# Record and brief — Ohio v. Huertas > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0767%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1991 - **Citation:** 498 U.S. 336 ## Text DOCKET \e 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 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 I 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 II A) TABLE OF CONTENTS Statement of Claimed Jurisdiction.. Constitutional Provisions and Statutes | Statement of the Case and POSES « « cc ee : Appendix 15 22 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. IV 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. v 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 2 Ohio Revised Code Section 2929.03 Ohio Revised Code Section 2929.04 VI 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. 6 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 7 _ 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 8 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. 10 — 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 ll 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 12 eS 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. 13 : | : | ; ) ; | : ; 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 14 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 15 ee 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 16 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 17 a 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. 18 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 19 —_— 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 20 —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 21 = 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 CL is and was attached. J E. ROSENBAUM Cc Counsel, Cr al Division 22 ; te 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, ee 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. I 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. 10 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 ll 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 12 > 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 13 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. A 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), 14 > * 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). B Distinctions Based on Quality of the Evidence 15 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 16 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. Cc 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. D 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 18 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 19 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 E 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 21 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 ———— 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 v. 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. 4 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. 62 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 e 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 63 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 64 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 65 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 66 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 67 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 68 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 69 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 70 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). 71 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." 72 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 73 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 74 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 75 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 76 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 77 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." 78 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 79 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 80 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, 81 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 82 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 83 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 84 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. 85 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 86 by 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.” 87 een openi force State 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 89 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 90 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." 91 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 92 OO = 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 93 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 94 EE 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 96 Ol EEE Constitution." "a. "3. a "4. at 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," 97 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 98 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 99 — 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 Ee ) 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 El 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 ee 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. (C) Whoever violates this section is 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 (C) of section 2929.05 of the Revised 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. (C) The court shall not impose a 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 ee 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 EE 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 ES 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 ? i 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 =) 7 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. (C) The defendant shall be given 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 w [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0767%3A0. Public record. Not legal advice.