State v. Berry

Wright, J.,

dissenting. Some years ago I expressed the view that an individual with an intelligence quotient of a ten year old should not be subject to the death penalty. State v. Rogers (1985), 17 Ohio St.3d 174, 188, 17 OBR 414, 427, 478 N.E.2d 984, 997 (Wright, J., concurring in part and dissenting in part), vacated (1985), 474 U.S. 1002, 106 S.Ct. 518, 88 L.Ed.2d 452. Similarly, I cannot sanction the penalty of death for a person who appears to be mentally ill.

Dr. Goldberg, a court-appointed clinical psychologist, opined that appellant was a chronically borderline schizoid and potentially schizophrenic.5 This diagnosis, which appears to be undisputed, goes far beyond an opinion that would suggest emotional illness or a mere mental defect. The majority even acknowledges the seriousness of appellant’s mental illness: “[The] appellant’s psychosis and personality disorder testified to by Goldberg is entitled to some weight in mitigation.” However, the majority goes on to reach what I believe is an untenable result of affirming appellant’s death penalty.

The majority’s decision to affirm appellant’s death penalty is untenable in light of the fact that the Supreme Court of the United States has clearly held that execution of one who is insane violates the Eighth Amendment to the United States Constitution: “[T]he natural abhorrence civilized societies feel at killing one who has no capacity to come to grips with his own conscience or deity is still vivid today. And the intuition that such an execution simply offends humanity is evidently shared across this Nation. Faced with such widespread evidence of a restriction upon sovereign power, this Court is compelled to conclude that the Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane.” Ford v. Wainwright (1986), 477 U.S. 399, 409-410, 106 S.Ct. 2595, 2602, 91 L.Ed.2d 335, 346.

*368It is my view that appellant currently belongs in an institution for the criminally insane. Accordingly, I respectfully dissent in this case.

APPENDIX

“Proposition of Law No. 1[:] Pursuant to this court’s de novo independent review under Ohio Revised Code Section 2929.05, death is not the appropriate sentence for Wilford Lee Berry, Jr.

“Proposition of Law No. 2[:] Pursuant to this court’s proportionality review under Ohio Revised Cod[e] Section 2929.05, the death penalty is excessive and disproportionate in Wilford Lee Berry Jr.’s case.

“Proposition of Law No. 3[:] When a capital defendant requests a competency hearing for the first time prior to commencement of his penalty trial, and where the trial court is aware of circumstances creating a ‘bonafide doubt’ as to the defendant’s competency, then the trial court cannot, consistent with the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution and Sections 2, 9,10, and 16, Article I of the Ohio Constitution, refuse to hold a competency hearing on the sole basis that the request was ‘untimely.’

“Proposition of Law No. 4[:] A person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to trial. Drope v. Missouri * * * [(1975), 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103].

“Proposition of Law No. 5[:] The failure to grant a new trial motion based upon newly discovered evidence in support of a not guilty by reason of insanity plea deprives a capital defendant of substantive and procedural due process guaranteed by the Eighth, Ninth, and Fourteenth Amendments to the United States Constitution.

“Propositon of Law No. 6[:] A defendant’s rights guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments] to the United States Constitution and Article I, Sections 2, 9, 10 and 16 of the Ohio Constitution are violated when incriminating statements and evidence are obtained in violation of rights under Miranda v. Arizona [(1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694].

“Proposition of Law No. 7[:] When a burglary is based upon the commission of an ‘other felony’ instead of a theft offense (i.e., murder), it is unconstitutional to use that same burglary to: 1) convert a murder into a capital offense, or 2) as an aggravating circumstance upon which to base a death penalty.

“Proposition of Law No. 8[:] A warrantless arrestee may only be held for a maximum of forty-eight hours before he is brought before a magistrate for an initial probable cause hearing. Any statement made during an illegal detention or evidence discovered as a result of those statements must be suppressed under *369the Fourth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution, and Sections 2, 9, 10, 16 and 20, Article I of the Ohio Constitution.

“Proposition of Law No. 9[:] An indictment which charges a capital defendant with aggravated felony-murder based on accusations that the defendant committed ‘robbery and/or burglary’, violates the prohibition against duplicitous indictments and deprives the capital defendant of his rights to a unanimous verdict * * *[,] as well as substantive and procedural due process as guaranteed by the Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution, Article I, Sections 1, 2, 9, 10, 16 and 20 of the Ohio Constitution.

“Proposition of Law No. 10[:] It is a violation of substantive and procedural due process as guaranteed by the Eighth, Ninth, and Fourteenth Amendments to the United States Constitution, as well as Article I, Sections 1, 2, 9,10,16 and 20 of the Ohio Constitution, to force a capital defendant to proceed with his appeal to this court when he does not know upon what conviction his death penalty rests.

“Proposition of Law No. 11[:] The failure to instruct, consider and give effect to relevant mitigation evidence undermines the reliability that death is the appropriate punishment in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 2, 5, 9J [sic, 9], 10, 16 and 20 of the Ohio Constitution.

“Proposition of Law No. 12[:] A court of appeals does not fulfill its Ohio Revised Code Section 2929.05 duties to provide capital defendants with independent de novo review when it provides no explanation as to why it found the aggravating circumstances to outweigh the mitigating factors.

“Proposition of Law No. 13[:] A capital defendant cannot be convicted of two counts of aggravated murder for a single homicide without a violation of the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution and Sections 2, 5, 9, 10, and 16, Article I of the Ohio Constitution, and R.C. 2941.25.

“Proposition of Law No. 14[:] Where duplicative aggravating circumstances are considered by a capital sentencer, the reliability of the sentencing process is destroyed and results in an arbitrary and capricious imposition of the death sentence in violation of the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 9, 10 and 16, of the Ohio Constitution.

“Proposition of Law No. 15[:] When the independent elements of principal offender and prior calculation and design in Revised Code 2929.04(A)(7) are charged and there is no separate finding as to which separate element was proven beyond a reasonable doubt, it violates a capital defendant’s right guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments] to the United *370States Constitution and Article I, Sections 2, 5, 9, 10 and 16 of the Ohio Constitution.

“Proposition of Law No. 16[:] When in a capital trial, jury instructions in both phases are erroneous, misleading and/or confusing, fail to require the sentencer to find all elements of the crime charged and fail to provide adequate guidance for considering and giving effect to relevant mitigating evidence, the defendant is deprived of his rights as guaranteed by the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution and Article I, Sections 2, 5, 9, 10, 16, and 20 of the Ohio Constitution.

“Proposition of Law No. 17[:] Ohio’s definition of reasonable doubt reflects a ‘clear and convincing’ evidence standard, which is lower than the degree of proof required by the United States Constitution.

“Proposition of Law No. 18[:] When a defendant is arrested without probable cause, and an illegal warrantless search occurs it is in violation of that defendant’s rights as guaranteed by the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendment[s] to the United States Constitution and Article I, Sections 2, 9, 10, 14 and 16 of the Ohio Constitution.

“Proposition of Law No. 19[:] When evidence is destroyed, it violates that defendant’s rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, Section[s] 2, 9, 10, and 16 of the Ohio Constitution.

“Proposition of Law No. 20[:j Capital proceedings cannot be held in the absence of the defendant without violating rights guaranteed by the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution.

“Proposition of Law No. 21[:] A capital defendant is denied his Sixth, Eight [sic, Eighth] and Fourteenth Amendment rights to a fair trial, due process and a reliable determination of his guilt and sentence when gruesome, prejudicial and cumulative photographs are admitted into evidence even though their prejudicial effect outweighs their probative value.

“Proposition of Law No. 22[:] Irrelevant and inflammatory testimony about the victim’s character is inadmissible at the culpability phase of a capital case and is a violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10 and 16, Article I of the Ohio Constitution.

“Proposition of Law No. 23[:] Evidence presented at Mr. Berry’s capital trial was insufficient to convict him of aggravated burglary, and therefore his conviction and death sentence deprived him of substantive and procedural due process as guaranteed by the Eighth, Ninth, and Fourteenth Amendments to the United *371States Constitution, as well as Article I, Sections 1, 16 and 10 of the Ohio Constitution.

“Proposition of Law No. 24[:] [A] [t]rial judge may not unnecessarily highlight the unsworn nature of a capital defendant’s statement to the jury at the penalty phase of the trial.

“Proposition of Law No. 25[:] The jury is mislead [sic, misled] about its pivotal role in the sentencing scheme by being instructed that its verdict is merely a recommendation and that the trial court will conduct additional proceedings.

“Proposition of Law No. 26[:] When a prosecutor fails to conform his conduct to meet the requirements of the law, a defendant is denied his due process right to a fair trial, and in a capital case the defendant is denied his right to a reliable sentence determination, in violation of the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution and Article I, Section^] 2, 5, 9, 10, 16 and 20 of the Ohio Constitution.

“Proposition of Law No. 27[:] Trial counsel’s failure to present a defense, failure to object, failure to investigate and failure to timely raise the issue of a capitally charged defendant’s competency at the time of the crime, at the time of the defendant’s confession, and at the time of both phases of the trial deprived defendant of the effective assistance of counsel, and of a fair trial and resulted in an inappropriate and unreliable sentence of death in violation of the rights guaranteed by the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution and Article I, Section[s] 2, 5, 9, 10, 16 and 20 of the Ohio Constitution.

“Proposition of Law No. 28[:] The failure to raise or adequately address substantial capital and other well-established criminal law issues on appeal as of right deprives the capital defendant of the effective assistance of appellant [sic, appellate] counsel and the meaningful appellate review of a capital conviction guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, Article I, Sections 10 and 16 of the Ohio Constitution and O.R.C. Section 2929.05.

“Proposition of Law No. 29[:] When an appellate court makes its independent de novo review of the appropriateness of a capital defendant’s death sentence, it is acting as a sentencer within the meaning of the Eighth Amendment, and therefore its determination must be unanimous.

“Proposition of Law No. 30[:] The Fifth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution, Sections 2, 9,10, and 16, Article I of the Ohio Constitution and Ohio Revised Code, Section 2929.05 guarantee that a convicted capital defendant receive a fair and impartial review of his death sentence. The statutorily mandated proportionality review process in Ohio does *372not comport with this constitutionally mandated requirement and thus is fatally flawed.

“Proposition of Law No. 31[:] Ohio employs a mandatory capital sentencing scheme which prevented the jury from deciding whether death was the appropriate punishment in violation of the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution.

“Proposition of Law No. 32[:] The Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10 and 16, Article I of the Ohio Constitution establish the requirements for a valid death penalty scheme. Ohio Revised Code, Section[s] 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04 and 2929.05, Ohio’s statutory provisions governing the imposition of the death penalty, do not meet the prescribed constitutional requirements and are unconstitutional, both on their face and as applied.”

. Dr. Goldberg concluded his lengthy testimony by offering the following opinion during the mitigation phase of appellant’s trial: “He’s a man that has had a traumatic and disturbed childhood. He has physical problems, emotional problems. He has a diagnosable mental illness [schizophrenia], as well as physical and emotional problems * *