State v. Esparza

529 N.E.2d 192, 39 Ohio St. 3d 8, 1988 Ohio LEXIS 313
CourtOhio Supreme Court
DecidedOctober 5, 1988
DocketNo. 86-1689
StatusPublished
Cited by106 cases

This text of 529 N.E.2d 192 (State v. Esparza) 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. Esparza, 529 N.E.2d 192, 39 Ohio St. 3d 8, 1988 Ohio LEXIS 313 (Ohio 1988).

Opinions

Holmes, J.

Appellant appeals his conviction and sentence below, citing fourteen propositions of law in support. For the reasons which follow, we affirm the judgment of the court of appeals and uphold the sentence of death.

In his first proposition of law, appellant contends the mandatory submission to the jury of the presentence investigation and mental examination reports which he requested pursuant to R.C. 2929.03(D)(1) denied him effective assistance of counsel. He also argues that the trial court erred in denying his request under R.C. 2929.024 for an independent psychologist to perform the mental examination, and that it erred in denying his requested continuance. We are not persuaded by appellant’s claims. It is clear that these claims are based on the erroneous belief that the provisions of R.C. 2929.024 and 2929.03(D)(1) are.intertwined, and require the mental examination to be performed by a psychiatrist or psychologist of the indigent defendant’s choosing.1 This result is not required by the statutory law or by the Constitution.

R.C. 2929.024 and 2929.03(D)(1) are wholly independent provisions. R.C. 2929.024 provides:

“If the court determines that the defendant is indigent and that investigation services, experts, or other services are reasonably necessary for the proper representation of a defendant charged with aggravated murder at trial or at the sentencing hearing, the court shall authorize the defendant’s counsel to obtain the necessary services for the defendant, and shall order that payment of the fees and expenses for the necessary services be made in the same manner that payment for appointed counsel is made pursuant to Chapter 120. of the Revised Code. If the court determines that the necessary services had to be obtained prior to court authorization for payment of [10]*10the fees and expenses for the necessary services, the court may, after the services have been obtained, authorize the defendant’s counsel to obtain the necessary services and order that payment of the fees and expenses for the necessary services be made as provided in this section.” (Emphasis added.)

The services provided for by this statute are available to the indigent defendant solely for his own purposes in mounting a defense in a capital trial, since “justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which liberty is at stake.” Ake v. Oklahoma (1985), 470 U.S. 68, 76. “[T]he State must, at a ■minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a competent psychiatrist for the purpose we have discussed, and as in the case of the provision of counsel we leave to the States the decision on how to implement this right.” (Emphasis added.) Id. at 83. R.C. 2929.024 assures the indigent capital defendant access to a competent expert, but does not guarantee such defendant the right to handpick an expert at the state’s expense.

R.C. 2929.03(D)(1), on the other hand, applies to all capital defendants, whether indigent or not. Only on the request of the defendant will the court require a presentence investigation or mental examination to be prepared by not more than two psychologists or psychiatrists appointed in the manner specified in R.C. 2947.06. The statute requires that these reports be given to the court, the jury, and the parties, and that they shall be considered during sentencing. As we stated in State v. Buell (1986), 22 Ohio St. 3d 124, 138, 22 OBR 203, 215, 489 N.E. 2d 795, 808, “the defendant decides whether to expose himself to the risk of potentially incriminating presentence investigations, including mental examinations. There is no constitutional infirmity in providing the defendant with such an option. Additionally, the jury should be privy to all information relevant to its task of deciding whether a defendant should be sentenced to life in prison or whether it should recommend that the defendant be put to death.” Cf. Estelle v. Smith (1981), 451 U.S. 454. Appellant, having requested the presentence report and mental examination, cannot be heard to complain of its submission to the jury, since the statute so requires. State v. Steffen (1987), 31 Ohio St. 3d 111, 121-122, 31 OBR 273, 282-283, 509 N.E. 2d 383, 393-394. Appellant’s ineffective assistance of counsel argument must similarly fail, as the decision to request the presentence report was clearly one of sound trial strategy. See Strickland v. Washington (1984), 466 U.S. 668.

As further support for the appointment of an independent psychiatrist of his own choosing, appellant contends the reports prepared by the court-appointed Court Diagnostic and Treatment Center were prepared without adequate guidelines and without adequate time. As a result, he alleges, the jury was told of the availability of statutory mitigating factors which he did not intend to establish, thus in effect presenting the jury with non-statutory aggravating circumstances. This argument is without merit. The jury was properly instructed on the aggravating circumstances and miti[11]*11gating factors it was to consider. The reports submitted were prepared in substantially the same manner as the Court Diagnostic and Treatment Center had done in prior cases. Appellant was not entitled to a “rebuttal” presentence investigation and mental examination prepared by a second psychologist or psychiatrist of his own choosing also at state expense. As we made clear in State v. Williams (1986), 23 Ohio St. 3d 16, 23, 23 OBR 13, 19, 490 N.E. 2d 906, 913, “[a]ll that due process requires with respect to post-conviction reports is giving the defendant a chance to rebut any alleged inaccuracies. See Gregg v. Georgia (1976), 428 U.S. 153, 189, fn. 37; United States v. Papajohn (C.A. 8, 1983), 701 F. 2d 760, 763; and Farrow v. United States (C.A. 9, 1978), 580 F. 2d 1339, 1360.”

Here, the record reflects that defense counsel not only had the opportunity but took the opportunity to impeach the reliability and accuracy of the report during cross-examination of its authors, Drs. Cassell and Seman. Counsel’s questioning carefully brought out the short time (two days) in which the report was prepared as well as its alleged incompleteness (e.g., using the juvenile court’s family file instead of personally interviewing family members). Despite these claimed shortcomings, appellant received thorough and appropriate psychological testing from two independent, competent psychologists.

In sum, we hold that a court, when requested by a defendant to order a presentence investigation or to appoint a psychologist or psychiatrist to conduct a mental examination pursuant to R.C. 2929.03(D)(1) and 2947.06, is not required by the Constitution or the provisions of R.C.

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Cite This Page — Counsel Stack

Bluebook (online)
529 N.E.2d 192, 39 Ohio St. 3d 8, 1988 Ohio LEXIS 313, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-esparza-ohio-1988.