult, Huertas was convicted of carrying

@ concealed weapon, a Switchblade knife.

Finally, at the age of twenty-three

Huertas was convicted of assault for

attempting to stab another man ina gas

104

station parking lot.

We must also “consider and weigh

against the aggravating circumstances

Proved beyond a reasonable doubt, the

mature and circumstances of the offense,

the history, character and background of

the offender.” Huertas’ history,

character and background were discussed

above. Huertas argued vehemently that his

extensive use of drugs and alcohol played

@ major factor in Harris’ death. Whatever

the realities concerning Huertas’

long-term use of alcohol and drugs or his

use the night he killed Harris, he was

able to formulate a plan to kill Harris

and Ortiz, and, at least partially, carry

out that plan. The facts show that

Huertas invaded an apartment in the early

morning hours, in which two of his

Children were Sleeping, and purposely

killed a man he had known since high

105

al =~ = “4 a

—_—

school. But for the actions of the

wounded Harris, Huertas might have

successfully completed his attack on

Ortiz, the children’s mother. After an

independent review of the evidence, we

conclude that the aggravating

circumstances Outweigh the mitigating

factors beyond a reasonable doubt.

The final part of our review is to

determine whether Huertas’ death sentence

| is excessive or disproportionate to the

| death penalty imposed in similar cases

| within our jurisdiction. R.C. 2929.05;

State v. Steffen (1987), 31 Ohio St. 3d

111, 123-24.

This court has Previously reviewed

and affirmed four penalties of death.

State v. Coocey (Dec. 23, 1967), Summit

App. No. 12943, unreported; State v.

Benner (July 22, 19867), Summit App. No.

12664, unreported; State v. Greer (Mar.

106

4, 1987), Summit App. No. 12258,

unreported; and State v. Po-t (Jan. 15,

1986), Lorain App. No. 3868, unreported.

Each of these cases involved the

aggravating circumstance of felony

Murder. The sentence imposed here is

neither excessive nor disproportionate.

Having completed our review pursuant

to R.C. 2929.C5(A) we hold: (1) that

Huertas’ assignments of error, having

been fully considered, are without merit

and, therefore, are overruled; (2) after

independently weighing all of the facts

and other evidence disclosed in the

record inthe case and considering the

offense and the offender, we find that

the aggravating circumstances the

offender was found guilty of committing

outweigh the mitigating factors in the

case beyond ® reasoneble doubt; and (3)

the death penalty is appropriate and is

107

——————iee

= —_

mot excessive or disproportionate to the

penalty imposed in Similar cases within

the jurisdiction of this court. We,

therefore, affirm Huertas’ convictions

and sentence of death.

The Court finds that there were

reasonable grounds for this appeal.

We order that a Special mandate

issue out of this court, directing the

County of Lorain Common Pleas Court to

carry this judgment into execution. A

certified copy of this journal entry

shall constitute the manda*e, pursuant to

App. R. 27.

Immediately upon the filing hereof,

this document shall constitute the

journal entry of judgment. and it shall

be file stamped by the Clerk of the Court

108

of Appeals at which time the period for

review shall begin to run. App. R. 22(£).

Costs taxed to appellant.

Exceptions.

WILLIAM R. BAIRD

PRESIDING JUDGE

DANIEL B. QUILLIN

JUDGE

MARY CACIOPPO

JUDGE

BAIRD, P. J

CACIOPPO, J

CONCUR

APPEARANCES:

GREGORY A. WHITE, Prosecuting Attorney,

226 Middle Ave. Elyria, OH 44035 for

Plaintiff.

JACK W. — Attorney at Law, 520

Broadway Ave. Lorain, OH 44052 for

Defendant.

109

STATE OF OHIO vy. EDIBERTO HUERTAS

FOOTNOTES

i The defendant in this case is

Hispanic, as is Elba Ortiz. The victim

was black.

110

STATE OF OHIO ) IN THE COURT OF

) SS: APPEALS NINTH

COUNTY OF LORAIN ) JUDICIAL

DISTRICT

STATE OF OHIO ) C.A. NO. 4202

Plaintiff-Appellee )

Vv. ) APPEAL FROM

) JUDGMENT ENTERED

EDIBERTO HUERTAS ) IN THE COMMON

) PLEAS COURT OF

Defendant-Appellant ) LORAIN, OHIO

) CASE NO. 32753

SEPARATE OPINION PURSUANT

EE EVR SUANT

TO R.C. 2929.05(a)

Pursuant to R.c. 2929.05, this court

lll

certifies that it has reviewed the

judgment in the case and the sentence of

death imposed by the court. This court

has also reviewed and independently

weighed all of the facts and other

evidence disclosed in the record in tile

case and considered the offense and the

offender to determine whether the

aggravating circumstances the offender

was found guilty of committing outweigh

the Mitigating factors in the case.

Finally, this court has considered

whether the death sentence is

inappropriate or disproportionate to the

penalty imposed in similar cases.

Upon such a review, this court makes

the following findings:

(1) Appellant’s assignments of error,

having been fully considered, are without

merit and are each overruled.

112

(2) The evidence supports the jury’s

findings that appellant is guilty of each

crime charged and the aggravating

circumstances.

(3) The jury properly found that the

aggravating circumstances outweighed the

mitigating factors beyond a reasonable

doubt.

(4) Upon an independent review of the

evidence, and upon independent weighing

of the aggravating circumstances proven

beyond a reasonable doubt, with the

mitigating factors proven by a

preponderance of the evidence, the

aggravating circumstances outweigh the

mitigating factors beyond a reasonable

doubt.

(5) The sentence of death in this case

113

is appropriate and is not excessive or

disproportionate to the penalty imposed

in similar cases within the jurisdiction

of this court.

Accordingly, this court affirms the death

. penalty imposed on appellant.

William R. Baird

Presiding Judge

Daniel B. Quillin

Judge

Mary Cacioppo

Judge

cc: Jonathan E. Rosenbaum, Prosecutor,

226 Middle Ave., Elyria, Ohio 44035, for

Plaintiff.

114

Jack Bradley, Attorney at Law, 520

Broadway, 2nd Floor, Lorain, Ohio 44052,

for Defendant.

115

OHIO REVISED CODE SECTIONS

2903.01 Aggravated murder.

(A) No person shall purposely, and

with prior calculation and design, cause

the death of another.

(B) No person shall purposely cause

the death of another while committing or

attempting to commit, or while fleeing

immediately after committing or

attempting to commit kidnaping, rape,

aggravated arson or arson, aggravated

robbery or robbery, aggravated burglary

or burglary, or escape.

guilty of aggravated murder, and shall be

punished as provided in section 2929.02

of the Revised Code.

(D) No person shall be convicted of

aggravated murder unless he is

116

specifically found to have intended to

cause the death of another. In no case

shall a jury in an aggravated murder case

be instructed in such a manner that it

may believe that a person-who commits or

attempts to commit any offense listed in

division (B) of this section is to be

conclusively inferred, because he engaged

in a common design with others to commit

the offense by force and violence or

because the offense and the manner of its

commission would be likely to produce

death, to have intended to cause the

death of any person who is killed during

the commission of, attempt to commit, or

flight from the commission of or attempt

to commit, the offense. If a jury in an-

aggravated murder case is instructed that

a person who commits or attempts to

commit any offense listed in division (B)

of this section may be inferred, because

117

he engaged in a common design with others

to commit the offense by force or

violence or because the offense and the

manner of its commission would be likely

to produce death, to have intended to

cause the death of any person who is

killed during the commission of, attempt

to commit, or flight from the commission

of or attempt to commit the offense, the

jury also shall be instructed that the .

inference is nonconclusive, that the

inference may be considered in

determining intent, that it is to

consider all evidence introduced by the

prosecution to indicate the person’s

intent in determining whether the person

specifically intended to cause the death

of the person killed, and that the

prosecution must prove the specific

intent of the person to have caused the

death by proof beyond a reasonable doubt.

118

HISTORY: 134 v H 511 (Eff 1-1-74);

139 v S 1. Eff 10-19-81.

2929.02 Penalties for murder.

(A) Whoever is convicted of, pleads

guilty to, or pleads no contest and is

found guilty of, aggravated murder in

violation of section 2903.01 of the

Revised Code shall suffer death Or be

imprisoned for life, as determined

pursuant to sections 2929.022

[2929.02.2], 2929.03, ana 2929.04 of the

Revised Code, except that no person who

raises the matter of age pursuant to

Section 2929.023 [2929.02.3] or division

Code and who is not found to have been

eighteen years of age or older at the

time of the commission of the offense

Shall suffer death. In addition, the

offender may be fined an amount fixed by

the court, but not more than twenty-five

119

thousand dollars.

(B) Whoever is convicted of, pleads

guilty to, or pleads no contest and is

found guilty cf, murder in violation of

section 2903.02 of the Revised Code shall

be imprisoned for an indefinite term of

fifteen years to life. In addition, the

offender may be fined an amount fixed by

the court, but not more than fifteen

thousand dollars.

fine or fines for aggravated murder or

murder which, in the aggregate and to the

extent not suspended by the court,

exceeds the amount which the offender is

Or will be able to pay by the method and

within the time allowed without undue

hardship to himself or his dependents, or

will prevent him from making reparation

for the victim’s wrongful death.

HISTORY; 134 v BH 511 (Eff 1-1-74);

120

139 v § 1. Eff 10-19-81.

| 2929.022 [Determination of aggravating

4 circumstances. }

(A) If an indictment or count in an

h indictment charging a defendant with

aggravated murder contains a

specification of the aggravating

4 circumstance of a prior conviction listed

in division (A)(5) of section 2929.04 of

the Revised Code, the defendant may elect

to have the panel of three judges, if he

waives trial by jury, or the trial judge,

i . if he is tried by jury, determine the

existence of that aggravating

circumstance at the sentencing hearing

held pursuant to divisions (C) and (D) of

section 2929.03 of the Revised Code.

(1) If the defendant does not elect

to have the existence of the aggravating

circumstance determined at the sentencing

hearing, the defendant shall be tried on

121

the charge of aggravated murder, on the

specification of the aggravating

circumstance of a prior conviction listed

in division (A)(5) of section 2929.04 of

the Revised Code, and on any other

specification of an aggravating

circumstance listed in division (A) of

section 2929.04 of the Revised Code in a

single trial as in any other criminal

= Ss st oe

case in which a person is charged with

aggravated murder and specifications.

(2) If the defendant does elect to

have the existence of the aggravating

circumstance of a prior conviction listed

in division (A)(5) of section 2929.04 of

the Revised Code determined at the

sentencing hearing, then, following a

verdict of guilty of the charge of

aggravated murder, the panel of three

judges or the trial judge shall:

(a) Hold a sentencing hearing

122

pursuant to division (B) of this section,

unless required to do otherwise under

division (A)(2)(b) of this section;

(b) If the offender raises the

matter of age at trial pursuant to

section 2929.023 [2929.02.3] of the

Revised Code and is not found at trial to

have been eighteen years of age or older

at the time of the commission of the

offense, conduct a hearing to determine

if the specification of the aggravating

circumstance of a prior conviction listed

in division (A)(5) of section 2929.04 of

the Revised Code is proven beyond a

reasonable doubt. After conducting the

hearing, the panel or judge shall proceed

as follows:

(i) If that aggravating circumstance

is proven beyond a reasonable doubt or if

the defendant at trial was convicted of

any other specification of an aggravating

123

circumstance, the panel or judge shall

impose sentence according to division (E)

of section 2929.03 of the Revised Code;

(ii) If that aggravating

L circumstance is not proven beyond é

reasonable doubt and the defendant at

trial was not convicted of any other

) specification of an aggravating

circumstance, the panel or judge shall

impose sentence of life imprisonment with

parole eligibility after serving twenty

years of imprisonment on the offender.

(B) At the sentencing hearing, the

panel of judges, if the defendant was

tried by a panel of three judges, or the

trial judge, if the defendant was tried

by jury, shall, when required pursuant to

division (A)(2) of this section, first

determine if the specification of the

aggravating circumstance of a prior

conviction listed in division (A)(5) of

124

section 2929.04 of the Revised Code is

proven beyond a reasonable doubt. If the

panel of judges or the trial’ judge

deteratace that the specification of the

aggravating circumstance of a prior

conviction listed in division (A)(5) of

section 2929.04 of the Revised Code is

proven beyond a reasonable doubt or if

they do not determine that the

specification is proven beyond a

reasonable doubt but the defendant at

trial was convicted of a specification of

any other aggravating sgneiinetnes listed

in division (A) of section 2929.04 of the

Revised Code, the panel of judges or the

trial judge and trial jury shall impose

sentence on the offender pursuant to

division (D) of section 2929.03 and

section 2929.04 of the Revised Code. If

the panel of judges or the trial judge

does not determine that the specification

125

as ee

ee i ee

- of the aggravating circumstance of a

prior conviction listed in division

(A)(5) of section 2929.04 of the Revised

Code is proven beyond a reasonable doubt

and the defendant at trial was not

convicted of any other specification .£

an aggravating circumstance listed in

division (A) of section 2929.04 of the

Revised Code, the panel of judges or the

trial judge shall terminate the

sentencing hearing and impose a sentence -

of life imprisonment with parole

eligibility after serving twenty years of

imprisonment on the offender.

HISTORY: 139 v S 1. Eff 10-19-81.

2929.03 Imposing sentence for a capital

offense.

(A) If the indictment or count in

the indictment charging aggravated murder

does not contain one or more

specifications of aggravating

126

aus LS

circumstances listed in division(A) of

section 2929.04 of the Revised Code,

then, following a verdict of guilty of

the charge of aggravated murder, the

trial court shall impose a sentence of

life imprisonment with parole eligibility

after serving twenty years of

imprisonment on the offender.

(B) If the indictment or count in

the indictment charging aggravated murder

contains one or more specifications of

aggravating circumstances listed in

division (A) of section 2929.04 of the

Revised Code, the verdict shall

separately state whether the accused is

found guilty or not guilty of the

principal charge and, if guilty of the

principal charge, whether the offender

was eighteen years of age or older at the

time of the commission of the offense, if

the matter of age was raised by the

127

ini a

offender pursuant to section 2929.023

{2929.02.3] of the Revised Code, and

whethér the offender is guilty or not

guilty of each specification. The jury

shall be instructed on its duties in this

regard, which shall include an

instruction that a specification shall be

proved beyond a reasonable doubt in order

to support a guilty verdict on the

specification, but such instruction shall

not mention the penalty which may be the

consequence of a guilty or not guilty

verdict on any charge or specification.

(C)(1) If the indictment or count in

the indictment charging aggravated murder

contains one or more specifications of

aggravating circumstances listed in

division (A) of section 2929.04 of the

Revised Code, then, following a verdict

of guilty of the charge but not guilty of

each of the specifications, and

128

regardless of whether the offender raised

the matter of age pursuant to section

2929.023 [2929.02.3] of the Revised Code,

the trial court shall impose a sentence

of life imprisonment with parole

eligibility after serving twenty years of

imprisonment on the offender.

(2) If the indictment or count in

the indictment contains one or more

specifications of aggravating

circumstances listed in division (A) of

section 2929.04 of the Revised Code, and

if the offender is found guilty of both

the charge and one or more of the

specifications, the penalty to be imposed

on the offender shall be death, life

imprisonment with parole eligibility

after serving twenty full years of

imprisonment, or life imprisonment with

parole eligibility after serving thirty

full years of imprisonment, shall be

determined Pursuant to divisions (D) and

(E) of this section, and shall be

determined by one of the following:

(a) By the panel of three judges

that tried the offender upon his waiver

of the right to trial by jury;

(b) By the trial jury and the trial

judge, if the offender was tried by jury.

(D)(1) Death may not be imposed as a

penalty for aggravated Murder if the

offender raised the matter of age at

trial pursuant to section 2929.023

[2929.02.3] of the Revised Code and was

not found at trial to have been eighteen

years of age or older at the time of the

commission of the offense. When death may

be imposed as a penalty for aggravated

murder, the court shall Proceed under

this division. when death may be imposed

aS a penalty, the court, upon the request

of the defendant, Shall require a

130

pre-sentence investigation to be made

and, upon the request of the defendant,

shall require a mental examination to be

made, and shall require reports of the

investigation and of any mental

examination submitted to the court,

pursuant to section 2947.06 of the

Revised Code. No statement made or

information provided by a defendant in a

mental examination or proceeding

conducted pursuant to this division shall

be disclosed to any person, except as

provided in this division, or be used in

evidence against the defendant on the

issue of guilt in any retrial. A

pre-sentence investigation or mental

examination shall no be made except upon

request of the defendant. Copies of any

reports prepared under this division

shall be furnished to the court, to the

trial jury if the offender was tried by a

131

ee, ¥ red ee

jury, to the prosecutor, and to the

offender or his counsel for use under

this division. 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, shall hear testimony

and other evidence that is relevant to

the nature and circumstances of the

aggravating circumstances the offender

was found guilty of committing, the

mitigating factors set forth in division

(B) of section 2929.04 of the Revised

Code, and any other factors in mitigation

of the imposition of the sentence of

death, and shalt hear the statement, if

132

any, of the offender, and the arguments,

if any, of counsel for the defense and

prosecution, that are relevant to the

penalty tiuat should be imposed on the

offender. The defendant shall be given

great latitude in the presentation of

evidence of the mitigating factors set

forth in division (B) of section 2929.04

of the Revised Code and of any other

factors in mitigation of the imposition

of the sentence of death. If the offender

chooses to make a statement,he is subject

to cross-examination only if he consents

to make the statement under oath or

affirmation.

The defendant shall have the burden

of going forward with the evidence of any

factors in mitigation of the imposition

of the sentence of death. The

prosecution shall have the burden of

proving, by proof beyond a reasonable

133

) doubt, that the aggravating circumstances

the defendant was found guilty of

committing are sufficient to outweigh the

factors in mitigation of the imposition

of the sentence of death.

(2) Upon consideration of the

relevant evidence raised at trail, the

testimony, other evidence, statement of

the offender, arguments of counsel, and

if applicable, the reports submitted

pursuant to division (D)(1) of this

' section, the trial jury, if the offender

| was tried by a jury, shall determine

whether the aggravating circumstances the

offender was found guilty of committing

are sufficient to outweigh the mitigating

factors present in the case. If the trial

jury unanimously finds, by proof beyond a

reasonable doubt, that the aggravating

circumstances the offender was found

guilty of committing outweigh the

134

on , . —

mitigating factors, the trial jury shall

recommend to the court that the sentence

of death be imposed on the offender.

Absent such a finding, the jury shall

recommend that the offender be sentence

to life imprisonment with parole

eligibility after serving twenty full

years of imprisonment or to life

imprisonment with parole eligibility

after serving thirty full years of

imprisonment.

If the trial jury recommends that

the offender be sentenced to life

imprisonment with parole eligibility

after serving twenty full years of

imprisonment or to life imprisonment with

parole eligibility after serving thirty

full years of imprisonment, the court

shall impose the sentence recommended by

the jury upon the offender. If the trial

jury recommends that the sentence of

135

PT : —— Le

death be imposed upon the offender, the

court shall proceed to impose sentence

pursuant to division (D)(3) of this

section.

(3) Upon consideration of the

relevant evidence raised at trail, the

testimony, other evidence, statement of

the offender, arguments of counsel, and,

if applicable, the reports submitted to

the court pursuant to division (D)(1) of

this section, if, after receiving

pursuant to division (D)(2) of this

section the trial jury’s recommendation

that the sentence of death be imposed,

the court finds, by proof beyond a

reasonable doubt, or if the panel of

three judges unanimously finds, that the

aggravating circumstances the offender

was found guilty of committing outweigh

the mitigating factors, it shall impose

sentence of death on the offender. Absent

136

such a finding by the court or panel,

the court or the panel shall impose one

of the following sentences on the

offender:

(a) Life imprisonment with parole

eligibility after serving twenty full

years of imprisonment;

(b) Life imprisonment with parole

eligibility after serving thirty full

years of imprisonment.

(E) If the offender raised the

matter of age at trial pursuant to

section 2929.023 [2929.02.3]) of the

Revised Code, was convicted of aggravated

murder and one or more specifications of

an aggravating circumstance listed in

division (A) of section 2929.04 of the

Revised Code, and was not found at trial

to have been eighteen years of age or

older at the time of the commission of

the offense, the court or the panel of

137

three judges shall not impose a sentence

of death on the offender. Instead, the

court or panel shall impose one of the

following sentences on the offender:

(1) Life imprisonment with parole

eligibility after serving twenty full

years of imprisonment;

(2) Life imprisonment with parole

eligibility after serving thirty full

years of imprisonment.

(F) The court or the panel of three

judges, when it imposes sentence of

death, shall state in a separate opinion

its specific findings as to the existence

of any of the mitigating factors set

forth in division (B) of section 2929.04

of the Revised Code, the existence of any

other mitigating factors, the aggravating

circumstances the offender was found

guilty of of committing, and the reasons

why the aggravating circumstances the

138

offender was found guilty of committing

were sufficient to outweigh the

mitigating factors. The court or panel,

when it imposes life imprisonment under

division (D) of this section, shall state

in a separate opinion its specific

findings of which of the mitigating

factors set forth in division (B) of

section 2929.04 of the Revised Code it

found to exist, what other mitigating

factors it found to exist, what

aggravating circumstances the offender

was found guilty of committing, and why

it could not find that these aggravating

circumstances were sufficient to outweigh

the mitigating factors. The court or

i panel shall file the opinion required to

be prepared by this division with the

clerk of the appropriate court of appeals

and with the clerk of the supreme court

within fifteen days after the court or

139

panel imposes sentence. The judgment in a

case in which a sentencing hearing is

held pursuant to this section in not

final until the opinion is filed.

(G) Whenever the court or a panel of

three judges imposes sentence of death,

the clerk of the court in which the

judgment is rendered shall deliver the

entire record in the case to the

appellate court.

HISTORY: 134 v H 511 (Eff 1-1-74);

139 v S 1. Eff 10-19-81.

2929.04 Criteria for imposing death or

imprisonment for a capital offense.

(A) Imposition of the death penalty

for aggravated murder is precluded,

unless one or more of the following is

specified in the indictment or count in

the indictment pursuant to section

2941.14 of the Revised Code and proved

beyond a reasonable doubt:

140

(1) The offense was the

assassination of the president of the

United States or person in line of

succession to the presidency, or of the

governor or lieutenant governor of this

state, or of the president or vice

president-elect of the Unites States, or

of the governor-elect or lieutenant

governor-elect of this state, or of a

candidate for any of the foregoing

offices. For purposes of this division, a

person is a candidate if he has been

nominated for election according to law,

or if he has filed a petition or

petitions according to law to have his

name placed on the ballot in a primary cr

general election, or if he campaigns as a

write-in candidate in a primary or

general election.

(2) The offense was committed for

hire.

141

(3) The offense was committed for

the purpose of escaping detection,

apprehension, trial, or punishment for

another offense committed by the

offender.

(4) The offense was committed while

the offender was a prisoner in a

detention facility as defined in section

2921.01 of the Revised Code.

(5S) Prior to the offense at bar, the

offender was convicted of an offense an

essential element of which was the

purposeful killing of or attempt to kill

another, or the offense at bar was part

of a course of conduct involving the

purposeful killing of or attempt to kill

two or more persons by the offender.

(6) The victim of the offense was a

peace officer, as defined in section

2935.01 of the Revised Code, whom the

offender had reasonable cause to know or

142

knew to be such, and either the victia,

at the time of the commission of the

offense, was engaged in his duties, or it

was the offender’s specific purpose to

kill a peace officer.

(7) The offense was committed while

the offender was committing, attempting

to commit, or fleeing irmediately after

committing or attempting to commit

kidnaping, rape, aggravated arson,

aggravated robbery, or aggravated

burglary, and either the offender was the

principal offender in the commission of

tue aggravated murder or, if not the

principal offender, committed the

aggravated murder with prior calculation

and design.

(8) The victim of the aggravated

murder was a witness to an offense who

was purposely killed to prevent his

testimony in any criminal proceeding and

143

oe ee

the aggravated murder was not committed

during the commission, attempted

commission, or flight immediately after

the commission or attempted commission of

the offense to which the victim was a

witness, or the victim of the aggravated

murder was a witness to an offense and

was purposely *silled in retaliation for

his testimony in any criminal proceeding.

(B) If one or more of the

aggravating circumstances listed in

division (A) of this section is specified

in the indictment or count in the

indictment and proved beyond a reasonable

doubt, and if the offender did not raise

the matter of age pursuant to section

2929.023 [2929.02.3] of the Revised Code

or if the offender, after raising the

matter of age, was found at trial to have

been eighteen years of age or older at

the time of the commission of the

144

offense, the court, trial jury, or panel

of three judges shall consider, and weigh

against the aggravating circumstances

proved beyond a reasonable doubt, the

nature and circumstances of the offense,

the history, character, and background of

the offender, and all of the following

factors: ?

(1) Whether the victim of the

offense induced or facilitated it;

(2) Whether it is unlikely that the

offense would have been committed, but

for the fact that the offender was under

duress, coercion, or strong provocation;

(3) Whether, at the time of

committing the offense, the offender,

because of a mental disease or defect,

lacked substantial capacity to appreciate

the criminality of his conduct or to

conform his conduct to the requirements

of the law;

145

—=— SS CU 7.

(4) The youth of the offender;

(5) The offender’s lack of a

significant history of prior criminal

convictions and delinquency

adjudications;

(6) If the offender was a

participant in the offense but not the

principal offender, the degree of the

offender’s participation in the offense

and the degree of the offender’s

participation in the acts that led to the

death of the victim;

(7) Any other factors that are

relevant to the issue of whether the

offender should be sentenced to death.

great latitude in the presentation of

evidence of the factors listed in

division (B) of this section and of any

other factors in mitigation of the

imposition of the sentence of death.

146

a ae ee

The existence of any of the

mitigating factors listed in division (B)

of this section does not preclude the

imposition of a sentence of death on the

offender, but shall be weighed pursuant

to division (D)(2) and (3) of section

2929.03 of the Revised Code by the trial

court, trial jury, or the panel of three

judges against the aggravating

circumstances the offender was found

guilty of committing.

HISTORY: 134 v B 511 (Eff 1-1-74);

139 v S$ 1. Eff 10-19-81.

147

OPPOSITION

BRIEF

Supreme Court of The United States

October Term. 1990

STATE OF OHIO,

Petitioner,

-vs-

EDIBERTO HUERTAS,

EDI "OR'S NOTE

Respondent.

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING, IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISS ‘ ON PETITION FOR A WRIT OF CERTIORARI

= TO THE SUPREME COURT OF OHIO

RESPONDENT'S BRIEF IN OPPOSITION

RANDALL M. DANA

Ohio Public Defender

JOANN BOUR-STOKES

Chief Appellate Counsel,

Death Penalty Division

RICHARD J. VICKERS

Assistant State Public Defender

Ohio Public Defender Commission

8 East Long Street - Lith Floor

Columbus, Ohio 43266-0587

614/466-5394

COUNSEL FOR RESPONDENT

QUESTION PRESENTED TABLE _OF_ CONTENTS

I. Whether The Introduction Of A Victia Impact PAGE NO.

Statement And Victim Impact Testigony In The Penalty

Phase Of A Capital Trial Violates hv ° QUESTION PRESENTED i

482 U.S. 496 (1987), and h 9

__. U+S- __, 109 S. Ct. ° TABLE OF AUTHORITIES iti

STATEMENT OF THE CASE 1-3

REASONS WHY THE PETITION SHOULD BE DENIED

THIS COURT'S DECISIONS IN BOOT , 482

— U.S. 496 (1987), AND ;

U.S. . 109 Ss. 20 8 >»! :

THE CONCLUSION BY THE OHIO SUPREME COURT THAT

VICTIM IMPACT EVIDENCE WAS IMPROPERLY ADMITTED IN

RESPONDENT'S CAPITAL TRIAL. 3-6

CONCLUSION ?

APPENDIX:

Victim Impact Statement A-1l = A-1}

Transcript of Elizabeth Harris and

Ralph Harris, Sr. A-14 = A-3O

Ohio Rev. Code Ann. Section 2929.03

(Pages 1988) A-31 - aA-32

“jo ~ti-

TABLE OF AUTHORITIES

CASES:

Booth v. Maryland, 482 U.S. 496 (1987)

South Carolina v. Gathers, U.S. ,

1 S. Ce. 2 I

State v. Huertas, 51 Ohio St. 34 22 (1990)

State v. Post, 32 Ohio St. 34 380 (1987)

State v. Sowell, 39 Ohio St. 34 322 (1988)

STATUTES:

Ohie Rev. Code Ann. Section 2929.03(D)(1)

(Page 1988)

~iii-

cr Les

No. 89-1944 —

in She

Supreme Court of The United States

October Term, 1990

STATE OF OHIO,

Petitioner,

-vs-

EDIBERTO HUERTAS,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF OHIO

Respondent, Ediberto Huertas, respectfully requests that this Court deny

the Petition for Writ of Certiorari, seeking review of the Ohio Supreme

Court's opinion in this case. That opinion is reported at 51 Ohio St. 34 22

(1990).

STATEMENT OF THE CASE

On January 6, 1987, Ediberto Huertas proceeded to trial for the murder of

Ralph Harris, Jr. Testimony at trial revealed that one month prior to his

death, Ralph Harris had returned home to Lorain, Ohio, on leave from the

military. While on leave, Ralph Harris had a relationship with Elba Ortiz.

Respondent Huertas also had a longtime relationship with Elba Ortiz that had

produced two children. The relationship between Elba Ortiz and Ralph Harris

caused great distress to Respondent Huertas. It was this relationship that

was the crucial precipitating factor that led to the murder of Ralph Harris.

On the night of the murder, Respondent Huertas frequented several bars

and ingested drugs. Respondent's alcohol use included, over the course of the

evening, approximately six to sixteen beers and six to ten shots of rum.

Additionally, Mr. Huertas smoked five marijuana cigarettes, and snorted one

half of gram of cocaine.

When the bars closed that evening, Mr. Huertas returned home to his

apartment. He telephoned Elba Ortiz and discovered that she was sleeping with

Ralph Harris. Respondent Huertas became angry and ended the conversation.

Later that evening, Respondent Huertas went to Elba Ortiz'’s apartment, and the

stabbing of Ralph Harris occurred.

\t the conclusion of the guilt phase of Respondent Huertas' capital

trial, defense counsel requested that a presentence investigation report be

prepared for the penalty phase pursuant to Ohio Rev. Code Ann. Section

2929.03(D)(1). The presentence investigation report was prepared and included

within it was a victim impact statement (A-1). The victim impact statement

detailed a visit with the victim's parents, Ralph, Sr. and Elizabeth Harris.

Defense counsel objected to the report being admitted into evidence. The

trial court overruled the objection, and allowed the report to go to the jury.

Mr. and Mrs. Harris also testified at the penalty phase. They were

called as rebuttal witnesses by the State of Ohio. Mrs. Harris, in effect

repeated the substance of her testimony at the guilt phase. Her testimony was

interspersed with expressions of grief over the loss of her son, and

statements concerning the good character of her son. Mr. Harris expressed the

belief that Respondent Huertas should receive the death penalty.

The jury recommended that Respondent receive the death penalty, and the

trial court accepted that recommendation, and sentenced Respondent Huertas to

death.

REASONS WHY THE PETITION SHOULD BE DENIED

THIS COURT'S DECISIONS IN BOOTH V. MARYLAND, 482 U.S.

496 (1987), AND SOUTH CAROLINA V. GATHERS, U.S.

» 109 S. CT. 2207 (1989), CONTROL THE CONCLUSION BY

THE OHIO SUPREME COURT THAT VICTIM IMPACT EVIDENCE WAS

IMPROPERLY ADMITTED IN RESPONDENT'S CAPITAL TRIAL.

The Ohio Supreme Court's decision in this case was controlled by the

decisions in Booth v. Maryland, 482 U.S. 496 (1987), and South Carolina v.

Gathers, U.S. _, 109 S. Ct. 2207 (1989).! The victim impact evidence

admitted violated the constitutional principles of these cases and undermined

the reliability of Respondent's death sentence. The Ohio Supreme Court was

constitutionelly correct in reversing Respondent's death sentence.

The victim impact evidence in the case sub judice arose in two forms.

The jury was exposed to the prejudicial information through a victim impact

statement contained in the presentence investigation report, and through

actual testimony at the penalty phase of Respondent's capital trial.

A victim impact statement was attached to the presentence investigation

report prepared for Respondent's penalty phase (A-1). The report contained an

interview with Ralph and Elizabeth Harris, the victim's parents. The report

explained that the victim was in the military, and had been raised “to respect

others and to go to church." Additionally, Mr. Harris, the victim's

: The Ohio Supreme Court's decision was also controlled by Ohio law. Ohio's

statutory framework prohibited the introduction of victim impact evidence in a

capital case before this Court's announcement of the decision in Booth v.

Maryland, 482 U.S. 496 (1987). State v. Post, 32 Ohio St. 3d 380 (1987) and

State v. Sowell, 39 Ohio St. 3d 322 (1988).

-}-

father, “stated that since his son's life was taken, that the defendant

deserves to get the death penalty." (A-3.)

These characterizations were then supplemented by the testimony of Mr.

and Mrs. Harris at the penalty phase of Respondent's trial. The Harrises were

called as rebuttal witnesses by the State of Ohio. Respondent had presented

various family members and a psychologist as witnesses in his case. The State

then called Mr. and Mrs. Harris to the stand.

The initial portion of Mrs. Harris’ testimony echoed that given in the

guilt phase. Contained within this testimony were various expressions of her

grief. These expressions included, "Oh Jesus, Jesus", "Oh, why did he do it,

Lord? Why did he do it, Jesus?" (M. Tr. 264; A-17.) The remaining substance

of Mrs. Harris' testimony was confined to the good character of her son and

the impact of her son's death on her grandson, Ralph Harris, III.

Q. Ma'am, were you proud of your son, Ralph Harris,

Jr.?

A. Oh, God, how proud I was, a child that never

give me no problem, no nothing, no drinking, no

smoking, nothing but go to church and come back and do

his Army, work out for Karate.

Oh, God, no dope, no nothing; and he wanted to be

something.

Q. Does Ralph Harris, III miss his father?

A. Oh, God, yes. I hate to take him to the

graveyard. He always wants to go. He think he going

to see his dad. Oh, dear God, please help us, help

us, Lord, Jesus.

MR. ROSENBAUM: I have no other questions, Your

Honor.

A. Jesus.

THE COURT: Do you want to take a drink of water,

Mrs. Harris?

A. Oh, what a good kid. Oh, Jesus, help me.

Please help me.

(M. Tr. 265, A-18.)

The victim's father, Ralph Harris, Sr., was then called to the witness

stand by the State of Ohio. Mr. Harris’ testimony involved one issue. He

testified that the respondent should receive the electric chair for killing

his son. (M. Tr. 274, A-27.)

The information conveyed by Mr. and Mrs. Harris, in the victim impact

statement, and through their testimony, constitutes victim impact evidence as

defined by this Court in Booth v. Maryland, 482 U.S. 496 (1987) and South

Carolina v. Gathers, U.S. ,» 109 S. Ct. 2207 (1989). It “described the

personal characteristics of the victim[] and the emotional impact of the

crime[] on the family, and set forth the family members’ opinions and

characterizations of the crime[] and the defendant." Booth v. Maryland, 482

U.S. at 502-03. As such, the Harris’ statements and testimony were irrelevant

to the sentencing decision. Id.

Petitioner contends that the Ohio Supreme Court in the present case

misconstrued this Court's holdings in Booth v. Maryland and South Carolina v.

Gathers. To support its argument Petitioner advances the assertion that

“[t]here is no harm or constitutional prohibition in presenting to the jury

victim impact testimony of which the killer was aware at the time he made his

decision to kill." (Petitioner's Writ, p. 16.) This argument ignores the

record evidence in the present case, and also ignores the principles adopted

in Booth and Gathers.

No evidence exists in the record to support the fact that Ediberto

Huertas killed Ralph Harris, Jr., to cause any emotional distress to the

Harris family. While the record reveals that Ediberto Huertas and Ralph

Harris, Jr., were friends, the record does not support the gsotive attributed

to Respondent by the State of Ohio. As a matter of fact, the Ohio Supreme

Court expressly rejected the argument advanced by the State, finding that

there was no such motive for killing Ralph Harris, Jr. State v. Huertas, 51

Ohio St. 34 22 (1990), 26, n.4.

Moreover, the argument advanced by Petitioner that the defendant's

knowledge of the victim's family is permissible inquiry was fully addressed by

this Court in Booth v. Maryland, 482 U.S. at 505.

It is true that in certain cascs some of the

information contained in a VIS will have been known to

the defendant before he committed the offense. As we

have recognized, a defendant's degree of knowledge of

the probable consequences of his actions may increase

his moral culpability in a constitutionally

significant manner (citation omitted). We

nevertheless find that because of the nature of the

information contained in a VIS, it creates an

impermissible risk that the capital sentencing

decision will be made in an arbitrary manner.

The fact that Respondent knew the victim's family did not increase his moral

culpability in any manner to justify the admission of the victim impact

evidence.

This case falls squarely within the dictates of Booth v. Maryland and

South Carolina v. Gathers. These cases control the decision reached below,

and the State of Ohio advances no argument to justify a contrary conclusion.

CONCLUSION

For these reasons, the Petition for Writ of Certiorari should be denied.

Respectfully submitted,

RANDALL M. DANA

Ohio Public Defender

ef Appellate Counsel,

th Penalty Division

RICHARD J. VICKERS

Assistant State Public Defender

Ohio Public Defender Commission

8 East Long Street - lith Floor

Columbus, Ohio 43266-0587

614/466-5394

COUNSEL FOR RESPONDENT

PROLATION SivkeS kites be” ~

ADULT PAROLE AUTHORITY

UNIT ADDRESS 226 Middle Avenue, Elyrie, OF 44935

INVESTIGATION Docke’ Wo 32753

&) PRESENTENCE County Lorein

‘) POSTSENTENCTE Proving ate

Ronoreble Floyd D. Harris

Detendent EDIBERTO (OI) WVERTAS ake Eddie Asencio

Asére Lorein County Corrections] Facility

9996 Murrey Pidge Rd.

Elyrie, OH 44035

Lope’ Residenee, m3 West 20th Street

Lorain, OR 64952

Defense Couns!

Jeck Bradley

520 Broadway, 2né Floor

; Lorain, OF 464052

Promoutng Anorney

Jonathan E. Rosenbaur

Assistant Co. Prosecuter

226 “Middle Avenue

Educa" 0” 12th grade Elyris, O% 4644935

Ag 27 Dow of Bim 4-1-59 Michael B. Willets

Dependents Five (5) children investigating State Probat.or OF ce

Cruzensp United States

Se Sx No = 295-646-2149 Dete Awigned 2-17-87

FB! No 729 722 RS Dew Dicwws 2-23-87

BC: No A 89) 966 Followup Deve 3-19-87

Dewees oF agp. pend ng Kone. Dew Typec 2-23-67

Codetenden"’s (Dapos tom of status of cam) None.

Dispos to

Oev

OFFICIAL VERSION

: Coun Dew

LT erevated Murder

Ct. Il: Aggravated Murder with Specificetion

Ct. Ill: Aggravated Burglery with Specificetion

t. I: . A)

Ce. 11: 2903.01 (B)

Ce. T2ks 2911.11 (a) (3)

————<— — ~ — ———

PRESESTENCE IWVESTICA

Ediberto RPoertes

@32753 Page }

DETAILS OF THE IFSTA'T_ OFFENSE :

According to the officiel records of the Lorain County Prosecutor's Offi: end

those of the Lorain Police Department, thet on 6-68-86, ot 3:20 PM, Paetrolmen

Wargo of the Lorain Police Department stopped et St. Joseph's Bospite) perforr-

ing routine police work. At thet time, he observed that there was @ person thet

had just been edmitted for s serious stab wound to the abdomen. It was learned

thet the wictic was « Ralph Barris Jr., age 26, of 948 Toledo Avenue, Lorein,

Ohio. He was brought to the hospite) by an Elbe Ortiz, age 24, of 1919 G Stc.,

Lerais, Ohio.

The above, Elbe gave the following information: Elbs steted that she hes hed

two children by the sbove Huertes, but have never lived together. Lest November,

1985, Elbe broke wp with Buertes and sterted to date other gen. About two weeks

ego. Elbe met Ralph Jr., whe she hed known in high school and started to date

Ralph Jr. On this dete, Elba and Ralph hed gone out and had come over to her

residence et 1919 G Street, where Ralph Jr. was to stay the nicht. While Relph

Jr. was over the house, the above Buerteas called the house by telephone and wanted

Eibs to start seeing him egein. Elbe told Buertes that she did not want to see

hin anymore and further stated that she was seeing the above Relph and that Ralph

Jr. was over the house. At this point “wertes started to ergue with Elbe and then

the telephone wes hune up.

Elba then steted that while Ralph Jr. and her were in bed, they heard the side

door of the house open up. Ralph got out of bed and went to the hell where he

could see the side door, which is located on the east side of the house. At this

point both Ralph and Elbs observed Muertas inside the house, with the side door

completely open. Elbs ran to the bedroom while Ralph Jr. stayed in the hallwey.

Elbe steted that tefore she went into the bedroom, she did observe Puertas holding

@ knife and pointing the knife at her and Ralph Jr. After Elbe entered her bedroor,

she locked the door and heard Ruertas end Ralph Jr. strugeling outside in the hel).

After « few minutes, Elbe heard Ruertes say that he hed gotten Ralph Jr. and now he

Was going to get Elbe. Ruertes then started to bang on the door, dcing damage to

eeme to try to enter the bedroom, but Ralph Jr. was able to stop Huertes, who then

left the house.

After the sbove Buertas left the residence, the above Elbe came out of the bedroor,

carrying slerge stick for protection end found that Ralph Jr. had been stabbed. Elbe

then assisted Ralph Jr. to his auto, which is owned Ly Ralph Sr., and transported

Ralph Jr. to St. Joseph's Bospite] for medicel treatment.

The police officer talked further with Elbe, who stated thet the name thet Ralph Jr.

hed given the officer, is the same person, being Buertes. Apperently Ruertes hed

weed the name Asencio while as « juvenile, but hed legally changed the name to

Buertes when he turned 18 years old. She also denied giving Ediie Ruertas @ key to

her residence. On June 16, 1986, Elbe Ortiz was given « polygraph examination et

Richfield Office, Bureau of Crimina] Identificetion and Investigation regerding

her statement. According to the results, it wes felt that she told the substantia)

: 2-13-87

ty es to emended indictwent

: Wone set

: in custody

+ Ct. 1, Ct. 1: life with so perole, with since dete of arrest 6-7-86 Due to the serious stab wound to the abdomen, the victia was being prepared for

years and/or $25,000 maximus fine; life with no a

Se with 30 full s and/or $25,000 mex! fine; or death on both 7 eurgery. The Emergency Room doctor, Dr. Onley, related that the victim was clear

pero , year ,

Ct. II: 5, 6, 7, 8 9, 10 to 25 years and/or $19,090 A-2

meximzm fire (minimum msy be ectusl) arazr ann®

7 A-1 |

truth during the tests.

ee ——— — ——— — Oe a

PRESENTENCY TRVESTICAT ION

Ediberto Boertes

——" ——_————=— —

PRESENTEN CE INVESTIGATION

Edibertc Poertes

@32753 Page 3

#3275) Pare 2

She elec knew the victia, beceuse he would come over to see the defendent end

headed and that the police officer could talk to hic for « few ginutes. The her. Approximately two deys before the vietis came hom on leave, she told

statement was tape’. Ralph steted that Eddie was talking to Elbe on the phone. the defendant to leave end that she ween't going to eee hir anymore. She

Eddie wes telling Elbe thet he wanted her beck. Ralph eteted that he heard this eteted thet the victim told her of the defendant's pest end current unfaith-

es Elbe was on the phone with Eddie. Shortly efter Elbe hung up the phone, Realy? fulness. She felt thet her reletionship with the wictie sterced out os

heard someone coming in the door. As Ralph got out of bed, he turned the corner friendship, then became wore serious. While they, Elbe and the wictie, were

and Eddie was coring at hie. Ralph looked up and Eddie went crazy or something. in bed, both heard something or someone come into the house. The victin

Ralph turned sround end Eddie cut hie. Ralph steted that he did not see the knife turned on the bedroom light and sterted to leave the room, when « knife care

wotil Eddie drew the knife back. After Relph was stabbed, he releted that Eddie Sround the dow... She then heard “You got me Eddie” and then she heard Eddie

went efter Elbe. Eddie then went after Ralph and tried to stab him again. Ralph say “I got to get Elbe". She tried to force the bedrooe door, but it was

identified his attecker as Eddie Asencio (Huertes). Re related that Eddie's stuck. Wext she heard « noise, this is where she felt the victie throw «

mother lives on 20th Street someplece. Ralph eteted that he hes known Eddie since fish stand et the defendent and it was then quiet. She came out of the roor

high school days as they went to school together. Re also releted that he knew and broug't her child beck into the house. She asked the wictir where he was

that Eddie hed dated Elbs before. Ralph releted that he had just errived back in hurt end saw @ large amount of blood coming-from under his hasd. We told her

Lorain from overseas on May 25, 1986. Ralph Herris Jr. wes teken into surgery, to call the police, however she did not remember the phone nurber. At this

where he remaine¢ until 13:30 hours. At 14:90 hours, the hosrite) staff advised time, the wictic told her to get the keys from his shoes and drive hic to the

police that he hed died. According to the records of Dr. William Kishmen, Lorein hospite]. She did this and he finally collasped at the hospital. She stated

County Coroner, the records reflected that the cause of death was « stab wound of thet the defendant did not have « key to her epartment. She eleo stated thet

the liver and porta) vein. He ruled it # homicide. she felt they were going to fight sooner or later, however, didn't feel thet

the defendant was going to kill the wictim. She felt that the defendant appear-

Lorain Police Department Officers, along with Lorain County Sheriff's Department, e¢ drunk, however she did not exactly explein when and how she saw hie che nig’

vent to 799 Glenn Osks Apartments end found the defendant's car parked there. The of the murder. She pictured Eddie as @ drinker on the weekends, to the point

officers went to nuertes’ residence, Apt. 114A, and Ruertas answered the door. We of what she felt was @ blackout. However, when she told hire that she wasr 't

was advised that he was # suspect in # stabbing. He was transported to the Lorain noing to see him anymore, he started to drink #1] the time. In closing, she

Police Department for questioning end was lete

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