State v. Berry

Douglas, J. Appellant presents a number of issues for our consideration. (See Appendix, infra.) We have carefully considered each of appellant’s propositions of law, independently weighed the aggravating circumstances against the evidence presented in mitigation, and reviewed the death penalty for appropriateness and proportionality. For the reasons that follow, we affirm the judgment of the court of appeals and uphold appellant’s death sentence. I R.C. 2929.05 requires this court to review capital cases in a certain manner. However, as we have held on a number of previous occasions, R.C. 2929.05 does not require this court to address and discuss, in opinion form, each and every proposition of law raised by the parties. See, e.g., State v. Poindexter (1988), 36 Ohio St.3d 1, 3, 520 N.E.2d 568, 570; State v. Bonnell (1991), 61 Ohio St.3d 179, 181, 573 N.E.2d 1082, 1085; State v. Hawkins (1993), 66 Ohio St.3d 339, 342, 612 N.E.2d 1227, 1230; and State v. Scudder (1994), 71 Ohio St.3d 263, 267, 643 N.E.2d 524, 528. We adhere to that position today. Upon a careful review of the record and the governing law, we fail to detect any errors that would undermine our confidence in the integrity and reliability of the trial court’s findings. We address, in opinion form, only those issues that warrant some discussion. II Appellant was examined before trial by the defense’s court-appointed clinical psychologist, Dr. Robert W. Goldberg. From Goldberg’s examination of appellant, Goldberg determined that appellant was sane at the time of the killing arid was competent to stand trial. Accordingly, prior to trial, defense counsel never raised the issue of appellant’s competency or the defense of not guilty by reason of insanity. The mitigation phase of appellant’s trial commenced on July 30, 1990. That morning, defense counsel moved for a new trial on the basis of newly discovered evidence to pursue a defense of not guilty by reason of insanity. In doing so, defense counsel raised, for the first time, the issue of appellant’s competency to stand trial. Specifically, the defense claimed that it had recently acquired information indicating that Mitroff had nearly hit appellant’s sister and niece with — 359 — a delivery van sometime prior to appellant’s employment at the bakery. That information had come from appellant’s sister, Elaine Quigley. Counsel told the court that appellant had previously withheld this information from the defense and that appellant was now claiming that the incident motivated him to kill Mitroff. According to defense counsel, appellant had previously maintained that he killed Mitroff for “no reason.” Defense counsel claimed that appellant’s act of withholding information as to a possible motive raised a question regarding appellant’s sanity. Additionally, defense counsel indicated that the newly discovered evidence had led Dr. Goldberg to suggest that appellant might not be sane enough to proceed with the mitigation phase. The trial court denied appellant’s motion for a new trial and did not order a competency hearing. The case then proceeded to conclusion without appellant having ever been adjudicated competent to stand trial. In his third proposition of law, appellant contends that the trial court erred by proceeding to the mitigation phase without conducting a mid-trial hearing on the issue of his competence. Appellant suggests that such a hearing was constitutionally required and/or statutorily mandated. We disagree. Fundamental principles of due process require that a criminal defendant who is legally incompetent shall not be subjected to trial. See Pate v. Robinson (1966), 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815; and Drope v. Missouri (1975), 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103. In Pate, supra, the United States Supreme Court held that the failure to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent to stand trial deprives the defendant of the right to a fair trial. In Dusky v. United States (1960), 362 U.S. 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824, 825, the United States Supreme Court set forth the test to determine whether a defendant is competent to stand trial, stating that “ * * * the ‘test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.’ ” See, also, Drope, supra, 420 U.S. at 172, 95 S.Ct. at 904, 43 L.Ed.2d at 113. The right to a hearing on the issue of competency rises to the level of a constitutional guarantee where the record contains “sufficient indicia of incompetence,” such that an inquiry into the defendant’s competency is necessary to ensure the defendant’s right to a fair trial. See Drope, supra, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103; Pate, supra, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815; and State v. Bock (1986), 28 Ohio St.3d 108, 110, 28 OBR 207, 209, 502 N.E.2d 1016, 1018-1019. In Ohio, R.C. 2945.37 protects the right of a criminal defendant not to be tried or convicted while incompetent. R.C. 2945.37(A) provides, in part: — 360 — “In a criminal action in a court of common pleas or municipal court, the court, prosecutor, or defense may raise the issue of the defendant’s competence to stand trial. If the issue is raised before trial, the court shall hold a hearing on the issue as provided in this section. If the issue is raised after trial has begun, the court shall hold a hearing on the issue only for good cause shown. “A defendant is presumed competent to stand trial, unless it is proved by a preponderance of the evidence in a hearing under this section that because of his present mental condition he is incapable of understanding the nature and objective of the proceedings against him or of presently assisting in his defense.” (Emphasis added.) R.C. 2945.37(A) requires a trial court to hold a mid-trial hearing on the issue of competency “only for good cause shown.” The statutory requirement mandating a showing of “good cause” has been construed in accordance with the general principles set forth in Drope and Pate, supra. See State v. Chapin (1981), 67 Ohio St.2d 437, 21 O.O.3d 273, 424 N.E.2d 317. Pursuant to R.C. 2945.37(A), the issue of competency may be raised by the prosecution, the defense, or on the court’s own motion. The determination whether to conduct a mid-trial competency hearing is normally a matter committed to the sound discretion of the trial court. See State v. Rahman (1986), 23 Ohio St.3d 146, 156, 23 OBR 315, 323, 492 N.E.2d 401, 410. Here, the issue of competency was raised mid-trial, i.e., after the guilt phase, but immediately before the commencement of the mitigation phase. Thus, R.C. 2945.37(A) mandated a hearing on the issue only for “good cause shown.”3 However, upon a review of the record, we find no “sufficient indicia of incompetency” or “good cause shown” that would have entitled appellant to a competency hearing at the time the issue was raised. Therefore, the trial court did not abuse its discretion in proceeding with the mitigation phase without conducting a hearing as to appellant’s competency to stand trial. At the time the issue of appellant’s competency was raised, the trial court was made aware of defense counsel’s representations that (1) appellant may have intentionally withheld information regarding a possible motive for the killing, (2) appellant wanted to die and intended to inform the jury of his wishes, (3) appellant had not cooperated in his defense, and (4) appellant’s court-appointed psychologist had recently developed “some strong feelings” that there was a — 361 — possibility that appellant was not sane enough to be executed or to proceed with the mitigation hearing. Additionally, defense counsel informed the court of his belief that appellant was “sick” because appellant had withheld information regarding an alleged motive for the killing. However, we find that none of these matters, taken singularly or together, constitutes sufficient indicia of incompetency raising any doubt as to appellant’s competency to stand trial. The information concerning a possible motive for the slaying was inherently suspect. As the trial court stated to defense counsel, “ * * * I think you can’t discount the fact all of these things you are telling me are your client’s self-serving statements or the self-serving statements of his family.” Similarly, the court of appeals stated that “[t]he information withheld reasonably could be viewed as a last-minute attempt by the defendant to somehow justify his actions.” We agree with this assessment of the issue. However, we do not completely dismiss this evidence as having no bearing on the issue whether the record, as a whole, warranted a mid-trial competency hearing. As to appellant’s expressed preference for the death penalty, such a sentence could be deemed preferential to life imprisonment for this appellant. A professed wish for the death penalty (as opposed to a lifelong term of imprisonment) does not, by itself, call the defendant’s competence into question. Similarly, appellant’s failure to cooperate with counsel does not indicate that appellant was incapable of assisting in his defense. Indeed, a review of the record demonstrates that appellant understood the nature and objective of the proceedings against him and, in fact, offered a lengthy and coherent unsworn statement during the mitigation phase. With respect to defense counsel’s representations that appellant’s court-appointed psychologist had some “strong feelings” that appellant was possibly not competent to proceed in the mitigation phase, we note that when defense counsel raised this issue he specifically acknowledged that appellant understood the role of the court and jury. Additionally, the psychologist’s beliefs were based on the possibility that, due to appellant’s psychological condition, appellant may have singled Mitroff out as the victim because Mitroff had almost accidentally hit appellant’s sister and niece with a delivery van. The psychologist’s hypothesis was based upon a series of assumptions and was only as good as the information initially supplied to him by appellant and appellant’s family. Moreover, we note that appellant was twice examined by the court-appointed psychologist prior to trial. Although the reports of the examinations are not contained in the record, the record does indicate that the psychologist found appellant to be sane at the time of the murder and competent to stand trial. Moreover, we find that defense counsel’s statement that appellant was “sick” for withholding information concerning a possible motive for the killing was not — 362 — particularly persuasive evidence indicating that appellant was incompetent to stand trial. In addition to these various factors, appellant points out that during a pretrial hearing the court threatened to remove appellant from the courtroom for disrupting the proceedings. However, a review of the record reveals that this incident was relatively minor and was the only one of its kind during the entire course of the proceedings. Appellant also points to his willingness to speak with police as evidence indicating incompetence and/or insanity, but we are not persuaded that this in any way reflected poorly on appellant’s competence to stand trial. Additionally, appellant notes that even the prosecuting attorney admitted during argument on the motion for a new trial that appellant had some “mental illness.” Nevertheless, the term “mental illness” does not necessarily equate with the definition of legal incompetency. Legal incompetency has a specific meaning as we have set forth above. Appellant also relies upon the evidence presented during the mitigation phase as proof that he was legally incompetent. However, these matters were obviously not before the trial judge at the timé the issue of competency arose. Further, the mitigating evidence was offered for the sole purpose of mitigation and did not in any way indicate that appellant was incapable of understanding the nature and objective of the proceedings or of assisting in his defense. Reviewing the record as a whole, and carefully considering the totality of the evidence bearing on the question, we are convinced that the trial court did not abuse its discretion in failing to order a mid-trial competency hearing. Moreover, in our judgment, the record indicates that at all times appellant knew the nature and objective of the proceedings against him and was perfectly capable of participating in his defense if and when he chose to do so. Accordingly, we reject appellant’s third proposition of law.4 Ill In his fourth proposition of law, appellant contends that he did not receive the effective assistance of counsel “due to trial counsel’s deficient and prejudicial representation for failing to bring Mr. Berry’s lack of competency to the trial court’s attention at the suppression hearing and prior to the beginning of the trial phase.” However, we find that appellant has failed to meet his burden of — 363 — establishing ineffective assistance of counsel under the standards set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Furthermore, a number of appellant's assertions in this proposition are wholly unsupported by law or fact. For instance appellant suggests that his admissions to jailers Carter and Moran and his confession to Detective Rolfsen were unconstitutionally obtained and resulted from improper coercion and overreaching. The evidence simply does not support appellant’s contentions in this regard. Additionally, a number of the issues and arguments raised in this proposition of law are repetitive of the matters we addressed in our discussion in Part II, supra. Accordingly, appellant’s fourth proposition of law is not persuasive. IV Having considered appellant’s propositions of law, we must now review appellant’s death sentence for appropriateness (also raised in appellant’s first proposition of law) and proportionality (also raised in appellant’s second proposition of law). Appellant planned Mitroffs death and shot Mitroff in the head during the commission of an aggravated robbery and an aggravated burglary. Again, we find that the aggravating circumstances for which appellant was found guilty, both of which are set forth in R.C. 2929.04(A)(7), were proven beyond a reasonable doubt. In mitigation, appellant presented the testimony of a variety of witnesses. Ginny Renee Franklin, appellant’s mother, testified that appellant was born in September 1962. According to Franklin, appellant’s father left her and was committed to a mental hospital when appellant was an infant. During appellant’s childhood, appellant suffered from a speech impediment and had trouble with his eyes. Franklin testified that appellant had a number of physical ailments as a child, including seizures and lung problems. Franklin stated that she had read books concerning the occult and had once participated in a seance. She claimed that appellant sometimes spoke of “the lady in black,” and that appellant thought that this imaginary character was trying to kill him. Franklin stated that appellant, at age seven, was involved in fights with other children. On one occasion, a neighborhood boy paid other children to physically beat appellant. Franklin testified that appellant ran away from home on two occasions when he was approximately fourteen years of age. He was eventually sent to the Boys’ Village, a residential treatment center for boys with severe behavior and emotional problems. Franklin told of an incident in appellant’s childhood in which appellant came home one evening wearing no clothes. She also indicated that appellant may have been the victim of sexual advances by a man in the Big Brothers program. Franklin testified that appellant had once been arrested in — 364 — Texas for car theft, and that he had attempted to commit suicide while serving a sentence for that offense. Franklin also testified that sometime prior to the murder, appellant or possibly someone else had burned several marks in her kitchen floor. According to Franklin, the pattern of the marks was consistent with a symbol used in witchcraft or devil worship. Elaine Quigley, appellant’s sister, testified that her father spent time in a number of mental institutions. She stated that her father died in 1979 of an aneurysm. She testified that, according to her father’s family, her father had been diagnosed at sixteen years of age with a condition causing the deterioration of the brain. Quigley also testified that appellant’s speech impediment as a child was so severe that no one other than Quigley could really understand him. Quigley testified that appellant, as a child, had told her about the “lady in black,” and that appellant claimed to have heard voices in his head. Quigley testified further that Mitroff had almost accidentally hit her with the bakery van prior to appellant’s employment at the bakery. According to Quigley, she told appellant of this incident when appellant accepted the job at the bakery. Appellant also presented the testimony of Ralph Buterbaugh, a psychologist who evaluated appellant at Boys’ Village in 1978 and 1979. Appellant was fifteen years old at the time of the 1978 evaluation. The results of the 1978 evaluation indicate that appellant was a very troubled youth. In that evaluation, Buterbaugh said that appellant was “seriously unstable and maladjusted.” Buterbaugh testified in mitigation that he had noted in the report that appellant had “schizoid symptoms” and a very high hostility level. The 1978 report indicates that appellant thought that he was a condemned person with evil spirits commanding him at times. The 1978 report concludes by stating, among other things, that “[t]he severity of Will’s present emotional condition and his marked lack of coping skills * * * dictate a prolonged treatment period. * * * His high hostility level and strong acting-out potential is an additional danger signal that corroborates Will’s mother’s fear that he might someday kill someone.” However, Buterbaugh’s 1979 evaluation of appellant demonstrates that appellant had improved “quite markedly” by that time. Stephen Malich, a counselor at .Boys’ Village, also testified in mitigation. Malich had prepared a diagnostic profile of appellant in 1978, and concluded, at that time, that appellant had a poor self-image, resented authority figures, and perceived the world and his environment as threatening. Additionally, appellant presented the testimony of Dr. Goldberg, appellant’s court-appointed psychologist. Goldberg had examined appellant several months before trial and found him to be suffering from “considerable emotional disturbance.” As a result of the initial tests performed on appellant, Goldberg had concluded, at that time, that appellant could be considered “technically chronical — 365 — ly borderline schizoid or maybe even schizophrenic.” Goldberg next tested appellant on June 21, 1990, just a few days before trial, and observed more symptoms of psychosis which were attributable to stress. Goldberg testified that appellant claimed to have been sexually molested by baby-sitters in his youth. According to Goldberg, appellant heard voices (auditory hallucinations) and believed in the supernatural. Goldberg diagnosed appellant as suffering from a “psychotic disorder not otherwise specified, a typical psychosis.” Goldberg also diagnosed appellant as suffering from “a personality disorder mixed with what are called schizotypal, borderline, and anti-social features.” Goldberg explained to the jury that because appellant’s father was mentally ill, there was “probably a genetic component” to appellant’s psychological problems. According to Goldberg, Quigley told him about the incident in which Mitroff had accidentally almost hit her with the delivery van. Goldberg testified that when he questioned appellant about the incident, appellant claimed that the incident “singled Mr. Mitroff out” as the victim. Goldberg theorized that “this killing, in part, was because, I think, he perceived Mr. Mitroff, rightly or not, I mean his perception of it was — I don’t know what the man’s real characteristics were, but he perceived Mr. Mitroff as another authority figure, another parent-type that just doesn’t care about people, whether that was true or not.” Goldberg testified that the incident provided appellant with “a possible motive” for the killing. Finally, appellant gave an unsworn statement in which he related certain events of his childhood. These events included alleged molestations by babysitters, beatings inflicted upon him by his mother, beatings suffered at the hands of other children, and his various childhood health problems. Appellant claimed that he had been raped while serving a six-year prison term in Texas. Appellant stated that he was in California during an earthquake. Appellant told of his volunteer efforts to help victims of the quake. Appellant stated that he had a mental problem and that he would not receive appropriate care in jail. He requested that the jury recommend the death penalty rather than a sentence of twenty or thirty years to life. Upon review of the evidence presented in mitigation, it is clear to us that appellant had a troubled and difficult childhood. We find that appellant’s troubled childhood, his history of psychological problems, and his general history and background are entitled to some weight in mitigation. The nature and circumstances of the offense do not reveal any matter of mitigating value. Further, we find that appellant did not establish the existence of the R.C. 2929.04(B)(1) and (2) mitigating factors by a preponderance of the evidence. Specifically, Mitroff did not in any way induce or facilitate the murder (R.C. 2929.04[B][1]), and there exists no credible evidence indicating that appel — 366 — lant was acting under duress, coercion, or strong provocation (R.C. 2929.04[B][2]). Appellant introduced evidence on the R.C. 2929.04(B)(3) mitigating factor that he lacked a substantial capacity to conform his conduct to the requirements of the law because of a mental disease or defect. We find that appellant did not demonstrate the existence of this mitigating factor by a preponderance of the evidence. Goldberg diagnosed appellant as suffering from psychosis. Goldberg testified that the incident in which Mitroff allegedly almost had hit appellant’s sister with the delivery van was a possible motive for the killing, given appellant’s psychological condition. However, in our judgment, no credible evidence was presented by appellant to establish that the murder was, in fact, the product of appellant’s psychological condition. Nevertheless, we find that appellant’s psychosis and personality disorder testified to by Goldberg is entitled to some weight in mitigation. We have considered the youth of the offender (appellant was twenty-seven years old at the time of the offense) and conclude that this R.C. 2929.04(B)(4) factor is entitled to no weight in mitigation. Appellant has a prior theft conviction and a juvenile record. However, we find that the R.C. 2929.04(B)(5) mitigating factor that appellant lacked a significant history of prior criminal convictions and delinquency adjudications is entitled to some, but very little, weight in mitigation. The R.C. 2929.04(B)(6) mitigating factor is not applicable here, since appellant was the principal offender. Moreover, the evidence is overwhelming that appellant planned the murder, orchestrated the killing, fired the fatal shot into the victim’s head, actively concealed the evidence of the murder, and then fled to escape apprehension for the killing. We have considered the evidence that appellant does well in a controlled institutionalized setting, but we find that this evidence is rebutted by other evidence in the record. However, we do find that the evidence of appellant’s volunteer services for victims of the California earthquake is entitled to some, but very minimal, weight in mitigation. We reject appellant’s contentions that there exists some “residual doubt” whether he was the principal offender; that his wish to be executed should be given some weight in mitigation; and that we should consider, as mitigation, that Lozar was given a life sentence. Weighing the aggravated circumstances against the evidence presented in mitigation, we find that the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt. As a final matter, we have undertaken a comparison of the sentence imposed in this case to those in which we have previously imposed the death penalty. We — 367 — find that appellant’s death sentence is neither excessive nor disproportionate. See, e.g., State v. Holloway (1988), 38 Ohio St.3d 239, 527 N.E.2d 831; State v. Slagle (1992), 65 Ohio St.3d 597, 605 N.E.2d 916; State v. Clark (1988), 38 Ohio St.3d 252, 527 N.E.2d 844; and State v. Bonnell (1991), 61 Ohio St.3d 179, 573 N.E.2d 1082. Accordingly, we affirm the judgment of the court of appeals. Judgment affirmed. Moyer, C.J., Resnick, F.E. Sweeney, Pfeifer and Cook, JJ., concur. Wright, J., dissents. Footnotes [3] In this proposition, appellant suggests R.C. 2945.37(A) required that a competency hearing be held without a showing of good cause since the issue of appellant’s competency was raised “before trial,” ie., before what appellant calls the “penalty trial.” However, appellant fails to grasp that his trial was actually composed of two distinct phases — the guilt phase and the mitigation/penalty phase. Appellant raised the issue of competency before the commencement of the second phase of his trial. The issue was not raised “before trial” within the meaning of R.C. 2945.37(A). [4] In this proposition, appellant also contends that the trial court erred by finding that the motion raised by appellant prior to the commencement of the penalty phase was “untimely.” Appellant correctly observes that pursuant to R.C. 2945.37(A), the issue of competency can be raised during trial. However, the trial court’s comment concerning the timeliness of appellant’s motion most likely dealt with appellant’s request for a new trial in order to present a defense of not guilty by reason of insanity.