State v. Cook

605 N.E.2d 70, 65 Ohio St. 3d 516, 1992 Ohio LEXIS 3358
CourtOhio Supreme Court
DecidedDecember 18, 1992
DocketNo. 92-986
StatusPublished
Cited by537 cases

This text of 605 N.E.2d 70 (State v. Cook) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Cook, 605 N.E.2d 70, 65 Ohio St. 3d 516, 1992 Ohio LEXIS 3358 (Ohio 1992).

Opinion

Moyer, C.J.

Appellant has raised twenty-eight propositions of law. We have reviewed each and, for the reasons stated below, we find all of them to be without merit. Having independently reviewed the record and weighed the mitigating factors against the aggravating circumstances, we affirm appellant’s convictions and death sentence.

In his twenty-seventh proposition of law, appellant argues that he was denied his right to a speedy trial by the lapse of almost seven months between the time of his arrest and trial. Appellant was arrested on January 19, 1990. A parole holder was issued on January 20, 1990. He was incarcerated for one hundred ninety-nine days before his trial began on August 6,1990. The triple-count provision of R.C. 2945.71(E) does not apply when a defendant is held on a parole holder. See State v. Martin (1978), 56 Ohio St.2d 207, 10 O.O.3d 369, 383 N.E.2d 585. Nor was there, under the facts and circumstances of this case, a violation of appellant’s constitutional right to a speedy trial. Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. Thus, this proposition is rejected.

Appellant in his third proposition of law states that the systematic exclusion of prospective jurors opposed to the death penalty violated his right to a fair and impartial jury. Under Wainwright v. Witt (1984), 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841, a potential juror may be excluded for cause if his or her views on the death penalty would prevent or substantially impair his ability to perform his duties as a juror. In State v. Esparza (1988), 39 Ohio St.3d 8, 529 N.E.2d 192, this court held that the use of peremptory strikes against prospective jurors opposed to the death penalty was proper. See, also, State v. Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768, paragraph [519]*519two of the syllabus; State v. Jenkins (1984), 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264, paragraph two of the syllabus. Accordingly, appellant’s proposition is without merit.

In proposition of law twenty, appellant challenges the state’s use of peremptory challenges to exclude from the jury three potential jurors of defendant’s race. Under the United States Supreme Court’s holding in Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, a defendant may raise a prima-facie case of purposeful discrimination in the selection of a jury based solely on the prosecutor’s use of peremptory challenges. The defendant must show that he belongs to a cognizable racial group, and that the prosecutor excluded members of his own race. The defendant must also show that those facts and other circumstances raise an inference that the prosecutors used the peremptory challenges to exclude members of the defendant’s race. The prosecutor’s statements and actions during voir dire may refute this inference. If the trial court in its discretion decides that such an inference has arisen, the burden shifts to the state to articulate a neutral reason for excluding the prospective jurors. A valid neutral reason need not be as compelling as one justifying a challenge for cause. Id. at 96-98, 106 S.Ct. at 1723-1724, 90 L.Ed.2d at 87-89.

Appellant is black. The state exercised peremptory challenges on three potential jurors who were black. Two blacks did, however, sit on the jury. The trial court never made a finding that appellant had established a primafacie case of discrimination. Nevertheless, the prosecutor did articulate neutral reasons for the peremptory exclusion of each black potential juror. Venire member Bullock had had a dispute with a police officer and expressed that he might have a problem sitting on a criminal case. Prospective juror Montgomery expressed moral reservations about the death penalty. Venire member Lowry appeared ambivalent about the death penalty, did not mention a traffic violation apparently on her record, and appeared uncomfortable during questioning. While these reasons may not rise to the level of a challenge for cause, they need not do so. Batson, supra. While it is doubtful that appellant established even a prima-facie case, we need only decide whether the trial court’s decision that the prosecutor articulated sufficiently neutral reasons for the exclusion was clearly erroneous. State v. Hernandez (1992), 63 Ohio St.3d 577, 589 N.E.2d 1310. We hold that the trial court’s ruling was not clearly erroneous.

In his nineteenth proposition of law, appellant argues that the trial court deprived him of his Sixth and Fourteenth Amendment rights when it admitted the testimony of witnesses who had been previously hypnotized. Specifically, appellant alleges that the trial court should have held an evidentiary hearing [520]*520to assess the possible effects of hypnotism and instructed the jury as to its potential dangers. We note first that counsel for appellant did not object to the testimony of the witnesses during trial, did not proffer a cautionary instruction, and did not cross-examine any of the witnesses on the subject. Appellant therefore has waived any challenge to the testimony, absent plain error. State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364.

When the state seeks to introduce hypnotically enhanced testimony, the trial court must determine whether, in the totality of the circumstances, the proposed testimony is sufficiently reliable to merit admission. State v. Johnston (1988), 39 Ohio St.3d 48, 529 N.E.2d 898, paragraph three of the syllabus. The court should make this determination in a pretrial hearing, applying the several factors listed in Johnston. Id. at 54-55, 529 N.E.2d at 906. Such a hearing is not, however, required when the previously hypnotized witness testifies to facts recalled prior to any hypnosis. Id. at 50-51, 529 N.E.2d at 903; State v. Spirko (1991), 59 Ohio St.3d 1, 570 N.E.2d 229; State v. Maurer, supra. In both Spirko and Maurer, hypnosis uncovered no new evidence of any significance. Consequently, we held that there was no error in allowing the witnesses to testify. In the instant case, witnesses Tourney, Whitt and Teppe identified appellant prior to any hypnosis. Counsel for appellant knew of the hypnosis prior to trial, but in a pretrial session told the court that he did not want to bring up the issue. In the same hearing, the prosecutor indicated that hypnosis had uncovered no evidence of any significance. We find no indication in the record that at trial the state elicited any hypnotically induced testimony from the witnesses. Appellant urges us to hold that whenever a witness has been hypnotized in an attempt to enhance his or her memory, even if it is not shown hypnosis has elicited any additional information of consequence, the court must hold a Johnston hearing. We decline to extend Johnston in that manner. No plain error occurred here; consequently, appellant’s nineteenth proposition of law is without merit.

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Cite This Page — Counsel Stack

Bluebook (online)
605 N.E.2d 70, 65 Ohio St. 3d 516, 1992 Ohio LEXIS 3358, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cook-ohio-1992.