IN THE SUPREME COURT OF OHIO

STATE OF OHIO, :

Appellee, Case No. 2016-1783

: Death Penalty Case

-vs-

GLEN E. BATES, :

Appellant.

ON APPEAL FROM THE HAMILTON COUNTY COURT OF COMMON PLEAS

HAMILTON COUNTY, OHIO CASE NO. B 15 01811

MERIT BRIEF OF APPELLANT GLEN E. BATES

TODD W. BARSTOW (0055834) JOSEPH T. DETERS (0012084)

538 South Yearling Road Ste. 202 Hamilton County Prosecuting Attorney

Columbus, Ohio 43213 230 East Ninth Street

Telephone: (614) 338-1800 Suite 4000

Facsimile: (614) 338-2247 Cincinnati, Ohio 45202

Email: toddbarstowatty@att.net Telephone: (513) 946-3000

Facsimile: (513) 946-3100

ROGER W. KIRK (0024219) Attorney for Plaintiff-Appellee

114 East Eighth Street State of Ohio

Cincinnati, Ohio 45202

Phone: (513) 272-1100

Facsimile: (513) 621-2525

Email: Kirkesquire@aol.com

Attorneys for Defendant-Appellant

Glen Bates

Supreme Court of Ohio Clerk of Court - Filed September 25, 2017 - Case No. 2016-1783

TABLE OF CONTENTS

TABLE OF CONTENTS………………………………………………………………………i

TABLE OF AUTHORITIES………………………………………………………………...vii

STATEMENT OF THE CASE……………………………………………………………….1

A. STATEMENT OF THE FACTS……………………………………………………1

B. PROCEDURAL HISTORY………………………………………………………....3

ARGUMENT………………………………………………………………………………….….5

PROPOSITION OF LAW NO. I………………………………………………………….5

THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY ADMITTING GRUESOME AND REPETETIVE AUTOPSY PHOTOGRAPHS IN CONTRAVENTION OF APPELLANT’S RIGHT TO A FAIR TRIAL AND FAIR SENTENCING DETERMINATION AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE, SECTION TEN OF THE OHIO CONTITUTION.

PROPOSITION OF LAW NO. II………………………………………………….……9

EVIDENCE OBTAINED FROM GLEN BATES WITHOUT BEING RE-READ HIS MIRANDA RIGHTS FOR THREE SEPARATE INTERROGATIONS OVER AND 8-1/2 HOUR PERIOD SHOULD HAVE BEEN SUPPRESSED BY THE TRIAL COURT AS NOT VOLUNTARILY MADE IN VIOLATION OF THE 4TH, 5TH, AND 6TH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

PROPOSITION OF LAW NO. III……………………………………………………….13

THE TRIAL COURT ERRED TO BATES’ PREJUDICE AND ABUSED ITS DISCRETION IN VIOLATION OF THE SIXTH AMENDMENT RIGHT TO COUNSEL WHEN IT DENIED BATES’ MOTION TO WITHDRAW AND INSTEAD CHANGE HIS APPOINTED TRIAL COUNSEL BEFORE OPENING STATEMENTS IN THE TRIAL.

PROPOSITION OF LAW NO. IV……………………………………………….……16

THE TRIAL COURT ERRED TO BATES’ PREJUDICE BY PERMITTING

i

THE STATE TO ENGAGE IN SERIOUS MISCONDUCT BY ASKING REPEATED LEADING QUESTIONS OF ITS OWN WITNESSES WHICH DEPRIVED BATES OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL UNDER THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE, SECTIONS 2, 9, AND 16 OF THE OHIO CONSTITUTION.

PROPOSITION OF LAW NO. V……………………………………………………...17

THE PROSECUTOR ENGAGED IN IMPROPER PROSECUTORIAL MISCONDUCT DURING THE TRIAL AND SENTENCING PHASES OF CLOSING ARGUMENTS TO MR. BATES’ PREJUDICE BY (1) CALLING BATES A “MONSTER”, (2) BY REPEATEDLY MISSTATING EVIDENCE, (3) BY PERSONALLY VOUCHING FOR THE CREDIBILITY OF CHILD WITNESS JAH’KEIAH FAULKNER, (4) BY DENIGRATING DEFENSE COUNSEL AND THEORY OF DEFENSE, (5) BY COMMENTING ON DEFENSE MITIGATION EVIDENCE NOT PRESENTED WHICH DEPRIVED MR. BATES OF HIS DUE PROCESS RIGHTS TO A FAIR TRIAL UNDER THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE, SECTIONS 2, 9, AND 16 OF THE OHIO CONSTITUTION.

PROPOSITION OF LAW NO. VI……………………………………………………..23

THE VERDICTS IN THIS CASE WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE AND WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, THEREBY DENYING APPELLANT DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH ANDFOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE, SECTION TEN OF THE OHIO CONSTITUTION.

PROPOSITION OF LAW NO. VII……………………………………………………..26

THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IS VIOLATED WHEN COUNSELS’ DEFICIENT PERFORMANCE RESULTS IN PREJUDICE TO THE DEFENDANT IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTN AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTIONS 5,9,10 AND 16 OF THE OHIO CONSTITUTION.

ii

PROPOSITION OF LAW NO. VIII……………………………………………………34

THE TRIAL COURT ABUSED ITS DISCRETION TO BATES’ PREJUDICE BY VIOLATING HIS OHIO REVISED CODE §2929.03(D)(1) STATUTORY RIGHT TO MAKE AN UNSWORN STATEMENT DURING THE SENTENCING PHASE OF HIS CAPITAL MURDER TRIAL WHEN IT DID NOT HONOR HIS REQUEST TO HAVE HIS COURT-APPOINTED ATTORNEYS READ THE UNSWORN STATEMENT TO THE JURY.

PROPOSITION OF LAW NO. IX…………………………………………………….37

A CAPITAL DEFENDANT’S RIGHT TO A RELIABLE SENTENCE IS VIOLATED WHEN THE TRIAL JUDGE FAILS TO PROPERLY WEIGH THE AGGRAVATING CIRCUMSTANCE AND THE MITIGATING FACTORS IN IMPOSING A SENTENCE OF DEATH. U.S. CONST. AMENDS. VIII; XIV; OHIO CONST. ART. I §§9,16.

PROPOSITION OF LAW NO. X………………………………………………..…….39

CUMULATIVE ERRORS DERPIVED GLEN BATES OF A FAIR TRIAL AND A RELIABLE SENTENCING HEARING.

PROPOSITION OF LAW NO. XI……………………………………………………41

OHIO’S DEATH PENALTY LAW IS UNCONSTITUTIONAL. OHIO REV. CODE §§ 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04, AND 2929.05 DO NOT MEET THE PRESCRIBED CONSTITUTIONAL REQUIREMENTS AND ARE UNCONSTITUTIONAL ON THEIR FACE AND AS APPLIED TO GLEN BATES. U.S. CONST. AMENDS. V, VI, VIII, AND XIV; OHIO CONST. ART. I, §§ 2, 9, 10, AND 16. FURTHER, OHIO’S DEATH PENALTY STATUTE VIOLATES THE UNITED STATES’ OBLIGATIONS UNDER INTERNATIONAL LAW.

iii

PROPOSITION OF LAW NO. XII…………………………………………….………58

OHIO’S CAPITAL SENTENCING STATUTES ARE UNCONSITITUONAL UNDER THE RECENT DECISION IN HURST V. FLORIDA, __ U.S __, 136 S.CT. 616 (2016) WHICH HELD THAT FLORIDA’S CAPITAL SENTENCING LAWS VIOLATED THE SIXTH AMENDMENT’S RIGHT TO TRIAL BY JURY BECAUSE THOSE STATUTES REQUIRED THE JUDGE, NOT THE JURY, TO MAKE THE FACTUAL DETERMINATIONS NECESSARY TO SUPPORT A SENTENCE OF DEATH.

PROPOSITION OF LAW NO. XIII…………………………………………..………67

IT VIOLATES THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION NOT TO INSTRUCT THE JURY THAT MERCY CAN BE CONSIDERED DURING ITS PENALTY PHASE DELIBERATIONS.

PROPOSITION OF LAW NO. XIV…………………………………………………….73

IT IS A VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION, ARTICLE 1, SECTIONS 1,2,9, AND 16, TO UPHOLD A SENTENCE OF DEATH WHEN AN INDEPENDENT WEIGHING OF THE AGGRAVATING CIRCUMSTANCES VERSUS THE MITIGATING FACTORS DEMONSTRATES THAT THE AGGRAVATING CIRCUMSTANCES DO NOT OUTWEIGH THE MITIGATING FACTORS BEYOND ANY REASONABLE DOUBT, AND THE DEATH SENTENCE IS NOT APPROPRIATE.

CONCLUSION………………………………………………………………………………..79

CERTIFICATE OF SERVICE…………………………………………………………..….80

APPENDIX TO BRIEF………………………………………………………………………..1

NOTICE OF APPEAL……………………………………………………………………….A-1

TRIAL COURT OPINION…………………………………………………………………...A-3

JUDGMENT ENTRY…………………………………………………………………..……A-9

CONSTITUTIONAL PROVISIONS……………………………………………………….

Ohio Const. Art. I, §2....................................................................................................A-12

Ohio Const. Art. I, §5 ...................................................................................................A-13

iv

Ohio Const. art. I, § 9 ...................................................................................................A-14 Ohio Const. art. I, §10 ..................................................................................................A-15

Ohio Const. art. I, §16 ..................................................................................................A-16

U.S. Const. Art. II, sec. 2…………………………………………………………….A-17

U.S. Const. Art. VI…………………………………………………………………..A-18

U.S. Const. Amend. VI..................................................................................................A-19

U.S. Const. Amend. VIII.............................................................................................. A-20

U.S. Const. Amend. XIV.............................................................................................. A-21

STATUTES R.C. § 2903.01 ..............................................................................................................A-23

R.C. § 2929.02 ..............................................................................................................A-25

R.C. § 2929.021 ............................................................................................................A-27

R.C. § 2929.022 ............................................................................................................A-29

R.C. § 2929.023 ............................................................................................................A-31

R.C. § 2929.03 ............................................................................................................. A-32

R.C. § 2929.04 ............................................................................................................. A-39

R.C. § 2929.05 ..............................................................................................................A-42

R.C. § 2929.06 ..............................................................................................................A-44

Fla. Stat. 775.082(1)…………………..…………………………………………….A-46

Fla. Stat. 921.141(3)…………………………………………………………………A-53

RULES

Crim. R. 11 ...................................................................................................................A-58 Evid. R. 403 ..................................................................................................................A-61

v

REFERENCES TO THE RECORD

The transcript in this case contains 19 volumes, consisting of 1088 total pages. The pagination

is coordinated, that is, page 1 is in volume 1, page 1088 is in volume 20. References to the

transcript are to volume number and a page or pages. The Original Papers are referenced by

their docket number: “R.___.”

vi

TABLE OF AUTHORITIES

Cases:

State v. Adams, 62 Ohio St.2d 151, 16 O.O.3d 169, 404 N.E.2d 144 (1980)……………………35

People vs. Anderson (Cal. 1972), 493 P. 2d 880………………………………………………42

Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed.2d 435, 120 S.Ct. 2348 (2000)…………58, 59

Barclay v. Florida, 463 U.S. 939 (1983)…………………………………………..38, 45, 48, 68

Beck v. Alabama, 447 U.S. 625 (1980)………………………………………………..…….7, 39

State v. Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319…………………..……65

Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)……………58, 59

United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)………………..59

Brady v. United States 397 U.S. 742 (1970)……………………………………………………..10

Bram v. United States 168 U.S. 532 (1897)……………………………………………………11

Brewer v. Williams 430 U.S. 387 (1977)…………………………………………………..…..10

California v. Brown, 479 U.S. 538 (1987)……………………………………………………..68

United States v. Brown 557 F.2d 541, (C.A. 6) (1977)……………………………………..….11

State v. Brown, 38 Ohio St.3d 305 (1988)………………………………………………….20, 30

North Carolina v. Butler, 441 U.S. 369 (1979)………………………………………………….10

Kansas v. Carr, 577 U.S.__, 136 S. Ct. 633 (2016)………………………………………..….71

Chambers v. Mississippi, 410 U.S. 284 (1973)…………………………………………………39

Chapman v. California, 386 U.S. 18 (1967)……………………………………………………..8

State v. Clark 1st. Dist. No. C-020550, 2003-Ohio-2669……………………………………….14

Clinton v. City of New York, 524 U.S 417 (1998)……………………………………………54-55

Coker vs. Georgia, 433 U.S. 584 (1977)……………………………………………41-42; 74-75

Darden v. Wainwright (1986), 477 U.S. 168 (1986)……………………………………….20, 30

State v. Depew, 38 Ohio St.3d 275, 528 N.E.2d 542 (1988)………………….…………….6, 37

State v. Diar 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565………………………….16

Eddings v. Oklahoma, 455 U.S 104 (1982)……………………………………..….37; 66-67; 70

vii

State v. Edwards, 49 Ohio St.2d 31 (1976)…………………………………………………11, 12

State v. Fears, 86 Ohio St.2d 329, 715 N.E.2d 136 (1999)………………………………….17, 31

Filartiga v.Pena-Irala, 630 F.2d 876 (2d Cir. 1980)……………………………………….51, 55

Forti v. Suarez-Mason, 672 F.Supp. 1531 (N.D. Cal. 1987)……………………………..……51

United States v. Francis, 170 F.3d 546 (6th Cir. 1999)…………………………………………17

Free v. Peters, 12 F.3d 700 (7th Cir. 1993)……………………………………………………..46

Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370 (7th Cir. 1985)…………………55

Furman v. Georgia 408 U.S. 238 (1972)……………………………………….38; 41-46; 71, 78

United States v. Garcia 522 F.3d 597 (5th Cir. 2008)……………………………………...18, 28

Girts v. Yanal, 501 F.3d 743 (6th Cir. 2007)……………………………………………….21, 31

Godfrey v. Georgia, 446 U.S. 420 (1980)………………………………………………………38

Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1999)…………………….…35

State v. Green, 67 Ohio St.3d 465, 620 N.E.2d 50 (1993)……………………………….……35

Gregg v. Georgia, 428 U.S. 153 (1976)……………………………………………38, 44, 66, 69

State v. Hawkins, 66 Ohio St.3d 339 (1993)………………………………………….……19, 29

Hildwin v. Florida, 490 U.S 638, 109 S.Ct. 2055, 104 L.Ed.2d 728 (1989)…………………..61

Hitchcock v. Dugger, 481 U.S. 393 (1987)………………………………………………38, 70, 73

Hurst v. Florida, ___U.S.__, 136 S.Ct. 616 (2016)……………………….……….58-62; 64-65

Jackson v. Denno 378 U.S. 368 (1964)………………………………………………………..11

United States vs. Jackson, 390 U.S. 570 (1968)………………………………………………..47

State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3703……………………………………….72

Johnson v. Zerbst, 304 U.S. 458 (1938)……………………………………………..…….10, 43

State v. Keenan, 66 Ohio St.3d 402 (1993)…………………………………….………17, 19, 29

Lewis v. Jeffers, 497 U.S. 764 (1990)…………………………………………………….……47

State v. Liberatore, 69 Ohio St.2d 583, 433 N.E. 2d 561 (1982)…………………………..20, 30

Lockett v. Ohio, 438 U.S. 585 (1978)…………………………………………...37, 46, 66, 69-70

State v. Lorraine, 66 Ohio St.3d 414 (1993)……………………………………………….68, 71

viii

Lowenfield vs. Phelps, 484 U.S. 231, 98 L.E.2d 568 (1988)……………………………………45

State v. Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284…………………………………………..35

State v. Madrigal, 87 Ohio St.3d 378 (2000)…………………………………………….……..26

State v. Mapes, 19 Ohio St.3d 108, 19 OBR 318, 484 N.E.2d 140 (1985)……………………..35

Marbury v. Madison, 5 U.S. 137 (1803)………………………………………………………..55

Kansas v. Marsh, 548 U.S. 163 (2006)………………………………………………….……..71

State v. Maurer, 15 Ohio St.3d 239, 473 N.E.2d 768 (1984)……………………………..6, 7, 37

Maynard v. Cartwright, 486 U.S. 356 (1988)…………………………………………………..47

McClesky v. Kemp, 481 U.S. 279 (1987)………………………………………………………..76

Miranda v. Arizona, 384 U.S. 436 (1966)……………………………………………….…..9-11

State v. Morales 32 Ohio St.3d 252 (1987)……………………………………………………6-7

State v. Murphy, 91 Ohio St.3d 516, 747 N.E.2d 765 (2001)…………………………………..49

Commonwealth vs. O’Neal (Mass.1975), 327 N.E.2d 662……………………………..…..43-44

Commonwealth vs. O’Neal II (Mass. 1975), 339 N.E.3d 676………………………………….44

The Paqute Habana, 175 U.S. 677 (1900)………………………………………………….51, 55

Payne v. Tennessee, 501 U.S 808 (1991)………………………………………………………..8

Penry v. Lynaugh, 492 U.S. 302 (1989)………………………………………….………..38, 68

State vs. Pierre (Utah 1977), 572 P.2d 1338…………………………………………………..44

Pulley v. Harris, 465 U.S. 37 (1984)…………………………………………………..………74

Rhodes vs. Chapman, 452 U.S. 337 (1981)……………………………………………………41

Ring v. Arizona, 536 U.S. 584 (2002)………………………………………..…….47, 58, 61, 62

Robison vs. California, 370 U.S. 600 (1960)……………………………………..…………….41

Roe vs. Wade, 410 U.S. 113 (1973)……………………………………………………………43

State v. Rogers, 28 Ohio St.3d 427, 504 N.E.2d 52 (1986)………………………………..…..68

Satterwhite v. Texas, 486 U.S. 249 (1988)……………………………………………………..39

Schneckloth v. Bustamonte 412 U.S. 218 (1973)…………………………………………..…..11

State v. Sheppard, 84 Ohio St.3d 230 (1998)…………………………………………….……19

ix

State v. Simko, 71 Ohio St.3d 483, (1994)………………………………………………………77

Skipper v. South Carolina, 476 U.S. 1 (1986)……………………………………………..…..90

Smith vs. North Carolina, 459 U.S. 1056 (1982)……………………………………………….50

Smith v. Phillips, 455 U.S. 209 (1982)…………………………………………………………17

United States v. Smith, 18 U.S. 153 (1820)……………………………………………………55

State v. Smith, 14 Ohio St.3d 13, 470 N.E.2d 883 (1984)……………………………………….17

Spaziano vs. Florida, 468 U.S. 447 (1984)………………………………..……….49-50; 61, 66

State vs. Steffen, 31 Ohio St.3d 111, 509 N.E.2d 383 (1987)………………………………….48

Strickland v. Washington, 466 U.S. 668 (1984)……………………………………..…26-27; 32

State v. Thompkins, 78 Ohio St.3d 380 (1997)……………………………………………..….23

State v. Thompson, 33 Ohio St.3d 1, 514 N.E.2d 407 (1987)…………………………………..7, 8

Tibbs v. Florida, 457 U.S. 31 (1982)…………………………………………………….23

Townsend v. Sain 372 U.S. 293 (1963)…………………………………………………11

Trop vs. Dulles, 356 U.S. 86 (1958)……………………………………………………..41

Tuilaepa v. California, 512 U.S. 967 (1994)…………………………………………..47

Walker v. Engle, 703 F.2d 959, 963 (6th. Cir. 1983)……………………………………39

Walton v. Arizona, 497 U.S. 639, 653 (1990)………………………………47, 58, 60, 65

Wiggins v. Smith, 539 U.S. 510, 533 (2003)………………………………….…….26-27

State v. Williams, 79 Ohio St.2d 583 (1982)……………………………….………17, 27

State v. Williams, 99 Ohio St.3d 439, 2003-Ohio-4164, 793 N.E.2d 446……….…….17

Woodson vs. North Carolina, 428 U.S. 280 (1976)……………………..…………43, 45

Yick Wo vs. Hopkins, 118 U.S. 356 (1886)…………………………………….………43

United States v. Young, 470 U.S. 1 (1985)…………………………..…….17, 19, 27, 29

Zant vs. Stephens, 462 U.S. 861 (1983)………………………………..……….45, 48, 67

Zschernig v. Miller, 389 U.S. 429 (1968)………………………………………………51

State v. Zuern, 32 Ohio St.3d 56, 512 N.E.2d 585 (1987)………………………….68, 71

x

Constitutional Provisions:

Ohio Const. Art. I, §2............................................................................................................passim Ohio Const. Art. I, §5 ...................................................................................................................26 Ohio Const. art. I, § 9 ............................................................................................................ passim Ohio Const. art. I, §10 ........................................................................................................... passim

Ohio Const. art. I, §16 ........................................................................................................... passim U.S. Const. Art. II, sec. 2…………………………………………………………………….54, 55 U.S. Const. Art. VI……………………………………………………………………………..51 U.S. Const. Amend. VI.......................................................................................................... passim U.S. Const. Amend. VIII....................................................................................................... passim U.S. Const. Amend. XIV....................................................................................................... passim Statutes R.C. § 2903.01 .........................................................................................................................41,44 R.C. § 2929.02 ..............................................................................................................................41 R.C. § 2929.021 ......................................................................................................................41, 48 R.C. § 2929.022 ............................................................................................................................41 R.C. § 2929.023 ............................................................................................................................41 R.C. § 2929.03 ...................................................................................................................... passim R.C. § 2929.04 ...................................................................................................................... passim R.C. § 2929.05 ...................................................................................................................... passim R.C. § 2929.06 ................................................................................................................................8

Fla. Stat. 775.082(1)………………………………………………………………………….60, 62

xi

Fla. Stat. 921.141(3)……………………………………………………………………………62

Rules Crim. R. 11 ....................................................................................................................................46 Evid. R. 403 ....................................................................................................................................6

Other Authorities

American Bar Association, Evaluating Fairness and Accuracy in State Death Penalty Systems: The Ohio Death Penalty Assessment Report: An Analysis of Ohio’s Death Penalty Laws, Procedures and Practices…………………………………………….75-77

American Bar Association, Guidelines for the Appointment

of Counsel in Death Penalty Cases…………....................................................................27

Cho, Capital Confusion: The Effect of Jury Instructions on the Decision to Impose Death, 85 J. Crim. L. & Criminology 532 (1994)……………………………………..46

International Covenant on Civil and Political Rights (ICCPR)………………………52-55

International Convention on the Elimination of

All Forms of Racial Discrimination (ICERD)……………………………….52-54

Convention Against Torture and Other Cruel, Inhuman

or Degrading Treatment or Punishment (CAT)…………………………….52-54

Vienna Convention on the Law of Treaties……………………………….………..54-55

Universal Declaration of Human Rights (DHR)……………………………..……54-55

Joint Task Force to Review the Administration of Ohio’s Death Penalty,

Final Report and Recommendation, April 2014…………………………………77

Treatises

Restatement (Second) of Foreign Relations

Law of the United States, Sec. 154(1) (1965)…………………………………………..55

xii

STATEMENT OF THE CASE

STATEMENT OF FACTS

On March 29, 2015 Andrea Bradley brought her two-year-old child, Glenara Bates, to

Cincinnati Children’s Hospital. At the time Glenara was brought to the hospital, she had

numerous, visible, external injuries. She was also severely underweight for her age. Although

the emergency department staff made efforts to revive her, Glenara was pronounced dead at the

hospital. (T. Vol. 15, pp. 619-627). The hospital staff suspected that Glenara had suffered

severe physical abuse, and accordingly contacted the Cincinnati Police Department, who

responded to the Hospital and commenced an investigation. Police officers went to Glenara’s

home, where the found Glen Bates, Glenara’s father. Those officers took Mr. Bates to

Cincinnati Police Headquarters and place him in an interrogation room. Other officers took Ms.

Bradley to police headquarters and placed her in a separate interview room. (T. Vol. 16, pp700-

726). After obtaining a search warrant, officers entered the home and recovered numerous items,

and took many photographs. (T. Vol. 16, pp. 669-695). The officers also found several young

children at the home. Since they were taking both parents into custody, they contacted Hamilton

County Children’s Services to assist. One of those children, seven-year-old Jah’Keiah Faulkner,

was taken to Children’s Hospital for an interview. At police headquarters, Bates and Bradley

were being interviewed as well. During his interview, Bates admitted to being in Glenara’s

home off and on over the preceding two weeks. He admitted causing bite marks to Glenara

while playing a game with her in which he would act like a dog and bite and shake her. He also

stated that about week prior, he had been playing with Glenara and had dropped her on the top of

her head, but that she seemed fine after that. (T. Vol. 16 pp.720-722; Exh. 3).

1

Ms. Faulkner testified that Andrea Bradley was her mother but she did not know her

father’s name. She identified Glenara as her younger half-sister. She identified Glen Bates as

her stepfather. Ms. Faulkner further testified that she lived with her mother and siblings at the

time of Glenara’s death. She related that her mother did not like Glenara and would beat her.

Faulkner testified that on the morning of the day Glenara was taken to the hospital, she heard a

noise in the bathroom, and then saw Glen Bates hold Glenara by the legs and swing her into the

wall. She also testified that Glen Bates and her mother bit Glenara, and that Glenara did not

enjoy it. (T. Vol. 15, 576-601). On cross examination, Faulkner stated that Glen had not lived at

the house very much, but had spent most of his time at his mother’s house. She also related that

Ms. Bradley had physically abused Glenara. (T. Vol. 15, pp. 602-615).

Dr. Jennifer Schott of the Hamilton County Coroner’s Office completed the autopsy of

Glenara. She conducted the autopsy on March 30th and 31st. During the autopsy, Dr. Schott took

approximately 280 photographs. (Exh. 12A-12PPP). She used approximately 69 of those

photographs during her testimony. She testified that Glenara suffered from malnutrition. She

also testified that Glenara had suffered from extensive physical abuse, including burns; bite

marks; diaper rash; abrasions and contusions. She opined that those injuries had occurred over

time, although she was unable to provide a time. Glenara also had multiple contusions to her

head, and Dr. Schott did not offer an opinion as to the timing of those injuries. After removing

Glenara’s skull cap, Dr. Schott observed a subdural hemorrhage. Dr. Schott opined that the

subdural hemorrhage was caused by blunt force trauma to Glenara’s head. Dr. Schott also

testified that Glenara had other, older subdural hemorrhages. Dr. Schott also opined that the

cause of Glenara’s death was the newest hemorrhage. Dr. Schott also opined that malnutrition

2

was also a cause of Glenara’s death. (T. Vol. 17, pp. 743-829).

In mitigation, Bates called three witnesses. Benita Crum, Bates’s mother, testified that

she did not want him to receive the death penalty and that his other family members felt the same

way. (T. Vol. 19, pp. 998-1001). Ryan Parker was a childhood friend of Bates. He testified that

he had met him through church activities and acted as his mentor. He testified that he was active

in church functions and that they had become close. Parker is the godfather to Bates’ oldest

child. He described the close relationship Bates had with that child. (T. Vol. 19, pp. 1010-

1011). Stacey Jones was the mother of that oldest child and testified via video deposition due to

her poor health. She testified as to the close relationship between her son and Bates and the

devastating impact the death sentence would have on him. (T. Vol. 19, p. 1015). Bates prepared

an unsworn statement, but declined to read it to the jury himself. Trial counsel requested that

one of them be allowed to read it to the jury, but the trial court denied that request. Trial counsel

proffered it for the record. (T. Vol. 19, pp. 977-981).

PROCEDURAL HISTORY

The Hamilton County Grand Jury indicted Glen Bates on April 8, 2015 on one count of

Aggravated Murder, with a death penalty specification. That specification was that the victim of

the Aggravated Murder, Glenara Bates was under the age of thirteen at the time of her death, and

that Glen Bates was the principal offender in the homicide, or that he committed the offense with

prior calculation and design. Count two was for Endangering Children a felony of the second

degree and count three was for Murder, alleging that Glenara Bates death was caused by Glen

Bates committing Felonious Assault. (R. 7). All those offenses were alleged to have been

3

committed in Hamilton County, Ohio on or about March 29, 2015. Counsel was appointed on

April 14th. (R. 32). Counsel filed numerous pretrial motions, including a Motion in Limine to

prevent the introduction of gruesome and repetitive autopsy photographs. (R. 80). Counsel also

filed a motion to have a mental health evaluation of Bates to determine his competency to stand

trial. (R. 246). That evaluation found Bates competent and the trial court filed an entry to that

effect. (R. 256; T. Vol. 9, pp. 130-131). Group death penalty voir dire began on September

16th. (T. 158). At the conclusion of the voir dire, Bates asked the trial court to terminate his

attorneys. The trial court rejected that request and continued with trial. (T. Vol. 15, pp. 518-

519). After seating a jury and alternates, trial began on September 21st. (T. Vol. 15, p. 516).

On September 26th, the trial jury returned a verdict of guilty on all counts, including the death

penalty specification. (R. 303-309; T. Vol. 18, pp. 960-964). On September 28th, the penalty

phase began. Mr. Bates presented three witnesses in mitigation. The jury then deliberated and

returned a verdict recommending a sentence of death. (R. 319; T. Vol. 19, p. 1070). On

October 17th, the trial court held a sentencing hearing and imposed a sentence of death as to

count 1; 8 years on count 2 and fifteen years to life on count 3. The trial court ordered

consecutive service as to counts 2 and 3. The trial court also filed a sentencing opinion pursuant

to statute. (R. 349). The trial court filed its judgment entry on October 27th. (R. 339). Mr.

Bates filed a timely Notice of Appeal with this Court on December 5th.

4

ARGUMENT

PROPOSITION OF LAW NO. I

THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY ADMITTING GRUESOME AND REPETETIVE AUTOPSY PHOTOGRAPHS IN CONTRAVENTION OF APPELLANT’S RIGHT TO A FAIR TRIAL AND FAIR SENTENCING DETERMINATION AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE, SECTION TEN OF THE OHIO CONTITUTION.

Trial counsel filed a Motion in Limine to exclude photographs of the deceased. (R. 80;

T. 55). The parties and the trial court agreed to hold that motion in abeyance until the State

sought to introduce any such photographs. (T. 56-57).

Prior to the start of the coroner’s testimony, defense counsel renewed the Motion in

Limine. The assistant prosecutor replied that the coroner was going to use “about 25%” of the

photographs taken during the autopsy of Glenara Bates. (T. Vol. 17, pp. 740-741). On the

basis that the coroner was going to use 25% of the available photographs, the trial court

overruled the defense motion. Prior to the actual publishing of the photographs (State’s Exhibits

12A-12PPP) to the trial jury, defense counsel renewed their motion. (T. Vol. 17, p. 750).

Again, the trial court overruled the motion, based on the additional rationale that the State had

the burden of proof as to the cause of death. (T. Vol. 17, p. 750). Nothing in the record

suggests that at any point did the trial court review the photographs. In total, Exhibit 12A-

12PPP comprises 68 photographs. Appellant asserts that the photographs comprising Exhibit

12A-12PPP were gruesome and repetitive, thereby depriving him of a fair trial and a fair

sentencing determination.

5

Ohio law on this subject is quite clear. This Court has held that “[P]roperly authenticated

photographs, even if gruesome, are admissible in a capital prosecution if relevant and of

probative value in assisting the trier of fact to determine issues or are illustrative of testimony

and other evidence, as long as the danger of material prejudice to a defendant is outweighed by

their probative value and the photographs are not repetitive or cumulative in number.” State v.

Maurer 15 Ohio St.3d 239, 473 N.E.2d 768 (1984), paragraph seven of the syllabus; State v.

Morales 32 Ohio St.3d 252, (1987). The standard for the admissibility of photographs in a

capital case is stricter than the Evidence Rule 403 balancing test employed in noncapital cases.

Under Ohio’s Rules of Evidence, the opponent of the evidence carries the burden to demonstrate

that the probative value of the photographic evidence is “substantially outweighed by the danger

of unfair prejudice, of confusion of the issues, or of misleading the jury.” Evid. R. 403(A).

Additionally, Evidence Rule 403(B) precluded the admission of photographs if the opponent

convinces the trial court that “the probative value [of the photographs] is substantially

outweighed by considerations of undue delay, or needless presentation of cumulative evidence.”

In capital cases, the burden shifts to the proponent of the evidence to demonstrate that the

probative value of “each photograph” outweighs the “danger of prejudice” to the defendant.

Morales at 258. In addition to that burden, the proponent must also establish that the

photographs are neither repetitive nor cumulative. Morales at 259. See also State v. Depew, 38

Ohio St.3d 275, 281, 528 N.E.2d 542 (1988); Maurer, supra.

The standard in Maurer and Morales is designed to protect the capital defendant from the

6

danger of prejudice. A capital defendant need not establish actual prejudice. Morales at 258.

Thus, the Maurer and Morales standard is in congruence with capital jurisprudence from the

United States Supreme Court that strives to make the trial phase in a capital case as sound and

reliable as possible. Beck v. Alabama, 447 U.S. 625, 630 (1980).

At trial, the State introduced 68 photographs comprising the autopsy and morgue

photographs of Glenara Bates. (T. Vol. 17, pp. 743-830; Exh. 12A-12PPP). Appellant

contends that the sheer number of photographs renders them repetitive and cumulative.

Additionally, they depict, repeatedly, gruesome and lurid depictions of the autopsy. For

example, Exhibits 12X-12BB depict the same injury to Glenara’s brain. Exhibits 12D-12F

depict Glenara disemboweled to show the cause of her distended abdomen, which clearly shown

in other photographs (Exhibit 12A) and explained by the coroner. Exhibits 12B, 12C and 12K

depict the same wound to Glenara’s forehead.

The jury must have felt “horror and outrage” as they viewed the photographs during the

trial phase. See State v. Thompson, 33 Ohio St.3d 1, 15, 514 N.E.2d 407 (1987). The autopsy

photographs were inflammatory and they appealed to the jurors’ emotions. They created an

unacceptable risk that the jurors would convict Mr. Bates based on anger and revulsion towards

him.

Nevertheless, the admission of gruesome photographs may be harmless error at the trial

phase if the evidence of guilt is overwhelming as to each element of the offenses. See,

Thompson, supra. Here, the evidence was not overwhelming. (See Proposition of Law VI).

7

On direct appeal, constitutional error is harmless only if the State proves it to be harmless

beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 26 (1967). Even if the

admission of gruesome photographs at trial is harmless, the use of such evidence by the State

may have a prejudicial “carry over “effect on a jury’s penalty phase deliberations. Thompson at

15. The State’s use of “unduly prejudicial” evidence in a capital case violates that defendant’s

right to due process. Payne v. Tennessee, 501 U.S 808, 825 (1991).

In the instant case, the State chose to overwhelm the jury with gruesome and prejudicial

evidence. The result was to inflame the passions and prejudices of the members of the jury and

deny Appellant a fair trial and sentencing determination. The trial court’s failure deprived

Appellant of his right to a fair trial under the Ohio and Federal Constitutions.

For all the above reasons, Appellant’s convictions should be reversed and he should be

granted a new trial. Alternatively, his death sentence must be vacated pursuant to R.C.

§2929.06(B).

8

PROPOSITION OF LAW NO. II

EVIDENCE OBTAINED FROM GLEN BATES WITHOUT BEING RE-READ HIS MIRANDA RIGHTS FOR THREE SEPARATE INTERROGATIONS OVER AND 8-1/2 HOUR PERIOD SHOULD HAVE BEEN SUPPRESSED BY THE TRIAL COURT AS NOT VOLUNTARILY MADE IN VIOLATION OF THE 4TH, 5TH, AND 6TH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

On March 29, 2015, Mr. Bates was interviewed by Detectives Hilbert, Karaguleff and

McNeil of the City of Cincinnati Police Department regarding the death of Glenara Bates. Bates

did not knowingly, intelligently or voluntarily waive his constitutional rights in making his

statements.

On March 29, 2015, Mr. Bates was interviewed at the City of Cincinnati Police Homicide

Division, 800 Broadway, Cincinnati, Ohio. He entered the interview room at 2:49 p.m. He was

not interviewed until 7:02 p.m. He sat for four hours in a locked interview room until the

Homicide Detectives began the interrogation. Before the interview began he was read his

Miranda rights. See, Miranda v. Arizona, 384 U.S. 436 (1966). At 7:41 p.m. a break was taken.

The interview resumed at 8:32 p.m. M-. Bates was not reread his Miranda rights before the

interrogation started again. (Volume 7, T. p. 80-108). This portion of the interview ended at

8:55 p.m. Before the interview ended Mr. Bates was told another officer would be in to take his

DNA. Mr. Bates was kept in the locked interview room. At 9:17 p.m. Detective McNeil entered

the interview room to take a DNA sample from Mr. Bates. He then proceeded to question Mr.

Bates regarding the death of Glenara Bates. Mr. Bates was again not reread his Miranda rights.

This portion of the interview lasted until 9:50 p.m. Mr. Bates was kept in the interview room

until 10:37 p.m. He was yet again questioned by Detective McNeil. He was not re-advised of

9

his Miranda rights. He was kept in the interview room until 11:12 p.m. From the time Mr.

Bates entered the interview room until the procedure ended was approximately 8-1/2 hours.

There is nothing to indicate he was provided food or beverage during this time. An obviously

exhausted Glen Bates gave 3 different statements during 3 different interviews in the 8-1/2 hour-

long interview. This amounted to a coercive practice to have him waive the protection of his

Miranda rights. (T. Vol. p. 80-108).

It is a long and well-established principle that alleged waivers of such fundamental

constitutional rights as the right to counsel and the privilege against self-incrimination will be

upheld only after careful inquiry into factual basis for the alleged waiver. Johnson v. Zerbst, 304

U.S. 458 (1938). Waivers of these constitutional rights not only must be voluntary but must be

knowing and intelligent acts done with sufficient awareness of the relevant circumstances and

likely consequences. Brady v. United States 397 U.S. 742, 750 (1970). The State bears the

heavy burden of demonstrating that the accused was sufficiently aware of the consequences of

what he was doing and that he knowingly and intelligently waived these vital constitutional

rights. Miranda, supra.

The question of whether the accused waived his right “is not one of form, but rather

whether the defendant in fact knowingly and voluntarily waived the rights delineated in the

Miranda case.” North Carolina v. Butler, 441 U.S. 369 (1979). It is apparent that courts “must

indulge in every reasonable resumption against waiver.” Brewer v. Williams 430 U.S. 387

(1977).

10

The test to determine whether a knowing and intelligent waiver was made rests on an

inquiry into the totality of circumstances surrounding the interrogation. Miranda, at 475-77.

The question of waiver must be determined on “the particular facts and circumstances

surrounding the case.” Johnson, at 464; Butler, at 369; Schneckloth v. Bustamonte 412 U.S. 218

(1973).

The burden is on the prosecution to show that, considering the totality of the

circumstances, the confession was voluntarily given. Bram v. United States 168 U.S. 532, 549

(1897); United States v. Brown 557 F.2d 541, 546-47 (C.A. 6) (1977); State v. Edwards, 49 Ohio

St.2d 31, 40-41, (1976), death penalty vacated, 438 U.S. 911 (1978). Psychological pressure as

well as physical coercion may render a confession involuntary. Townsend v. Sain 372 U.S. 293,

307 (1963). Physical coercion can occur by extremely long interrogations without being

provided food and water.

An involuntary confession, statement or admission is inadmissible at trial. Bram, 168

U.S. 532. The admission into evidence of an involuntary statement deprives the defendant of his

Fourteenth Amendment right to due process of law. Jackson v. Denno 378 U.S. 368 (1964). The

standard by which voluntariness is to be judged is whether the statement was a “product of a

rational intellect and free will.” Townsend, 372 U.S. 293.

In Edwards, 49 Ohio St.2d 31, the Ohio Supreme Court held that a decision as to whether

a statement was voluntarily given must take into account the totality of the circumstances,

including, but not limited to: the age, mentality, and prior criminal experience of the accused; the

11

length, intensity and frequency of interrogation; the existence of physical deprivation of

mistreatment; and the existence of threat or inducement. Id. at 40-41. It follows that the

physical and mental status of the person making the confession are critical aspects to be

reviewed in determining if the statement was in fact made voluntarily.

In this case, Glen Bates did not voluntarily waive his Miranda rights due to tiredness and

coercion and should have been re-read the Miranda rights warnings in order to have been fully

apprised of his right to have an attorney present and to remain silent. Therefore, the trial court

erred in denying his motion to suppress statements and his alleged statements should have been

excluded from evidence.

12

PROPOSITION OF LAW NO. III

THE TRIAL COURT ERRED TO BATES’ PREJUDICE AND ABUSED ITS DISCRETION IN VIOLATION OF THE SIXTH AMENDMENT RIGHT TO COUNSEL WHEN IT DENIED BATES’ MOTION TO WITHDRAW AND INSTEAD CHANGE HIS APPOINTED TRIAL COUNSEL BEFORE OPENING STATEMENTS IN THE TRIAL.

On the day of trial, after voir dire and before opening statements had begun, Glen Bates

addressed the trial court and requested that his court appointed attorneys be withdraw from his

representation. He did not request substitute counsel be appointed for trial representation, nor

that he wished to represent himself. Specifically, Mr. Bates addressed the court by stating:

. . . Yeah. I just want to let you know that right now I want to fire my lawyers. I feel like I just been – received ineffective assistance of counsel. I feel like they showed deficient performance preparing for my case, preparing for the trial as far as certain things in my discovery that I asked for that I didn’t receive. And I just wanted to put on record that I no longer want these lawyers to represent me at this time.

(T. Vol. 15, pp. 518-519)

Defense counsel, Norman Aubin, replied to this request by telling the court that they had given

Bates all discovery except for that marked for “counsel only”. (T. Vol. 15, pp. 519-520).

Defense counsel Rubin also stated that they met with Mr. Bates many times to discuss taking a

plea bargain and had asked other attorneys, Bates’ attorney cousin and had even asked two police

detectives on their own, to talk to him, not to mention the defense mitigation people. (T. Vol. 15,

p. 521). Mr. Rubin also indicated that Mr. Bates had not previously complained about the

attorney’s performance. (T. Vol.15, pp. 519-520). Mr. Bates also advised the court:

. . . Over – like he said, we met 40-some times. Out of that 40 times, 85% of those times were trying to convince me to take a plea deal, which I denied and told them I didn’t want to do numerous times. And they also have given me letters and everything stating that when they came to see me – how many times

13

they came to see me, wasted time. Months wasted just trying to convince me to take a plea deal instead of fighting for my case. And at this time I just feel uncomfortable going any further, and I feel like I’m not getting fair representation.

(T. Vol. 15, pp. 520-521)

In response to this, Mr. Aubin told the court that the defense attorney had strongly

encouraged Mr. Bates to tender a plea bargain which he refused and had twice entered plea

bargain which were rescinded. (T. Vol. 15, pp. 521, 522).

The trial court denied and addressed Mr. Bates’ request to discharge his appointed

attorneys by telling him (1) that he had experienced counsel, (2) the lawyers had provided

discovery to him, (3) that this was the first and only time during the case that Bates had

complained about his attorney and requested their discharge, and stated, (4) “This is nothing but

a last-ditch effort to get out of going to trial. You have every right to proceed to trial in this case,

you are correct. And that is exactly what we are going to do.” (T. Vol. 15, pp. 522-523).

This was prejudicial reversible error. Under State v. Clark 1st. Dist. No. C-020550, 2003-

Ohio-2669, the court held that an insufficient inquiry from the trial court as to the reasons that a

criminal defendant wishes to discharge court appointed counsel is grounds for reversal. When

the court discovers a defendant’s justifiable dissatisfaction is a basis that a court should allow a

change of counsel.

In this case, the trial court failed to inquire of Bates or his attorneys whether he had lost

trust and confidence in them, or whether there had been an irretrievable breakdown in

communications or disagreement as to trial strategy between them. Rather, the trial court

14

admonished Mr. Bates that he would be going to trial with his appointed attorneys when he

clearly advised the court with specifications that he did not feel they were giving him effective

representation, and that he did not feel comfortable with the appointed attorneys representing.

(T. Vol. 15, pp. 518-523). It is obvious from the record that Mr. Bates clearly expressed his

dissatisfaction with his trial attorneys and requested their discharge from his representation. The

trial court erred and abused its discretion by only giving Bates a perfunctory response that did

not have any clear factual basis to deny his motion to discharge his attorneys. Because this was

Bates’ only request to discharge attorneys, he had not had any other attorney appointed other

than the original attorneys, and no witnesses had been called in the case he was prejudiced by the

court’s abuse of discretion. This was reversible error, especially in light of (1) the court’s failure

to advise Bates he had a right to represent himself or have substitute counsel appointed, (2) the

appointed attorney’s statement that he had requested police detectives to speak to Bates on their

own in an effort to persuade him to take a plea bargain. This surely put Bates’ due process rights

in jeopardy and was not effective representation at a minimum. Because the jury and court have

ruled that the government will execute Mr. Bates, his due process right to counsel could not have

been violated any more egregiously when the court refused to discharge his attorneys and

appoint succession counsel. If Mr. Bates had multiple attorneys appointed previously there

could be a different view of the abuse of discretion, but this was simply not the case and Mr.

Bates is in jeopardy of paying the ultimate cost.

 

 

 

15

PROPOSITION OF LAW NO. IV

THE TRIAL COURT ERRED TO BATES’ PREJUDICE BY PERMITTING THE STATE TO ENGAGE IN SERIOUS MISCONDUCT BY ASKING REPEATED LEADING QUESTIONS OF ITS OWN WITNESSES WHICH DEPRIVED BATES OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL UNDER THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE, SECTIONS 2, 9, AND 16 OF THE OHIO CONSTITUTION.

It has been held by this Court that it is improper for a prosecutor to ask repeated leading

questions of his own witnesses. State v. Diar 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d

565.

In this case, the prosecutor violated Glen Bates’ due process right to a fair trial by

improperly persisting in asking leading questions of its own witnesses during trial. The

prosecutor suggested the answer in the form of leading question of State’s witnesses on multiple

occasions. (T. Vol. 15 pp. 582, 584, 586, 590, 597, 626, 715). Defense counsel did not object to

the improper questions. However, this was plain error due to the jury hearing the prosecutor

coach the witnesses by the leading questions.

16

PROPOSITION OF LAW NO. V

THE PROSECUTOR ENGAGED IN IMPROPER PROSECUTORIAL MISCONDUCT DURING THE TRIAL AND SENTENCING PHASES OF CLOSING ARGUMENTS TO MR. BATES’ PREJUDICE BY (1) CALLING BATES A “MONSTER”, (2) BY REPEATEDLY MISSTATING EVIDENCE, (3) BY PERSONALLY VOUCHING FOR THE CREDIBILITY OF CHILD WITNESS JAH’KEIAH FAULKNER, (4) BY DENIGRATING DEFENSE COUNSEL AND THEORY OF DEFENSE, (5) BY COMMENTING ON DEFENSE MITIGATION EVIDENCE NOT PRESENTED WHICH DEPRIVED MR. BATES OF HIS DUE PROCESS RIGHTS TO A FAIR TRIAL UNDER THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE, SECTIONS 2, 9, AND 16 OF THE OHIO CONSTITUTION.

It has been consistently held by this Court that a defendant’s conviction can be reversed

for prosecutorial misconduct if a reviewing Court finds that the prosecutor’s remarks were (1)

improper and (2) that they prejudicially affected the due process rights of the accused. State v.

Smith, 14 Ohio St.3d 13, 470 N.E.2d 883 (1984); State v. Williams, 99 Ohio St.3d 439, 2003-

Ohio-4164, 793 N.E.2d 446; State v. Fears, 86 Ohio St.2d 329, 715 N.E.2d 136 (1999); Smith v.

Phillips, 455 U.S. 209 (1982); State v. Keenan, 66 Ohio St.3d 402 (1993); United States v.

Francis, 170 F.3d 546 (6th Cir. 1999).

THE PROSECUTOR PERSONALLY VOUCHED FOR CREDIBILITY OF STATE’S WITNESSES

The Ohio Supreme Court has held that it is improper for a prosecutor to express their

opinion and vouch for the credibility of a witness. State v. Williams, 79 Ohio St.2d 583 (1982).

Federal Courts have also acknowledged the prejudice in the prosecutors expressing their personal

opinion and vouching for truthfulness of a State’s witness. United States v. Young, 470 U.S. 1

(1985). Why are all these courts alarmed at this prosecutorial misconduct? Because prejudice

occurs to a defendant when the prosecutor vouches since the jury is inclined to give such an

17

authoritative appearing opinion undue and unsupported weight merely because the prosecutor is

clothed in the appearance of power and righteousness due to his position of protecting citizens

against crime by obtaining convictions against dangerous defendants. See United States v.

Garcia 522 F.3d 597 (5th Cir. 2008).

In the present case, during the prosecutor’s closing argument in the trial phase the

prosecutor commented:

So, did Glen Bates just lose his grip and have her fall out of her shoes, or did he violently swing her into a door frame? You know, I think that who is the more credible witness, the statements that this defendant gave or the testimony that Jah’Keiah Faulkner, I think it’s obvious. (T. Vol. 18, p. 917) (Emphasis added).

The prosecutor also improperly commented:

But what about Jah’Keiah? Why shouldn’t we believe her? You know, I’m sure you were all impressed, as everybody in the room was, what a brave little girl she was. (T. Vol. 18, p. 873) (Emphasis added)

It was clearly improper vouching by the prosecutor. Defense counsel failed to object to

these personal opinion vouching comments. However, it is clearly plain error for the trial court

to have permitted the improper prosecutor vouching. Bates was irreparably prejudiced, just as in

the other referenced cases, since the jury heard these improper comments coming from an

authoritative government employee which was not objected to by the defense or addressed by the

trial court.

PROSECUTOR MISSTATES EVIDENCE DURING CLOSING ARGUMENT

A prosecutor may not knowingly misstate his recitations of evidence during closing

18

argument. State v. Sheppard, 84 Ohio St.3d 230 (1998).

In this case, the prosecutor misstated the evidence in his closing argument when he told

the jury: “ . . . Your baby is starving, put down your video games and go feed her.” (T. Vol. 18,

p. 908). There was no testimony about playing video games while the baby was not receiving

proper nutrition. This was improper prosecutor comment that prejudiced Bates and steered the

jury into believing Bates was neglectful when he had only lived in the home with the mother,

Andrea Bradley, and her children for a short period of time.

PROSECUTOR IMPROPERLY DENIGRATED DEFENSE COUNSEL DURING CLOSING ARGUMENT

It has been consistently held by many Ohio and Federal courts that the prosecutor may

not make unfounded and inflammatory attacks about the defense counsel or defense theory of a

case. See United States v. Young, 470 U.S. 1 (1985); State v. Hawkins, 66 Ohio St.3d 339

(1993); State v. Keenan, 66 Ohio St.3d 402 (1993).

In this case, the prosecutor improperly denigrated defense counsel and defense theory

when he stated:

Now the defense in this case has made much of Glen Bates not being in the home when this fatal trauma . . . You know, they have repeatedly told you it was not purposeful, it was not purposeful. He didn’t mean to hurt her like this. He might be reckless, but he is not purposeful. I can tell you right now. I’m sure they would be happy if that’s what you concluded. The closing was almost a concession, that this is reckless conduct that caused her death. (T. Vol. 18, pp. 921-924).

There was no defense objection, but the prosecutor’s misconduct was improper and plain

19

error. It is obvious the prosecutor’s comments denigrated counsel and suggested that the defense

theory was ridiculous and implausible, and that defense counsel had somehow conceded defeat.

Bates was prejudiced by these unfair comments delivered by an authoritative appearing

prosecutor without defense counsel challenge.

PROSECUTOR IMPROPERLY COMMENTED ON THE SENTENCING IN CLOSING ARGUMENT THAT BATES WAS A “MONSTER.”

As a general rule, a prosecutor is given reasonable latitude during closing argument to

fairly and strongly comment on the evidence in trial. State v. Liberatore, 69 Ohio St.2d 583, 433

N.E. 2d 561 (1982). However, it is improper and prejudicial if the prosecutor classifies or calls a

defendant in closing argument if the defense counsel does not invite the comments. Darden v.

Wainwright (1986), 477 U.S. 168 (1986); State v. Brown, 38 Ohio St.3d 305 (1988).

In this case, the prosecutor repeatedly referred to Bates as a “monster” by stating:

. . . He was like a monster, some kind of ogre coming into the room. He is supposed to provide a safe haven for her, instead this was like a chamber of horrors where she was beaten, bit, burned and finally bashed against a wall . . . That’s you know, I’m not going to quibble he is a monster or not. But imagine what Jah’Keiah saw. And imagine it through her eyes. Try to tell yourself he’s not a monster. (T. Vol. 19, p. 1037).

The prosecutor referred to Mr. Bates as a monster not once, but twice during both the

initial closing argument and his rebuttal closing argument. Mr. Bates’ counsel never made any

comments that would allow the prosecutor to make such prejudicial and inflammatory remarks

designed to make the jury not fairly consider Bates’ case, but rather, he did not deserve due

20

process since he was characterized as inhuman and a monster of some sort.

The comments of the prosecutor were not only improper, but egregious and

inflammatory. Therefore, Mr. Bates conviction and death penalty sentence should be reversed

based on this outrageous State’s conduct.

PROSECUTOR IMPROPERLY COMMENTED IN CLOSING ARGUMENT THAT DEFENSE DID NOT RAISE CERTAIN DEFENSES OR ELICIT TESTIMONY THAT

WOULD HAVE EXONERATED BATES

This Court has strongly held that it has deep concern over remarks by a prosecutor in

closing argument that defense counsel did not raise or present certain defense evidence in trial

which would establish defendant not guilty. State v. Fears, 86 Ohio St.3d 329 (1999) (dissent).

It has also been held that it is improper for the prosecutor to comment that a defendant did not

present an alibi defense or did not testify. Girts v. Yanal, 501 F.3d 743 (6th Cir. 2007).

In this case, in his sentencing closing argument, the prosecutor repeatedly commented on

mitigation evidence that was not presented by the defense.

(1) . . . His entire life all they could come up in looking for some mitigation to lay on that scale for you was what you heard this morning. Is that anything? Is there any mitigation there? . . . Who did you hear from? Well you heard from is Mom. And his Mom never said anything about him, he was a good boy, he – you know, he was always kind, he was always caring.

(2) . . . Defense mitigation witness, Ryan Parker, testified for Mr. Bates. Ryan Parker is a minister. Do you think he even believes in the death penalty? So no matter what, he is going to tell you he doesn’t think you should return a death verdict . . . Like I said, they could go through his entire life day by day. Did you hear anything from Ryan Parker?

21

Defense counsel presented the former girlfriend of Bates, Stacey Jones, who testified in

mitigation for Mr. Bates. The prosecutor stated:

(3) Did you hear any mitigation from her . . . but did she tell you anything mitigating about him. I didn’t hear that he still to this day comes over and helps her . . . or that he still comes over and still sees Jyaire (daughter of Stacey Jones and Glen Bates). I thought one of the telling things in her testimony (Jones) was they write emotional letters back and forth. Now come on. This is a guy who wouldn’t even change his daughter’s diaper . . . Do you see him sitting down and writing Jyaire long letters? I guarantee if he had written Jyaire any long letters that Jyaire still held dear to his heart, they would have been marked with exhibit stickers and they would be given to you. Do you see what a good man he is, do you see these good letters he has written? You didn’t see anything like that, did you? (T. Vol. 19, pp. 1039-1042) (Emphasis added)

All these comments by the prosecutor were improper and prejudiced Bates’ right to a fair

trial because they commented on evidence the defense did not present and implied what other

mitigation witnesses testified to may have been lies, including a clergyman with no reason to lie

in this case.

These comments denied Bates a fair trial and Bates’ conviction and sentence should be

reversed on this basis alone. Prosecutors should absolutely not be allowed to say anything they

want to improperly steer a jury to conviction and a death sentence verdict. To not control this is

a horrible miscarriage of justice.

22

PROPOSITION OF LAW NO. VI

THE VERDICTS IN THIS CASE WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE AND WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, THEREBY DENYING APPELLANT DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE, SECTION TEN OF THE OHIO CONSTITUTION.

The concepts of sufficiency of the evidence and manifest weight of the evidence are

distinct. State v. Thompkins, 78 Ohio St.3d 380 (1997). Sufficiency of the evidence “is a term of

art meaning that legal standard which is applied to determine whether the case may go to the jury

or whether the evidence is legally sufficient to support the jury verdict as a matter of law.”

Thompkins at 386. Sufficiency is a test of the adequacy of the evidence. Also, verdicts not

supported by sufficient evidence violate a defendant’s due process rights. Tibbs v. Florida, 457

U.S. 31 (1982).

The manifest weight of the evidence considers the “inclination of the greater amount of

credible evidence, offered in trial, to support one side of the issue rather than the other. Weight

is not a question of mathematics, but depends on its effect in inducing belief.” Thompkins at

387. Thus, manifest weight involves a consideration of the force and persuasiveness of evidence

adduced on an issue.

Glen Bates is not guilty of aggravated murder. The State did not prove that Mr. Bates

purposefully killed his young daughter, Glenara Bates.

The evidence showed that Mr. Bates had not been in the home for any significant period

of time before Glenara died. On the other hand, Glenara’s mother, Andrea Bradley, was shown

23

there the vast majority of time and had likely not nourished Glenara properly. (T. Vol. 15, pp.

584, 609). Moreover, there was no forensic evidence that linked Mr. Bates to the death of

Glenara. No blood of Glenara was found on Mr. Bates’ or in the bath tub where she died. (T.

Vol.15, pp. 725-727). There were no teeth marks forensically linking any purported bite marks

on Glenara to Mr. Bates. No bite mark comparisons or forensic dental chart evidence was

admitted into evidence. (T. Vol.15, pp. 725-727)

Household member child witness Jah’Keiah Faulkner’s testimony was not credible. She

was the only alleged eyewitness to the event who claimed she saw Mr. Bates pick up Glenara,

bite her (along with her mother, Andrea Bradley) and slam her violently against a door frame or

wall. (T. Vol.15, pp. 587-589, 596). However, there was none of Glenara’s blood found on the

door or wall. Jah’Keiah’s testimony was also not credible since she did not tell the police about

the incident until a long period of time had passed after the alleged incident. (T. Vol. 15, pp.

594-595). Moreover, Jah’Keiah admitted on cross examination that her cousin and other

relatives had research the death on the internet and had talked to Jah’Keiah about what had

happened. (T. Vol. 15, pp. 605-609). She very well may have been prompted by the relatives on

what to say rather than actually witnessing any event herself. Combined with the lack of any

fingerprint, DNA or blood evidence of Mr. Bates or Glenara in the case to corroborate

Jah’Keiah’s account of what happened to Glenara, it is apparent that there was no evidence that

Glen Bates murdered his daughter, Glenara. Moreover, Jah’Keiah admitted on cross exam that

she had seen her mother, Andrea Bradley, physically abuse Glenara by sticking needles in her

feet, hit her with a belt and not feeding her for years. (T. Vol. 15, pp. 614-616).

24

Dr. Jennifer Schott was the assistant coroner that performed Glenara’s autopsy. She

testified that Glenara was severely undernourished and sustained serious blunt-force injuries. (T.

Vol. 17, pp. 743-815). However, and most importantly, Dr. Schott could not give an opinion as

to an exact date when the malnourishment started or when the other physical injuries occurred,

but that the injuries had occurred over a long period of time. (T. Vol. 17, p. 829). She

acknowledged that either a man or woman could have injured Glenara. (T. Vol. 17, p. 817).

This is important since the record indicates Mr. Bates was at the house for only a short period of

time as opposed to the mother, Andrea Bradley. (T. Vol. 17, pp. 584-609). Dr. Schott also could

not give a clear medical opinion as to what the exact cause of death was, only that it may have

been a combination of malnourishment and blunt force trauma to the head. (T. Vol. 17, pp. 775,

816, 829). There was no proof beyond a reasonable doubt that Glen Bates purposely intended to

cause the death of his daughter, Glenara Bates. At a minimum, this could have been construed

only as a child endangering situation where a child died, not a purposeful capital murder.

In this case, the State failed to produce sufficient evidence as to Glen Bates being the

principal offender in the death of Glenara Bates. The State also failed to produce sufficient

evidence that Glenara’s death was purposeful. The State also failed to produce sufficient

evidence as to Glen Bates as the perpetrator as to Count Two, Endangering Children. Because

Appellant was sentenced to death, he asks this Court to reexamine the testimony of each and

every witness called by the State to independently determine if the State has met its burden of

proof both as to the sufficiency of the evidence and the manifest weight of the evidence.

25

PROPOSITION OF LAW NO. VII

THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IS VIOLATED WHEN COUNSELS’ DEFICIENT PERFORMANCE RESULTS IN PREJUDICE TO THE DEFENDANT IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTN AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTIONS 5, 9, 10 AND 16 OF THE OHIO CONSTITUTION.

Glen Bates’ Sixth Amendment right to effective counsel was violate by the cumulative

effect of errors and omissions by his trial counsel. While Appellant believes that counsel’s

ineffective assistance is present in the record of this case, if this Court were to determine that that

issue or a sub-part of that issue cannot be decided without information that is not in the record of

this case, this Court should defer any ruling on the issue or sub-issue and allow it to be addressed

in post-conviction proceedings. State v. Madrigal, 87 Ohio St.3d 378, 390-391 (2000).

STANDARDS FOR AN INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.

The standard for assessing attorney performance found in Strickland v. Washington, 466

U.S. 668 (1984) applies to this matter. Under Strickland, this Court must determine if counsel’s

performance was deficient in view of “prevailing professional norms.” Strickland at 689.

Counsel’s actions are presumed reasonable. But Strickland also establishes that a

reasonable investigation of both law and fact is required before a choice by counsel may be

deemed strategic or tactical. Strickland at 691. “[S]trategic choices made after less than

complete investigation are reasonable only to the extent that reasonable professional judgments

support the limitations on investigation…A decision not to investigate thus must be directly

assessed for reasonableness in all the circumstances.” Wiggins v. Smith, 539 U.S. 510, 533

(2003). Therefore, oftentimes a claim of ineffective assistance of counsel cannot be fully

26

reviewed on direct appeal, even though the error seems to be apparent in the record.

When assessing the performance prong in a capital case, this Court is informed or guided

by the American Bar Association’s Guidelines for the Appointment of Counsel in Death Penalty

Cases (“ABA Guidelines”). See Wiggins at 524. “The ABA Guidelines provide that

investigations into mitigating evidence should comprise efforts to discover all reasonably

available mitigating evidence…” Wiggins at 524. If counsel’s performance is deficient, this

Court must determine if Glen Bates suffered prejudice resulting from that deficient performance.

Strickland at 687. Prejudice occurs if this Court’s confidence in the result of Bates’ trial is

undermined by counsel’s error. Strickland at 694. Bates has no requirement to demonstrate that

counsel’s error was outcome determinative under the Strickland prejudice prong. Strickland at

693.

COUNSEL INEFFECTIVENESS DURING TRIAL.

THE PROSECUTOR PERSONALLY VOUCHED FOR CREDIBILITY OF STATE’S WITNESSES.

The Ohio Supreme Court has held that it is improper for a prosecutor to express their

opinion and vouch for the credibility of a witness. State v. Williams, 79 Ohio St.2d 583 (1982).

Federal Courts have also acknowledged the prejudice in the prosecutors expressing their personal

opinion and vouching for truthfulness of a State’s witness. United States v. Young, 470 U.S. 1

(1985). Why are all these courts alarmed at this prosecutorial misconduct? Because prejudice

occurs to a defendant when the prosecutor vouches since the jury is inclined to give such an

27

authoritative appearing opinion undue and unsupported weight merely because the prosecutor is

clothed in the appearance of power and righteousness due to his position of protecting citizens

against crime by obtaining convictions against dangerous defendants. See United States v.

Garcia 522 F.3d 597 (5th Cir. 2008).

In the present case, during the prosecutor’s closing argument in the trial phase the

prosecutor commented:

So, did Glen Bates just lose his grip and have her fall out of her shoes, or did he violently swing her into a door frame? You know, I think that who is the more credible witness, the statements that this defendant gave or the testimony that Jah’Keiah Faulkner, I think it’s obvious. (T. Vol. 18, p. 917) (Emphasis added).

The prosecutor also improperly commented:

But what about Jah’Keiah? Why shouldn’t we believe her? You know, I’m sure you were all impressed, as everybody in the room was, what a brave little girl she was. (T. Vol. 18, p. 873) (Emphasis added).

It was clearly improper vouching by the prosecutor. Defense counsel failed to object to

these personal opinion vouching comments. However, it is clearly plain error for the trial court

to have permitted the improper prosecutor vouching. Bates was irreparably prejudiced, just as in

the other referenced cases, since the jury heard these improper comments coming from an

authoritative government employee which was not objected to by the defense or addressed by the

trial court.

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PROSECUTOR IMPROPERLY DENIGRATED DEFENSE COUNSEL DURING CLOSING ARGUMENT

It has been consistently held by many Ohio and Federal courts that the prosecutor may

not make unfounded and inflammatory attacks about the defense counsel or defense theory of a

case. See United States v. Young, 470 U.S. 1 (1985); State v. Hawkins, 66 Ohio St.3d 339

(1993); State v. Keenan, 66 Ohio St.3d 402 (1993).

In this case, the prosecutor improperly denigrated defense counsel and defense theory

when he stated:

Now the defense in this case has made much of Glen Bates not being in the home when this fatal trauma . . . You know, they have repeatedly told you it was not purposeful, it was not purposeful. He didn’t mean to hurt her like this. He might be reckless, but he is not purposeful. I can tell you right now. I’m sure they would be happy if that’s what you concluded. The closing was almost a concession, that this is reckless conduct that caused her death. (T. Vol. 18, pp. 921-924).

There was no defense objection, but the prosecutor’s misconduct was improper and plain error.

It is obvious the prosecutor’s comments denigrated counsel and suggested that the defense theory

was ridiculous and implausible, and that defense counsel had somehow conceded defeat. Bates

was prejudiced by these unfair comments delivered by an authoritative appearing prosecutor

without defense counsel challenge.

COUNSEL INEFFECTIVENESS IN MITIGATION

PROSECUTOR IMPROPERLY COMMENTED ON THE SENTENCING IN CLOSING ARGUMENT THAT BATES WAS A “MONSTER.”

As a general rule, a prosecutor is given reasonable latitude during closing argument to

29

fairly and strongly comment on the evidence in trial. State v. Liberatore, 69 Ohio St.2d 583, 433

N.E. 2d 561 (1982). However, it is improper and prejudicial if the prosecutor classifies or calls a

defendant in closing argument if the defense counsel does not invite the comments. Darden v.

Wainwright (1986), 477 U.S. 168 (1986); State v. Brown, 38 Ohio St.3d 305 (1988).

In this case, the prosecutor repeatedly referred to Bates as a “monster” by stating:

. . . He was like a monster, some kind of ogre coming into the room. He is supposed to provide a safe haven for her, instead this was like a chamber of horrors where she was beaten, bit, burned and finally bashed against a wall . . . That’s you know, I’m not going to quibble he is a monster or not. But imagine what Jah’Keiah saw. And imagine it through her eyes. Try to tell yourself he’s not a monster. (T. Vol. 19, p. 1037).

The prosecutor referred to Mr. Bates as a monster not once, but twice during both the

initial closing argument and his rebuttal closing argument. Mr. Bates’ counsel never made any

comments that would allow the prosecutor to make such prejudicial and inflammatory remarks

designed to make the jury not fairly consider Bates’ case, but rather, he did not deserve due

process since he was characterized as inhuman and a monster of some sort.

The comments of the prosecutor were not only improper, but egregious and

inflammatory. Therefore, Mr. Bates conviction and death penalty sentence should be reversed

based on this outrageous State’s conduct.

PROSECUTOR IMPROPERLY COMMENTED IN CLOSING ARGUMENT THAT DEFENSE DID NOT RAISE CERTAIN DEFENSES OR ELICIT TESTIMONY THAT

WOULD HAVE EXONERATED BATES.

This Court has strongly held that it has deep concern over remarks by a prosecutor in

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closing argument that defense counsel did not raise or present certain defense evidence in trial

which would establish defendant not guilty. State v. Fears, 86 Ohio St.3d 329 (1999) (dissent).

It has also been held that it is improper for the prosecutor to comment that a defendant did not

present an alibi defense or did not testify. Girts v. Yanal, 501 F.3d 743 (6th Cir. 2007).

In this case, in his sentencing closing argument, the prosecutor repeatedly commented on

mitigation evidence that was not presented by the defense.

(1) . . . His entire life all they could come up in looking for some mitigation to lay on that scale for you was what you heard this morning. Is that anything? Is there any mitigation there? . . . Who did you hear from? Well you heard from is Mom. And his Mom never said anything about him, he was a good boy, he – you know, he was always kind, he was always caring.

(2) . . . Defense mitigation witness, Ryan Parker, testified for Mr. Bates. Ryan Parker is a minister. Do you think he even believes in the death penalty? So no matter what, he is going to tell you he doesn’t think you should return a death verdict . . . Like I said, they could go through his entire life day by day. Did you hear anything from Ryan Parker?

Defense counsel presented the former girlfriend of Bates, Stacey Jones, who testified in

mitigation for Mr. Bates. The prosecutor stated:

(3) Did you hear any mitigation from her . . . but did she tell you anything mitigating about him. I didn’t hear that he still to this day comes over and helps her . . . or that he still comes over and still sees Jyaire (daughter of Stacey Jones and Glen Bates). I thought one of the telling things in her testimony (Jones) was they write emotional letters back and forth. Now come on. This is a guy who wouldn’t even change his daughter’s diaper . . . Do you see him sitting down and writing Jyaire long letters? I guarantee if he had written Jyaire any long letters that Jyaire still held dear to his heart, they would have been marked with exhibit stickers and they would be given to you. Do you see what a good man he is, do you see these good letters he has written? You didn’t see anything like that, did you? (T. Vol. 19, pp. 1039-1042) (Emphasis added)

31

All these comments by the prosecutor were improper and prejudiced Bates’ right to a fair

trial and a fair sentencing determination because they commented on evidence the defense did

not present and implied what other mitigation witnesses testified to may have been lies,

including a clergyman with no reason to lie in this case.

Trial counsel’s performance in not objecting to improper and impermissible tactics by the

State prejudiced Bates right to a fair trial and a fair sentencing determination and fell below the

standard for effective representation set forth in Strickland, supra.

COUNSEL FAILS TO PRESENT RELEVANT AND SIGNIFICANT MITIGATION EVIDENCE.

On July 5, 2016, Bates’s counsel filed a motion to have his competency to stand trial

evaluated. (R. 246). The trial court appointed Court Clinic Services to undertake that

evaluation on July 6th. (R. 248). Carla Dreyer, Psy.D. conducted the evaluation with aid of two

assistants. They met with Bates on three separate occasions in July. They administered several

tests, including the Wechsler Adult Intelligence Scale-IV (WAIS-IV) and the Test of Memory

Malingering (TOMM). Although Dr. Dreyer found Bates competent to stand trial, she noted the

following findings in her report:

The WAIS-IV was administered to estimate Mr. Bates’ current level of intellectual and cognitive functioning. He obtained a score of 83 on the Verbal Comprehension Index, which places him at the 13th percentile. This score indicates that his verbal reasoning abilities are in the Low Average Range. He obtained a score of 79 on the Perceptual Reasoning Index, which places him at the 8th percentile and suggests his non-verbal problem-solving abilities are between the Borderline and Low Average ranges. Mr. Bates obtained scores of 92 on the Working Memory Index and 108 on the Processing Speed Index, which places him at the 30th and 70th percentiles, respectively. These scores suggest that his abilities to use information in memory and quickly process novel information are in the Average Range. Together, these yielded a Full-Scale IQ of 86, which is at the 18th percentile and suggests that his overall intellectual abilities are in the Low

32

Average Range. [As a reference point, the Average Range for these scores is 90-109]. It was noted that there were significant differences among his index scores, suggesting that his Full-Scale IQ score may not be the best representation of his abilities and that his abilities are unevenly developed. Specifically, his ability to use information in memory is significantly more developed than his verbal reasoning skills and nonverbal reasoning skills. Further, his ability to quickly process novel information is significantly more developed than his verbal and non-verbal reasoning abilities, as well as his ability to use information in memory. His visual motor speed and attention were noted as relative strengths. However, his ability to recognize relationships between objects or concepts, as well as his non-verbal abstract reasoning, were noted as relative weaknesses.

[Dr. Dreyer’s Report is part of the record in this case, but is under seal.]

Clearly, based on Dr. Dreyer’s report, Bates has significant mental health issues that bear

further investigation. His mental issues would have been significant in mitigation. Trial counsel

were clearly deficient in not making use of Dr. Dreyer’s findings or in continuing to investigate

this issue. No rational trial strategy would include not using a capital defendant’s intellectual

deficiencies in mitigation.

 

 

 

 

 

33

PROPOSITION OF LAW NO. VIII

THE TRIAL COURT ABUSED ITS DISCRETION TO BATES’ PREJUDICE BY VIOLATING HIS OHIO REVISED CODE §2929.03(D)(1) STATUTORY RIGHT TO MAKE AN UNSWORN STATEMENT DURING THE SENTENCING PHASE OF HIS CAPITAL MURDER TRIAL WHEN IT DID NOT HONOR HIS REQUEST TO HAVE HIS COURT-APPOINTED ATTORNEYS READ THE UNSWORN STATEMENT TO THE JURY.

Mr. Bates, through counsel, requested that the trial court allow his trial attorneys to read

his unsworn statement to the jury during the mitigation sentencing phase of the trial. (T. Vol. 19,

pp. 978-981). His trial counsel argued that it was within the court’s discretion by arguing it

preserved his right to fully present all mitigation information in the most effective manner in his

death penalty case. Defense counsel argued that such a method for delivering the unsworn

statement would be similar to an individual who had trouble communicating or was mute and

could better communicate through a computer-assisted device or audio program. (T. Vol. 19, p.

980). The trial court denied the request by stating that Mr. Bates did not present as handicapped

or unable to communicate, and that the jury had the right to evaluate his credibility while making

the unsworn statement himself. (T. Vol. 19, pp. 979-981)

Over time it has become clear that the law in Ohio gives a death penalty defendant a right

to make an unsworn statement to the jury in an effort during sentencing to save his life. Ohio

Revised Code §2929.03(D)(1). This Court has recognized this fundamental mitigation right by

holding that a capital defendant has “great latitude in a sentencing hearing under Ohio Revised

Code §2929.04(C), and technical rules of evidence cannot be used to exclude otherwise proper

34

mitigating evidence.” State v. Green, 67 Ohio St.3d 465, 479, 620 N.E.2d 50 (1993); see also

Green v. Georgia, 442 U.S. 95, 97, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1999). In this regard, a trial

court does not abuse its discretion unless it acts arbitrarily, unreasonably or unconscionably. See

State v. Adams, 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 404 N.E.2d 144 (1980).

In State v. Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284, the Ohio Supreme Court held that

a trial court did not abuse its discretion in denying the death penalty defendant’s motion to make

his unsworn statement in a question posed by his attorney and answers provided by the defendant

(a question and answer format). However, importantly, the Court held that the trial court would

have acted within its discretion by allowing the defendant to use a question and answer format in

making the unsworn statement. Id. This Court stressed that a defendant’s unsworn statement is

often a critical part of defense mitigation. Id. at 25. See State v. Mapes, 19 Ohio St.3d 108, 120,

19 OBR 318, 484 N.E.2d 140 (1985). “In many capital proceedings, counsel’s assistance can be

very helpful in directing a defendant’s focus in making an unsworn statement. This is

particularly true when a defendant’s low intelligence or other mental deficiencies hinder his

ability to present an unsworn statement. Thus, we hold that a trial court may, in its discretion,

permit a capital defendant to make an unsworn statement under Ohio Revised Code

§2929.03(D)(1) using a question and answer format.” Id. 25, 26.

In this case, the trial court was well within its discretion to have permitted defense

counsel to have read Mr. Bates’ unsworn statement in order to provide the most effective means

of asking the jury to spare his life by hearing his mitigation delivered most persuasively by the

35

attorney. With the rules of evidence relaxed regarding the unsworn statement which could not be

cross-examined provided the real need to analyze Bates’ credibility. With the ultimate price of

losing his life on the line, Mr. Bates should have been permitted to have his attorneys read his

unsworn statement to the jury. Since the trial court had the discretion for this method of

communication, it abused its discretion by not allowing it.

36

PROPOSITION OF LAW NO. IX

A CAPITAL DEFENDANT’S RIGHT TO A RELIABLE SENTENCE IS VIOLATED WHEN THE TRIAL JUDGE FAILS TO PROPERLY WEIGH THE AGGRAVATING CIRCUMSTANCE AND THE MITIGATING FACTORS IN IMPOSING A SENTENCE OF DEATH. U.S. CONST. AMENDS. VIII; XIV; OHIO CONST. ART. I §§9,16.

Revised Code section 2929.03(F) requires the trial court or three judge panel, when it

imposes a sentence of death, to state in a separate opinion its specific findings as to the existence

of any mitigating factors set forth in division (B) of Revised Code section 2929.04, the existence

of any other mitigating factors, the aggravating circumstance the offender was found guilty of

committing, and the reasons that the aggravating circumstance was sufficient to outweigh the

mitigating factors. State v. Maurer, 15 Ohio St.3d 239, 473 N.E.2d 768 (1984). The trial court

issued such an opinion in this matter. (R. 343). That opinion contains errors that render the death

sentence in this case arbitrary and unreliable.

The trial court examined all the statutory mitigating circumstances, even though Mr.

Bates presented evidence as to the (B)(7) factor only. In State v. DePew, 38 Ohio St.3d 275,

289, 528 N.E.2d 542 (1988), this Court made it clear that if the defendant chooses to refrain from

raising some or all the mitigating factors available to him, those factors not raised may not be

referred to or commented upon by the trial court or the prosecution. But the trial court did

exactly that, going through each statutory mitigating factor. The trial court should have limited

its analysis to the mitigating factor raised by Mr. Bates.

Ohio’s statutory scheme for the imposition of the death penalty is a response to United

States Supreme Court decisions that require the death penalty to be imposed in a rational and

consistent manner. Eddings v. Oklahoma, 455 U.S 104, 111 (1982); Lockett v. Ohio, 438 U.S.

37

585 (1978). A state that permits the death penalty “has a constitutional obligation to tailor and

apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty.”

Godfrey v. Georgia 446 U.S. 420, 428 (1980); Barclay v. Florida, 463 U.S. 939, 958-59 (1983)

“Since Furman v. Georgia 408 U.S. 238 (1972), this Court’s decisions have made clear that the

States may impose this ultimate sentence only if they follow procedures that are designed to

assure reliability in sentencing determinations.” (Stevens, J., concurring).

To that end, discretion in sentencing by a jury or a three-judge panel is channeled to limit

the possibility that a death sentence will be imposed without thorough and proper consideration.

Gregg v. Georgia, 428 U.S. 153, 189 (1976). In Ohio, that consideration is defined as a

weighing of only the aggravating circumstances against the mitigating factors with a requirement

that the jury and the judge find, beyond a reasonable doubt, that the statutory aggravating

circumstance outweighs all the mitigating factors. R.C. §2929.03. In this case, the trial court

allowed improper considerations to tilt the balance in favor of death.

The trial court’s erroneous opinion violates the Fifth, Eighth and Fourteenth

Amendments’ guarantees firmly established in Lockett, supra; Eddings, supra; Hitchcock v.

Dugger, 481 U.S. 393 (1987); and Penry v. Lynaugh, 492 U.S. 302 (1989) and similar guarantees

made in Sections 9 and 16 of Article 1 of the Ohio Constitution.

Mr. Bates’ death sentence should be reversed.

38

PROPOSITION OF LAW NO. X

CUMULATIVE ERRORS DERPIVED GLEN BATES OF A FAIR TRIAL AND A RELIABLE SENTENCING HEARING.

Glen Bates has raised numerous errors worthy of this Court’s grant of relief both as to his

convictions and his death sentence. Each error, standing alone, is sufficient to warrant a reversal.

However, by viewing many errors together, this Court can discern that the cumulative impact of

those errors rendered Bates’ trial fundamentally unfair. Walker v. Engle, 703 F.2d 959, 963 (6th.

Cir. 1983). This Court must reverse Bates’ convictions and sentence.

The adequacy of the legally admitted evidence is only one factor for this Court to

consider in determining the influence that error had on a jury. As the Supreme Court stated in

Satterwhite v. Texas, 486 U.S. 249 (1988): “it is not whether the legally admitted was sufficient

to support” the verdict, but rather “whether the [prosecution] has proved ‘beyond a reasonable

doubt that the error complained of did not contribute to the verdict obtained.’” Satterwhite at

258-259. This Court’s review must also determine whether the cumulative effect of the errors

raised rendered Bates’ trial fundamentally unfair. Walker at 963. “We must reverse any

conviction obtained in a proceeding in which the cumulative impact of irregularities is so

prejudicial to a defendant that he is deprived of his fundamental right to a fair trial.”

Perhaps the most significant example of the prejudice resulting from the cumulative

impact of the errors in Bates’ trial was the failure of his counsel to introduce significant and

relevant mitigation evidence and prosecutorial misconduct. See Chambers v. Mississippi, 410

U.S. 284, 295 (1973); Beck v. Alabama, 447 U.S. 625, 627 (1980).

39

Bates incorporates the other Propositions of Law into this Proposition of Law. What

those issue show is that from the beginning Bates was destined to receive the death penalty.

The result of cumulative error mandates a new trial for Glen Bates. His convictions are

based upon cumulative error and denied him a fair trial and the right to due process. U.S. Const.

Amends. VI and XIV; Ohio Const. Art. 1, sections 5 and 16. Additionally, those same errors

render Bates death sentence unreliable and arbitrary. U.S. Const. Amends. VIII and XIV; Ohio

Const. Art. 1, sections 9 and 16.

40

PROPOSITION OF LAW XI

OHIO’S DEATH PENALTY LAW IS UNCONSTITUTIONAL. OHIO REV. CODE §§ 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04, AND 2929.05 DO NOT MEET THE PRESCRIBED CONSTITUTIONAL REQUIREMENTS AND ARE UNCONSTITUTIONAL ON THEIR FACE AND AS APPLIED TO GLEN BATES. U.S. CONST. AMENDS. V, VI, VIII, AND XIV; OHIO CONST. ART. I, §§ 2, 9, 10, AND 16. FURTHER, OHIO’S DEATH PENALTY STATUTE VIOLATES THE UNITED STATES’ OBLIGATIONS UNDER INTERNATIONAL LAW.

The Eighth Amendment of the United States Constitution and Section 9, Article 1 of the

Ohio Constitution explicitly prohibit the infliction of cruel and unusual punishment upon a

convicted criminal offender. The Eighth Amendment protections are applicable to the states

through the Fourteenth Amendment. Robison vs. California, 370 U.S. 600 (1960). The principle

underlying this prohibition, governmental respect for human dignity, must be this Court’s

guideline in determining whether a challenged punishment is constitutional, Furman vs. Georgia

(1972), 408 U.S. 238, rehearing denied (1972), 409 U.S. 902 (Brennan, J., concurring); Rhodes

vs. Chapman (1981), 452 U.S. 337; Trop vs. Dulles (1958), 356 U.S. 86.

The prohibition against cruel and unusual punishment promises to all that the state’s

power to punish will be exercised within the limits of civilized standards. Trop, supra. What

constitutes cruel and unusual punishment is not a static concept but rather a concept which “must

draw [its] meaning from the evolving standards of decency that mark the progress of a maturing

society”. (Id. at 101). This concept must be interpreted in a flexible and dynamic manner.

Punishment which is “excessive” constitutes cruel and unusual punishment. Coker vs.

Georgia (1977), 433 U.S. 584. A punishment is excessive if it (1) makes no measurable

41

contribution to acceptable goals of punishment and hence is nothing more than the purposeless

and needless imposition of pain and suffering; or (2) is grossly out of proportion to the gravity of

the offense. Coker, supra at 592. Thus, if the death penalty makes no measurable contribution

to acceptable goals of punishment or it if is disproportionate to the seriousness of the offense

committed, it is excessive and, therefore, unconstitutional.

Equal protection under the law, as guaranteed by the Fourteenth Amendment, requires

that similarly situated persons be treated similarly. This right extends to the protection against

cruel and unusual punishment.

“The high service rendered by the “cruel and unusual” punishment clause of the Eighth Amendment is to require legislatures to write penal laws that are even handed, nonselective, and not arbitrary, and to require judges to see to it that general laws are not applied sparsely, selectively, and spottily to unpopular groups. “

Furman, supra at 256 (Douglas, J., concurring). A death penalty imposed in violation of the

Equal Protection guarantee is cruel and unusual punishment.

Capital punishment, because it involves the taking of life, is qualitatively different from

other punishments. Furman, supra at 287 (Brennan, J., concurring). “The penalty of death

differs from all other forms of criminal punishment, not in degree but in kind.” Id. at 306).

(Stewart, J., concurring).

“[I]n assessing the cruelty of capital punishment…We are not concerned only with the ‘mere extinguishment of life’…But with the total impact of capital punishment from the pronouncement of judgment of death through the execution itself, both on the individual and on the society which sanctions its use.”

People vs. Anderson (Cal. 1972), 493 P. 2d 880, cert. denied, (1972), 406 U.S. 958.

42

The Eighth Amendment concept of cruelty is not a prohibition against all suffering, but it

is a prohibition against inflicting suffering greater than is necessary to serve the legitimate needs

underlying a compelling state interest of society. Generally, society tolerated that degree of

cruelty that is necessary to serve its legitimate needs. However, when the level of cruelty is

disproportionate to the crime and consequently does not serve the needs of society, courts must

find the punishment to be “cruel” within the meaning of the cruel and unusual punishment

clause. Robinson, supra.

The Ohio capital punishment scheme allows for imposition of the death penalty in an

arbitrary and discriminatory manner, in violation of the protections mandated in Furman and its

progeny. The virtually uncontrolled discretion of prosecutors in indictment decisions allows for

arbitrary and indiscriminatory imposition of the death penalty.

The United States Supreme Court’s decision in Woodson vs. North Carolina, 428 U.S.

280 (1976), made it clear that the fatal flaw of mandatory death penalty statutes is that without

specific standards, the process of deciding who is to be sentenced to death is shielded from

judicial review.

The right to life is a constitutionally protected fundamental right. Commonwealth vs.

O’Neal (Mass.1975), 327 N.E.2d 662; Roe vs. Wade, 410 U.S. 113, rehearing denied, (1973),

410 U.S. 959; Johnson vs. Zerbst (1938), 304 U.S. 458; Yick Wo vs. Hopkins (1886), 118 U.S.

356. The Fifth and Fourteenth Amendments to the Constitution state explicitly that neither the

43

United States Government nor any of the individual state governments may deprive a person of

his life without due process of law. “[A]side from its prominent place in due process clause

itself, the right to life is the basis for all other rights. In the absence of life all other rights do not

exist.” Commonwealth vs. O’Neal, supra at 688.

Due process guarantees prohibit the taking of life unless the state can show a legitimate

and compelling interest. O’Neal, supra at 668; Commonwealth vs. O’Neal II (Mass. 1975), 339

N.E.3d 676, 678 (Tauro, C.J., concurring); State vs. Pierre (Utah 1977), 572 P.2d 1338

(Maughan, J., concurring and dissenting), cert. denied (1978), 438 U.S. 882.

Due process and equal protection rights require that states not impose a capital sentence

through procedures that create a substantial risk of arbitrary and capricious application. Gregg

vs. Georgia (1976), 428 U.S. 153, rehearing denied, (1976), 429 U.S. 875 at 188 and 193-195;

Furman, 408 U.S. 255, 274 and 309. The Ohio scheme does not meet those requirements. For

example, by failing to require the conscious desire to kill or premeditation and deliberation as the

culpable mental state, R.C. §2903.01(B) and R.C. §2929.04(A)(7) run afoul of the Federal and

State constitutions. Nor does the Ohio Code require that imposition of death penalty only be

allowed after proof beyond all doubt.

Another deficiency is that the statutes do not require the state to prove the absence of any

mitigation factors and that death is the only appropriate penalty. The statutory scheme is also

unconstitutionally vague which can lead to arbitrary imposition of the death penalty. Moreover,

the statutes have impermissibly devalued the importance of mitigation because no methods exist

to ensure a proper “weighing and consideration” is accomplished. Because of these deficiencies,

44

the Ohio statutory scheme does not meet the requirements of Furman and its progeny.

The Ohio statutes also violate the mandates of the constitutional protections by requiring

proof of aggravating circumstances in the trial phase of capital trials. The United States Supreme

Court has approved schemes which separate the consideration of statutory aggravating

circumstances from the determination of guilt because of their ability to provide an

individualized determination and to narrow the category of defendants eligible for the death

penalty. See, Zant vs. Stephens (1983), 462 U.S. 861; Barclay vs. Florida (1983), 463 U.S. 939,

rehearing denied, (1983), 464 U.S. 874. Ohio’s statutory scheme cannot provide for these

constitutional safeguards.

By requiring proof of the aggravating specifications simultaneously with proof of guilt,

Ohio has effectively prohibited a sufficient individualized determination in sentencing as

required by post-Furman cases. See, Woodson, 428 U.S. at 961. The jury must be free to

determine whether death is appropriate punishment for a defendant. By not requiring the state

to establish guilt on the question of murder prior to the jury’s consideration of the aggravating

circumstances, the jury is unconstitutionally barred from making the necessary individualized

determination of appropriateness. This is especially prejudicial where, as in Ohio, the

consideration of aggravating circumstances is accomplished without consideration of any

mitigating factors.

The statutory scheme for capital felony murder also fails to comply with the requirements

set forth in Lowenfield vs. Phelps (1988), 484 U.S. 231, 98 L.E.2d 568, rehearing denied, (1988),

45

99 L.E.2d 286. Ohio’s scheme allows an aggravating circumstance (R.C. §2929.04(A)(7)) to

merely repeat an element of aggravated murder pursuant to R.C. §2903.01(B). No effective

narrowing is performed when a capital defendant is indicted for felony murder and the felony

murder specification. As a result, the scheme is unconstitutional.

Under commonly used penalty phase jury instructions, jurors do not understand their

responsibilities and apply inaccurate standards for their decisions. Researchers and scholars in

this area have begun developing empirical evidence that supports that contention. See Cho,

Capital Confusion: The Effect of Jury Instructions on the Decision to Impose Death, 85 J. Crim.

L. & Criminology 532, 549-557 (1994); Free v. Peters, 12 F.3d 700 (7th Cir. 1993). The

confusion amongst capital jurors violates federal and state constitutions. Because of those

deficiencies, Ohio’s statutory scheme does not meet the requirements of Furman and its progeny.

The Ohio scheme is also unconstitutional because it imposes an impermissible risk of

death on capital defendants who choose to exercise their right to a jury trial. A defendant who

decides to plead guilty or no contest to an indictment which contains one or more capital

specifications receives the benefit of having the trial court judge vested with the discretion to

dismiss the specifications “in the interest of justice.” Ohio Criminal Rule of Procedure 11(C)(3).

Accordingly, the capital indictment may be dismissed regardless of the presence of absence of

mitigation circumstances. No such corresponding provision exists if a capital defendant elects to

proceed to trial before a jury.

In Lockett vs. Ohio (1978), 438 U.S. 586, Justice Blackmun, in his concurring opinion,

46

found this discrepancy in Ohio’s statute to be a constitutional infirmity. Justice Blackmun stated

that this disparity in Ohio’s statute violated the United States Supreme Court’s pronouncement in

United States vs. Jackson (1968), 390 U.S. 570. (Id. at 617), and needlessly burdened the

defendant’s exercise of his rights to a trial by jury. Since the United States Supreme Court’s

decision in Lockett, the infirmity has not been cured, and Ohio’s statute remains unconstitutional.

Revised Code section 2929.03(D)(1)’s reference to “the nature and circumstances of the

aggravating circumstance” incorporates the nature and circumstances of the offense into the

factors to be weighed in favor of death. The nature and circumstances of an offense are,

however, statutory mitigating factors under R.C. §2929.04(B). Revised Code section

§2929.03(D)(1) makes Ohio’s death penalty weighing scheme unconstitutionally vague because

it gives the sentence unfettered discretion to weigh a statutory mitigating factor as an aggravator.

States must limit and channel the sentencer’s discretion with clear and specific guidance

to avoid arbitrariness in capital sentencing. Lewis v. Jeffers, 497 U.S. 764, 774 (1990); Maynard

v. Cartwright, 486 U.S. 356, 362 (1988). A vague aggravating circumstance fails to give that

guidance. Walton v. Arizona, 497 U.S. 639, 653 (1990), vacated on other grounds in Ring v.

Arizona, 536 U.S. 584 (2002); Godfrey, 446 U.S. at 428. Moreover, a vague aggravating

circumstance is unconstitutional whether it is an eligibility or a selection factor. Tuilaepa v.

California, 512 U.S. 967 (1994). The aggravating circumstances in R.C. §2929.04(A)(1)-(8) are

both.

Another aspect of the unconstitutionality of Ohio’s scheme concerns excessiveness and

47

disporportionality issues. The Ohio Revised Code, through provisions in §§2929.021 and

2929.03, requires reporting of some data to the Court of Appeals and the Ohio Supreme Court.

But there is a critical omission of a written life recommendation report for the panel. There are

also substantial doubts as to the adequacy of the information received after guilty pleas to lesser

offenses or after charge reductions at trial. Revised Code Section 2929.021 requires the reporting

of only minimal information on these cases. No system exists to adequately track the

information under the Ohio scheme. That prohibits adequate appellate review.

Adequate appellate review is a precondition to a finding that a state death penalty system

is unconstitutional. Zant at 884; 885; Barclay, supra at 958. Review must be based on a

comparison of similar cases and ultimately must focus on the character of the individual and the

circumstances of the crime. Id.

Adequate appellate review is undercut by the failure of the Ohio statutes to require the

jury recommending life imprisonment to identify the mitigating factors. Without this

information, no significant comparison of cases, there can be no meaningful appellate review.

The proportionality system in Ohio is also constitutionally flawed because of the method

used for case comparison. The Ohio Supreme Court in State vs. Steffen (1987), 31 Ohio St.3d

111, 509 N.E.2d 383, cert. denied, (1988), 485 U.S. 916, at paragraph one of the syllabus held

that “the proportionality review required by R.C. §2929.05(A) is satisfied by a review of those

cases already decided by the reviewing court in which the death penalty has been imposed.” By

only reviewing those cases in which death is imposed, the capital defendant is prevented from

48

receiving a fair proportionality review. Absent a significant comparison of cases, no meaningful

appellate review is possible. See State v. Murphy, 91 Ohio St.3d 516, 562, 747 N.E.2d 765, 813

(2001) (Pfeifer, J., dissenting) “When we compare a case in which the death penalty was

imposed only to other cases in which the death penalty was imposed, we continually lower the

bar of proportionality. The lowest common denominator becomes the standard.”

No meaningful manner exists in which to distinguish those capital defendants who are

deserving of the death penalty and those who are not. This violates the Fifth, Eighth and

Fourteenth Amendments to the United States Constitution.

The appropriateness analysis used by the Ohio courts of appeals and the Ohio Supreme

Court is also constitutionally infirm. R.C. §2929.05(A) requires the appellate courts of Ohio

determine the appropriateness of the death penalty in each capital case they review. The statute

directs the court to “affirm a sentence of death only if the particular court is persuaded from the

record that the aggravating circumstances the offender was found guilty of committing outweigh

the mitigating factors present in the case and that the sentence of death is the appropriate

sentence in the case.”

The Ohio Supreme Court and the courts of appeals have failed to follow the dictates of

the statute. The appropriateness review ultimately conducted in each case is very cursory. It

does not “rationally distinguish between those for whom it is not.” Spaziano vs. Florida (1984),

468 U.S. 447, 460. Any death sentence upheld on appeal under these circumstances does not

comport with the Fifth, Eighth and Fourteenth Amendments of the United States Constitution.

49

The Ohio scheme is also unconstitutional in that it fails to provide the sentencing

authority with an option to choose a life sentence when there are only aggravating circumstances.

By foreclosing the jury or three judge panel’s ability to return a life sentence unless aggravating

factors fail to outweigh the mitigating factors, Ohio’s statutes violate the Eighth and Fourteenth

Amendments to the United States Constitution and Sections 9 and 16, Article I, of the Ohio

Constitution and creates a mandatory death penalty. Merely concluding that the aggravating

circumstances outweigh the mitigating factors may be inadequate, as a jury or three judge panel

may still conclude that “a comparison of the aggravating factors with the totality of the

mitigating factors leaves it in doubt as to the proper penalty”, i.e., in doubt as to whether death is

the appropriate punishment in a specific case. Smith vs. North Carolina (1982), 459 U.S. 1056,

(Stevens, J., dissenting from denial of certiorari).

Under §2929.05 of the Revised Code of Ohio, courts affirming a death sentence in Ohio

are required to find that death is the only appropriate remedy, but the original sentencer has no

such statutory requirements, and they must. The jury or three judge panel must make this

decision and must make it in a fashion that will allow it to be reviewed objectively at the

appellate level. Due process requires that the same standards apply at both levels. Arbitrary

decisions are likely at the appellate level if courts make assumptions as to what the sentencer

considered.

The “fundamental issue” in a capital sentencing proceeding is this “determination of the

appropriate punishment to be imposed on an individual.” Spaziano vs. Florida (1984), 468 U.S.

50

447. The sentencer must “rationally distinguish between those individuals for whom death is an

appropriate sanction and those from whom it is not.” (Id. at 352). Appropriateness of the

penalty thus appears to be the core, an indispensable element of a constitutionally valid

sentencing scheme. Yet, Ohio’s laws do not provide the jury or three judge panel with an

opportunity to consider this.

INTERNATIONAL LAW VIOLATIONS

International law binds each of the states that comprise the United States. Ohio is bound

by international law whether found in treaty or in custom. Because Ohio’s death penalty scheme

violates international law, Glen Bates’ capital conviction and sentence cannot stand.

“International law is part of our law[.]” The Paqute Habana, 175 U.S. 677, 700 (1900).

A treaty made by the United States is the supreme law of the land. Article VI, United States

Constitution. Where state law conflicts with international law, the state law must yield. See

Zschernig v. Miller, 389 U.S. 429, 440 (1968). International law creates remediable rights for

United States citizens. Filartiga v.Pena-Irala, 630 F.2d 876 (2d Cir. 1980); Forti v. Suarez-

Mason, 672 F.Supp. 1531 (N.D. Cal. 1987).

The United States’ membership and participation in the United Nations (U.N.) and the

Organization of American States (OAS) creates obligations in all fifty states. Through the U.N.

Charter, the United States committed itself to promote and encourage respect for human rights

and fundamental freedoms. U.N. Charter, Art. 1(3). The United States bound itself to promote

human rights in cooperation with the U.N. U.N. Charter, Art. 55-56. The United States again

proclaimed the fundamental rights of the individual when it became a member of the OAS. OAS

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Charter, Art. 3.

The U.N. has sought to achieve its goal of promoting human rights and fundamental

freedoms through the creation of numerous treaties and conventions. The United States has

ratified several of those including: The International Covenant on Civil and Political Rights

(ICCPR) in 1992; the International Convention on the Elimination of All Forms of Racial

Discrimination (ICERD) in 1994; and the Convention Against Torture and Other Cruel, Inhuman

or Degrading Treatment or Punishment (CAT) in 1994. In ratifying those treaties, the United

States expressed its willingness to be bound by them. Pursuant to the Supremacy Clause, the

ICCPR; ICERD; and CAT are the supreme laws of the land.

Ohio is not fulfilling the United States’ obligations under those conventions. Rather,

Ohio’s death penalty scheme violates each conventions’ requirements and thus must yield to the

requirements of international law.

Both the ICPR and the ICERD guarantee equal protection of the law. ICCPR, Arts. 2(1),

3, 14, 26; ICERD Art. 5(a). The ICCPR further guarantees due process via Articles 9 and 14,

which include numerous consideration, such as: a fair hearing (Art. 14(1)); an independent and

impartial tribunal (Art. 14(1)); the presumption of innocence (Art. 14(2)); adequate time and

facilities for the preparation of a defense (Art. 14(3)(a)); legal assistance (Art. 14(3)(d)); the

opportunity to call and question witnesses (Art. 14(3)(e)); the protection against self-

incrimination (Art. 14(3)(g)); and the protection against double jeopardy (Art. 14(7)). However,

Ohio’s statutory scheme fails to provide equal protection and due process to capital defendants as

52

contemplated by the ICCPR and the ICERD.

The ICCPR speaks explicitly to the use of the death penalty. It guarantees the right to life

and provides that there shall be no arbitrary deprivation of life. Art. 6(1). It allows the

imposition of the death penalty only for the most serious offenses. Art. 6(2). Juveniles and

pregnant women are protected from the death penalty. Art. 6(5). Moreover, the ICCPR

contemplates the abolition of the death penalty. Art. 6(6). Several aspects of Ohio’s statutory

scheme allow for the arbitrary deprivation of life.

The ICERD, speaking to racial discrimination, requires that each state take affirmative

steps to end such discrimination at all levels. Art. 2. It requires specific action and does not

allow states to sit idly by when confronted with practices that are racially discriminatory. Ohio’s

statutory scheme imposes the death penalty in a racially discriminatory manner. A scheme that

sentences blacks and those who kill white victims more frequently and which disproportionately

places African-Americans on death row is in clear violation of the ICERD. Ohio’s failure to

rectify that discrimination is a direct violation of international law and of the Supremacy Clause

of the United States Constitution.

The ICCPR prohibits subjecting any person to torture or to cruel, inhuman, or degrading

treatment or punishment. Art. 7. Similarly, the CAT requires that states act to prevent torture,

which included any act by which severe mental or physical pain is intentionally inflicted on a

person for the purpose of punishing that person for an act committed. Art. 1-2. As administered,

Ohio’s death penalty inflicts unnecessary pain and suffering. Thus, it violates international law

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and the Supremacy Clause.

While conditions, reservations and understandings accompanied the United States’

ratification of the ICCPR, ICERD, and CAT, those conditions, reservations and understanding

cannot stand for two reasons. Article II, section 2 of the United States Constitution provides for

the advice and consent of two-thirds of the Senate when a treaty is adopted. However, the

Constitution makes no provision for the Senate to modify, condition or make reservations to

treaties. The Senate is not given the power to determine what aspects of a treaty the United

States will or will not follow. Their role is simply to advise and consent.

Thus, the Senate’s inclusion of conditions and reservations in treaties goes beyond its role

of advise and consent. The Senate is picking and choosing those items of a treaty that will bind

the United States and those that will not. That is the equivalent of a line-item veto, which is

unconstitutional. Clinton v. City of New York, 524 U.S 417, 438 (1998). In Clinton, the

Supreme Court specifically spoke to the enumeration of the President’s powers in the

Constitution in finding that the President did not possess the power to issue line-item vetoes. Id.

If it is not enumerated, the President lacks the power to do it. Id. Similarly, the Constitution

does not give power to the Senate to make conditions and reservations, picking and choosing

what aspects of a treaty will become law. Thus, the Senate lacks the power to do just that.

Therefore, any conditions or reservations made by the Senate are unconstitutional. See id.

The Vienna Convention on the Law of Treaties further restricts the Senate’s imposition

of reservations. It allows reservations unless: they are prohibited by the treaty; the treaty

provides that only specified reservations, not including the reservation in question, may be made;

54

or the reservation is incompatible with the object and purpose of the treaty. Art. 19(a)-(c). The

ICCPR specifically precludes derogation of Articles 6-8; 11; 15-16; and 18. Under the Vienna

Convention, the United States’ reservations to the ICCPR articles cited above are invalid under

the language of the ICCPR. See id. Further, the ICCPR’s purpose is to protect the right to life

and any reservation incompatible with that purpose violates the Vienna Convention. Thus, the

United States’ reservations cannot stand under the Vienna Convention as well.

The Senate indicated that the ICCPR is not self-executing. However, the question of

whether a treaty is self-executing is left to the judicial branch. Frolova v. Union of Soviet

Socialist Republics, 761 F.2d 370 (7th Cir. 1985); Restatement (Second) of Foreign Relations

Law of the United States, Sec. 154(1) (1965). It is the function of the judiciary to say what the

law is. Marbury v. Madison, 5 U.S. 137 (1803).

Further, requiring the passage of legislation to implement a treaty necessarily implicates

the participation of the House of Representatives. By requiring legislation to implement a treaty,

the House can effectively veto a treaty by refusing to pass the necessary legislation. However,

Article II, clause 2 of the Constitution excludes the House from the treaty process. Therefore,

declaring a treaty to be not self-executing gives power to the House of Representatives not

contemplated by the Constitution. Thus, any declaration that a treaty is not self-executing is

unconstitutional. Clinton, at 438.

International law is not merely discerned in treaties, conventions and covenants.

International law “may be ascertained by consulting the works of jurists, writing professedly on

public law; or by the general usage and practice of nations; or by judicial decision recognizing

55

and enforcing that law.” United States v. Smith, 18 U.S. 153, 160-61 (1820). Regardless of the

source “international law is a part of our law.” The Paquete Habana, 75 U.S at 700.

The judiciary and commentators recognize the Universal Declaration of Human Rights

(DHR) as binding international law. The DHR “no longer fits into the dichotomy of ‘binding

treaty’ against ‘non-binding pronouncement,’ but is rather an authoritative statement of the

international community.” Filartiga, 630 F.2d at 883.

The DHR guarantees equal protection and due process. Arts. 1, 2, 7, 11; recognizes the

right to life, Art. 3; prohibits the use of torture or cruel, inhuman or degrading punishment, Art.

5; and is largely reminiscent of the ICCPR. Each of the guarantees found in the DHR are

violated by Ohio’s statutory scheme. Thus, Ohio’s statutory scheme violate customary

international law as codified in the DHR and cannot stand.

However, the DHR is not alone in its codification of customary international law. Smith

directs courts to look to “the works of jurists, writing professedly on public law; or by the

general usage and practice of nations; or by judicial decision recognizing and enforcing that law”

in ascertaining customary international law. Smith at 160-61. Ohio should be cognizant of the

fact that its statutory scheme violates numerous declarations and conventions drafted and

adopted by the United States and the OAS, which may, because of the sheer number of countries

that subscribe to them, codify customary international law. Id.

Ohio’s statutory scheme is in violation of customary international law.

The Eighth Amendment of the United States Constitution and Section 9, Article I, of the

56

Ohio Constitution prohibit infliction of cruel and unusual punishment.

The Fifth and Fourteenth Amendments of the United States Constitution, as well as

Sections 2 and 16, Article I, of the Ohio Constitution, provide guarantees to equal protection of

law and due process. These guarantees are further safeguards against imposition of the death

penalty, even if it is not found to be inherently cruel and unusual.

Due process guarantees that, where fundamental rights are at risk, the life of the

defendant may not be taken without substantive safeguards first being met. Governmental action

cannot be justified unless the interest to be served is a compelling governmental interest.

Further, that interest must be promoted through use of the lease restrictive means that can

effectively serve the State’s interest. Moreover, the State has failed to show that a less interest

means, such as life imprisonment, could not effectively serve the interest the State has asserted

as justifying the death penalty. Due process also guarantees fair proceedings through which

sentencing is accomplished. Where this occurs, the death penalty, as applied, constitutes cruel

and unusual punishment.

Ohio’s statutory scheme under which the death penalty is authorized fails to ensure that

arbitrary and discriminatory imposition of the death penalty will not occur. The procedures

utilized under this scheme actually promote the death penalty contained in R.C. §§2903.01,

2929.02, 2929.021, 2929.022, 2929.03, 2929.04 and 2929.05 violate the Fifth, Sixth, Eighth and

Fourteenth Amendments to the United States Constitution; Sections 2, 9, 10 and 16, Article I of

the Ohio Constitution; various international treaties and conventions; and customary

international law. The death sentence in this case must be reversed.

57

PROPOSITION OF LAW NO. XII

OHIO’S CAPITAL SENTENCING STATUTES ARE UNCONSITITUONAL UNDER THE RECENT DECISION IN HURST V. FLORIDA, __ U.S __, 136 S.CT. 616 (2016) WHICH HELD THAT FLORIDA’S CAPITAL SENTENCING LAWS VIOLATED THE SIXTH AMENDMENT’S RIGHT TO TRIAL BY JURY BECAUSE THOSE STATUTES REQUIRED THE JUDGE, NOT THE JURY, TO MAKE THE FACTUAL DETERMINATIONS NECESSARY TO SUPPORT A SENTENCE OF DEATH.

In Hurst v. Florida, ___U.S.__, 136 S.Ct. 616 (2016), the United States Supreme Court

held that Florida’s capital sentencing laws violated the Sixth Amendment’s right to trial by jury

because those statutes required the judge, not the jury, to make the factual determinations

necessary to support a death sentence. Due to the similarities between Florida’s capital

sentencing laws and Ohio’s Bates submits that pursuant to Hurst, this Court should find Ohio’s

capital sentencing scheme unconstitutional and dismiss the capital components of this case.

In Walton v. Arizona, 497 U.S. 639, 111 L.Ed.2d 511, 110 S.Ct. 3047 (1990), the

Supreme Court held that Arizona’s sentencing scheme was compatible with the Sixth

Amendment because the additional facts found by the judge qualified as sentencing

considerations, not “elements of the offense of capital murder.” Walton at 649. Within ten years

of the Walton decision, the analysis of the Sixth Amendment right to a jury trial and jury finding

shifted dramatically. In a line of case which resulted in much of Ohio’s felony sentencing

statutes ruled unconstitutional, the Supreme Court focused upon the impact of judicial fact-

finding in sentencing and how in many instances then-current protocols were contrary to the

Sixth Amendment. See, Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed.2d 435, 120 S.Ct. 2348

(2000); Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). In Blakely v.

Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the Court held that state

58

sentencing procedures that permitted the judge to make factual findings to impose a sentence

higher than the statutory maximum did not comply with the Sixth Amendment. In United States

v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Court held that the

Apprendi and Blakely decisions applied to the United States Sentencing Guidelines and that

under the Sixth Amendment, any fact other than a prior conviction that was necessary to support

a sentence exceeding the maximum authorized by facts established by a plea of guilty or a jury

verdict had to be admitted by the defendant or proved to a jury beyond a reasonable doubt.

In this case, the statutory maximum sentence for aggravated murder is life in prison.

Death can only be imposed after specific factual findings, which under Ohio capital punishment

statutes are facts determined by a judge. Accordingly, Ohio’s capital punishment scheme

violates the Sixth Amendment. Hurst, supra.

In Apprendi, the Court held that the Sixth Amendment does not permit a defendant to be

“exposed…to a penalty exceeding the maximum he would receive if punished according to the

facts reflected in the jury verdict alone.” Apprendi at 483. Apprendi held that this proscription

controlled even if the State characterizes the additional findings made by the judge as

“sentencing factors.” Apprendi at 492. Thus, Apprendi made clear that any fact that exposes the

defendant “to a greater punishment than that authorized by the jury’s guilty verdict” must be

submitted to a jury. In Ring, the Court addressed the issue in the context of capital punishment

and held that the Sixth Amendment’s jury trial guarantee, made applicable to the states by the

Fourteenth Amendment, required that the aggravating factor determination be entrusted to the

jury. The Court concluded that the Walton and Apprendi decisions were irreconcilable because a

59

capital defendant was entitled to the same Sixth Amendment protections extended to defendants

generally. Because Arizona’s enumerated sentencing factors operated as the functional

equivalent of an element of a greater offense, any enhancement above the standard sentence for

that offense required that they be found by a jury to satisfy the Sixth Amendment. The Court

overruled Walton to the extent that it allowed the sentencing judge to find and aggravating

circumstance necessary to impose the death penalty.

In Hurst, the United States Supreme Court held that Florida’s capital sentencing laws

violated the Sixth Amendment’s right to trial by jury because those statutes required the judge,

not the jury, to make the factual determinations necessary to support a death sentence. Due to

the similarities between Florida’s capital sentencing laws and Ohio’s Bates submits that pursuant

to Hurst, this Court should find Ohio’s capital sentencing scheme unconstitutional and dismiss

the capital components of this case.

In Florida, first-degree murder is a capital felony, but the maximum sentence a capital

defendant may receive based solely on that conviction is life imprisonment. Fla. Stat.

775.082(1). The defendant will receive the death penalty only after an additional sentencing

proceeding “results in findings by the court that such person shall be punished by death.” Id.

Otherwise, the defendant is punished by life imprisonment without parole. Id.

Accordingly, after Hurst was found guilty of first-degree murder, the judge conducted an

evidentiary hearing before the jury. Hurst at 620. At the conclusion of that hearing, the jury

rendered and “advisory sentence” of death without specifying the factual basis of its

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recommendation. Id. Under Florida law, the trial court must give the jury’s recommendation

“great weight,” but must independently weigh the aggravating and mitigating circumstances

before entering a sentence of life imprisonment or death. Id. The trial court in Hurst did that,

and imposed a death sentence. Id.

On post-conviction review, the Florida Supreme Court vacated the sentence for reasons

that are not relevant here. Id. At Hurst’s re-sentencing, a jury again recommended death and the

judge so sentenced, basing that decision on the independent findings of aggravating

circumstances as well as the jury’s recommendation. Id.

The United States Supreme Court accepted certiorari of Hurst’s appeal to resolve the

tension between Ring and its earlier decisions Hildwin v. Florida, 490 U.S 638, 109 S.Ct. 2055,

104 L.Ed.2d 728 (1989) concluding that the Sixth Amendment does not require that the specific

findings authorizing the imposition of a death sentence be made by the jury, and Spaziano v.

Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984) which held that Florida’s

sentencing structure did not violate the Sixth or Eighth Amendments by concluding that the

jury’s sentencing recommendation in a capital case is only advisory and that the trial court is to

conduct its own weighing of the aggravating and mitigating circumstances notwithstanding the

recommendation of the jury. In Ring, the Supreme Court held that the Sixth Amendment

requires a jury to find any fact necessary to qualify a capital defendant for a death sentence.

Hurst at 621. Although Ring had not expressly overruled Hildwin and Spaziano, cases which

approved the constitutionality of Florida’s capital statutes, Ring’s holding seemed to compel

such an outcome. Hurst laid the confusion to rest, holding that Florida’s law “violates the Sixth

61

Amendment in light of Ring.” Hurst at 620.

In Hurst the Court stated that, like Arizona, “Florida does not require the jury to make the

critical findings necessary to impose the death penalty. Rather, Florida requires a judge to find

those facts.” Hurst at 622. The opinion goes on to say that “Although Florida incorporates and

advisory jury verdict that Arizona lacked, we have previously made clear that this distinction is

immaterial.” Hurst at 622. Because “the maximum punishment Timothy Hurst could have

received without any judge-made findings was life in prison without parole,” and because “a

judge increased Hurst’s authorized punishment based on her own factfinding,” the Court held

that “Hurst’s sentence violates the Sixth Amendment.” Hurst at 622.

In so holding, the Court rejected Florida’s argument that the jury’s recommendation

necessitated the finding of an aggravating circumstance, noting “the Florida sentencing statute

does not make a defendant eligible for death until ‘findings by the court that such person shall be

punished by death.’” Hurst at 622, (quoting Fla. Stat. 775.082(1)) (emphasis in the opinion).

Because “the trial court alone must find “the facts…that sufficient aggravating circumstances

exist’ and ‘that there are insufficient mitigating circumstances to outweigh the aggravating

circumstances,’” the Court found that a Florida jury’s function is solely advisory and does not

satisfy the constitutional standard outlined by Ring. Hurst at 622 (quoting Fla. Stat. 921.141(3))

(emphasis in the original).

Ohio’s death penalty sentencing scheme is like Florida’s in several significant ways.

Pursuant to R.C. §2929.03(B), a jury an Ohio capital case must find the defendant guilty or not

62

guilty of the principal charge and then it must also determine “whether the offender is guilty or

not guilty of each specification.” The jury is instructed that each aggravating circumstance

“shall be proved beyond a reasonable doubt in order to support a guilty verdict on the

specification.” Id.

If the jury finds a defendant guilty of both the charge and one or more of the

specifications, then, as in Florida, the trial court conducts a sentencing hearing in which:

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 the 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 shall hear the statement, if any, of the offender, and the arguments, if any, of counsel for the defense and prosecution, that are relevant to the penalty that should be imposed on the offender.

R.C. §2929.03(D)(1).

During this sentencing hearing, the defendant has the burden of introducing evidence of

any mitigating factors, but the prosecution has the ultimate burden of “proving, by proof beyond

a reasonable 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.” Id.

After the sentencing hearing, if the jury unanimously finds that the prosecutor has met

this burden, “the jury shall recommend to the court that the sentence of death be imposed on the

offender.” R.C. §2929.03(D)(2). That finding is not required to rendered in writing and does not

63

set forth the factual findings underlying the jury’s recommendation. Once an Ohio jury makes a

death sentence recommendation, then, as in Florida, the Ohio trial court must independently

consider “the relevant evidence raised at trial, 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. R.C. §2929.03(D)(3). The trial court can then sentence a

defendant to death if it finds “by proof beyond a reasonable doubt…that the aggravating

circumstances the offender was found guilty of committing outweigh the mitigating factors.” Id.

As in Florida, the Ohio trial court, when it imposes a death sentence, 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 committing, and the reasons why the aggravating circumstances the offender was found guilty of committing were sufficient to outweigh the mitigating factors.

R.C. §2929.03(F).

In sum, a jury in Ohio has the responsibility of finding that one or more aggravating

circumstances exist a part of the verdict in a capital defendant’s trial; however, that not the

completion of the capital sentencing process. Rather, under Ohio law, the jury must then

conduct a weighing process after the sentencing hearing. Once the weighing process is

complete, the jury may make a death sentence recommendation to the trial court. Because the

Court in Hurst emphasized the language in the Florida statute that defined the jury’s decision as

advisory in nature, Ohio’s scheme that similarly classifies a jury’s decision as a recommendation

violates the Sixth Amendment right to trial by jury. Like Hurst, the judge makes the final

decision after obtaining the jury’s non-binding recommendation. In Hurst, the Court broadly

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criticized the Florida scheme because the jury “does not make specific factual findings with

regard to the existence of mitigating or aggravating circumstances. A Florida court no more has

the assistance of a jury’s findings of fact with respect to sentencing issues than does a trial judge

in Arizona.” Hurst at 622 (quoting Walton). The Court’s opinion not only pointed out the

absence of factual findings about the existence of mitigating or aggravating factors, but also the

absence of any findings about the weighing of those factors. Id. Similarly, the Ohio statute does

not require the jury to make any specific findings of fact about mitigating factors, nor does it ask

the jury to make any specific findings about their balancing of the mitigating and aggravating

factors. Therefore, the judge must implement a sentence without those critical findings that the

Sixth Amendment mandates are within the province of the jury alone. Absent those factual

findings, and given the advisory nature of the jury’s sentencing determination, the Ohio death

penalty scheme suffers from the same constitutional deficiencies as the scheme in Florida and

should be invalidated.

In State v. Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, this Court

considered the implications of the Hurst decision on Ohio’s death penalty. After discussing the

differences between Ohio’s death penalty statutes and those of Arizona and Florida, this Court

found that Ohio’s statutes constitutional. Belton at 176.

Unlike Belton, Bates did not waive his right to a jury trial. While the Florida statute does

permit the trial court to impose death even if the jury does not recommend death, and Ohio

permits the trial court to impose death only if the jury recommends it, Ohio, like Florida, requires

the trial court judge to make findings of fact before imposing the sentence. It is true, the jury

65

decides if a defendant is eligible for imposition of the death penalty by rendering verdicts on the

capital specifications. But the guilty verdicts on the capital specifications, standing alone, do not

provide the trial court with the authority to impose death. In Ohio death can only be imposed

after the jury determines whether the aggravating circumstances outweigh the mitigating factors

beyond a reasonable doubt. The jury does not make findings of fact when providing its

recommendation to the trial judge and there is no way to know what factual findings the jury

relied upon in concluding the aggravating circumstances outweighed the mitigating factors. It is

the failure of the jury to make such factual findings that renders Ohio’s death penalty

unconstitutional. The jury does not issue factual findings for the trial court to then weigh and

make an independent determination. It is not the weighing process that implicates the Sixth

Amendment, it is the trial court making its own findings with the trial court then uses to conduct

its own independent weighing of aggravation and mitigation.

The sentencing entry confirms the trial court’s ‘independent deliberation.” The trial

court’s entry details the aggravating circumstance and the mitigating factors. The jury may have

relied upon some of the same facts and the jury may not have. The only specific facts which the

record confirms were found to support the aggravating circumstance were the facts found by the

trial court. Likewise, the trial court made specific factual findings regarding the mitigating

factors. The jury may or may not have made those findings. Death was imposed upon Glen

Bates based upon the trial court’s independent factual determinations as set forth in the

sentencing memorandum. Those findings were not made by the jury. The Sixth Amendment

requires that the specific findings authorizing the imposition of the death penalty be made by the

jury. Accordingly, Bates’ death sentence must be vacated.

66

PROPOSITION OF LAW NO. XIII

IT VIOLATES THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION NOT TO INSTRUCT THE JURY THAT MERCY CAN BE CONSIDERED DURING ITS PENALTY PHASE DELIBERATIONS.

The defense filed a motion with the trial court requesting that the jury be instructed to

consider mercy during its penalty phase deliberations. (R. 46). The trial court overruled that

motion. (R. 213).

The fundamental issue in a capital sentencing proceeding involves the determination of

the appropriate punishment to be imposed on an individual. Spaziano v. Florida, 468 U.S. 447

(1984). The sentencer must rationally distinguish between those individuals for whom death is

an appropriate sanction and those for whom it is not. Spaziano at 460. Appropriateness of the

penalty is the indispensable element of a constitutionally valid sentencing process.

The United States Supreme Court’s opinion in Lockett v. Ohio, 438 U.S 586 (1978)

established a defendant’s right to permit the sentencer to use any factors it saw fit in deciding

whether a defendant merits leniency. Chief Justice Burger explained that nothing prevented the

sentencer from considering any aspect of a defendant’s character or record or any circumstances

of the offense as an independent mitigation factor. Lockett at 607. That principle permits the

jury to considers sympathy or mercy in its sentencing decision. In Gregg v. Georgia, 428 U.S.

153, 190 (1976), the Supreme Court endorsed the propriety of permitting the jury to consider

mercy for the defendant.

In Eddings v. Oklahoma, 455 U.S 104 (1982), the Court declared that the sentencer may

not be precluded from considering any relevant mitigating factors offered by the defendant.

Eddings noted that the Eight Amendment prohibited not only legislative exclusion of mitigating

67

evidence but also exclusion of any relevant mitigating evidence by the sentencer. The Supreme

Court admonished all lower courts not to deny consideration of any relevant mitigating evidence.

“Mercy” fits within the definition of relevant mitigating factors under Eddings and, therefore,

must be considered by the sentencer.

Principles of due process and the prohibition of cruel and unusual punishment require

that the jury make an individualized sentencing determination. Zant v. Stephens, 462 U.S. 862

(1983); Barclay v. Florida, 463 U.S. 939 (1983). An individualized sentencing decision requires

that the jury be given a vehicle for expressing the view that the defendant “does not deserve to be

sentenced to death.”; that “he was not sufficiently culpable to deserve the death penalty.” Penry

v. Lynaugh, 492 U.S. 302 (1989). In Penry, the Court approved a procedure that allowed a jury

to recommend mercy based on mitigation evidence introduced by a defendant. Indeed, the jury

must be free to determine what punishment is appropriate and to give a “reasoned moral

response to [the] mitigating evidence.” Penry at 323. Compare California v. Brown, 479 U.S.

538 (1987) (In Justice O’Connor’s concurrence, which gives the opinion of four other Justices

the force of law, there is language and an analysis consistent with the notion that “mercy” merits

independent consideration as a mitigating factor since it relates to a “reasonable moral response”

to the defendant’s background and character).

In State v. Rogers, 28 Ohio St.3d 427, 434, 504 N.E.2d 52, 58 (1986), this Court said,

“defense counsel certainly has the right to plead for mercy and, indeed, has the very duty to

cause a jury to ‘confront both the gravity and the responsibility of calling for another’s death.’”

In State v. Zuern, 32 Ohio St.3d 56, 63-64, 512 N.E.2d 585, 593 (1987), this Court rejected the

68

argument that “the imposition process does not permit the extension of mercy” saying “a jury is

ot precluded from extending mercy to a defendant.”

This Court then went in a different direction in State v. Lorraine, 66 Ohio St.3d 414, 417

(1993), finding that a capital defendant is not entitled to an instruction that mercy is a mitigating

factor. It is time to reexamine that ruling considering more recent United States Supreme Court

cases, or to at least limit its application.

Supreme Court jurisprudence contains a virtually unbroken line of cases that say the

Constitution does not permit limitations on mitigation. Ohio learned that lesson in its post-

Gregg statutory scheme, see Gregg v. Georgia, 428 U.S. 153 (1976), a scheme that was struck

down in Lockett, supra. The infirmity with the law in Lockett was that it listed only three

statutory mitigators. If the defendant was found guilty of capital murder and at least on

aggravator, but did not satisfy one of the three statutory mitigating circumstances, then the death

penalty was the result. The Court struck that down, holding that the Constitution does not permit

such limitations on mitigation. Lockett said that given the imposition of death by a public

authority is so profoundly different from all other penalties, an individualized decision is

essential. The need for treating each defendant in a capital case with that degree of respect due

the uniqueness of the individual is far more important than in non-capital cases, where a variety

of flexible techniques, such as probation, parole and furloughs may be available to modify an

initial sentence of confinement. Lockett said that the nonavailability of corrective or modifying

mechanisms with respect to an executed capital sentence underscores the need for individualized

consideration as a constitutional requirement in imposing the death sentence.

69

The epitome of that principle is the Court’s decision in Hitchcock v. Dugger, 481 U.S.

393 (1987). In that case, Hitchcock’s lawyer referred to various considerations, some of which

were the subject of factual dispute, that would make a death sentence inappropriate. Hitchcock’s

youth (20 at the time of the murder); his lack of significant prior criminal activity or violent

behavior; the difficult circumstances of his upbringing; his potential for rehabilitation; and his

voluntary surrender to authorities. Although counsel stressed the first two considerations, which

related to mitigating circumstances specifically enumerated in the statute, he told the jury that in

reaching its sentencing decision, it was to “look at the overall picture…consider everything

together…consider the whole picture, the whole ball of wax.” In contract, the prosecutor told the

jury that it was “to consider the mitigating circumstances and consider those by number,” and

then went down the statutory list, item by item, arguing that only one (Hitchcock’s youth) was

applicable. The trial judge instructed the jurors “on the factors in aggravation and mitigation that

you may consider under our law.” He then instructed them that “the mitigating circumstances

which you may consider shall be the following” and then the judge listed the statutory mitigating

circumstances.

A unanimous Supreme Court reversed the limitations placed by the trial court, and held

that Hitchcock’s right to relief under the Constitution “could not be clearer.”

We think it could not be clearer that the advisory jury was instructed not to consider, and the sentencing judge refused to consider, evidence of nonstatutory mitigating circumstances, and that the proceedings therefore did not comport with the requirements of Skipper v. South Carolina, 476 U.S. 1 (1986); Eddings v. Oklahoma, 455 U.S. 104 (1982); and Lockett v. Ohio, 438 U.S. 586 (1978) (plurality opinion). Respondent has made no attempt to argue this or that it had no effect on the jury or the sentencing judge. In the absence of a showing that the error was harmless, the exclusion of mitigating evidence of the sort at issue here renders the death sentence invalid.

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Hitchcock at 398-399.

This Court’s decision in Lorraine virtually ended mercy instructions because mercy is not

one of the mitigating factors set forth in R.C. 2929.04(B). Prior to Lorraine, this Court held that

an Ohio jury is not precluded from extending mercy to a defendant. See Zuern, supra. A jury

cannot consider that which they are not told they can consider.

The rationale in Kansas v. Marsh, 548 U.S. 163 (2006) also supports a mercy jury

instruction. In deciding whether the Constitution permitted Kansas to allow a death sentence

when the aggravating and mitigating factors are in equipoise, quoted favorably a Kansas jury

instruction on mercy: “The appropriateness of the exercise of mercy can itself be a mitigating

factor you may consider in determining whether the State has proved beyond a reasonable doubt

that the death penalty is warranted.”

Justice Thomas went on to explain that mercy as a mitigating factor is important “because

it ‘alone forecloses the possibility of Furman-type error as it’ eliminate[s] the risk that a death

sentence will be imposed in spite of facts calling for a lesser penalty.”

The Supreme Court once again endorsed the concept of a capital jury’s consideration in

Kansas v. Carr, 577 U.S.__, 136 S. Ct. 633 (2016).

Ohio, like Kansas, is a “weighing” state, therefore a mercy instruction is required to

foreclose constitutional error. Marsh also compels the conclusion that the State may not argue

that mercy cannot be considered by jurors during penalty phase deliberations.

This Court’s consideration of a jury instruction regarding mercy in State v. Jackson, 141

71

Ohio St.3d 171, 238-240, 2014-Ohio-3703, is distinguishable. There, the defendant was asking

that the jury be instructed that mercy is a mitigating factor. This Court found no requirement that

the jury be instructed mercy is a mitigating factor. Here, the request was that the jury be

instructed that they could consider mercy in their deliberations. That instruction should have

been allowed.

The failure to allow the instruction that the jury could consider mercy violates Mr. Bates’

Federal and State constitutional rights to effective assistance of counsel; due process of law;

equal protection of the law; confrontation of the State’s evidence against him; and freedom from

cruel and unusual punishment. U.S. Const. Amends. V; VI; VIII; IX; and XIV; Ohio Const. Art.

I, 1, 2, 5, 9, 10, 16 and 20. Mr. Bates has a Federal Constitutional due process and Eighth

Amendment right to have mercy considered as a mitigating factor in Ohio. The failure to allow

the instruction requires a new sentencing phase be conducted

72

PROPOSITION OF LAW NO. XIV

IT IS A VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION, ARTICLE 1, SECTIONS 1,2,9, AND 16, TO UPHOLD A SENTENCE OF DEATH WHEN AN INDEPENDENT WEIGHING OF THE AGGRAVATING CIRCUMSTANCES VERSUS THE MITIGATING FACTORS DEMONSTRATES THAT THE AGGRAVATING CIRCUMSTANCES DO NOT OUTWEIGH THE MITIGATING FACTORS BEYOND ANY REASONABLE DOUBT, AND THE DEATH SENTENCE IS NOT APPROPRIATE.

Glen Bates should not be on death row. His low IQ, coupled with his background

combined to produce someone convicted of terrible crimes. But all aggravated murders with

capital specifications are terrible crimes. Bates poses no threat to society after a 25- or 30-year

term of incarceration or even a life without parole sentence.

The trial court issued a separate opinion weighing the aggravating circumstances against

the mitigating factors. The trial court found that the aggravating circumstance outweighed the

mitigating factors beyond any reasonable doubt and imposed a death sentence. But the trial court

did not conduct individualized sentencing. Had the trial court looked at the individual, a

different result would have occurred.

Capital sentencing requires individualized consideration of the offender. That means a

statute cannot be drafted to cover every possible mitigating factor. In fact, the United States

Supreme Court’s decision in Hitchcock v. Dugger, 481 U.S. 393, stands for the proposition that

mitigation cannot be limited by statutory criteria.

Revised Code section 2929.05 charges this Court with the obligation to “review on

appeal the sentence of death at the same time that they review the other issues of the case.”

The Court:

73

Shall review the judgment in the case and the sentence of death imposed by the court…in the same manner that they review other criminal cases, except that they shall review and independently weigh all of the facts and other evidence disclosed in the record in the case, and consider the offense and the offender to determine whether the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors in the case, and whether the sentence of death is appropriate. In determining whether the sentence of death is appropriate, the court shall consider whether the sentence is excessive or disproportionate to the penalty imposed in similar cases. They shall also review all of the facts and other evidence to determine if the evidence supports the finding of the aggravating circumstances the trial jury…found the offender guilty of committing, and shall determine whether the sentencing court properly weighed the aggravating circumstances the offender was found guilty of committing, and the mitigating factors.

As a matter of federal constitutional law, a proportionality review is not required. Pulley

v. Harris, 465 U.S. 37, (1984). Ohio, however, does require such a review pursuant to R.C.

§2929.05. But to determine whether a death sentence is proportional, that death sentence and

that offender’s conduct must be compared to similar crimes not only in which the death penalty

was actually imposed, but those in which the death penalty was charged but not imposed and

those similar crimes in which the death penalty was not even charged.

The United States Supreme Court outlawed the death penalty for rape in Coker v.

Georgia, 433 U.S. 584 (1977). The Court did so because it found that the death penalty for rape

generally was not being imposed throughout the United States, and therefore its imposition

violated the Constitution in Coker’s case. In so deciding, the Supreme Court did not compare

other rape cases in Georgia that resulted in the imposition of the death penalty to determine the

validity of the death penalty for Coker. Instead, the Court looked to national norms as to the

imposition of the death penalty for rape.

74

The rationale in Coker warrants the inclusion in the proportionality pool all other capital

murder cases in which the death penalty could have been imposed. Just based on a Coker

analysis, Ohio’s review is fatally flawed. Instead of looking at capital indictments or non-capital

indictments involving the same acts, charges, and/or specifications, this Court looks only at

similar cases in which the death penalty was imposed. Under Ohio’s analysis, had the United

States Supreme Court compared Coker’s death sentence for rape only with other death sentences

for rape, and without regard to rape cases where death was not imposed or even sought, Coker

would have been executed.

Ohio law requires this Court to review a capital sentence for proportionality and

appropriateness. But this Court will be unable to do that. It cannot perform any sort of a

proportionality review that is anything other than lip service to that concept. The reason is that

no data or statistics exist that would enable this Court to perform a true proportionality review.

In September 2007, the American Bar Association published Evaluating Fairness and

Accuracy in State Death Penalty Systems: The Ohio Death Penalty Assessment Report: An

Analysis of Ohio’s Death Penalty Laws, Procedures and Practices. That report addressed two

issues relevant to this Court’s obligation regarding proportionality review: Race as a factor in

death penalty sentencing and lack of meaningful proportionality review.

The Ohio Public Defender’s proportionality statistics, found at

http://opd.ohio.gov/Portals/0/PDF/DP/Proportionality.pdf, show that among those executed and

awaiting execution, a case in which there is a white victim or victims is far more likely to draw a

death sentence. The ABA Study found:

75

In 1987, the United States Supreme Court held in McClesky v. Kemp, 481 U.S. 279 (1987), that even if statistical evidence revealed systemic racial disparity in capital cases, this would not amount to a federal constitutional violation in and of itself. At the same time, the Court invited legislative bodies to adopt legislation to deal with situations in which there were systemic racial disparities in death penalty implementation.

The pattern of racial discrimination, reflected in McCleskey persists today in many jurisdictions, in part, because courts often tolerate actions by prosecutors, defense lawyers, trial judges, and juries that can improperly inject race into capital trials. These include intentional or unintentional prosecutorial bias when selecting cases in which to seek the death penalty; ineffective defense counsel who fail to object to systemic discrimination or to pursue discrimination claims; and discriminatory use of peremptory challenges to obtain all-white or largely all-white juries.

There is little dispute about the need to eliminate race as a factor in the administration of the death penalty. To accomplish that, however, requires that states identify the various ways in which race infects the administration of the death penalty and that they devise solutions to eliminate discriminatory practices.

The shortcomings regarding the current proportionality review in Ohio identified in the

ABA study are substantial. The study recommended, inter alia, that Ohio make the following

improvements:

In order to protect against arbitrariness in capital sentencing, the State of Ohio should ensure proportionality in capital cases. Presently, that protection is lacking, as evidenced by the documented racial and geographic disparities in Ohio’s capital system. Because proportionality is better achieved at the front end rather than the back end, the State of Ohio should develop laws and procedures to eliminate those disparities and to ensure proportionality.

The courts in the State of Ohio should more vigorously enforce the rule requiring prosecutors to disclose to the defense all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates punishment.

The State of Ohio should engage in a more thorough review of the issues presented to the court(s) in capital appeals, relax the application of waiver standards, and decrease the use of the harmless error standard of review.

The State of Ohio should create a publicly accessible database on all potentially death-eligible murder cases. Relevant information on all death-

76

eligible cases should be included in the database and specifically provided to prosecutors to assist them in making informed charging decisions and the Ohio Supreme Court for use in ensuring proportionality.

To ensure that death is imposed only for the very worst offenses and upon the very worst offenders, the Ohio Supreme Court should employ a more searching sentencing review in capital cases. This review should consider not only other death penalty cases, but also those cases in which the death penalty could have been sought or was sought and not imposed.

In its 2014 report, the Joint Task Force to Review the Administration of Ohio’s Death

Penalty recommended that the General Assembly enact legislation to require a prospective

proportionality review in death penalty cases to include cases where the death penalty was

charged but not imposed. The cure lies not in enacting another statute, but in fully implementing

the existing statute.

Since 1981, the Ohio Legislature has required consideration of whether “the sentence is excessive or disproportionate to the penalty imposed in similar cases.” The current practice of the Ohio Supreme Court is to compare only cases in which a death sentence was imposed. This appears inconsistent with the intent of the Ohio Legislature and the initial practice of this Court.

See, Joint Task Force to Review the Administration of Ohio’s Death Penalty, Final Report and Recommendation, April 2014, p.5.

In State v. Simko, 71 Ohio St.3d 483, 501, (1994), Justice Pfeifer dissented from

the imposition of death. Joining him were Chief Justice Moyer and Justice Wright. The

dissent went to the heart of the problem with Ohio’s lack of meaningful proportionality

review:

The focus in most death-penalty cases has been on issues other than proportionality. Typically, the court locates previous cases with similar statutory aggravating circumstances where the death penalty has been imposed, and thus finds proportionality to the case at issue. However, murders with the same statutorily defined aggravating circumstance are not necessarily crimes of the same character. In the present case, for example, the majority cites three cases in

77

its proportionality review.

This Court should review it entire data base so that it can determine in a

meaningful way whether the death sentence imposed on Glen Bates can be explained by a

logical distinction between the case where death is imposed from those of similar

character where it is not. Only that type of true proportionality review will guarantee that

Bates’ death sentence was not imposed with the freakishness and predictability of a

lightning strike that the Eighth Amendment prohibits. Furman v. Georgia, 408 U.S.

238,309 (1972), (Stewart, J., concurring.).

78

CONCLUSION

For the reasons set forth above, Glen Bates respectfully requests this Court to sustain his

Propositions of Law and remand this matter to the Hamilton County Common Pleas Court for a

new trial. Alternative, Mr. Bates requests that this Court vacated the sentence of death and

remand this matter to the Hamilton County Common Pleas Court for a new sentencing hearing,

or grant him any other relief to which he is otherwise entitled or which is just under the

circumstances.

/s/ Todd W. Barstow

TODD W. BARSTOW (0055834)

538 South Yearling Road Ste. 202

Columbus, Ohio 43213

Telephone: (614) 338-1800

Facsimile: (614) 338-2247

Email: toddbarstowatty@att.net

/s/ Roger W. Kirk

ROGER W. KIRK (0024219)

114 East Eighth Street

Cincinnati, Ohio 45202

Phone: (513) 272-1100

Facsimile: (513) 621-2525

Email: Kirkesquire@aol.com

Attorneys for Defendant-Appellant

Glen Bates

79

CERTIFICATE OF SERVICE

The undersigned hereby certifies that the foregoing document was filed electronically on

September 25, 2017, and he served a true copy of the foregoing upon the Hamilton County

Prosecutor, 230 E. Ninth St., Ste. 4000, Cincinnati, OH 45202, via U.S. Regular mail, postage

prepaid, on the same day.

/s/ Todd W. Barstow

Attorney for Appellant

80

IN THE SUPREME COURT OF OHIO

STATE OF OHIO, :

Appellee, Case No. 2016-1783

: Death Penalty Case

-vs-

GLEN E. BATES, :

Appellant.

APPENDIX TO APPELLANT’S MERIT BRIEF

TODD W. BARSTOW (0055834) JOSEPH T. DETERS (0012084)

538 South Yearling Road Ste. 202 Hamilton County Prosecuting Attorney

Columbus, Ohio 43213 230 East Ninth Street

Telephone: (614) 338-1800 Suite 4000

Facsimile: (614) 338-2247 Cincinnati, Ohio 45202

Email: toddbarstowatty@att.net Telephone: (513) 946-3000

Facsimile: (513) 946-3100

ROGER W. KIRK (0024219)

114 East Eighth Street

Cincinnati, Ohio 45202 Attorney for Plaintiff-Appellee

Phone: (513) 272-1100 State of Ohio

Facsimile: (513) 621-2525

Email: Kirkesquire@aol.com

Attorneys for Defendant-Appellant

Glen Bates

1

IN THE SUPREME COURT OF OHIO

STATE OF OHIO, : Case No. Plaintiff-Appellee, THIS IS A CAPITAL CASE On Appeal from the

: Hamilton County Court of Common Pleas

-vs.- : GLEN BATES Court of Common Pleas Case No. B 15 01811 Defendant-Appellant :

________________________________________________________________________

NOTICE OF APPEAL OF DEFENDANT-APPELLANT GLEN BATES

________________________________________________________________________

TODD W. BARSTOW (0055834) JOSEPH T. DETERS (0012084) 538 South Yearling Road Ste. 202 Hamilton County Prosecuting Attorney Columbus, Ohio 43213 230 East Ninth Street Telephone: (614) 338-1800 Suite 4000 Facsimile: (614) 338-2247 Cincinnati, Ohio 45202 Email: toddbarstowatty@att.net Telephone: (513) 946-3000 Facsimile: (513) 946-3100 ROGER W. KIRK (0024219) 114 East Eighth Street Cincinnati, Ohio 45202 Attorney for Plaintiff-Appellee Phone: (513) 272-1100 State of Ohio Facsimile: (513) 621-2525 Email: Kirkesquire@aol.com Attorneys for Defendant-Appellant Glen Bates

Supreme Court of Ohio Clerk of Court - Filed December 05, 2016 - Case No. 2016-1783

BATES APPENDIX TO MERIT BRIEF A-001

NOTICE OF APPEAL OF DEFENDANT-APPELLANT GLEN BATES

Defendant-Appellant Glen Bates appeals to the Supreme Court of Ohio from the

judgment of the Hamilton County Common Pleas Court, entered in Common Pleas Court

Case Number B 15 01811 on October 27, 2016.

This appeal is filed pursuant to S. Ct. Prac. R. 11.01(B)(1). Respectfully submitted, /s/ Todd W. Barstow TODD W. BARSTOW (0055834) 538 S. Yearling Rd. Ste. 202 Columbus, Ohio 43213 Telephone: (614) 338-1800 Facsimile: (614) 338-2247 Email: toddbarstowatty@att.net

/s/ Roger W. Kirk ROGER W. KIRK (0024219) 114 East Eighth Street Cincinnati, Ohio 45202 Phone: (513) 272-1100 Facsimile: (513) 621-2525 Email: Kirkesquire@aol.com Attorneys for Appellant Glen Bates

CERTIFICATE OF SERVICE

The undersigned hereby certifies that he served a true copy of the foregoing

Notice of Appeal upon the Hamilton County Prosecutor, 230 E. Ninth St., Suite 4000,

Cincinnati, OH 45202, by U.S. regular mail, postage prepaid, this 5th day of December,

2016. /s/ Todd W. Barstow TODD W. BARSTOW (0055834) Counsel for Appellant Glen Bates

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Supreme Court of Ohio Clerk of Court - Filed December 05, 2016 - Case No. 2016-1783

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O Const I Sec. 2 Equal protection and benefit, OH CONST Art. I, § 2

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1

Baldwin's Ohio Revised Code AnnotatedConstitution of the State of Ohio

Article I. Bill of Rights (Refs & Annos)

OH Const. Art. I, § 2

O Const I Sec. 2 Equal protection and benefit

Currentness

All political power is inherent in the people. Government is instituted for their equal protection and benefit, and theyhave the right to alter, reform, or abolish the same, whenever they may deem it necessary; and no special privileges orimmunities shall ever be granted, that may not be altered, revoked, or repealed by the General Assembly.

CREDIT(S)(1851 constitutional convention, adopted eff. 9-1-1851)

Const. Art. I, § 2, OH CONST Art. I, § 2Current through 2017 Files 1 to 13, 14 (immediately effective ORC sections), and 15 to 17 of the 132nd General Assembly(2017-2018).

End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.

BATES APPENDIX TO MERIT BRIEF A-012

O Const I Sec. 5 Right of trial by jury, OH CONST Art. I, § 5

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1

Baldwin's Ohio Revised Code AnnotatedConstitution of the State of Ohio

Article I. Bill of Rights (Refs & Annos)

OH Const. Art. I, § 5

O Const I Sec. 5 Right of trial by jury

Currentness

The right of trial by jury shall be inviolate, except that, in civil cases, laws may be passed to authorize the rendering ofa verdict by the concurrence of not less than three-fourths of the jury.

CREDIT(S)(1912 constitutional convention, am. eff. 1-1-13; 1851 constitutional convention, adopted eff. 9-1-1851)

Const. Art. I, § 5, OH CONST Art. I, § 5Current through 2017 Files 1 to 13, 14 (immediately effective ORC sections), and 15 to 17 of the 132nd General Assembly(2017-2018).

End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.

BATES APPENDIX TO MERIT BRIEF A-013

O Const I Sec. 9 Bail; cruel and unusual punishments, OH CONST Art. I, § 9

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1

Baldwin's Ohio Revised Code AnnotatedConstitution of the State of Ohio

Article I. Bill of Rights (Refs & Annos)

OH Const. Art. I, § 9

O Const I Sec. 9 Bail; cruel and unusual punishments

Currentness

All persons shall be bailable by sufficient sureties, except for a person who is charged with a capital offense where theproof is evident or the presumption great, and except for a person who is charged with a felony where the proof is evidentor the presumption great and where the person poses a substantial risk of serious physical harm to any person or tothe community. Where a person is charged with any offense for which the person may be incarcerated, the court maydetermine at any time the type, amount, and conditions of bail. Excessive bail shall not be required; nor excessive finesimposed; nor cruel and unusual punishments inflicted.

The general assembly shall fix by law standards to determine whether a person who is charged with a felony wherethe proof is evident or the presumption great poses a substantial risk of serious physical harm to any person or to thecommunity. Procedures for establishing the amount and conditions of bail shall be established pursuant to Article IV,Section 5(B) of the Constitution of the state of Ohio.

CREDIT(S)(1997 HJR 5, am. eff. 1-1-98; 1851 constitutional convention, adopted eff. 9-1-1851)

Const. Art. I, § 9, OH CONST Art. I, § 9Current through 2017 Files 1 to 13, 14 (immediately effective ORC sections), and 15 to 17 of the 132nd General Assembly(2017-2018).

End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.

BATES APPENDIX TO MERIT BRIEF A-014

O Const I Sec. 10 Rights of criminal defendants, OH CONST Art. I, § 10

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1

Baldwin's Ohio Revised Code AnnotatedConstitution of the State of Ohio

Article I. Bill of Rights (Refs & Annos)

OH Const. Art. I, § 10

O Const I Sec. 10 Rights of criminal defendants

Currentness

<Notes of Decisions for O Const I Sec. 10 are displayed in two separate documents. Notes of Decisions forSubdivisions I to V are contained in this document. For Notes of Decisions for Subdivisions VI to end seesecond document.>

Except in cases of impeachment, cases arising in the army and navy, or in the militia when in actual service in timeof war or public danger, and cases involving offenses for which the penalty provided is less than imprisonment in thepenitentiary, no person shall be held to answer for a capital, or otherwise infamous, crime, unless on presentment orindictment of a grand jury; and the number of persons necessary to constitute such grand jury and the number thereofnecessary to concur in finding such indictment shall be determined by law. In any trial, in any court, the party accusedshall be allowed to appear and defend in person and with counsel; to demand the nature and cause of the accusationagainst him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process to procurethe attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county in which the offenseis alleged to have been committed; but provision may be made by law for the taking of the deposition by the accusedor by the state, to be used for or against the accused, of any witness whose attendance can not be had at the trial,always securing to the accused means and the opportunity to be present in person and with counsel at the taking of suchdeposition, and to examine the witness face to face as fully and in the same manner as if in court. No person shall becompelled, in any criminal case, to be a witness against himself; but his failure to testify may be considered by the courtand jury and may be the subject of comment by counsel. No person shall be twice put in jeopardy for the same offense.

CREDIT(S)(1912 constitutional convention, am. eff. 1-1-13; 1851 constitutional convention, adopted eff. 9-1-1851)

Const. Art. I, § 10, OH CONST Art. I, § 10Current through 2017 Files 1 to 13, 14 (immediately effective ORC sections), and 15 to 17 of the 132nd General Assembly(2017-2018).

End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.

BATES APPENDIX TO MERIT BRIEF A-015

O Const I Sec. 16 Redress for injury; due process, OH CONST Art. I, § 16

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1

Baldwin's Ohio Revised Code AnnotatedConstitution of the State of Ohio

Article I. Bill of Rights (Refs & Annos)

OH Const. Art. I, § 16

O Const I Sec. 16 Redress for injury; due process

Currentness

All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall haveremedy by due course of law, and shall have justice administered without denial or delay. Suits may be brought againstthe state, in such courts and in such manner, as may be provided by law.

CREDIT(S)(1912 constitutional convention, am. eff. 1-1-1913; 1851 constitutional convention, adopted eff. 9-1-1851)

Const. Art. I, § 16, OH CONST Art. I, § 16Current through 2017 Files 1 to 13, 14 (immediately effective ORC sections), and 15 to 17 of the 132nd General Assembly(2017-2018).

End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.

BATES APPENDIX TO MERIT BRIEF A-016

Section 2, Clause 2. Treaty Making Power; Appointing Power, USCA CONST Art. II §...

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1

United States Code AnnotatedConstitution of the United States

AnnotatedArticle II. The President (Refs & Annos)

U.S.C.A. Const. Art. II § 2, cl. 2

Section 2, Clause 2. Treaty Making Power; Appointing Power

Currentness

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of theSenators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appointAmbassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the UnitedStates, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but theCongress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, inthe Courts of Law, or in the Heads of Departments.

U.S.C.A. Const. Art. II § 2, cl. 2, USCA CONST Art. II § 2, cl. 2Current through P.L. 115-51. Also includes P.L. 115-53, 115-56, and 115-57. Title 26 current through 115-60.

End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.

BATES APPENDIX TO MERIT BRIEF A-017

Clause 2. Supreme Law of Land, USCA CONST Art. VI cl. 2

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1

United States Code AnnotatedConstitution of the United States

AnnotatedArticle VI. Debts Validated--Supreme Law of Land--Oath of Office (Refs & Annos)

U.S.C.A. Const. Art. VI cl. 2

Clause 2. Supreme Law of Land

Currentness

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, orwhich shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges inevery State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

U.S.C.A. Const. Art. VI cl. 2, USCA CONST Art. VI cl. 2Current through P.L. 115-51. Also includes P.L. 115-53, 115-56, and 115-57. Title 26 current through 115-60.

End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.

BATES APPENDIX TO MERIT BRIEF A-018

Amendment VI. Jury trials for crimes, and procedural rights, USCA CONST Amend....

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1

United States Code AnnotatedConstitution of the United States

AnnotatedAmendment VI. Jury Trial for Crimes, and Procedural Rights (Refs & Annos)

U.S.C.A. Const. Amend. VI-Jury trials

Amendment VI. Jury trials for crimes, and procedural rights

Currentness

<Notes of Decisions for this amendment are displayed in three separate documents. Notes of Decisions forsubdivisions I through XX are contained in this document. For Notes of Decisions for subdivisions XXIthrough XXIX, see the second document for Amend. VI. For Notes of Decisions for subdivisions XXX throughXXXIII, see the third document for Amend. VI.>

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of theState and district wherein the crime shall have been committed, which district shall have been previously ascertained bylaw, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; tohave compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

U.S.C.A. Const. Amend. VI-Jury trials, USCA CONST Amend. VI-Jury trialsCurrent through P.L. 115-51. Also includes P.L. 115-53, 115-56, and 115-57. Title 26 current through 115-60.

End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.

BATES APPENDIX TO MERIT BRIEF A-019

Amendment VIII. Excessive Bail, Fines, Punishments, USCA CONST Amend. VIII

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1

United States Code AnnotatedConstitution of the United States

AnnotatedAmendment VIII. Excessive Bail, Fines, Punishments

U.S.C.A. Const. Amend. VIII

Amendment VIII. Excessive Bail, Fines, Punishments

Currentness

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

U.S.C.A. Const. Amend. VIII, USCA CONST Amend. VIIICurrent through P.L. 115-51. Also includes P.L. 115-53, 115-56, and 115-57. Title 26 current through 115-60.

End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.

BATES APPENDIX TO MERIT BRIEF A-020

AMENDMENT XIV. CITIZENSHIP; PRIVILEGES AND..., USCA CONST Amend....

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1

United States Code AnnotatedConstitution of the United States

AnnotatedAmendment XIV. Citizenship; Privileges and Immunities; Due Process; Equal Protection;Apportionment of Representation; Disqualification of Officers; Public Debt; Enforcement

U.S.C.A. Const. Amend. XIV-Full Text

AMENDMENT XIV. CITIZENSHIP; PRIVILEGES AND IMMUNITIES; DUEPROCESS; EQUAL PROTECTION; APPOINTMENT OF REPRESENTATION;

DISQUALIFICATION OF OFFICERS; PUBLIC DEBT; ENFORCEMENT

Currentness

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens ofthe United States and of the State wherein they reside. No State shall make or enforce any law which shall abridgethe privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, orproperty, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, countingthe whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for thechoice of electors for President and Vice President of the United States, Representatives in Congress, the Executive andJudicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of suchState, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participationin rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number ofsuch male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, orhold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, asa member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executiveor judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection orrebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirdsof each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for paymentof pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither theUnited States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion againstthe United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shallbe held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

<Section 1 of this amendment is further displayed in separate documents according to subject matter,>

<see USCA Const Amend. XIV, § 1-Citizens>

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<see USCA Const Amend. XIV, § 1-Privileges>

<see USCA Const Amend. XIV, § 1-Due Proc>

<see USCA Const Amend. XIV, § 1-Equal Protect>

<sections 2 to 5 of this amendment are displayed as separate documents,>

<see USCA Const Amend. XIV, § 2,>

<see USCA Const Amend. XIV, § 3,>

<see USCA Const Amend. XIV, § 4,>

<see USCA Const Amend. XIV, § 5,>

U.S.C.A. Const. Amend. XIV-Full Text, USCA CONST Amend. XIV-Full TextCurrent through P.L. 115-51. Also includes P.L. 115-53, 115-56, and 115-57. Title 26 current through 115-60.

End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.

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2903.01 Aggravated murder, OH ST § 2903.01

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1

Baldwin's Ohio Revised Code AnnotatedTitle XXIX. Crimes--Procedure (Refs & Annos)

Chapter 2903. Homicide and AssaultHomicide

R.C. § 2903.01

2903.01 Aggravated murder

Effective: September 30, 2011Currentness

(A) No person shall purposely, and with prior calculation and design, cause the death of another or the unlawfultermination of another's pregnancy.

(B) No person shall purposely cause the death of another or the unlawful termination of another's pregnancywhile committing or attempting to commit, or while fleeing immediately after committing or attempting to commit,kidnapping, rape, aggravated arson, arson, aggravated robbery, robbery, aggravated burglary, burglary, trespass in ahabitation when a person is present or likely to be present, terrorism, or escape.

(C) No person shall purposely cause the death of another who is under thirteen years of age at the time of the commissionof the offense.

(D) No person who is under detention as a result of having been found guilty of or having pleaded guilty to a felony orwho breaks that detention shall purposely cause the death of another.

(E) No person shall purposely cause the death of a law enforcement officer whom the offender knows or has reasonablecause to know is a law enforcement officer when either of the following applies:

(1) The victim, at the time of the commission of the offense, is engaged in the victim's duties.

(2) It is the offender's specific purpose to kill a law enforcement officer.

(F) Whoever violates this section is guilty of aggravated murder, and shall be punished as provided in section 2929.02of the Revised Code.

(G) As used in this section:

(1) “Detention” has the same meaning as in section 2921.01 of the Revised Code.

(2) “Law enforcement officer” has the same meaning as in section 2911.01 of the Revised Code.

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2903.01 Aggravated murder, OH ST § 2903.01

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CREDIT(S)(2011 H 86, eff. 9-30-11; 2002 S 184, eff. 5-15-02; 1998 S 193, eff. 12-29-98; 1998 H 5, eff. 6-30-98; 1997 S 32, eff. 8-6-97;

1996 S 239, eff. 9-6-96; 1981 S 1, eff. 10-19-81; 1972 H 511)

R.C. § 2903.01, OH ST § 2903.01Current through 2017 Files 1 to 13, 14 (immediately effective ORC sections), and 15 to 17 of the 132nd General Assembly(2017-2018).

End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.

BATES APPENDIX TO MERIT BRIEF A-024

2929.02 Penalties for murder, OH ST § 2929.02

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1

Baldwin's Ohio Revised Code AnnotatedTitle XXIX. Crimes--Procedure (Refs & Annos)

Chapter 2929. Penalties and Sentencing (Refs & Annos)Penalties for Murder

R.C. § 2929.02

2929.02 Penalties for murder

Effective: January 1, 2008Currentness

(A) Whoever is convicted of or pleads guilty to aggravated murder in violation of section 2903.01 of the Revised Codeshall suffer death or be imprisoned for life, as determined pursuant to sections 2929.022, 2929.03, and 2929.04 of theRevised Code, except that no person who raises the matter of age pursuant to section 2929.023 of the Revised Code andwho 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 thousand dollars.

(B) (1) Except as otherwise provided in division (B)(2) or (3) of this section, whoever is convicted of or pleads guilty tomurder in violation of section 2903.02 of the Revised Code shall be imprisoned for an indefinite term of fifteen yearsto life.

(2) Except as otherwise provided in division (B)(3) of this section, if a person is convicted of or pleads guilty to murderin violation of section 2903.02 of the Revised Code, the victim of the offense was less than thirteen years of age, and theoffender also is convicted of or pleads guilty to a sexual motivation specification that was included in the indictment,count in the indictment, or information charging the offense, the court shall impose an indefinite prison term of thirtyyears to life pursuant to division (B)(3) of section 2971.03 of the Revised Code.

(3) If a person is convicted of or pleads guilty to murder in violation of section 2903.02 of the Revised Code and alsois convicted of or pleads guilty to a sexual motivation specification and a sexually violent predator specification thatwere included in the indictment, count in the indictment, or information that charged the murder, the court shall imposeupon the offender a term of life imprisonment without parole that shall be served pursuant to section 2971.03 of theRevised Code.

(4) 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 extentnot suspended by the court, exceeds the amount which the offender is or will be able to pay by the method and within thetime allowed without undue hardship to the offender or to the dependents of the offender, or will prevent the offenderfrom making reparation for the victim's wrongful death.

(D)(1) In addition to any other sanctions imposed for a violation of section 2903.01 or 2903.02 of the Revised Code, ifthe offender used a motor vehicle as the means to commit the violation, the court shall impose upon the offender a class

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2929.02 Penalties for murder, OH ST § 2929.02

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two suspension of the offender's driver's license, commercial driver's license, temporary instruction permit, probationarylicense, or nonresident operating privilege as specified in division (A)(2) of section 4510.02 of the Revised Code.

(2) As used in division (D) of this section, “motor vehicle” has the same meaning as in section 4501.01 of the RevisedCode.

CREDIT(S)(2007 S 10, eff. 1-1-08; 2006 H 461, eff. 4-4-07; 1998 S 107, eff. 7-29-98; 1996 H 180, eff. 1-1-97; 1981 S 1, eff. 10-19-81;

1972 H 511)

R.C. § 2929.02, OH ST § 2929.02Current through 2017 Files 1 to 13, 14 (immediately effective ORC sections), and 15 to 17 of the 132nd General Assembly(2017-2018).

End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.

BATES APPENDIX TO MERIT BRIEF A-026

2929.021 Specifications of aggravating circumstance; clerk to..., OH ST § 2929.021

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1

Baldwin's Ohio Revised Code AnnotatedTitle XXIX. Crimes--Procedure (Refs & Annos)

Chapter 2929. Penalties and Sentencing (Refs & Annos)Penalties for Murder

R.C. § 2929.021

2929.021 Specifications of aggravating circumstance; clerk to notify supreme court of certain facts

Currentness

(A) If an indictment or a count in an indictment charges the defendant with aggravated murder and contains one ormore specifications of aggravating circumstances listed in division (A) of section 2929.04 of the Revised Code, the clerkof the court in which the indictment is filed, within fifteen days after the day on which it is filed, shall file a notice withthe supreme court indicating that the indictment was filed. The notice shall be in the form prescribed by the clerk ofthe supreme court and shall contain, for each charge of aggravated murder with a specification, at least the followinginformation pertaining to the charge:

(1) The name of the person charged in the indictment or count in the indictment with aggravated murder with aspecification;

(2) The docket number or numbers of the case or cases arising out of the charge, if available;

(3) The court in which the case or cases will be heard;

(4) The date on which the indictment was filed.

(B) If an indictment or a count in an indictment charges the defendant with aggravated murder and contains one ormore specifications of aggravating circumstances listed in division (A) of section 2929.04 of the Revised Code and if thedefendant pleads guilty or no contest to any offense in the case or if the indictment or any count in the indictment isdismissed, the clerk of the court in which the plea is entered or the indictment or count is dismissed shall file a noticewith the supreme court indicating what action was taken in the case. The notice shall be filed within fifteen days afterthe plea is entered or the indictment or count is dismissed, shall be in the form prescribed by the clerk of the supremecourt, and shall contain at least the following information:

(1) The name of the person who entered the guilty or no contest plea or who is named in the indictment or count thatis dismissed;

(2) The docket numbers of the cases in which the guilty or no contest plea is entered or in which the indictment or countis dismissed;

(3) The sentence imposed on the offender in each case.

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CREDIT(S)(1981 S 1, eff. 10-19-81)

R.C. § 2929.021, OH ST § 2929.021Current through 2017 Files 1 to 13, 14 (immediately effective ORC sections), and 15 to 17 of the 132nd General Assembly(2017-2018).

End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.

BATES APPENDIX TO MERIT BRIEF A-028

2929.022 Elections of defendant as to certain trial procedures, OH ST § 2929.022

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1

Baldwin's Ohio Revised Code AnnotatedTitle XXIX. Crimes--Procedure (Refs & Annos)

Chapter 2929. Penalties and Sentencing (Refs & Annos)Penalties for Murder

R.C. § 2929.022

2929.022 Elections of defendant as to certain trial procedures

Effective: January 1, 2008Currentness

(A) If an indictment or count in an indictment charging a defendant with aggravated murder contains a specificationof the aggravating 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 the defendant waives trial by jury, or the trial judge, ifthe defendant is tried by jury, determine the existence of that aggravating circumstance at the sentencing hearing heldpursuant 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 sentencinghearing, the defendant shall be tried on the charge of aggravated murder, on the specification of the aggravatingcircumstance of a prior conviction listed in division (A)(5) of section 2929.04 of the Revised Code, and on any otherspecifications of an aggravating circumstance listed in division (A) of section 2929.04 of the Revised Code in a singletrial as in any other criminal 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 guiltyof the charge of aggravated murder, the panel of three judges or the trial judge shall:

(a) Hold a sentencing hearing 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 of the Revised Code and is not foundat trial to have been eighteen years of age or older at the time of the commission of the offense, conduct a hearing todetermine if the specification of the aggravating circumstance of a prior conviction listed in division (A)(5) of section2929.04 of the Revised Code is proven beyond a reasonable doubt. After conducting the hearing, the panel or judgeshall proceed as follows:

(i) If that aggravating circumstance is proven beyond a reasonable doubt or if the defendant at trial was convicted ofany other specification of an aggravating circumstance, the panel or judge shall impose sentence according to division(E) of section 2929.03 of the Revised Code.

(ii) If that aggravating circumstance is not proven beyond a reasonable doubt and the defendant at trial was not convictedof any other specification of an aggravating circumstance, except as otherwise provided in this division, the panel orjudge shall impose sentence of life imprisonment with parole eligibility after serving twenty years of imprisonment on

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2929.022 Elections of defendant as to certain trial procedures, OH ST § 2929.022

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the offender. If that aggravating circumstance is not proven beyond a reasonable doubt, the defendant at trial was notconvicted of any other specification of an aggravating circumstance, the victim of the aggravated murder was less thanthirteen years of age, and the offender also is convicted of or pleads guilty to a sexual motivation specification that wasincluded in the indictment, count in the indictment, or information charging the offense, the panel or judge shall sentencethe offender pursuant to division (B)(3) of section 2971.03 of the Revised Code to an indefinite term consisting of aminimum term of thirty years and a maximum term of life imprisonment.

(B) At the sentencing hearing, the panel of judges, if the defendant was tried by a panel of three judges, or the trialjudge, if the defendant was tried by jury, shall, when required pursuant to division (A)(2) of this section, first determineif the specification of the aggravating circumstance of a prior conviction listed in division (A)(5) of section 2929.04 ofthe Revised Code is proven beyond a reasonable doubt. If the panel of judges or the trial judge determines that thespecification of the aggravating circumstance of a prior conviction listed in division (A)(5) of section 2929.04 of theRevised Code is proven beyond a reasonable doubt or if they do not determine that the specification is proven beyonda reasonable doubt but the defendant at trial was convicted of a specification of any other aggravating circumstancelisted in division (A) of section 2929.04 of the Revised Code, the panel of judges or the trial judge and trial jury shallimpose 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 of the aggravating circumstance of aprior conviction listed in division (A)(5) of section 2929.04 of the Revised Code is proven beyond a reasonable doubtand the defendant at trial was not convicted of any other specification of 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 hearingand impose sentence on the offender as follows:

(1) Subject to division (B)(2) of this section, the panel or judge shall impose a sentence of life imprisonment with paroleeligibility after serving twenty years of imprisonment on the offender.

(2) If the victim of the aggravated murder was less than thirteen years of age and the offender also is convicted ofor pleads guilty to a sexual motivation specification that was included in the indictment, count in the indictment, orinformation charging the offense, the panel or judge shall sentence the offender pursuant to division (B)(3) of section2971.03 of the Revised Code to an indefinite term consisting of a minimum term of thirty years and a maximum termof life imprisonment.

CREDIT(S)(2007 S 10, eff. 1-1-08; 1981 S 1, eff. 10-19-81)

R.C. § 2929.022, OH ST § 2929.022Current through 2017 Files 1 to 13, 14 (immediately effective ORC sections), and 15 to 17 of the 132nd General Assembly(2017-2018).

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Baldwin's Ohio Revised Code AnnotatedTitle XXIX. Crimes--Procedure (Refs & Annos)

Chapter 2929. Penalties and Sentencing (Refs & Annos)Penalties for Murder

R.C. § 2929.023

2929.023 Defendant's age; raising issue; burdens relating to matter

Currentness

A person charged with aggravated murder and one or more specifications of an aggravating circumstance may, at trial,raise the matter of his age at the time of the alleged commission of the offense and may present evidence at trial that he wasnot eighteen years of age or older at the time of the alleged commission of the offense. The burdens of raising the matterof age, and of going forward with the evidence relating to the matter of age, are upon the defendant. After a defendanthas raised the matter of age at trial, the prosecution shall have the burden of proving, by proof beyond a reasonabledoubt, that the defendant was eighteen years of age or older at the time of the alleged commission of the offense.

CREDIT(S)(1981 S 1, eff. 10-19-81)

R.C. § 2929.023, OH ST § 2929.023Current through 2017 Files 1 to 13, 14 (immediately effective ORC sections), and 15 to 17 of the 132nd General Assembly(2017-2018).

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Baldwin's Ohio Revised Code AnnotatedTitle XXIX. Crimes--Procedure (Refs & Annos)

Chapter 2929. Penalties and Sentencing (Refs & Annos)Penalties for Murder

R.C. § 2929.03

2929.03 Imposing sentence for a capital offense; procedures; proof of relevant factors; alternative sentences

Effective: April 6, 2017Currentness

(A) If the indictment or count in the indictment charging aggravated murder does not contain one or more specificationsof aggravating circumstances listed in division (A) of section 2929.04 of the Revised Code, then, following a verdict ofguilty of the charge of aggravated murder, the trial court shall impose sentence on the offender as follows:

(1) Except as provided in division (A)(2) of this section, the trial court shall impose one of the following sentences onthe offender:

(a) Life imprisonment without parole;

(b) Subject to division (A)(1)(e) of this section, life imprisonment with parole eligibility after serving twenty years ofimprisonment;

(c) Subject to division (A)(1)(e) of this section, life imprisonment with parole eligibility after serving twenty-five full yearsof imprisonment;

(d) Subject to division (A)(1)(e) of this section, life imprisonment with parole eligibility after serving thirty full years ofimprisonment;

(e) If the victim of the aggravated murder was less than thirteen years of age, the offender also is convicted of or pleadsguilty to a sexual motivation specification that was included in the indictment, count in the indictment, or informationcharging the offense, and the trial court does not impose a sentence of life imprisonment without parole on the offenderpursuant to division (A)(1)(a) of this section, the trial court shall sentence the offender pursuant to division (B)(3) ofsection 2971.03 of the Revised Code to an indefinite term consisting of a minimum term of thirty years and a maximumterm of life imprisonment that shall be served pursuant to that section.

(2) If the offender also is convicted of or pleads guilty to a sexual motivation specification and a sexually violent predatorspecification that are included in the indictment, count in the indictment, or information that charged the aggravatedmurder, the trial court shall impose upon the offender a sentence of life imprisonment without parole that shall be servedpursuant to section 2971.03 of the Revised Code.

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(B) If the indictment or count in the indictment charging aggravated murder contains one or more specifications ofaggravating circumstances listed in division (A) of section 2929.04 of the Revised Code, the verdict shall separately statewhether the accused is found guilty or not guilty of the principal charge and, if guilty of the principal charge, whetherthe offender was eighteen years of age or older at the time of the commission of the offense, if the matter of age wasraised by the offender pursuant to section 2929.023 of the Revised Code, and whether the offender is guilty or not guiltyof each specification. The jury shall be instructed on its duties in this regard. The instruction to the jury shall includean instruction that a specification shall be proved beyond a reasonable doubt in order to support a guilty verdict onthe specification, but the instruction shall not mention the penalty that may be the consequence of a guilty or not guiltyverdict on any charge or specification.

(C)(1) If the indictment or count in the indictment charging aggravated murder contains one or more specifications ofaggravating circumstances listed in division (A) of section 2929.04 of the Revised Code, then, following a verdict of guiltyof the charge but not guilty of each of the specifications, and regardless of whether the offender raised the matter of agepursuant to section 2929.023 of the Revised Code, the trial court shall impose sentence on the offender as follows:

(a) Except as provided in division (C)(1)(b) of this section, the trial court shall impose one of the following sentenceson the offender:

(i) Life imprisonment without parole;

(ii) Subject to division (C)(1)(a)(v) of this section, life imprisonment with parole eligibility after serving twenty years ofimprisonment;

(iii) Subject to division (C)(1)(a)(v) of this section, life imprisonment with parole eligibility after serving twenty-five fullyears of imprisonment;

(iv) Subject to division (C)(1)(a)(v) of this section, life imprisonment with parole eligibility after serving thirty full yearsof imprisonment;

(v) If the victim of the aggravated murder was less than thirteen years of age, the offender also is convicted of or pleadsguilty to a sexual motivation specification that was included in the indictment, count in the indictment, or informationcharging the offense, and the trial court does not impose a sentence of life imprisonment without parole on the offenderpursuant to division (C)(1)(a)(i) of this section, the trial court shall sentence the offender pursuant to division (B)(3) ofsection 2971.03 of the Revised Code to an indefinite term consisting of a minimum term of thirty years and a maximumterm of life imprisonment.

(b) If the offender also is convicted of or pleads guilty to a sexual motivation specification and a sexually violent predatorspecification that are included in the indictment, count in the indictment, or information that charged the aggravatedmurder, the trial court shall impose upon the offender a sentence of life imprisonment without parole that shall be servedpursuant to section 2971.03 of the Revised Code.

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(2)(a) If the indictment or count in the indictment contains one or more specifications of aggravating circumstances listedin division (A) of section 2929.04 of the Revised Code and if the offender is found guilty of both the charge and one ormore of the specifications, the penalty to be imposed on the offender shall be one of the following:

(i) Except as provided in division (C)(2)(a)(ii) or (iii) of this section, the penalty to be imposed on the offender shall bedeath, life imprisonment without parole, life imprisonment with parole eligibility after serving twenty-five full years ofimprisonment, or life imprisonment with parole eligibility after serving thirty full years of imprisonment.

(ii) Except as provided in division (C)(2)(a)(iii) of this section, if the victim of the aggravated murder was less than thirteenyears of age, the offender also is convicted of or pleads guilty to a sexual motivation specification that was includedin the indictment, count in the indictment, or information charging the offense, and the trial court does not impose asentence of death or life imprisonment without parole on the offender pursuant to division (C)(2)(a)(i) of this section,the penalty to be imposed on the offender shall be an indefinite term consisting of a minimum term of thirty years and amaximum term of life imprisonment that shall be imposed pursuant to division (B)(3) of section 2971.03 of the RevisedCode and served pursuant to that section.

(iii) If the offender also is convicted of or pleads guilty to a sexual motivation specification and a sexually violent predatorspecification that are included in the indictment, count in the indictment, or information that charged the aggravatedmurder, the penalty to be imposed on the offender shall be death or life imprisonment without parole that shall be servedpursuant to section 2971.03 of the Revised Code.

(b) A penalty imposed pursuant to division (C)(2)(a)(i), (ii), or (iii) of this section shall be determined pursuant to divisions(D) and (E) of this section and shall be determined by one of the following:

(i) By the panel of three judges that tried the offender upon the offender's waiver of the right to trial by jury;

(ii) 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 trialpursuant to section 2929.023 of the Revised Code and was not found at trial to have been eighteen years of age or olderat the time of the commission of the offense. When death may be imposed as a penalty for aggravated murder, the courtshall proceed under this division. When death may be imposed as a penalty, the court, upon the request of the defendant,shall require a pre-sentence investigation to be made and, upon the request of the defendant, shall require a mentalexamination to be made, and shall require reports of the investigation and of any mental examination submitted to thecourt, pursuant to section 2947.06 of the Revised Code. No statement made or information provided by a defendantin a mental examination or proceeding conducted pursuant to this division shall be disclosed to any person, except asprovided in this division, or be used in evidence against the defendant on the issue of guilt in any retrial. A pre-sentenceinvestigation or mental examination shall not be made except upon request of the defendant. Copies of any reportsprepared under this division shall be furnished to the court, to the trial jury if the offender was tried by a jury, to theprosecutor, and to the offender or the offender's counsel for use under this division. The court, and the trial jury if theoffender was tried by a jury, shall consider any report prepared pursuant to this division and furnished to it and anyevidence raised at trial that is relevant to the aggravating circumstances the offender was found guilty of committing orto any factors in mitigation of the imposition of the sentence of death, shall hear testimony and other evidence that is

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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 mitigationof the imposition of the sentence of death, and shall hear the statement, if any, of the offender, and the arguments, if any,of counsel for the defense and prosecution, that are relevant to the penalty that should be imposed on the offender. Thedefendant 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, the offender is subject to cross-examination only if the offender consentsto 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 impositionof the sentence of death. The prosecution shall have the burden of proving, by proof beyond a reasonable doubt, thatthe aggravating circumstances the defendant was found guilty of committing are sufficient to outweigh the factors inmitigation of the imposition of the sentence of death.

(2) Upon consideration of the relevant evidence raised at trial, 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 guiltyof 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 committingoutweigh the mitigating factors, the trial jury shall recommend to the court that the sentence of death be imposed on theoffender. Absent such a finding, the jury shall recommend that the offender be sentenced to one of the following:

(a) Except as provided in division (D)(2)(b) or (c) of this section, to life imprisonment without parole, life imprisonmentwith parole eligibility after serving twenty-five full years of imprisonment, or life imprisonment with parole eligibilityafter serving thirty full years of imprisonment;

(b) Except as provided in division (D)(2)(c) of this section, if the victim of the aggravated murder was less than thirteenyears of age, the offender also is convicted of or pleads guilty to a sexual motivation specification that was included in theindictment, count in the indictment, or information charging the offense, and the jury does not recommend a sentenceof life imprisonment without parole pursuant to division (D)(2)(a) of this section, to an indefinite term consisting of aminimum term of thirty years and a maximum term of life imprisonment to be imposed pursuant to division (B)(3) ofsection 2971.03 of the Revised Code and served pursuant to that section.

(c) If the offender also is convicted of or pleads guilty to a sexual motivation specification and a sexually violent predatorspecification that are included in the indictment, count in the indictment, or information that charged the aggravatedmurder, to life imprisonment without parole.

If the trial jury recommends that the offender be sentenced to life imprisonment without parole, life imprisonmentwith parole eligibility after serving twenty-five full years of imprisonment, life imprisonment with parole eligibility afterserving thirty full years of imprisonment, or an indefinite term consisting of a minimum term of thirty years and amaximum term of life imprisonment to be imposed pursuant to division (B)(3) of section 2971.03 of the Revised Code,the court shall impose the sentence recommended by the jury upon the offender. If the sentence is an indefinite termconsisting of a minimum term of thirty years and a maximum term of life imprisonment imposed as described in division(D)(2)(b) of this section or a sentence of life imprisonment without parole imposed under division (D)(2)(c) of thissection, the sentence shall be served pursuant to section 2971.03 of the Revised Code. If the trial jury recommends that

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the sentence of 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 trial, 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 beimposed, the court finds, by proof beyond a reasonable doubt, or if the panel of three judges unanimously finds, by proofbeyond a reasonable doubt, that the aggravating circumstances the offender was found guilty of committing outweighthe mitigating factors, it shall impose sentence of death on the offender. Absent such a finding by the court or panel, thecourt or the panel shall impose one of the following sentences on the offender:

(a) Except as provided in division (D)(3)(b) of this section, one of the following:

(i) Life imprisonment without parole;

(ii) Subject to division (D)(3)(a)(iv) of this section, life imprisonment with parole eligibility after serving twenty-five fullyears of imprisonment;

(iii) Subject to division (D)(3)(a)(iv) of this section, life imprisonment with parole eligibility after serving thirty full yearsof imprisonment;

(iv) If the victim of the aggravated murder was less than thirteen years of age, the offender also is convicted of or pleadsguilty to a sexual motivation specification that was included in the indictment, count in the indictment, or informationcharging the offense, and the trial court does not impose a sentence of life imprisonment without parole on the offenderpursuant to division (D)(3)(a)(i) of this section, the court or panel shall sentence the offender pursuant to division (B)(3) of section 2971.03 of the Revised Code to an indefinite term consisting of a minimum term of thirty years and amaximum term of life imprisonment.

(b) If the offender also is convicted of or pleads guilty to a sexual motivation specification and a sexually violent predatorspecification that are included in the indictment, count in the indictment, or information that charged the aggravatedmurder, life imprisonment without parole that shall be served pursuant to section 2971.03 of the Revised Code.

(E) If the offender raised the matter of age at trial pursuant to section 2929.023 of the Revised Code, was convictedof aggravated murder and one or more specifications of an aggravating circumstance listed in division (A) of section2929.04 of the Revised Code, and was not found at trial to have been eighteen years of age or older at the time of thecommission of the offense, the court or the panel of 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) Except as provided in division (E)(2) of this section, one of the following:

(a) Life imprisonment without parole;

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(b) Subject to division (E)(2)(d) of this section, life imprisonment with parole eligibility after serving twenty-five fullyears of imprisonment;

(c) Subject to division (E)(2)(d) of this section, life imprisonment with parole eligibility after serving thirty full years ofimprisonment;

(d) If the victim of the aggravated murder was less than thirteen years of age, the offender also is convicted of or pleadsguilty to a sexual motivation specification that was included in the indictment, count in the indictment, or informationcharging the offense, and the trial court does not impose a sentence of life imprisonment without parole on the offenderpursuant to division (E)(2)(a) of this section, the court or panel shall sentence the offender pursuant to division (B)(3) ofsection 2971.03 of the Revised Code to an indefinite term consisting of a minimum term of thirty years and a maximumterm of life imprisonment.

(2) If the offender also is convicted of or pleads guilty to a sexual motivation specification and a sexually violent predatorspecification that are included in the indictment, count in the indictment, or information that charged the aggravatedmurder, life imprisonment without parole that shall be served pursuant to section 2971.03 of the Revised Code.

(F) The court or the panel of three judges, when it imposes sentence of death, shall state in a separate opinion its specificfindings 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 committing,and the reasons why the aggravating circumstances the offender was found guilty of committing were sufficient tooutweigh the mitigating factors. The court or panel, when it imposes life imprisonment or an indefinite term consisting ofa minimum term of thirty years and a maximum term of life imprisonment under division (D) of this section, shall statein a separate opinion its specific findings of which of the mitigating factors set forth in division (B) of section 2929.04 ofthe Revised Code it found to exist, what other mitigating factors it found to exist, what aggravating circumstances theoffender was found guilty of committing, and why it could not find that these aggravating circumstances were sufficientto outweigh the mitigating factors. For cases in which a sentence of death is imposed for an offense committed beforeJanuary 1, 1995, the court or panel shall file the opinion required to be prepared by this division with the clerk of theappropriate court of appeals and with the clerk of the supreme court within fifteen days after the court or panel imposessentence. For cases in which a sentence of death is imposed for an offense committed on or after January 1, 1995, thecourt or panel shall file the opinion required to be prepared by this division with the clerk of the supreme court withinfifteen days after the court or panel imposes sentence. The judgment in a case in which a sentencing hearing is heldpursuant to this section is not final until the opinion is filed.

(G)(1) Whenever the court or a panel of three judges imposes a sentence of death for an offense committed before January1, 1995, the clerk of the court in which the judgment is rendered shall make and retain a copy of the entire record in thecase, and shall deliver the original of the entire record in the case to the appellate court.

(2) Whenever the court or a panel of three judges imposes a sentence of death for an offense committed on or afterJanuary 1, 1995, the clerk of the court in which the judgment is rendered shall make and retain a copy of the entire recordin the case, and shall deliver the original of the entire record in the case to the supreme court.

CREDIT(S)

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(2016 S 139, eff. 4-6-17; 2007 S 10, eff. 1-1-08; 2004 H 184, eff. 3-23-05; 1996 H 180, eff. 1-1-97; 1996 S 269, eff. 7-1-96;1995 S 2, eff. 7-1-96; 1995 S 4, eff. 9-21-95; 1981 S 1, eff. 10-19-81; 1972 H 511)

R.C. § 2929.03, OH ST § 2929.03Current through 2017 Files 1 to 13, 14 (immediately effective ORC sections), and 15 to 17 of the 132nd General Assembly(2017-2018).

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Baldwin's Ohio Revised Code AnnotatedTitle XXIX. Crimes--Procedure (Refs & Annos)

Chapter 2929. Penalties and Sentencing (Refs & Annos)Penalties for Murder

R.C. § 2929.04

2929.04 Criteria for imposing death or imprisonment for a capital offense

Effective: October 12, 2016Currentness

(A) Imposition of the death penalty for aggravated murder is precluded unless one or more of the following is specifiedin the indictment or count in the indictment pursuant to section 2941.14 of the Revised Code and proved beyond areasonable doubt:

(1) The offense was the assassination of the president of the United States or a person in line of succession to thepresidency, the governor or lieutenant governor of this state, the president-elect or vice president-elect of the UnitedStates, the governor-elect or lieutenant governor-elect of this state, or a candidate for any of the offices described in thisdivision. For purposes of this division, a person is a candidate if the person has been nominated for election accordingto law, if the person has filed a petition or petitions according to law to have the person's name placed on the ballot in aprimary or general election, or if the person campaigns as a write-in candidate in a primary or general election.

(2) The offense was committed for hire.

(3) The offense was committed for the purpose of escaping detection, apprehension, trial, or punishment for anotheroffense committed by the offender.

(4) The offense was committed while the offender was under detention or while the offender was at large after havingbroken detention. As used in division (A)(4) of this section, “detention” has the same meaning as in section 2921.01of the Revised Code, except that detention does not include hospitalization, institutionalization, or confinement in amental health facility or intellectual disabilities facility unless at the time of the commission of the offense either of thefollowing circumstances apply:

(a) The offender was in the facility as a result of being charged with a violation of a section of the Revised Code.

(b) The offender was under detention as a result of being convicted of or pleading guilty to a violation of a section ofthe Revised Code.

(5) Prior to the offense at bar, the offender was convicted of an offense an essential element of which was the purposefulkilling of or attempt to kill another, or the offense at bar was part of a course of conduct involving the purposeful killingof or attempt to kill two or more persons by the offender.

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(6) The victim of the offense was a law enforcement officer, as defined in section 2911.01 of the Revised Code, whomthe offender had reasonable cause to know or knew to be a law enforcement officer as so defined, and either the victim,at the time of the commission of the offense, was engaged in the victim's duties, or it was the offender's specific purposeto kill a law enforcement officer as so defined.

(7) The offense was committed while the offender was committing, attempting to commit, or fleeing immediately aftercommitting or attempting to commit kidnapping, rape, aggravated arson, aggravated robbery, or aggravated burglary,and either the offender was the principal offender in the commission of the aggravated murder or, if not the principaloffender, 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 the victim'stestimony in any criminal proceeding and the aggravated murder was not committed during the commission, attemptedcommission, or flight immediately after the commission or attempted commission of the offense to which the victim wasa witness, or the victim of the aggravated murder was a witness to an offense and was purposely killed in retaliation forthe victim's testimony in any criminal proceeding.

(9) The offender, in the commission of the offense, purposefully caused the death of another who was under thirteen yearsof age at the time of the commission of the offense, and either the offender was the principal offender in the commissionof the offense or, if not the principal offender, committed the offense with prior calculation and design.

(10) The offense was committed while the offender was committing, attempting to commit, or fleeing immediately aftercommitting or attempting to commit terrorism.

(B) If one or more of the aggravating circumstances listed in division (A) of this section is specified in the indictmentor count in the indictment and proved beyond a reasonable doubt, and if the offender did not raise the matter of agepursuant to section 2929.023 of the Revised Code or if the offender, after raising the matter of age, was found at trial tohave been eighteen years of age or older at the time of the commission of the offense, the court, trial jury, or panel of threejudges shall consider, and weigh against the aggravating circumstances proved beyond a reasonable doubt, the natureand 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 substantialcapacity to appreciate the criminality of the offender's conduct or to conform the offender's conduct to the requirementsof the law;

(4) The youth of the offender;

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(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 participationin 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 thissection and of any other factors in mitigation of the imposition of the sentence of death.

The existence of any of the mitigating factors listed in division (B) of this section does not preclude the imposition ofa sentence of death on the offender but shall be weighed pursuant to divisions (D)(2) and (3) of section 2929.03 of theRevised Code by the trial court, trial jury, or the panel of three judges against the aggravating circumstances the offenderwas found guilty of committing.

CREDIT(S)(2016 H 158, eff. 10-12-16; 2002 S 184, eff. 5-15-02; 1998 S 193, eff. 12-29-98; 1997 H 151, eff. 9-16-97; 1997 S 32, eff.

8-6-97; 1981 S 1, eff. 10-19-81; 1972 H 511)

R.C. § 2929.04, OH ST § 2929.04Current through 2017 Files 1 to 13, 14 (immediately effective ORC sections), and 15 to 17 of the 132nd General Assembly(2017-2018).

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Baldwin's Ohio Revised Code AnnotatedTitle XXIX. Crimes--Procedure (Refs & Annos)

Chapter 2929. Penalties and Sentencing (Refs & Annos)Penalties for Murder

R.C. § 2929.05

2929.05 Appeals; procedures

Currentness

(A) Whenever sentence of death is imposed pursuant to sections 2929.03 and 2929.04 of the Revised Code, the court ofappeals, in a case in which a sentence of death was imposed for an offense committed before January 1, 1995, and thesupreme court shall review upon appeal the sentence of death at the same time that they review the other issues in the case.The court of appeals and the supreme court shall review the judgment in the case and the sentence of death imposed bythe court or panel of three judges in the same manner that they review other criminal cases, except that they shall reviewand independently weigh all of the facts and other evidence disclosed in the record in the case and consider the offense andthe offender to determine whether the aggravating circumstances the offender was found guilty of committing outweighthe mitigating factors in the case, and whether the sentence of death is appropriate. In determining whether the sentenceof death is appropriate, the court of appeals, in a case in which a sentence of death was imposed for an offense committedbefore January 1, 1995, and the supreme court shall consider whether the sentence is excessive or disproportionate to thepenalty imposed in similar cases. They also shall review all of the facts and other evidence to determine if the evidencesupports the finding of the aggravating circumstances the trial jury or the panel of three judges found the offender guiltyof committing, and shall determine whether the sentencing court properly weighed the aggravating circumstances theoffender was found guilty of committing and the mitigating factors. The court of appeals, in a case in which a sentenceof death was imposed for an offense committed before January 1, 1995, or the supreme court shall affirm a sentence ofdeath only if the particular court is persuaded from the record that the aggravating circumstances the offender was foundguilty of committing outweigh the mitigating factors present in the case and that the sentence of death is the appropriatesentence in the case.

A court of appeals that reviews a case in which the sentence of death is imposed for an offense committed before January1, 1995, shall file a separate opinion as to its findings in the case with the clerk of the supreme court. The opinion shallbe filed within fifteen days after the court issues its opinion and shall contain whatever information is required by theclerk of the supreme court.

(B) The court of appeals, in a case in which a sentence of death was imposed for an offense committed before January1, 1995, and the supreme court shall give priority over all other cases to the review of judgments in which the sentenceof death is imposed and, except as otherwise provided in this section, shall conduct the review in accordance with theRules of Appellate Procedure.

(C) At any time after a sentence of death is imposed pursuant to section 2929.022 or 2929.03 of the Revised Code, thecourt of common pleas that sentenced the offender shall vacate the sentence if the offender did not present evidence attrial that the offender was not eighteen years of age or older at the time of the commission of the aggravated murderfor which the offender was sentenced and if the offender shows by a preponderance of the evidence that the offenderwas less than eighteen years of age at the time of the commission of the aggravated murder for which the offender wassentenced. The court is not required to hold a hearing on a motion filed pursuant to this division unless the court finds,based on the motion and any supporting information submitted by the defendant, any information submitted by the

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prosecuting attorney, and the record in the case, including any previous hearings and orders, probable cause to believethat the defendant was not eighteen years of age or older at the time of the commission of the aggravated murder forwhich the defendant was sentenced to death.

CREDIT(S)(1998 S 107, eff. 7-29-98; 1995 S 4, eff. 9-21-95; 1981 S 1, eff. 10-19-81)

R.C. § 2929.05, OH ST § 2929.05Current through 2017 Files 1 to 13, 14 (immediately effective ORC sections), and 15 to 17 of the 132nd General Assembly(2017-2018).

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Baldwin's Ohio Revised Code AnnotatedTitle XXIX. Crimes--Procedure (Refs & Annos)

Chapter 2929. Penalties and Sentencing (Refs & Annos)Penalties for Murder

R.C. § 2929.06

2929.06 Resentencing after sentence of death is set aside, nullified, or vacated

Effective: October 12, 2016Currentness

(A) If a sentence of death imposed upon an offender is set aside, nullified, or vacated because the court of appeals, in acase in which a sentence of death was imposed for an offense committed before January 1, 1995, or the supreme court,in cases in which the supreme court reviews the sentence upon appeal, could not affirm the sentence of death under thestandards imposed by section 2929.05 of the Revised Code, is set aside, nullified, or vacated for the sole reason that thestatutory procedure for imposing the sentence of death that is set forth in sections 2929.03 and 2929.04 of the RevisedCode is unconstitutional, is set aside, nullified, or vacated pursuant to division (C) of section 2929.05 of the RevisedCode, or is set aside, nullified, or vacated because a court has determined that the offender is a person with an intellectualdisability under standards set forth in decisions of the supreme court of this state or the United States supreme court, thetrial court that sentenced the offender shall conduct a hearing to resentence the offender. At the resentencing hearing,the court shall impose upon the offender a sentence of life imprisonment or an indefinite term consisting of a minimumterm of thirty years and a maximum term of life imprisonment that is determined as specified in this division. If division(D) of section 2929.03 of the Revised Code, at the time the offender committed the aggravated murder for which thesentence of death was imposed, required the imposition when a sentence of death was not imposed of a sentence of lifeimprisonment without parole or a sentence of an indefinite term consisting of a minimum term of thirty years and amaximum term of life imprisonment to be imposed pursuant to division (A) or (B)(3) of section 2971.03 of the RevisedCode and served pursuant to that section, the court shall impose the sentence so required. In all other cases, the sentencesof life imprisonment that are available at the hearing, and from which the court shall impose sentence, shall be the samesentences of life imprisonment that were available under division (D) of section 2929.03 or under section 2909.24 of theRevised Code at the time the offender committed the offense for which the sentence of death was imposed. Nothing inthis division regarding the resentencing of an offender shall affect the operation of section 2971.03 of the Revised Code.

(B) Whenever any court of this state or any federal court sets aside, nullifies, or vacates a sentence of death imposed uponan offender because of error that occurred in the sentencing phase of the trial and if division (A) of this section does notapply, the trial court that sentenced the offender shall conduct a new hearing to resentence the offender. If the offenderwas tried by a jury, the trial court shall impanel a new jury for the hearing. If the offender was tried by a panel of threejudges, that panel or, if necessary, a new panel of three judges shall conduct the hearing. At the hearing, the court orpanel shall follow the procedure set forth in division (D) of section 2929.03 of the Revised Code in determining whetherto impose upon the offender a sentence of death, a sentence of life imprisonment, or an indefinite term consisting of aminimum term of thirty years and a maximum term of life imprisonment. If, pursuant to that procedure, the court orpanel determines that it will impose a sentence other than a sentence of death, the court or panel shall impose upon theoffender one of the sentences of life imprisonment that could have been imposed at the time the offender committedthe offense for which the sentence of death was imposed, determined as specified in this division, or an indefinite termconsisting of a minimum term of thirty years and a maximum term of life imprisonment that is determined as specified inthis division. If division (D) of section 2929.03 of the Revised Code, at the time the offender committed the aggravatedmurder for which the sentence of death was imposed, required the imposition when a sentence of death was not imposed

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of a sentence of life imprisonment without parole or a sentence of an indefinite term consisting of a minimum term ofthirty years and a maximum term of life imprisonment to be imposed pursuant to division (A) or (B)(3) of section 2971.03of the Revised Code and served pursuant to that section, the court or panel shall impose the sentence so required. Inall other cases, the sentences of life imprisonment that are available at the hearing, and from which the court or panelshall impose sentence, shall be the same sentences of life imprisonment that were available under division (D) of section2929.03 or under section 2909.24 of the Revised Code at the time the offender committed the offense for which thesentence of death was imposed.

(C) If a sentence of life imprisonment without parole imposed upon an offender pursuant to section 2929.021 or 2929.03of the Revised Code is set aside, nullified, or vacated for the sole reason that the statutory procedure for imposing thesentence of life imprisonment without parole that is set forth in sections 2929.03 and 2929.04 of the Revised Code isunconstitutional, the trial court that sentenced the offender shall conduct a hearing to resentence the offender to lifeimprisonment with parole eligibility after serving twenty-five full years of imprisonment or to life imprisonment withparole eligibility after serving thirty full years of imprisonment.

(D) Nothing in this section limits or restricts the rights of the state to appeal any order setting aside, nullifying, or vacatinga conviction or sentence of death, when an appeal of that nature otherwise would be available.

(E) This section, as amended by H.B. 184 of the 125th general assembly, shall apply to all offenders who have beensentenced to death for an aggravated murder that was committed on or after October 19, 1981, or for terrorism that wascommitted on or after May 15, 2002. This section, as amended by H.B. 184 of the 125th general assembly, shall applyequally to all such offenders sentenced to death prior to, on, or after March 23, 2005, including offenders who, on March23, 2005, are challenging their sentence of death and offenders whose sentence of death has been set aside, nullified, orvacated by any court of this state or any federal court but who, as of March 23, 2005, have not yet been resentenced.

CREDIT(S)(2016 H 158, eff. 10-12-16; 2007 S 10, eff. 1-1-08; 2004 H 184, eff. 3-23-05; 1998 S 107, eff. 7-29-98; 1996 H 180, eff.

1-1-97; 1996 S 258, eff. 10-16-96; 1996 S 269, eff. 7-1-96; 1995 S 2, eff. 7-1-96; 1995 S 4, eff. 9-21-95; 1981 S 1, eff. 10-19-81)

R.C. § 2929.06, OH ST § 2929.06Current through 2017 Files 1 to 13, 14 (immediately effective ORC sections), and 15 to 17 of the 132nd General Assembly(2017-2018).

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West's Florida Statutes AnnotatedTitle XLVI. Crimes (Chapters 775-899)

Chapter 775. Definitions; General Penalties; Registration of Criminals (Refs & Annos)

West's F.S.A. § 775.082

775.082. Penalties; applicability of sentencing structures; mandatoryminimum sentences for certain reoffenders previously released from prison

Effective: March 13, 2017 to September 30, 2017Currentness

(1)(a) Except as provided in paragraph (b), a person who has been convicted of a capital felony shall be punished by deathif the proceeding held to determine sentence according to the procedure set forth in s. 921.141 results in a determinationthat such person shall be punished by death, otherwise such person shall be punished by life imprisonment and shallbe ineligible for parole.

(b) 1. A person who actually killed, intended to kill, or attempted to kill the victim and who is convicted under s. 782.04of a capital felony, or an offense that was reclassified as a capital felony, which was committed before the person attained18 years of age shall be punished by a term of imprisonment for life if, after a sentencing hearing conducted by the courtin accordance with s. 921.1401, the court finds that life imprisonment is an appropriate sentence. If the court finds thatlife imprisonment is not an appropriate sentence, such person shall be punished by a term of imprisonment of at least40 years. A person sentenced pursuant to this subparagraph is entitled to a review of his or her sentence in accordancewith s. 921.1402(2)(a).

2. A person who did not actually kill, intend to kill, or attempt to kill the victim and who is convicted under s. 782.04 of acapital felony, or an offense that was reclassified as a capital felony, which was committed before the person attained 18years of age may be punished by a term of imprisonment for life or by a term of years equal to life if, after a sentencinghearing conducted by the court in accordance with s. 921.1401, the court finds that life imprisonment is an appropriatesentence. A person who is sentenced to a term of imprisonment of more than 15 years is entitled to a review of his orher sentence in accordance with s. 921.1402(2)(c).

3. The court shall make a written finding as to whether a person is eligible for a sentence review hearing under s.921.1402(2)(a) or (c). Such a finding shall be based upon whether the person actually killed, intended to kill, or attemptedto kill the victim. The court may find that multiple defendants killed, intended to kill, or attempted to kill the victim.

(2) In the event the death penalty in a capital felony is held to be unconstitutional by the Florida Supreme Courtor the United States Supreme Court, the court having jurisdiction over a person previously sentenced to death for acapital felony shall cause such person to be brought before the court, and the court shall sentence such person to lifeimprisonment as provided in subsection (1). No sentence of death shall be reduced as a result of a determination that amethod of execution is held to be unconstitutional under the State Constitution or the Constitution of the United States.

(3) A person who has been convicted of any other designated felony may be punished as follows:

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(a) 1. For a life felony committed before October 1, 1983, by a term of imprisonment for life or for a term of at least30 years.

2. For a life felony committed on or after October 1, 1983, by a term of imprisonment for life or by a term of imprisonmentnot exceeding 40 years.

3. Except as provided in subparagraph 4., for a life felony committed on or after July 1, 1995, by a term of imprisonmentfor life or by imprisonment for a term of years not exceeding life imprisonment.

4. a. Except as provided in sub-subparagraph b., for a life felony committed on or after September 1, 2005, which is aviolation of s. 800.04(5)(b), by:

(I) A term of imprisonment for life; or

(II) A split sentence that is a term of at least 25 years' imprisonment and not exceeding life imprisonment, followed byprobation or community control for the remainder of the person's natural life, as provided in s. 948.012(4).

b. For a life felony committed on or after July 1, 2008, which is a person's second or subsequent violation of s. 800.04(5)(b), by a term of imprisonment for life.

5. Notwithstanding subparagraphs 1.-4., a person who is convicted under s. 782.04 of an offense that was reclassified asa life felony which was committed before the person attained 18 years of age may be punished by a term of imprisonmentfor life or by a term of years equal to life imprisonment if the judge conducts a sentencing hearing in accordance with s.921.1401 and finds that life imprisonment or a term of years equal to life imprisonment is an appropriate sentence.

a. A person who actually killed, intended to kill, or attempted to kill the victim and is sentenced to a term of imprisonmentof more than 25 years is entitled to a review of his or her sentence in accordance with s. 921.1402(2)(b).

b. A person who did not actually kill, intend to kill, or attempt to kill the victim and is sentenced to a term of imprisonmentof more than 15 years is entitled to a review of his or her sentence in accordance with s. 921.1402(2)(c).

c. The court shall make a written finding as to whether a person is eligible for a sentence review hearing under s.921.1402(2)(b) or (c). Such a finding shall be based upon whether the person actually killed, intended to kill, or attemptedto kill the victim. The court may find that multiple defendants killed, intended to kill, or attempted to kill the victim.

6. For a life felony committed on or after October 1, 2014, which is a violation of s. 787.06(3)(g), by a term ofimprisonment for life.

(b) 1. For a felony of the first degree, by a term of imprisonment not exceeding 30 years or, when specifically providedby statute, by imprisonment for a term of years not exceeding life imprisonment.

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2. Notwithstanding subparagraph 1., a person convicted under s. 782.04 of a first degree felony punishable by a term ofyears not exceeding life imprisonment, or an offense that was reclassified as a first degree felony punishable by a termof years not exceeding life, which was committed before the person attained 18 years of age may be punished by a termof years equal to life imprisonment if the judge conducts a sentencing hearing in accordance with s. 921.1401 and findsthat a term of years equal to life imprisonment is an appropriate sentence.

a. A person who actually killed, intended to kill, or attempted to kill the victim and is sentenced to a term of imprisonmentof more than 25 years is entitled to a review of his or her sentence in accordance with s. 921.1402(2)(b).

b. A person who did not actually kill, intend to kill, or attempt to kill the victim and is sentenced to a term of imprisonmentof more than 15 years is entitled to a review of his or her sentence in accordance with s. 921.1402(2)(c).

c. The court shall make a written finding as to whether a person is eligible for a sentence review hearing under s.921.1402(2)(b) or (c). Such a finding shall be based upon whether the person actually killed, intended to kill, or attemptedto kill the victim. The court may find that multiple defendants killed, intended to kill, or attempted to kill the victim.

(c) Notwithstanding paragraphs (a) and (b), a person convicted of an offense that is not included in s. 782.04 but thatis an offense that is a life felony or is punishable by a term of imprisonment for life or by a term of years not exceedinglife imprisonment, or an offense that was reclassified as a life felony or an offense punishable by a term of imprisonmentfor life or by a term of years not exceeding life imprisonment, which was committed before the person attained 18 yearsof age may be punished by a term of imprisonment for life or a term of years equal to life imprisonment if the judgeconducts a sentencing hearing in accordance with s. 921.1401 and finds that life imprisonment or a term of years equalto life imprisonment is an appropriate sentence. A person who is sentenced to a term of imprisonment of more than 20years is entitled to a review of his or her sentence in accordance with s. 921.1402(2)(d).

(d) For a felony of the second degree, by a term of imprisonment not exceeding 15 years.

(e) For a felony of the third degree, by a term of imprisonment not exceeding 5 years.

(4) A person who has been convicted of a designated misdemeanor may be sentenced as follows:

(a) For a misdemeanor of the first degree, by a definite term of imprisonment not exceeding 1 year;

(b) For a misdemeanor of the second degree, by a definite term of imprisonment not exceeding 60 days.

(5) Any person who has been convicted of a noncriminal violation may not be sentenced to a term of imprisonment norto any other punishment more severe than a fine, forfeiture, or other civil penalty, except as provided in chapter 316 orby ordinance of any city or county.

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(6) Nothing in this section shall be construed to alter the operation of any statute of this state authorizing a trial court, inits discretion, to impose a sentence of imprisonment for an indeterminate period within minimum and maximum limitsas provided by law, except as provided in subsection (1).

(7) This section does not deprive the court of any authority conferred by law to decree a forfeiture of property, suspendor cancel a license, remove a person from office, or impose any other civil penalty. Such a judgment or order may beincluded in the sentence.

(8)(a) The sentencing guidelines that were effective October 1, 1983, and any revisions thereto, apply to all felonies, exceptcapital felonies, committed on or after October 1, 1983, and before January 1, 1994, and to all felonies, except capitalfelonies and life felonies, committed before October 1, 1983, when the defendant affirmatively selects to be sentencedpursuant to such provisions.

(b) The 1994 sentencing guidelines, that were effective January 1, 1994, and any revisions thereto, apply to all felonies,except capital felonies, committed on or after January 1, 1994, and before October 1, 1995.

(c) The 1995 sentencing guidelines that were effective October 1, 1995, and any revisions thereto, apply to all felonies,except capital felonies, committed on or after October 1, 1995, and before October 1, 1998.

(d) The Criminal Punishment Code applies to all felonies, except capital felonies, committed on or after October 1, 1998.Any revision to the Criminal Punishment Code applies to sentencing for all felonies, except capital felonies, committedon or after the effective date of the revision.

(e) Felonies, except capital felonies, with continuing dates of enterprise shall be sentenced under the sentencing guidelinesor the Criminal Punishment Code in effect on the beginning date of the criminal activity.

(9)(a) 1. “Prison releasee reoffender” means any defendant who commits, or attempts to commit:

a. Treason;

b. Murder;

c. Manslaughter;

d. Sexual battery;

e. Carjacking;

f. Home-invasion robbery;

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g. Robbery;

h. Arson;

i. Kidnapping;

j. Aggravated assault with a deadly weapon;

k. Aggravated battery;

l. Aggravated stalking;

m. Aircraft piracy;

n. Unlawful throwing, placing, or discharging of a destructive device or bomb;

o. Any felony that involves the use or threat of physical force or violence against an individual;

p. Armed burglary;

q. Burglary of a dwelling or burglary of an occupied structure; or

r. Any felony violation of s. 790.07, s. 800.04, s. 827.03, s. 827.071, or s. 847.0135(5);

within 3 years after being released from a state correctional facility operated by the Department of Corrections or aprivate vendor or within 3 years after being released from a correctional institution of another state, the District ofColumbia, the United States, any possession or territory of the United States, or any foreign jurisdiction, followingincarceration for an offense for which the sentence is punishable by more than 1 year in this state.

2. “Prison releasee reoffender” also means any defendant who commits or attempts to commit any offense listed in sub-subparagraphs (a)1.a.-r. while the defendant was serving a prison sentence or on escape status from a state correctionalfacility operated by the Department of Corrections or a private vendor or while the defendant was on escape status froma correctional institution of another state, the District of Columbia, the United States, any possession or territory of theUnited States, or any foreign jurisdiction, following incarceration for an offense for which the sentence is punishableby more than 1 year in this state.

3. If the state attorney determines that a defendant is a prison releasee reoffender as defined in subparagraph 1., the stateattorney may seek to have the court sentence the defendant as a prison releasee reoffender. Upon proof from the state

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attorney that establishes by a preponderance of the evidence that a defendant is a prison releasee reoffender as definedin this section, such defendant is not eligible for sentencing under the sentencing guidelines and must be sentenced asfollows:

a. For a felony punishable by life, by a term of imprisonment for life;

b. For a felony of the first degree, by a term of imprisonment of 30 years;

c. For a felony of the second degree, by a term of imprisonment of 15 years; and

d. For a felony of the third degree, by a term of imprisonment of 5 years.

(b) A person sentenced under paragraph (a) shall be released only by expiration of sentence and shall not be eligible forparole, control release, or any form of early release. Any person sentenced under paragraph (a) must serve 100 percentof the court-imposed sentence.

(c) Nothing in this subsection shall prevent a court from imposing a greater sentence of incarceration as authorized bylaw, pursuant to s. 775.084 or any other provision of law.

(d) 1. It is the intent of the Legislature that offenders previously released from prison who meet the criteria in paragraph(a) be punished to the fullest extent of the law and as provided in this subsection, unless the state attorney determinesthat extenuating circumstances exist which preclude the just prosecution of the offender, including whether the victimrecommends that the offender not be sentenced as provided in this subsection.

2. For every case in which the offender meets the criteria in paragraph (a) and does not receive the mandatory minimumprison sentence, the state attorney must explain the sentencing deviation in writing and place such explanation in thecase file maintained by the state attorney.

(10) If a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third degree felony but nota forcible felony as defined in s. 776.08, and excluding any third degree felony violation under chapter 810, and if thetotal sentence points pursuant to s. 921.0024 are 22 points or fewer, the court must sentence the offender to a nonstateprison sanction. However, if the court makes written findings that a nonstate prison sanction could present a danger tothe public, the court may sentence the offender to a state correctional facility pursuant to this section.

(11) The purpose of this section is to provide uniform punishment for those crimes made punishable under this sectionand, to this end, a reference to this section constitutes a general reference under the doctrine of incorporation by reference.

CreditsLaws 1971, c. 71-136, § 3; Laws 1972, c. 72-118, §§ 1, 2; Laws 1972, c. 72-724, § 2; Laws 1974, c. 74-383, § 5; Laws 1977,c. 77-174, § 1; Laws 1983, c. 83-87, § 1. Amended by Laws 1994, c. 94-228, § 1, eff. May 25, 1994; Laws 1995, c. 95-184, §16, eff. June 8, 1995; Laws 1995, c. 95-294, § 4, eff. Oct. 1, 1995; Laws 1997, c. 97-239, § 2, eff. May 30, 1997; Laws 1998,

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c. 98-3, § 2, eff. March 26, 1998; Laws 1998, c. 98-204, § 10, eff. Oct. 1, 1998; Laws 1999, c. 99-188, § 2, eff. July 1, 1999;Laws 2000, c. 2000-246, § 3, eff. Oct. 1, 2000; Laws 2001, c. 2001-239, § 1, eff. July 1, 2001; Laws 2002, c. 2002-70, § 2,eff. July 1, 2002; Laws 2002, c. 2002-211, §§ 1, 2; Laws 2005, c. 2005-28, § 4, eff. Sept. 1, 2005; Laws 2008, c. 2008-172,§ 13, eff. Oct. 1, 2008; Laws 2008, c. 2008-182, § 1, eff. July 1, 2008; Laws 2009, c. 2009-63, § 1, eff. July 1, 2009; Laws2011, c. 2011-200, § 2, eff. July 1, 2011; Laws 2014, c. 2014-160, § 8, eff. Oct. 1, 2014; Laws 2014, c. 2014-220, § 1, eff.July 1, 2014; Laws 2016, c. 2016-13, § 1, eff. March 7, 2016; Laws 2016, c. 2016-24, § 19, eff. Oct. 1, 2016; Laws 2017,c. 2017-1, § 3, eff. March 13, 2017.

West's F. S. A. § 775.082, FL ST § 775.082Current through the 2017 First Regular Session and Special ''A'' Session of the 25th Legislature

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West's Florida Statutes AnnotatedTitle XLVII. Criminal Procedure and Corrections (Chapters 900-999) (Refs & Annos)

Chapter 921. Sentence (Refs & Annos)

West's F.S.A. § 921.141

921.141. Sentence of death or life imprisonment for capital felonies; further proceedings to determine sentence

Effective: March 13, 2017Currentness

(1) Separate proceedings on issue of penalty.--Upon conviction or adjudication of guilt of a defendant of a capital felony,the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced todeath or life imprisonment as authorized by s. 775.082. The proceeding shall be conducted by the trial judge before thetrial jury as soon as practicable. If, through impossibility or inability, the trial jury is unable to reconvene for a hearingon the issue of penalty, having determined the guilt of the accused, the trial judge may summon a special juror or jurorsas provided in chapter 913 to determine the issue of the imposition of the penalty. If the trial jury has been waived, orif the defendant pleaded guilty, the sentencing proceeding shall be conducted before a jury impaneled for that purpose,unless waived by the defendant. In the proceeding, evidence may be presented as to any matter that the court deemsrelevant to the nature of the crime and the character of the defendant and shall include matters relating to any of theaggravating factors enumerated in subsection (6) and for which notice has been provided pursuant to s. 782.04(1)(b)or mitigating circumstances enumerated in subsection (7). Any such evidence that the court deems to have probativevalue may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant isaccorded a fair opportunity to rebut any hearsay statements. However, this subsection shall not be construed to authorizethe introduction of any evidence secured in violation of the Constitution of the United States or the Constitution of theState of Florida. The state and the defendant or the defendant's counsel shall be permitted to present argument for oragainst sentence of death.

(2) Findings and recommended sentence by the jury.--This subsection applies only if the defendant has not waived his orher right to a sentencing proceeding by a jury.

(a) After hearing all of the evidence presented regarding aggravating factors and mitigating circumstances, the jury shalldeliberate and determine if the state has proven, beyond a reasonable doubt, the existence of at least one aggravatingfactor set forth in subsection (6).

(b) The jury shall return findings identifying each aggravating factor found to exist. A finding that an aggravating factorexists must be unanimous. If the jury:

1. Does not unanimously find at least one aggravating factor, the defendant is ineligible for a sentence of death.

2. Unanimously finds at least one aggravating factor, the defendant is eligible for a sentence of death and the jury shallmake a recommendation to the court as to whether the defendant shall be sentenced to life imprisonment without thepossibility of parole or to death. The recommendation shall be based on a weighing of all of the following:

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a. Whether sufficient aggravating factors exist.

b. Whether aggravating factors exist which outweigh the mitigating circumstances found to exist.

c. Based on the considerations in sub-subparagraphs a. and b., whether the defendant should be sentenced to lifeimprisonment without the possibility of parole or to death.

(c) If a unanimous jury determines that the defendant should be sentenced to death, the jury's recommendation to thecourt shall be a sentence of death. If a unanimous jury does not determine that the defendant should be sentenced todeath, the jury's recommendation to the court shall be a sentence of life imprisonment without the possibility of parole.

(3) Imposition of sentence of life imprisonment or death.--

(a) If the jury has recommended a sentence of:

1. Life imprisonment without the possibility of parole, the court shall impose the recommended sentence.

2. Death, the court, after considering each aggravating factor found by the jury and all mitigating circumstances, mayimpose a sentence of life imprisonment without the possibility of parole or a sentence of death. The court may consideronly an aggravating factor that was unanimously found to exist by the jury.

(b) If the defendant waived his or her right to a sentencing proceeding by a jury, the court, after considering allaggravating factors and mitigating circumstances, may impose a sentence of life imprisonment without the possibilityof parole or a sentence of death. The court may impose a sentence of death only if the court finds that at least oneaggravating factor has been proven to exist beyond a reasonable doubt.

(4) Order of the court in support of sentence of death.--In each case in which the court imposes a sentence of death, thecourt shall, considering the records of the trial and the sentencing proceedings, enter a written order addressing theaggravating factors set forth in subsection (6) found to exist, the mitigating circumstances in subsection (7) reasonablyestablished by the evidence, whether there are sufficient aggravating factors to warrant the death penalty, and whetherthe aggravating factors outweigh the mitigating circumstances reasonably established by the evidence. If the court doesnot issue its order requiring the death sentence within 30 days after the rendition of the judgment and sentence, the courtshall impose a sentence of life imprisonment without the possibility of parole in accordance with s. 775.082.

(5) Review of judgment and sentence.--The judgment of conviction and sentence of death shall be subject to automaticreview by the Supreme Court of Florida and disposition rendered within 2 years after the filing of a notice of appeal.Such review by the Supreme Court shall have priority over all other cases and shall be heard in accordance with rulesadopted by the Supreme Court.

(6) Aggravating factors.--Aggravating factors shall be limited to the following:

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(a) The capital felony was committed by a person previously convicted of a felony and under sentence of imprisonmentor placed on community control or on felony probation.

(b) The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violenceto the person.

(c) The defendant knowingly created a great risk of death to many persons.

(d) The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of, oran attempt to commit, or flight after committing or attempting to commit, any: robbery; sexual battery; aggravated childabuse; abuse of an elderly person or disabled adult resulting in great bodily harm, permanent disability, or permanentdisfigurement; arson; burglary; kidnapping; aircraft piracy; or unlawful throwing, placing, or discharging of a destructivedevice or bomb.

(e) The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escapefrom custody.

(f) The capital felony was committed for pecuniary gain.

(g) The capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or theenforcement of laws.

(h) The capital felony was especially heinous, atrocious, or cruel.

(i) The capital felony was a homicide and was committed in a cold, calculated, and premeditated manner without anypretense of moral or legal justification.

(j) The victim of the capital felony was a law enforcement officer engaged in the performance of his or her official duties.

(k) The victim of the capital felony was an elected or appointed public official engaged in the performance of his or herofficial duties if the motive for the capital felony was related, in whole or in part, to the victim's official capacity.

(l) The victim of the capital felony was a person less than 12 years of age.

(m) The victim of the capital felony was particularly vulnerable due to advanced age or disability, or because thedefendant stood in a position of familial or custodial authority over the victim.

(n) The capital felony was committed by a criminal gang member, as defined in s. 874.03.

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(o) The capital felony was committed by a person designated as a sexual predator pursuant to s. 775.21 or a personpreviously designated as a sexual predator who had the sexual predator designation removed.

(p) The capital felony was committed by a person subject to an injunction issued pursuant to s. 741.30 or s. 784.046, or aforeign protection order accorded full faith and credit pursuant to s. 741.315, and was committed against the petitionerwho obtained the injunction or protection order or any spouse, child, sibling, or parent of the petitioner.

(7) Mitigating circumstances.--Mitigating circumstances shall be the following:

(a) The defendant has no significant history of prior criminal activity.

(b) The capital felony was committed while the defendant was under the influence of extreme mental or emotionaldisturbance.

(c) The victim was a participant in the defendant's conduct or consented to the act.

(d) The defendant was an accomplice in the capital felony committed by another person and his or her participationwas relatively minor.

(e) The defendant acted under extreme duress or under the substantial domination of another person.

(f) The capacity of the defendant to appreciate the criminality of his or her conduct or to conform his or her conductto the requirements of law was substantially impaired.

(g) The age of the defendant at the time of the crime.

(h) The existence of any other factors in the defendant's background that would mitigate against imposition of the deathpenalty.

(8) Victim impact evidence.--Once the prosecution has provided evidence of the existence of one or more aggravatingfactors as described in subsection (6), the prosecution may introduce, and subsequently argue, victim impact evidence tothe jury. Such evidence shall be designed to demonstrate the victim's uniqueness as an individual human being and theresultant loss to the community's members by the victim's death. Characterizations and opinions about the crime, thedefendant, and the appropriate sentence shall not be permitted as a part of victim impact evidence.

(9) Applicability.--This section does not apply to a person convicted or adjudicated guilty of a capital drug traffickingfelony under s. 893.135.

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CreditsLaws 1939, c. 19554, § 237a; Comp.Gen.Laws Supp.1940, § 8663 (246); Fla.St.1969, § 919.23; Laws 1970, c. 70-339, §119; Laws 1972, c. 72-72, § 1; Laws 1972, c. 72-724, § 9; Laws 1974, c. 74-379, § 1; Laws 1977, c. 77-104, § 248; Laws 1977,c. 77-174, § 1; Laws 1979, c. 79-353, § 1; Laws 1983, c. 83-216, § 177; Laws 1987, c. 87-368, § 1; Laws 1988, c. 88-381, §10; Laws 1990, c. 90-112, § 3; Laws 1991, c. 91-270, § 1; Laws 1992, c. 92-81, § 1; Laws 1995, c. 95-159, § 1. Amended byLaws 1996, c. 96-290, § 5, eff. May 30, 1996; Laws 1996, c. 96-302, § 1, eff. Oct. 1, 1996; Laws 2005, c. 2005-28, § 7, eff.Sept. 1, 2005; Laws 2005, c. 2005-64, § 2, eff. July 1, 2005; Laws 2008, c. 2008-238, § 27, eff. Oct. 1, 2008; Laws 2010, c.2010-117, § 25, eff. July 1, 2010; Laws 2010, c. 2010-120, § 1, eff. Oct. 1, 2010; Laws 2016, c. 2016-13, § 3, eff. March 7,2016; Laws 2016, c. 2016-24, § 49, eff. Oct. 1, 2016; Laws 2017, c. 2017-1, § 1, eff. March 13, 2017.

West's F. S. A. § 921.141, FL ST § 921.141Current through the 2017 First Regular Session and Special ''A'' Session of the 25th Legislature

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Crim R 11 Pleas, rights upon plea, OH ST RCRP Rule 11

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Baldwin's Ohio Revised Code AnnotatedRules of Criminal Procedure (Refs & Annos)

Crim. R. Rule 11

Crim R 11 Pleas, rights upon plea

Currentness

(A) Pleas. A defendant may plead not guilty, not guilty by reason of insanity, guilty or, with the consent of the court,no contest. A plea of not guilty by reason of insanity shall be made in writing by either the defendant or the defendant'sattorney. All other pleas may be made orally. The pleas of not guilty and not guilty by reason of insanity may be joined.If a defendant refuses to plead, the court shall enter a plea of not guilty on behalf of the defendant.

(B) Effect of Guilty or No Contest Pleas. With reference to the offense or offenses to which the plea is entered:

(1) The plea of guilty is a complete admission of the defendant's guilt.

(2) The plea of no contest is not an admission of defendant's guilt, but is an admission of the truth of the facts allegedin the indictment, information, or complaint, and the plea or admission shall not be used against the defendant in anysubsequent civil or criminal proceeding.

(3) When a plea of guilty or no contest is accepted pursuant to this rule, the court, except as provided in divisions (C)(3)and (4) of this rule, shall proceed with sentencing under Crim. R. 32.

(C) Pleas of Guilty and No Contest in Felony Cases.

(1) Where in a felony case the defendant is unrepresented by counsel the court shall not accept a plea of guilty or nocontest unless the defendant, after being readvised that he or she has the right to be represented by retained counsel, orpursuant to Crim. R. 44 by appointed counsel, waives this right.

(2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea ofguilty or no contest without first addressing the defendant personally and doing all of the following:

(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges andof the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the impositionof community control sanctions at the sentencing hearing.

(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or nocontest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.

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(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waivingthe rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses inthe defendant's favor, and to require the state to prove the defendant's guilt beyond a reasonable doubt at a trial at whichthe defendant cannot be compelled to testify against himself or herself.

(3) With respect to aggravated murder committed on and after January 1, 1974, the defendant shall plead separately tothe charge and to each specification, if any. A plea of guilty or no contest to the charge waives the defendant's right to ajury trial, and before accepting a plea of guilty or no contest the court shall so advise the defendant and determine thatthe defendant understands the consequences of the plea.

If the indictment contains no specification, and a plea of guilty or no contest to the charge is accepted, the court shallimpose the sentence provided by law.

If the indictment contains one or more specifications, and a plea of guilty or no contest to the charge is accepted, thecourt may dismiss the specifications and impose sentence accordingly, in the interests of justice.

If the indictment contains one or more specifications that are not dismissed upon acceptance of a plea of guilty or nocontest to the charge, or if pleas of guilty or no contest to both the charge and one or more specifications are accepted,a court composed of three judges shall: (a) determine whether the offense was aggravated murder or a lesser offense;and (b) if the offense is determined to have been a lesser offense, impose sentence accordingly; or (c) if the offense isdetermined to have been aggravated murder, proceed as provided by law to determine the presence or absence of thespecified aggravating circumstances and of mitigating circumstances, and impose sentence accordingly.

(4) With respect to all other cases the court need not take testimony upon a plea of guilty or no contest.

(D) Misdemeanor Cases Involving Serious Offenses. In misdemeanor cases involving serious offenses the court may refuseto accept a plea of guilty or no contest, and shall not accept such plea without first addressing the defendant personallyand informing the defendant of the effect of the pleas of guilty, no contest, and not guilty and determining that thedefendant is making the plea voluntarily. Where the defendant is unrepresented by counsel the court shall not accept aplea of guilty or no contest unless the defendant, after being readvised that he or she has the right to be represented byretained counsel, or pursuant to Crim. R. 44 by appointed counsel, waives this right.

(E) Misdemeanor Cases Involving Petty Offenses. In misdemeanor cases involving petty offenses the court may refuse toaccept a plea of guilty or no contest, and shall not accept such pleas without first informing the defendant of the effectof the plea of guilty, no contest, and not guilty.

The counsel provisions of Crim. R. 44(B) and (C) apply to division (E) of this rule.

(F) Negotiated Plea in Felony Cases. When, in felony cases, a negotiated plea of guilty or no contest to one or moreoffenses charged or to one or more other or lesser offenses is offered, the underlying agreement upon which the plea isbased shall be stated on the record in open court.

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(G) Refusal of Court to Accept Plea. If the court refuses to accept a plea of guilty or no contest, the court shall enter aplea of not guilty on behalf of the defendant. In such cases neither plea shall be admissible in evidence nor be the subjectof comment by the prosecuting attorney or court.

(H) Defense of Insanity. The defense of not guilty by reason of insanity must be pleaded at the time of arraignment,except that the court for good cause shown shall permit such a plea to be entered at any time before trial.

CREDIT(S)(Adopted eff. 7-1-73; amended eff. 7-1-76, 7-1-80, 7-1-98)

Rules Crim. Proc., Rule 11, OH ST RCRP Rule 11Current with amendments received through August 1, 2017.

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Baldwin's Ohio Revised Code AnnotatedOhio Rules of Evidence (Refs & Annos)

Article IV Relevancy and Its Limits

Evid. R. Rule 403

Evid R 403 Exclusion of relevant evidence on grounds of prejudice, confusion, or undue delay

Currentness

(A) Exclusion Mandatory. Although relevant, evidence is not admissible if its probative value is substantially outweighedby the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.

(B) Exclusion Discretionary. Although relevant, evidence may be excluded if its probative value is substantiallyoutweighed by considerations of undue delay, or needless presentation of cumulative evidence.

CREDIT(S)(Adopted eff. 7-1-80; amended eff. 7-1-96)

Rules of Evid., Rule 403, OH ST REV Rule 403Current with amendments received through August 1, 2017.

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