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IN THE COURT OF COMMON PLEAS LAKE COUNTY, OHIO STATE OF OHIO Plaintiff, vs. JOSEPH L. THOMAS
Defendant. ) )
) )

F ~LED
ZOlZ

FlB 28 Af111 20

CASE NO.

C L E R;\ C;:- C C iJ KT 11 CR 000321

) QF1NION AND JOURNAL ENTRY ) (Motion No- 3)

) ) )

February 28,2012

This matter is before the court to address the motion of defendant Joseph Thomas to dismiss the death penalty components of this case due to alleged constitutional and international law violations (motion #3). He raises twenty-two separate claims in support of his motion. The state filed a brief in opposition arguing that all of Thomas' arguments are precluded by well established case law from the United State Supreme Court and the Supreme Court of Ohio. Thomas' claims will be addressed in order. In his first claim, Thomas argues that Ohio's law permits the death penalty to be imposed in an arbitrary and discriminatory manner. Specifically, Thomas claims that Ohio's death penalty is unconstitutionally arbitrary because: (1) it allows prosecutors to exercise uncontrolled discretion; (2) it is racially discriminatory; and (3) more due process is required in death penalty cases.
This claim 1S not well taken.

With respect to his first sub-claim, the United State Supreme Court has held that the fact
that a prosecutor

has the power not to charge capital felonies does not indicate that the prosecutor Gregg v. Georgia, 428 U.S.

exercises his discretion in a manner that violates the Constitution.

153, 199,96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). See, also, Slate v. Jenkins, 15 Ohio St.3d 164, 169-170,473 N.E.2d 264 (1984); McCleskey v, Kemp, 481 U.S. 279. 307, 107 S.Ct. 1756,95 L.Ed.2d 262 (1987). It cannot be assumed that prosecutors will be motivated in their charging decision by factors other than the strength of their case and the likelihood that a jury would. impose the death penalty if it convicts. Jenkins at 169. With respect to Thomas' second sub-claim, he has made no showing that he is the subject of racial discrimination.
A capital defendant cannot evade a death sentence merely by de-

monstrating the statistical disparity of capital defendants or victims of a particular race.

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Mctlleskey at 292. Instead the capital defendant must prove the decision maker in his or her in-

dividual case acted with a discriminatory purpose and such actions had a discriminatory effect on the proceeding.
Id. In addition, the Ohio Supreme Court has rejected claims that Ohio applies

the death penalty in a racially discriminatory manner. State v. Short, 129 Ohio St.3d 360,2011Ohio-3641, 952 N.E.2d 1121, at ~ 137, citing State v. Mink, 101 Ohio St.3d 350, 2004-0hio1580, 805 N.E.2d 1064, ~ 103 (Ohio's Statutory scheme is not racially discriminatory). Ohio St3d 56, 64-66, 512 N.E.2d 585 (1987); Jenkins at 169. With respect to his third sub-claim, this court notes that Ohio provides considerable additional due process in death penalty cases. See, R.C. 2929.02 through 2929.06. In his second claim, Thomas claims Ohio's capital sentencing procedures employ arbitrary and capricious procedures in the application of capital punishment. Specifically, he argues that Ohio's death penalty statutes do not require the state to prove the absence of any mitigating factors or that death is the only appropriate penalty. He points out that the language in R.C. 2929.03(D)(2) "that the aggravating circumstances u'" outweigh the mitigating factors" invites arbitrary and capricious jury decisions and invites the use of proof by a preponderance of the evidence, a lesser standard of proof. This claim is not well taken. Thomas fails to cite any authority to support his claims. His argument represents an attempt by him to have this court impose upon the state a burden (to prove the absence of any mitigating factors) that is not required under either the Ohio or United States Constitutions. Jenkins at 171; Walton v. Arizona, 497 U.S. 639,649-50, 110 S.Ct. 3047. 111 L.Ed.2d 511 (1990) (requiring the defendant to establish mitigating factors by a preponderance of the evidence is constitutionally acceptable burden shifting). See. also, Martin v. Ohio,

See,

also, State l'. Steffen, 31 Ohio St.3d 1] 1, 124-125,509 N.E.2d 383 (1987); State v. Zuern, 32

480 U.S. 228~ 236, 107 S.Ct. 1098,94 L.Ed.2d 267 (1987) (upholding the Ohio practice of imposing on a capital defendant the burden of proving by a preponderance of the evidence that the defendant was acting in self-defense when she allegedly committed the murder); Walton v Arizona, 497 U.S. 639,650, 110 S.CT. 3047, 1] 1 L.Ed.2d 5Il (so long as a State's method of allocating the burdens of proof does not lessen the State's burden to prove every element of the offense charged, including the existence of aggravating circumstances, a defendant's constitutional rights are not violated by placing on him the burden of proving mitigating circumstances sufficiently substantial to call for leniency). In addition, Ohio statutes provide the direction that Thomas claims is lacking. R.C. 2929.03(D)(2) provides in pertinent part that the defendant has the burden of going forward with evidence in mitigation and that the state has the burden of proving beyond a reasonable doubt
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that the aggravating circumstances tute places on the defendant

are sufficient to outweigh the factors in mitigation.

This sta-

the burden of proving

by a preponderance

of the evidence any miticircumstances

gating circumstances.
ed beyond a reasonable

Jenkins at 171. The concept of weighing aggravating

doubt against any mitigating

prov-

facts was approved in Proffitt v, Florida, and its vitality continues today.

428 U.S. 242, 248, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976),

See

Barclay v. Florida, 463 U.S. 939,103 S.Ct. 3418,77

and channels the sentencing authorities' discretion

L.Ed.2d 1134 (1983).

R.C. 2929.03 guides

by requiring examination arbitrariness

of specific factors
and capriciousness

that argue in favor or against the death penalty, thus eliminating in its imposition. In his third claim, Thomas argues that Ohio's bifurcated

capital trial process with the of

same jury violates his right to a fair and impartial jury and his right to effective assistance counsel.

Thomas argues that if his defense counsel pursues a defense at the guilt phase of a credibility,

capital trial which affects Thomas' phase. Supreme N.E.2d This claim is not well taken. Court in several cases.

then his credibility is diminished

at the sentencing

This issue was fully addressed

and rejected by the Ohio 580,805 at N.E.2d 795 (l986);Jenkins

See, e.g., Mink. 101 Ohio St.3d 350. 2004-0hio-J

1064 at ~ 105 ; State v. Buell, 22 Ohio St.3d 124,138,489

172- 173; Slate v, Nabozny, 54 Ohio St.2d 195, 375 N.E.2d 784 (1978), paragraph labus.

one of the syl-

In his fourth claim, Thomas argues that Ohio's death penalty statutes are unconstitutional because they require proof of aggravating ceeding. He claims requiring prohibits guilt effectively a sufficiently circumstances in the guilt phase of the bifurcated simultaneously determination during the sentencing without consideration sentencing prophase. of any is reproof of aggravating individualized circumstances

'with proof of

He claims this is especially prejudicial. because this is accomplished mitigating factors in the guilt phase of a trial. Thomas'

claim of individualized

jected on the authority

of Short, 129 Ohio St.3d 360, 2011-0hio-3641,

952 N.E.2d

1121, at ~

]40, citing State v. Henderson, 39 Ohio St,3d 24, 28-29, 528 N.E.2d 1237 (1988) and Jenkins, 15 Ohio St.3d at 178-179,473 805 N.E.2d L.Ed.2d N.E.2d 264. See. also, Mink, 101 Ohio St.3d 350, 2004-0hio-1580, ] 064, at ~ 105; and Lowenfieldv. The Ohio Supreme

Phelps, 484 U.S. 231,246,108

S.Ct. 546,98 bias is doubt in

568 (1988).

Court specifically

held that no presumptive

created in favor of the aggravating

factors by requiring their proof beyond a reasonable

the guilt phase of a capital murder trial. Buell at 137. In his fifth claim, Thomas argues Ohio's death penalty procedures because they impose an impermissible jury trial.
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are unconstitutional

risk of death on defendants

who exercise their right to a discretion to

A defendant

who pleads guilty or no contest benefits from a trial judge's

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dismiss the death penalty specificationfs).

Thomas presumably refers to Crim.R. 1.1 (C)(3) which

permits a trial judge to dismiss the specifications in the interests of justice when the defendant enters a plea of guilty or no contest to the charge of aggravated murder. This claim is rejected on the authority of Short, 129 Ohio St.3d 360, 2011-0hio-3641~ 952N.E.2d 1121, at ~ 140, citing Buell at 138 and State v, Nabozny, paragraph one of the syllabus, overruled on other grounds in Nabozny v. Ohio, 439 U. S. 811, 99 S.Ct. 70, 58 L.Ed.2d 103 (1978). In Buell, the Ohio Supreme Court found that this neither violates the defendant's constitutional right to equal protection of the laws nor does it coerce the defendant to waive his constitutional right to a jury trial. Buell at 138. In Ohio, a sentence of death is possible whether a defendant pleads guilty to the offense or is found guilty after a trial. Id. In his sixth claim, Thomas argues Ohio's death penalty statutes are unconstitutional because they require submission of a pre-sentence report and mental evaluation to the jury or judge once these reports are requested by the defendant. He claims this mandatory submission prevents defense counsel from giving effective assistance and prevents the defendant from effectively presenting his case in mitigation. Thomas presumably refers to R.c. 2929.03(D)(1) which requires submission of a pre-sentence report and menta] evaluation to the judge or jury in certain circumstances. Thomas' argument is not well taken. His claim was specifically considered and rejected by Ohio Supreme Court in Mink, 101 Ohio St.3d 350, 2004-0hio-1580, 107 and Buell at 138. See, also, Buchanan
'1'.

805 N.E.2d 1064, at ~

107 S.Ct. 2906,

Kentucky, 483 U.S. 402,422-423,

97 L.Ed.2d 336 (l987) (if a defendant requests such an evaluation or presents psychiatric evidence, then, at the very least, the prosecution may rebut tins presentation with evidence from the reports oftbe examination that the defendant requested), In his seventh claim, Thomas argues R.C. 2929.04(A)(7) is constitutionally invalid when used as an aggravating factor in Ohio's statute on aggravated murder, R.C. 2903.01(B). He claims R.C. 2929.04(A)(7) fails to genuinely narrow the class of individuals eligible for the death penalty. R.C. 2903.0] (B) defines the category of felony murderers. He claims KC. 2929.04(A)(7) merely repeats, as an aggravating circumstance, factors that distinguish aggravated felony murder from murder. Essentially he claims Ohio has arbitrarily selected one class of murderers (felony murderers - killing in furtherance of a felony) who may be subjected to the death penalty automatically. claim is not well taken. Thomas' claim that R.e. 2929.04(A)(7) is constitutionally invalid when used as criteria to authorize the death penalty in R.e. 2903.01 (B), aggravated murder, was rejected by the Ohio
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He claims brutal, cold-blooded and premeditated murderers do not

fall within the types of murder that are automatically eligible for the death penalty. Thomas'

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Supreme

COlUi

in

Short, 129 Ohio St.3d 360, 2011-0hio-3641,

952 N.E.2d

1121, at ~ 140; and

Henderson, 39 Ohio St.Jd at 28-29,528

1064, at ~ 108. More importantly, unless the defendant

N.E.2d 1237; See. also, Lowenfield, 484 U.S. 231, 108 805 N.E.2d under R.c. 2903.01(B)

S.Ct. 546, 98 L.Ed.2d 568 (1988); and Mink, 10J Ohio St.3d 350, 2004-0hio-1580, while a conviction

cannot be sustained

is found to have intended to cause the death of another! the state, in order to circumstance under RvC, 2929.04(A)(7), must additionally prove

prevail upon an aggravating

that the offender was the principal offender was not the principal calculation and design.

offender in the commission

of the aggravated

murder, or if the 'with prior to appel-

offender, that the aggravated

murder was committed

Jenkins, 15 Ohio St.Sdat

must have committed

177, fn, ]7. In addition, "[c[ontrary

lant's contention,

the Eighth Amendment

does not require that in order to be subject to a death the murder with prior calculation and design. Inwith Eighth Amend-

sentence, the defendant stead, the culpable ment protections,

mental state which must be proven in Ohio, consistent is that the defendant specifically

intended to cause the death of another."

Jenkins at 170-171 . See. also, Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676,95 L.Ed.2d 127
(1978) (the imposition or who showed reckless cency). In his eighth claim, Thomas claims R'C. 2929.03(D)(1) ly vague. Specifically, he claims RC. 2929.03(D)(1) and 2929.04 are unconstitutionalvague because it gives factor as an aggrais unconstitutionally of death on felony murderers who intended to cause the death of another standards of dedisregard for human life comports with contemporary

the sentencing vating factor. discretion

authority unfettered

discretion to weigh a statutory mitigating

To avoid

such arbitrariness;

he claims Ohio must limit and channel the sentencer's He argues that the aggravating Additionally, circumstances listed

with clear and specific guidance. gives the sentencer

in R.C. 2929.04(A)(l 2929.03(D)(l)

)-(8) fails to give such guidance. open ended discretion

he claims

R.e.
This claim 1121, at ~

to impose the death penalty. 952 N.E.2d

is rejected on the authority of Short, 129 Ohio St.3d 360, 2011-0mo-3641,

140 and State v. McNeill, 83 Ohio St.3d 438, 453, 700 N.E.2d 596 (1998), citing Tuilaepa v.

California, 512 U.S. 967, 973-980, 114 S.Ct. 2630,129

101 Ohio St.3d 350, 2004-0hio-1580, In his ninth claim, Thomas challenges

L.Ed.2d 750 (1994). See, a/so, Mink,

805 N.E.2d 1064, at ~ J 09. the constitutionality of Ohio's death penalty pro-

portionality review.
the adequacy reductions

He notes that R.C. 2929.021

and 2929.03 require information

on death pen-

alty cases be reported to the Ohio Supreme Court. of the information provided

He claims there are substantial doubts as to

about guilty pleas to lesser offenses or about charge appellate review. He points out

at trial. He argues that additional data is necessary to make an adequate comparison

in death penalty cases and that without this, there is inadequate

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that the failure to require the jury or three judge panel recommending

life

imprisonment to idenno sig-

tify the mitigating

nificant comparison Thomas'

factors undercuts adequate appellate review. of cases is possible.

Without this information,

claim that the proportionality

and appropriateness

review is inadequate 952 N.E.2d

is rejec-

ted on the authority

of Short, 129 Ohio St.3d 360, 2011-0hio-3641, N.E.2d 383,

1121, at ~ 140

and Steffen, 3] Ohio St.3d 111,509

paragraph one ofthe syllabus.

First of all, proportionality

See, also, State

review not a. Ohio requires the review. R.C.

v. LaMar, 95 Ohio St.3d 181, 2002-0hio-2128,

350, 2004-0hio-1580, constitutional requirement.

767 N.E.2d 166, at ~ 23; Mink, 101 Ohio St.3d

80S N.E.2d 1064, at ~ 110.

Pulley v. Harris, 465 U.S. 37, 45-46, 104 S.Ct. 871, 79 L.Ed.2d 29
By statute, however,

(1984); Jenkins 15 Ohio St,3d at 177.473 N.E.2d264.

appellate

court (in this case the Ohio Supreme Court) to engage in a proportionality
th

2929.05(A).

States have great latitude in defining the pool of cases used for comparison. Cir. 2001). Addressing this issue, the Ohio Supreme

Buell
Court

v, Mitchell, 274 F.3d 337, 369 (6 has held that the proportionality those cases already decided

review required

by R'C, 2929.05(A) is satisfied by a review of

by the reviewing court in which the death penalty was imposed.

509 N.E.2d 383, paragraph one of syllabus.
against cruel and unusual punishment as well as other federal and state that the ap-

Steffen, 31 Ohio St.3d Ill,

Amendment's laws. plication Thomas' prohibition challenge

In his tenth claim, Thomas claims Ohio's current method of execution violates the Eighth
to the lethal injection protocol is based on the possibility

of the protocol

could violate his rights under the Constitution Capital punishment is constitutional.

and/or Ohio law. His

claim is not well taken.

859 (1976). Because

Scott v. Houk, 127 Ohio St.3d 317,

S.Ct. 2909, 49 LEd.2d method, if

201 O-Ohjo-5805, 939 N.E.2d 835, ~ 8 citing Gregg, 428 U.S. 153,96

some risk of pain is inherent in even the most humane execution the required procedure, the constitution

only from the prospect of error in following mand the avoidance

does not de-

of all risk of pain. Houk at ~ 8 citing Baze v. Rees, 553 U.S. 35, 128 S.Ct.

1520~ 170 L.Ed.2d 420 (2008), paragraph that the Eighth Amendment of unnecessary

one of the syllabus.

of torture, beheading,

The
>ltU

u.s.

Supreme

Court has held

forbids "punishments

and all others in the same line dissecting and burning

cruelty such as disemboweling, infliction

guartering,

alive, all of which share the deliberate jecting individuals conditions to a substantial

of pain for the sake of pain.

Baze at 48. Subif the suffer-

risk of future harm can be cruel and unusual punishment

presenting

the risk are "sure or very likely to cause serious illness and. needless imminent dangers."

ing" and give rise to "sufficiently present a "substantial

Id. at 50. To prevail, such a claim must

intolerable risk of harm." Id. An

risk of serious harm," an "objectively

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isolated mishap alone does not violate the Eight Amendment because such an event, while regrettable, does not suggest cruelty or a "substantial risk of serious harm." Id. The U.S. Snp.reme court recognized that there are no methods of legal execution that are satisfactory to those who oppose the death penalty on moral, religious, or societal grounds. Raze at 61. However, Ohio's procedure complies with the constitutional requirements against cruel and unusual punishment. unusual punishment. In his eleventh claim, Thomas contends that Ohio's death penalty scheme is impermissibly mandatory because it requires the jury to recommend a death sentence if the aggravating circumstances outweigh the mitigating factors. His argument is not well taken. Ohio's statutory scheme docs not require in any circumstance the automatic imposition of the death penalty when a defendant is convicted of aggravated murder. His arguments have been rejected by the Ohio Supreme Court, See, Buell, 22 Ohio St.3d at 141, 389 N.E.2d 795 and State v. Williams, 23 Ohio St.3d 16,24,490 N.E.2d 906 (1986). In claim number twelve, Thomas contends that the state's burden of proof in death penalty cases should be proof beyond all doubt in both the guilt phase and the sentencing phase of the trial. He claims Ohio's requirement of proof 'beyond a reasonable doubt' is not sufficiently stringent and that Ohio does not require the jury to consider as a mitigating factor that the evidence fails to preclude all doubt (residual doubt) as to the defendant's guilt. His arguments are not well taken because they have been rejected by the Ohio Supreme Court. See. e.g., Jenkins, 15 Ohio St.3d at 2] 0-2] 1,473 N.E.2d 264. In addition, the constitutionality ofrequiring a burden of proof beyond a reasonable doubt in criminal proceedings has been firmly established. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.E.2d 368 (1970). There is no authority which holds that Thomas' proposed burden of proof beyond all doubt' is constitutionally mandated. In addition, the Ohio Supreme Court has upheld the definition of "reasonable doubt" contained in R.C. 2901.05(E). Jenkins at 211. With respect to Thomas' 'residual doubt' argument, the U.S. Supreme Court has held that states arc not required to allow the defendant the opportunity to argue residual doubt as a mitigating circumstances. Franklin v. Lynaugh, 487 U.S. 164, 174, 108 S.Ct. 2320,101 L.Ed.2d 155 (1988). Residual doubt does not have to be considered as a mitigating factor because it is not relevant to the defendant's character, record, or any circumstances of the offense. ld. See, also, Slate v.McGuire, 80 Ohio St.3d 390,402-403,
(1997).

Thomas has not carried his burden of showing that the risk of pain

from maladministration of a concededly humane lethal injection protocol constitutes cruel and

686 N.E.2d 1112

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In claims number thirteen through twenty-two, Thomas contends for various reasons that Ohio's death penalty statutes violates various international law and treaties to which the United States of America is a party. These arguments were considered and rejected by the Supreme Court of Ohio. Short, 129 Ohio St.3d 360, 2011-0hio-3641, 952 N.E.2d 1121, ~ 137-138. See, also, State v. Phillips, 74 Ohio St.3d 72, 101, 103-104,656 N.E.2d 643 (1995); Buell v. Mitchell, 274 F.3d 337, 370-372 (6th Cir. 2001) (death penalty does not violate International Covenant on Civil and Political Rights or the customary international law norm). In summary, based on the above reasoning, the court finds that Ohio's capital sentencing laws are not in violation of the United States or Ohio Constitutions nor in violation of various international laws or treaties to which the United State of America is a party. The motion of defendant Joseph Thomas to dismiss the death penalty components of this case is denied. IT IS SO ORDERED.
J

RICHARD L. COLLINS, R. Judge of the Court of Co mon Pleas

Copies: Charles F. Cichocki, Esq., Assistant Lake County Prosecuting Attorney Charles F. Griesharnrner, Esq., Chief Assistant Lake County Public Defender David Doughten, Esq.

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