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IN THE COURT OF COMMON PLEAS

FLkffiOUNTY,
STATE OF OHIO

OHIO

ZG12 flB 28 All 11)20

MAUR E i!.]
'.;I. ~\1:~0T
" ...!' \,

Plaintiff,
vs.

L L.!<, C'') O.

CASE NO. 11 CR 00032] ENTRY

C LEHK

{V

co; ;rO
)

) OPINION AND JOURNAL ) (Motion No.4) February 28. 2012

JOSEPH

L. THOMAS Defendant.

This matter is before the court to address the motion of defendant Joseph Thomas to dismiss that portion of the aggravated murder indictment of this case which elevates the potentia] penalty from life imprisonment to death (motion #4). Thomas claims Ohio's death penalty statutes allows the death penalty to be imposed in an arbitrary and discriminatory manner in violation of Furman
17.

Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). While he

acknowledges that the Ohio Supreme Court in State v, Jenkins, 15 Ohio St.3d 164,473 N.Ed.2d 264 (1984) held that Ohio's death penalty statutes complied with Furman, he contends that
changes to the statute and more recent case law have expanded the eligibility of homicide defen-

dants to the point that the death penalty in Ohio is no longer constitutional.

He further argues

that recent changes in the law have blurred the line between prior calculation and design for ag-

gravated murder under RvC. 2903.01(A) and murder under R.C. 2903.02(A). In addition, he contends that Ohio's death penalty statutes prohibit mercy being considered as a mitigating factor. The state filed a brief in opposition. Thomas' arguments in this motion are similar to the arguments he presented in an earlier motion (motion #3) and the state incorporated by reference its arguments made in response to it. His claim that changes to the statute and more recent case law have so expanded the eligibility of homicide defendants for capital punishment that the death penalty in Ohio is no longer constitutional is not well taken. He has cited no case law supporting his claim that the expansion of the statutory aggravating facts in R.C. 2929.04(A) violates Furman. He provides no specifics about the Ohio statutory scheme that substantiates his argument. This court notes that the Ohio
Supreme Court has repeatedly rejected claims concerning the constitutionality of R.C. 2929.04

since its last amendment effective May 15~2002. In add.ition, Furman stands for the proposition
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that punishment al punishment

must not be meted out in a wholly arbitrary and irrational manner and that capitmust be imposed fairly and with reasonable guiding and channeling consistency. the sentencing homicide RC. 2929.04(A) authorities' and individual satis-

fies this criteria by appropriately requiring

discretion defendant

by

an analysis of the circumstances

of each individual

before deciding

whether the death penalty is appropriate. s claim that recent changes in the law have blurred the line between prior murder under RiC. 2903.01 (A) and murder under

Defendant' calculation 2903.02(A) part:

and design for aggravated also is not well taken.

Re.

R.C. 2903.01 (effective January 1, 1974) states in pertinent

(A) No person shall purposely, and with prior calculation

death of another.

and design, cause the

This differs from

R.c. 2903.02(A)

which has essentially Prior calculation

the same language but without the and design is a stringent requirement. The apparent intention of the

phrase 'prior calculation

and design.'

State v. Cotton, 56 Ohio St.2d 8, 10,381 N.E.2d 190 (1978).

General Assembly the calculated calculation Am.Sub.H.B. decision to kill, Id. Instantaneous According deliberation

in adding this phrase was to require proof of a scheme designed to implement is not sufficient to constitute Committee Comment to "prior to the 1973 Technical

and design.".ld

No. 511, a Legislative

Service Commission

summary, R.C. 2903.01 restates the coldcom-

former crime of premeditated

murder so as to embody the classic concept of the planned, the notion that only an instant's and design' [was employed] prior deliberation According to the committee

blooded killing while discarding

is necessary."

State v. Taylor, 78 Ohio St.3d 15, 19, 676 N.E.2d 82 (1997). ment, "the phrase 'prior calculation ning or analyzing

to indicate studied care in planthe death of the vicbut

the means of the crime as well as a scheme encompassing

tim." ld. Neither the degree of care nor the length of time are critical factors in themselves,
they must amount to more than momentary bright-line test that emphatically deliberation.

ld It is not possible to formulate a

or absence of 'prior calculaat trial. facts and evidence presented

distinguishes

between the presence

tion and design'

because each case turns on the particular

Jd. at 20. Nevertheless,

R.C. 2903.01 and R.C. 2903.02 are distinguishable. prohibit mercy from

Finally, Thomas argues that Ohio's death penalty statutes improperly being considered as a mitigating factor. As previously mentioned,

Furman stands for the proSenof relevant aspects of the

position that punishment

must not be imposed in a wholly arbitrary and irrational manner. with a particularized consideration

tencing must be individualized

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character and record of each convicted defendant before the imposition of a sentence of death. Walton v, Arizona, 497 U.S. 639, 677, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990). In Lockett v. Ohio, 438 U.S. 586,604,98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). the u.s. Supreme Court held that a capital sentencer may not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record or any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. This is notwithstanding the severity of the defendant's crime or the defendant's potential to commit similar offenses in the future. Lockett at 604. Furman did not require that all sentencing discretion be eliminated, but only that it be directed and limited. Lockett at 601. State courts must consider all relevant mitigating evidence regarding his character or record and any of the circumstances of the offense and weigh it against the evidence of the aggravating circumstances. 102 S.Ct. 869~ 71 L.Ed.2d 1 (1982). In Lockett, the U.S. Supreme Court reversed a death sentence because Ohio's death penalty statute (R'C, 2929.04(B)) at that time permitted only three mitigating circumstances to be considered and did not permit the type of individualized consideration of mitigating factors required by the Eighth and Fourteenth Amendments in capital cases. Lockett at 608. Since then, the General Assembly has added an additional four circumstances that can be considered in mitigation. In particular, R.C. 2929.04(B)(7) permits consideration of"[a]ny other factors that are relevant to the issue of whether the offender should be sentenced to death." In addition, R.C. 2929.04(C) provides that "[tjhe defendant shall be given great latitude in the presentation of evidence of the factors listed in division (B) of this section and of
all):. other

Eddings v. Oklahoma, 455 U.S. 104, 110, 117,

facto~ in mitigation of

the imposition of the sentence of death." (Emphasis added). Thus, while R.C. 2929.04(B) does not specifically mention mercy as a mitigating factor, it does allow the sentencer to consider as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. This provides for a system of capital punishment at once consistent and principled but also humane and sensible to the uniqueness of the individual. In his claim, Thomas presumably refers to a common instruction given most every criminal case. This instruction states:
10

the jury in al-

You must not be influenced by any consideration of sympathy or prejudice. It is your duty to carefully weigh the evidence, to decide all disputed questions of fact, to apply the instructions of the Court to your findings, and to render your verdict accordingly. Your duty as jurors is to arrive at a just verdict. Consider all the
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evidence and make your finding with intelligence and. impartiality, and without bias, sympathy or prejudice, so that the State of Ohio and the defendant will feel that their case was fairly and impartially tried. If, during the course of the trial, the Court said or did anything that you consider an indication of the Court's view of the facts, you are instructed to disregard it. Ohio Jury Instructions, Title 4: Gen.eral Criminal Trial Instruction, CR 425.35.2 at 139. This is an appropriate instruction. Sentencing authorities may not be given unbridled discretion in determining the fates of those charged with capital offenses. California v. Brown, 479

u.s.

538,541,107

S.Ct. 837, 93 L.Ed.2d 934 (1987). Thus an instruction that the jury should

not be swayed by "mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling" is not objectionable since it served the useful purpose of confining the jury's imposition of the death sentence by cautioning it against reliance on irrelevant, extraneous emotional factors. ld. See, also, Scott v. Mitchell, 209 F.3d 854, 877 (61h Cir. 2000). In effect, the jury was instructed to avoid basing its decision on mere sympathy. Id. at 542. The jury instead was to confine its deliberations to considerations arising from the evidence presented, both aggravating and mitigating. Id at 543. A jury instruction prohibiting a jury from basing their sentencing decision on factors not presented at the trial, and irrelevant to the issues at the trial, does not violate the United States Constitution. Id. Allowing the jury to consider extraneous emotional factors would more likely turn the jury against a capital defendant than for him. Id. The Eighth Amendment's need for reliability in the determination that death is the appropriate punishment is fostered by limiting the jury's consideration to matters introduced in evidence. Id. In addition,
by limiting the jury's sentencing considerations to the evidence on the record, the State also en-

sures the availability of meaningful judicial review, another safeguard that improves the reliability of the sentencing process. Accordingly, Thomas' claim that Ohio's death penalty statutes improperly prohibit mercy being considered as a mitigating factor is not well taken. In summary, based on the above reasoning, the court finds Ohio's death penalty statutes do not violate Furman. The motion of defendant Joseph Thomas to dismiss the death penalty components of this case is denied. IT IS SO ORDERED.

RICHARD L. COLLIN, JR. Judge of the Court of Cornmon Pleas

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Copies: Charles F. Cichocki, Esq., Assistant Lake County Prosecuting Attorney Charles F. Grieshammer, Esq., Chief Assistant Lake County Public Defender
David Doughten, Esq.

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