State v. McGuire

Pfeifer, J.,

concurring in judgment only. The death penalty is special. Ohio’s death penalty statutory scheme, with its numerous and high hoops, is less a protection for defendants than it is a protection for our status as a civilized society. No one could deny that the execution of an innocent person would be the ultimate failure of our justice system. The mitigating factor of residual doubt reaches that deepest, most basic of concerns.

The majority’s contention that R.C. 2929.04(B) does not allow for the consideration of residual doubt is simply wrong. R.C. 2929.04(B) instructs the jury to consider “the nature and circumstances of the offense, the history, character, and background of the offender,” and the seven statutory factors, the seventh of which calls for a consideration of “[a]ny other factors that are relevant to the issue of whether the offender should be sentenced to death.” (Emphasis added.) The use of the words “any other” in R.C. 2929.04(B)(7) specifically calls for a consideration of factors not considered in any other portion of R.C. 2929.04(B). What factor could be more relevant than identity?

Randall Dale Adams would certainly argue for its relevance. Adams was sent to Texas’s death row for the murder of a Dallas policeman in 1976. See Radelet, Bedau & Putnam, In Spite of Innocence: Erroneous Convictions in Capital Cases (1992), Chapter 3. Adams, who had recently moved to Dallas from Grove City, Ohio, had met sixteen-year-old David Harris on the morning of the day before the murder. They spent the day together, driving around Dallas. They disputed what occurred in the evening. Adams claimed that Harris dropped him off near his motel at around 9:30 that evening. Harris testified that he and Adams went to a late show at a drive-in theater, and that after that, when the pair were pulled over shortly after midnight by police for driving without headlights, Harris slumped unseen in the front seat while Adams shot one of the officers in cold blood. The jury believed Harris, and the judge sentenced Adams to death.

By chance, Adams’s case caught the attention of filmmaker Errol Morris. Morris’s film about the case, “The Thin Blue Line” (1988), generated publicity in the case and featured self-incriminating footage of Harris, filmed while he was serving time on death row for another murder. On March 21, 1989, Adams was finally released.

Certainly, residual doubt is an appropriate consideration in only a few cases. Still, its use should not be considered “illogical.” It is entirely logical to be certain beyond a reasonable doubt as to a man’s guilt, yet not be certain enough to send him to his death. Residual doubt acknowledges our humanity — our ability not just to spit out data, but to recognize the subtle shadings that are a *406part of life. The factoring in of humanity when dealing with its ultimate decision is both relevant and logical.

Residual doubt, when present, only spares a man from death — it does not leave him walking the streets. A life sentence leaves him still with the prospect of no prospects, alive and dead at the same time. If, as a civilized society, we are to be certain of anything, it must be that we are sending the correct person to his death. Residual doubt is not for every case, and not for the present one. But I will not be a part of removing the concept from the case for which it is right.

Moyer, C.J., concurs in the foregoing opinion.

APPENDIX

Proposition of Law One: “The trial court violates the accused’s right to compulsory process under the Sixth and Fourteenth Amendments to the United States Constitution when it excludes evidence that tends to show that someone other than the accused was the source of the semen taken from the victim in a trial for felony murder and rape. The exclusion of such evidence also violates the accused’s right to due process under the Fourteenth Amendment to the United States Constitution.”

Proposition of Law Two: “A capital defendant’s right to fully individualized and reliable sentencing under the Eighth and Fourteenth Amendments to the United States Constitution is violated when the trial court’s instructions on mitigating factors preclude the jury’s consideration of the history, character and background of the defendant, the nature and circumstances of the offense and nonstatutory mitigating factors. A preclusive jury instruction on mitigating factors also infringes a capital defendant’s liberty interest in Ohio Rev.Code Ann. § 2929.04(B) (Anderson 1993) as protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.”

Proposition of Law Three: “Appellant McGuire’s right to a reliable capital sentencing phase was undermined because the trial court improperly led the juiy to believe that it was not responsible for its death penalty verdict in violation of the Eighth and Fourteenth Amendments to the United States Constitution.”

Proposition of Law Four: “Dennis McGuire’s death sentence is inappropriate because there is residual doubt whether he was the principal offender in Joy Stewart’s murder. This court should vacate Mr. McGuire’s death sentence pursuant to its independent review under Ohio Rev.Code Ann. § 2929.05(A).”

Proposition of Law Five: “Appellant McGuire’s death sentence is unreliable in violation of the Eighth and Fourteenth Amendments to the United States Constitution as the result of penalty phase and sentencing errors. The penalty phase and sentencing errors also infringed appellant’s right to due process under the Fourteenth Amendment.”

*407Proposition of Law Six: “The cumulative effect of evidentiary errors that pervaded this trial deprived appellant of a reliable trial and fair sentencing determination in violation of his rights guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, §§ 2, 9,10,16 of the Ohio Constitution.”

Proposition of Law Seven: “Defense Counsel’s actions and omissions at Mr. McGuire’s capital trial deprived him of the effective assistance of trial counsel as guaranteed by the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, §§ 9, 10 and 16 of the Ohio Constitution.” Proposition of Law Eight: “Appellant McGuire’s right to due process under the Fourteenth Amendment to the United States Constitution was violated by the ineffective assistance of counsel in the court of appeals.”

Proposition of Law Nine: “The state failed to introduce sufficient evidence to prove all the elements of rape and felony murder beyond a reasonable doubt. As a result appellant was deprived of his right to due process of law under the Fourteenth Amendment of the United States Constitution as well as Article I, Section 16 of the Ohio Constitution.”

Proposition of Law Ten: “The trial court erred in failing to suppress appellant McGuire’s statement in violation of his rights guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution as well as Article I, Sections 10 and 16 of the Ohio Constitution.”

Proposition of Law Eleven: “The accused’s right to due process under the Fourteenth Amendment to the United States Constitution is violated when the state is permitted to convict upon a standard of proof below the required standard of proof beyond a reasonable doubt.”

Proposition of Law Twelve: “A capital defendant’s right to due process under the Fourteenth Amendment is violated when the prosecutor seeks commitments from the prospective jurors at voir dire to impose the death penalty in the case before them. A capital defendant’s right to a reliable death sentence and to due process is also violated when the trial court death qualifies the prospective jurors.”

Proposition of Law Thirteen: “A capital defendant’s due process liberty interest in Ohio Rev.Code Ann. § 2945.25(C) is violated when a prospective juror with conscientious objections to capital punishment is removed from the jury panel unless the prospective juror is unequivally [sic] opposed to capital punishment under all circumstances.”

Proposition of Law Fourteen: “A capital defendant’s right to reliable sentencing under the Eighth and Fourteenth Amendments to the United States Consti*408tution is violated when the trial court refuses to instruct the jury that it may consider mercy in its penalty phase deliberations.”

Proposition of Law Fifteen: “A charge that permits the jury to convict the defendant upon a strict liability standard when the defendant is charged with a specific intent offense, violates the Sixth and Fourteenth Amendments to the United States Constitution.”

Proposition of Law Sixteen: “A criminal defendant’s right to due process under the Fourteenth Amendment to the United States Constitution is violated when the jury is instructed that the defendant’s purpose to kill is presumed from the predicate facts of the offense. A jury charge that presumes the mens rea element from the predicate facts also usurps the jury’s role of fact finder in violation of the Sixth and Fourteenth Amendments to the United States Constitution.”

Proposition of Law Seventeen: “It is error for the trial court to impose a death sentence on appellant McGuire based on his commission of a felony murder when the aggravating circumstance merely duplicated the substantive offense. This death sentence violates appellant McGuire’s rights under Eighth [sic] and Fourteenth Amendments of the United States Constitution.”

Proposition of Law Eighteen: “The Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and §§ 2, 9,10 and 16 of Article I of the Ohio Constitution establish the requirements for a valid death penalty scheme. Ohio Revised Code, §§ 2903.01, 2929.02, 2929.21 [sic, 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.”