COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59343 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : JOSEPH YOUNG : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 6, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. 236580. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Dominic Del Balso Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Mark A. Stanton, Esq. 1276 West Third Street Suite 409 Cleveland, Ohio 44113 -2- SWEENEY, JAMES D., J.: Appellant Joseph Young appeals his conviction on two counts of aggravated murder with mass murder and gun specifications in violation of R.C. 2903.01. After the mitigation hearing, the jury returned a recommendation that a sentence of 30 years to life imprisonment be imposed. The court sentenced appellant to serve three years on the gun specification to run consecutively with the two consecutive 30 year terms, one for each count of the aggravated murder. The essential facts were not disputed at trial. On February 14, 1989, appellant shot and killed a long-time friend, Lettie B. Douglas, and her friend, John Zuber. The State presented five eye witnesses, all of whom related similar observations. There was also testimony from appellant's family, from Ms. Douglas' family, and from the police as well as the coroner's office. At the time of the shooting, Ms. Douglas and the appellant had known each other for five or six years, and had had a dating relationship for several of those years. Appellant still considered Ms. Douglas as his girlfriend. Through her church, Ms. Douglas was a long-time friend of the other victim, John Zuber. Appellant was jealous of this friendship, and in the past had accused Ms. Douglas of having an intimate relationship with Mr. Zuber. On the day of the shooting, Ms. Douglas was at her sister's house from 11:00 a.m. to 2:05 p.m. Her sister drove her back to -3- her home, and later Mr. Zuber picked her up to take her to Burger King, where she was employed. Appellant left his home at approximately 3:30 p.m. on the day of the shooting to visit Ms. Douglas. She was not at home, so he proceeded to her sister's house where he waited for her until about 6:15 p.m. Since she still had not arrived, he decided to return to Ms. Douglas' house. During transit, he came upon Mr. Zuber's car in which Ms. Douglas was a passenger. He followed the car, and when it stopped at the intersection of West 130th Street and Curtain Avenue, in Cleveland, Ohio, he stopped behind it. He then exited his car, took his gun, and approached the driver's side of the vehicle. He shot Mr. Zuber three times, walked around behind the car, approached the passenger side, and shot Ms. Douglas. He then returned to his car and drove away. Mr. Zuber's car careened across the street and into the D & A Farm Market. The appellant proceeded to his sister's house, and shortly thereafter turned himself in to the police. At trial, appellant asserted the defense of not guilty by reason of insanity. On his behalf, Dr. Emanuel Tanay testified. The State presented Dr. John Kenney and Dr. Kathleen Dougherty as rebuttal witnesses. Appellant's first assignment of error. I THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN REFUSING THE DEFENSE REQUEST TO GIVE -4- INSTRUCTIONS ON VOLUNTARY MANSLAUGHTER UNDER EACH OF THE COUNTS OF AGGRAVATED MURDER. The parameters of voluntary manslaughter are set forth in R.C. 2903.03 as follows: (A) 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 reasonably sufficient to incite the person into using deadly force, shall knowingly cause the death of another. At trial, the appellant requested a charge on voluntary manslaughter as a lesser included offense of aggravated murder. The supreme court in State v. Solomon (1981), 66 Ohio St. 2d 214 at syllabus 2, opined that an instruction on a lesser included offense should be given: Where the evidence adduced on behalf of the defendant constitutes a complete defense to the substantive elements of the crime charged, an instruction on a lesser included offense should be given to the trier of fact only if, based on the evidence adduced by the state, the trier of fact can find for the defendant and against the state on some element of the greater offense which is not required to prove the commission of the lesser offense and for the state on the elements required to prove the commission of the lesser offense. In an appropriate case, voluntary manslaughter can be a lesser included offense under aggravated murder. Solomon, supra. In the case sub judice, the court declined to give a jury instruction on voluntary manslaughter, reasoning that although State v. James (April 10, 1986), Cuyahoga App. No. 50445, unreported, reversed the trial court for failure to give such a -5- charge, that case was not applicable under the circumstances present here. The trial judge went on to state, in essence, that the defense of voluntary manslaughter contains a two part test. The first part is that the perpetrator must be under the influence of sudden passion or in a sudden fit of rage, and the second is that the passion or rage must be brought on by serious provocation occasioned by the victim. The judge declared that the second part of the statute had not been met. In State v. Deem (1988), 40 Ohio St. 3d 205, the court at syllabus 5 defined serious provocation. Provocation, to be serious, must be reasonably sufficient to incite or to arouse the defendant into using deadly force. In determining whether the provocation was reasonably sufficient to incite the defendant into using deadly force, the court must consider the emotional and mental state of the defendant and the conditions and circumstances that surrounded him at the time. (State v. Mabry [1982], 5 Ohio App. 3d 13, 5 OBR 14, 449 N.E. 2d 16, paragraph five of the syllabus, approved.) The trial judge determined, and this court concurs, that after considering the emotional and mental state of the appellant, there was insufficient evidence that Ms. Douglas and Mr. Zuber provoked appellant into using deadly force. The trial judge stated: Counsel, I have anticipated this issue, and in anticipation of it, I have attempted to do my own research, and this Court believes that the question is: Does the provocation have to be an objective provocation? Does the victim or do the -6- victims have to have had provoked the shooting, to put it in very simple terms, or can the provocation be in the mind of the defendant, which means it's a subjective test? This Court can find no case whatsoever that puts it in the subjective elements. As a matter of fact, every case seems to indicate that the provocation has to be real, and the victims have to have provoked the defendant into using deadly force. (Tr. 1514). There is no evidence in this case of any provocation by the victims other than the fact that they were seated in the same car. We therefore find appellant's first assignment of error without merit. Appellant's second assignment of error. II PREJUDICIAL ERROR WAS COMMITTED AS THE APPELLANT WAS DENIED HIS FIFTH AND FOURTEENTH AMENDMENT RIGHTS WHEN A POLICE OFFICER TESTIFIED THAT AFTER GIVING THE APPELLANT HIS MIRANDA RIGHTS THE APPELLANT REMAINED SILENT IN RESPONSE TO A MATERIAL QUESTION PUT TO HIM BY THE OFFICER AND WHEN THE PROSECUTOR COMMENTED ON THIS SILENCE IN FINAL ARGUMENT AND COMMENTED ON THE FAILURE OF THE APPELLANT TO GIVE A WRITTEN STATEMENT TO POLICE. Once a defendant has been arrested and informed of his rights under Miranda v. Arizona (1966), 384 U.S. 436, it is clear that in the exercise of those rights "silence will carry no penalty." Doyle v. Ohio (1976), 426 U.S. 610. In the case at bar, appellant freely gave an oral statement after he turned himself in to the police. At no time did he indicate he wished to invoke his right to silence. In addition, -7- appellant did not contest the fact that the gun was his, in his possession, or that he shot and killed the victims. In State v. Zimmerman (1985), 18 Ohio St. 3d 43, the court held that a conviction must be affirmed if it is concluded, based on the complete record, that the prosecutor's improper comments regarding the accused failure to testify were harmless beyond a reasonable doubt. In State v. Motley (1985), 21 Ohio App. 3d 240, the Franklin County Court of Appeals considered a case where the police officer testified as to defendant's post arrest silence. The court reversed, but stated that the test is whether or not it is clear beyond a reasonable doubt that absent the statement of the officer, no juror could have entertained a reasonable doubt as to defendant's guilt. We find any error on the part of the trial court in allowing testimony on the lack of response by appellant to one question by police was harmless beyond a reasonable doubt. It is troublesome that in final argument the prosecutor would comment on appellant's silence and appellant's statement that he would "like to think about it" before making a written statement. However, the objections raised by his counsel at trial were sustained, and a curative instruction was given. See State v. Maurer (1984), 15 Ohio St. 3d 239 and State v. Smith (1984), 14 Ohio St. 3d 13. We therefore find the appellant's second assignment of error without merit. Appellant's third assignment of error. -8- III THE PROSECUTOR'S MISCONDUCT IN FINAL ARGUMENT SUGGESTING THAT DEFENSE ATTORNEYS NEEDED A DEFENSE AND MADE UP AN INSANITY DEFENSE AS NONE OTHER WAS AVAILABLE DENIED APPELLANT A FAIR TRIAL. In Maurer, supra, at 266, the court stated: In general terms, the conduct of a prosecuting attorney during trial cannot be made a ground of error unless that conduct deprives the defendant of a fair trial. State v. Papp (1978), 64 Ohio App. 2d 203, 211 [18 O.O.3d 157]; State v. Wade (1978), 53 Ohio St. 2d 182, 186 [7 O.O.3d 362]; State v. DeNicola (1955), 163 Ohio St. 140, 148 [56 O.O. 185]; Scott v. State (1923), 107 Ohio St. 475, 490-491. And in Smith, supra, the court specifically addressed the issue of prosecutor misconduct during final argument. The prosecution is normally entitled to a certain degree of latitude in its concluding remarks. State v. Woodards (1966), 6 Ohio St. 2d 14, 26 [35 O.O.2d 8], certiorari denied (1966), 385 U.S. 930; State v. Liberatore (1982), 69 Ohio St. 2d 583, 589 [23 O.O.3d 489]. A prosecutor is at liberty to prosecute with earnestness and vigor, striking hard blows, but may not strike foul ones. Berger v. United States (1935), 295 U.S. 78, 88. *** The test regarding prosecutorial misconduct in closing arguments is whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant. United States v. Dorr, supra, at 120. To begin with, the prosecution must avoid insinuations and assertions which are calculated to mislead the jury. Berger v. United States, supra, at 88. In the case sub judice, the prosecutor intimated that the appellant's insanity defense was employed only because no other -9- defenses were available. The specific comments complained of are as follows: "MR. DEL BALSO: The point is, if they're representing Joseph Young, shouldn't they prepare a defense for him, have a defense for him? Based on the facts of this case, Joseph Young admitted he killed these two people, Betty Persinger identified him as the man firing the gun in the car, and his gun matches up ballistically with one of the shots that entered the body of Littie Douglas. So what could their defense be: somebody else did it? It MR. CARLIN: Objection. THE COURT: Overruled. MR. DEL BALSO: Can't use that alibi. How about the defense of self-defense? MR. CARLIN: Objection. THE COURT: Overruled. MR. DEL BALSO: Did John and Littie do anything prior to the shooting other than sit in this car and not even be aware that he was present until he approached that car with that gun? Can't argue self-defense. How about accident? Did a gun accidentally discharge? MR. CARLIN: Objection. THE COURT: Overruled. MR. DEL BALSO: Not from the facts of this case. You can't blame it on someone else, and you can't claim alibi, and you can't claim self-defense, and you can't claim accident. What do you do? You have to provide a defense. MR. STANTON: Objection Judge. I strongly- - - -10- THE COURT: Sustained, sustained, sustained." (Tr. 1601-1603). "What do you do at this juncture? What do you do at this point? At this point in time, Mr. Carlin then, attempted to secure the service of an independent opinion, and he contacted Doctor Emanual Tanay from Detroit." (Tr. 1604). * * * * * * "MR. DEL BALSO: When all else fails, try Tanay. The man has an impressive resume." (Tr. 1605). The prosecutor was apparently implying that appellant's defense of not guilty by reason of insanity was proffered as a last resort, and therefore fictitious. These statements also insinuate that the expert presented on appellant's behalf was lying and not credible in his testimony. Although the prosecutor's comments were decidely improper, they were not sufficient to deprive the appellant of a fair trial. As the court in Smith, supra, stated: Instead, it must be clear beyond a reasonable doubt that, absent the prosecutor's comments, the jury would have found defendant guilty. United States v. Hasting (1983), 76 L. Ed. 2d 96, 107. This test was met in the case sub judice. Appellant's third assignment of error is overruled. Appellant's fourth assignment of error. IV THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN PERMITTING A PSYCHOLOGIST CALLED BY THE STATE EXPRESS AN OPINION ON THE APPELLANT'S SANITY ON THE BASIS OF A STANDARD NOT USED UNDER OHIO LAW. -11- The standard for insanity in Ohio was delineated by the supreme court in State v. Staten (1969), 18 Ohio St. 2d 13, syllabus 2. In order to establish the defense of insanity where raised by plea in a criminal proceeding, the accused must establish by a preponderance of the evidence that disease or other defect of his mind had so impaired his reason that, at the time of the criminal act with which he is charged, either he did not know that such act was wrong or he did not have the ability to refrain from doing that act. Appellant presented the testimony of Dr. Emanuel Tanay to establish his defense of not guilty by reason of insanity. In rebuttal, the State presented the testimony of Dr. Kathleen Doughtery and Dr. John Kenney, both of whom testified that appellant was sane at the time of the shootings. During the direct exam of Dr. Kenney, he testified, over objection, as to standard in Ohio to establish the defense of not guilty by reason of insanity. Q. What is Ohio's Standard, sir? A. The critical thing is that there is a major disease or defect that impairs the ability to know and the ability to refrain. From Stanton up to Wilcox or Dickerson, the issue is one that the deficits have to be, or the mental disease or defect, more than substantial." (Tr. 1385-1386). In the first portion of his answer, the witness accurately stated the law in Ohio. However, the second sentence was gratuitous and inaccurate. This gratuitous imprecision does not -12- diminish the fact that Dr. Kenney did state the correct standard. There was no prejudice to the appellant as the jury heard the evidence of the other experts, and also heard the jury instructions correctly stating the law as given by the judge. Since the jury was given the correct standard, any potential confusion was corrected. Appellant's fourth assignment of error is overruled. Judgment affirmed. -13- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. FRANCIS E. SWEENEY, P.J., CONCURS; JOHN F. CORRIGAN, J., DISSENTS, WITH ATTACHED DISSENTING OPINION. JAMES D. SWEENEY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59343 : STATE OF OHIO : : : D I S S E N T I N G Plaintiff-Appellee : : O P I N I O N vs. : : JOSEPH YOUNG : : : : Defendant-Appellant : : DATE: FEBRUARY 6, 1992 J.F. CORRIGAN, J., DISSENTS: I respectfully dissent. Because I find defendant's second and third assignments of error to have merit, I would reverse and remand for a new trial. In his second assignment of error, defendant complains that his Fifth Amendment rights were violated by the state's presentation of evidence concerning, and comment upon, his silence during police questioning. In Wainwright v. Greenfield (1986), 474 U.S. 284, which was adopted in Ohio in State v. Rogers (1987), 32 Ohio St. 3d 70, the United States Supreme Court held that it is fundamentally unfair to breach the implicit assurance contained within the Miranda warnings "that silence will carry no penalty" by using silence to overcome a defendant's plea of insanity. The court explained: -2- "*** the State's legitimate interest in proving that the defendant's behavior appeared to be rational at the time of his arrest could have been served by carefully framed questions that avoided any mention of the defendant's exercise of his constitutional rights to remain silent and to consult counsel.[] What is impermissible is the evidentiary use of an individual's exercise of his constitutional rights after the State's assurance that the invocation of those rights will not be penalized." (Footnote omitted.) Id. at 295. In this case, improper reference to defendant's silence occurred twice, as it was part of the state's case-in-chief (Tr. 1022), and was again commented upon in the state's closing argument. (Tr. 1531). This fact, coupled with the fact that the state also disparaged the defendant's plea of insanity by characterizing as being chosen as essentially a last resort, (see infra) preclude ths error from being considered harmless beyond a reasonable doubt. In his third assignment of error, defendant complains that the prosecutor engaged in misconduct by characterizing the insanity plea as a defense of last resort because no other defense could be maintained under the facts presented. The test for evaluating a claim of prosecutorial misconduct is whether the remarks are improper, and if so, whether they prejudicially affected substantial rights of the accused. State v. Smith (1984), 14 Ohio St. 3d 13, 14-15. It is clear that: -3- "'[i]n the tension and turmoil of a trial, both the prosecution and the defense have wide latitude in summation as to what the evidence has shown and what reasonable inferences may be drawn therefrom.'" State v. Stephens (1970), 24 Ohio St. 2d 76, 82. However, a prosecutor must avoid insinuations and assertions calculated to mislead, may not express his or her personal beliefs or opinions regarding the guilt of the accused, and may not allude to matters not supported by admissible evidence. State v. Lott (1990), 51 Ohio St. 3d 160, 166. In State v. Smith, supra, the assistant prosecutor referred to the defense evidence as "lies," "garbage," "garbage lies," "a smoke screen," and "a well contrived and well rehearsed lie." In addition, the prosecutor suggested that defense counsel had suborned perjury by manufacturing, conceiving, and fashioning lies to be presented in court. This was held to be reversible error. In this case, the prosecutor's comment essentially disparaged the defense as a manufactured, incredible, last resort tactic. Thus, the comment was calculated to mislead, by suggesting that insanity is not a plausible theory in and of itself. The comment also constituted the expression of a personal opinion regarding the credibility of the defense, and it alluded to defense strategies which are obviously not in evidence. Thus, I believe that the comment was prejudicially erroneous. .