Executed May 17, 2011 11:18 a.m. by Lethal Injection in Ohio
16th murderer executed in U.S. in 2011
1250th murderer executed in U.S. since 1976
4th murderer executed in Ohio in 2011
45th murderer executed in Ohio since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
Daniel Lee Bedford
W / M / 36 - 63
W / F / 25
W / M / 27
Her New Boyfriend
State v. Bedford, 39 Ohio St.3d 122, 529 N.E.2d 913 (Ohio 1988). (Direct Appeal)
Bedford v. Collins, 567 F.3d 225 (6th Cir. 2009). (Habeas)
Bedford did not request a special meal, but had the regularly scheduled prison meal of an orange, graham crackers, turnip greens, oven-brown potatoes and wheat bread. He received a two-liter bottle of cola as a special request.
"I love you, Shell. Love you all. God bless you."
Ohio Department of Rehabilitation and Correction
Name: DANIEL LEE BEDFORD
Date of Birth: 9/16/47
Gender: Male Race: White
Admission Date: 11/16/84
County of Conviction: Hamilton
Institution: Southern Ohio Correctional Facility
Received: 11/16/84 MURDER, AGG MURDER ORC: 2903.01
Ohio Department of Rehabilitation and Correction (Clemency Report)
IN RE: DANIEL LEE BEDFORD, OSP #A181-997
STATE OF OHIO ADULT PAROLE AUTHORITY
Date of Meeting: April 5, 2011
Daniel Lee Bedford, OSP #A181-997
CRIME, CONVICTION: Aggravated Murder with death penalty specifications, Murder.
DATE, PLACE OF CRIME: April 24, 1984 in Cincinnati, Ohio
CASE NUMBER: B841565
VICTIM: Gwen Toepfert (Age 25) John Smith (Age 27)
INDICTMENT: Counts 1: Aggravated Murder with death penalty specifications; Count 2: Aggravated Murder
VERDICT: Guilty as charged in Count 1 and guilty of the lesser charge of Murder in count 2.
DATE OF SENTENCE: November 9, 1984
SENTENCE: Count 1: DEATH Count 2: 15 - Life
ADMITTED TO INSTITUTION: November 16, 1984
JAIL TIME CREDIT: 204 days
TIME SERVED: 26 years, 5 months (does not include JTC)
AGE AT ADMISSION: 37 years old
CURRENT AGE: 63 years old
DATE OF BIRTH: September 16, 1947
JUDGES: Honorable Thomas Crush
PROSECUTING ATTORNEY: Arthur M. Ney, Jr.
"Ohio man executed in '84 shooting deaths, by Kantele Franko. (11:23 AM, May. 17, 2011)
LUCASVILLE, Ohio — The state on Tuesday executed a man who said he didn't remember fatally shooting his ex-girlfriend and her boyfriend at the woman's Cincinnati apartment in 1984.
Daniel Lee Bedford, 63, became the third inmate in Ohio and the nation to be put to death using the surgical sedative pentobarbital as a stand-alone execution drug. He was pronounced dead at 11:18 a.m.
Bedford's attorneys pushed to block the lethal injection in a last-minute legal battle. They argued Bedford had dementia and a mild mental disability and wasn't competent enough to understand why he was being executed. They also said he was denied legal proceedings to which he was entitled. Prosecutors challenged the idea that Bedford wasn't competent and successfully appealed a stay of execution issued Monday by a federal judge. The U.S. Supreme Court on Tuesday refused the defense's request to block the execution.
Bedford is the fourth Ohio inmate put to death this year.
He was sentenced to death after confessing to authorities that he shot Gwen Toepfert, 25, and John Smith, 27, at Toepfert's Cincinnati apartment, apparently because he was jealous after finding the couple there several days before the slayings. Bedford learned from Toepfert's roommate that the couple were home and waited at the apartment where, armed with a revolver and a shotgun, he killed Smith and shot Toepfert multiple times before returning to her body and firing a shotgun blast into her groin to be sure she was dead, prosecutors said.
Bedford told the state parole board in March he didn't remember the slayings but that his attorneys had told him details and he was "sorry it happened."
Relatives of Toepfert and Smith expressed support for the execution, saying they believe the killings were merciless and Bedford knew what he was doing. Gov. John Kasich denied clemency, and the Ohio Supreme Court also refused to block the execution, rejecting the defense's arguments about Bedford's competency.
"27 years later, frail killer meets his own end," by Alan Johnson. (Wednesday, May 18, 2011)
LUCASVILLE, Ohio - In his final minutes, Daniel Lee Bedford could have glanced to his left and seen the face of the young woman whose life he extinguished 27 years ago. The contrast between killer and victim was striking. Bedford, 63, had a gray beard, glasses and looked frail strapped to the lethal injection table at the Southern Ohio Correctional Facility near Lucasville.
On the other side of the Death House glass, Rick Toepfert held a framed picture of his slain sister, Gwen: blond, smiling, forever 25. But Bedford did not look. Minutes later, at 11:18 a.m. yesterday, he slipped silently into death, becoming the oldest of 45 killers Ohio has executed since 1999, when it resumed capital punishment.
His attorneys tried unsuccessfully to stop the execution, arguing their client was mentally incompetent, suffered from dementia, and did not remember the details of the murders, or know why he was being executed. However, Bedford told the prison's mental-health staff early yesterday that "he understands he will die and is preparing himself," a prison spokesman said.
Bedford received the death penalty for shooting to death Toepfert, his former girlfriend, and her new boyfriend, John Smith, 27, on April 24, 1984, court records show.
The execution was marked by a futile flurry of last-minute appeals and a problem connecting an IV line that prompted one of Bedford's attorneys who witnessed the execution to make an emergency phone call. "They're clearly having problems," Carol Wright told a colleague stationed in another part of the prison. "It's a bloody mess." In the 11 minutes it took to insert the IVs in both of Bedford's arms, Wright stood up in the witness area and called out loudly to Bedford through the glass. "Are there problems, Dan?" she asked. "Are there problems?" He heard her and said something in return about the number of times he was being stuck with the IV.
Bedford told Warden Donald R. Morgan he had no last statement, but after the microphone was removed, Bedford began calling out loudly to his daughter, Michelle Connor, who was watching through the glass. "I love you, 'Shell,'" he said. She called back to him, "I love you, Daddy."
Connor, wearing a white sweater with a hood covering her head, sobbed throughout the execution. As the lethal drugs began flowing, his final words were, "Love you all. God bless you." Bedford's chest began heaving and his mouth moved but no sounds came out. He then lay still until the curtain was pulled and he was declared dead.
A statement jointly issued by the Toepfert and Smith families said there was "never any doubt that Bedford committed this brutal, double murder. Unfortunately, it has taken 27 long years to get to where we are today."
The execution was delayed by about an hour awaiting a decision by the U.S. Supreme Court on an appeal by Bedford's attorneys. A federal appeals court late Monday night lifted a stay of execution in the case that had been granted earlier in the day by U.S. District Judge Algenon L. Marbley.
Search for Ohio prison inmates on death row and those executed since 1999.(Columbus Dispatch)
View a list of all executions from 2010 and 2011.(Columbus Dispatch)
"Ohio man executed Tuesday for 1984 murders." (COLUMBUS | Tue May 17, 2011 1:41pm EDT)
COLUMBUS (Reuters) - An Ohio man was executed on Tuesday morning after the U.S. Supreme Court declined to hear his appeal, officials said. Daniel Lee Bedford was put to death by lethal injection Tuesday morning for a double homicide in Cincinnati in 1984, according to the Ohio Department of Rehabilitation and Correction. His defense attorneys had argued for clemency, citing dementia and mental retardation. A federal judge had granted Bedford a stay of execution Monday, but this was lifted by the 6th U.S. Circuit Court of Appeals, and the U.S. Supreme Court rejected his final appeal.
Bedford was convicted of shooting to death his ex-girlfriend Gwen Toepfert and her boyfriend John Smith. Bedford told the state parole board in March that he does not remember the slayings.
Bedford was the 16th person executed in the United States so far this year, according to the Death Penalty Information Center. At 63, he was the oldest person executed in Ohio since the state resumed administering capital punishment in 1999.
For his last meal, Bedford did not request a special meal, but had the regularly scheduled prison meal of an orange, graham crackers, turnip greens, oven-brown potatoes and wheat bread. He received a two-liter bottle of cola as a special request, said Ohio Department of Rehabilitation and Correction spokesman Carlo LoParo.
Bedford said "love you" to his daughter, Michelle, before his death, and "God bless you" to all witnesses present, LoParo said.
In 2010, 46 people were executed in the United States. Mississippi also is expected to carry out an execution later on Tuesday.
Cleveland Plain Dealer
"Cincinnati man executed for double slaying." (AP May 17, 2011, 12:45 PM)
LUCASVILLE, Ohio -- The state today executed a man who said he didn't remember fatally shooting his ex-girlfriend and her boyfriend at the woman's Cincinnati apartment in 1984. Daniel Lee Bedford, 63, became the third inmate in Ohio and the nation to be put to death using the surgical sedative pentobarbital as a stand-alone execution drug. He was pronounced dead at 11:18 a.m.
He declined to give a formal final statement but yelled "I love you" to his adult daughter, Michelle Connor, who was in the witness room and shouted back, "I love you, Daddy" after he had climbed onto a gurney. He also called out to witness Kristi Schulenberg, a friend and pen pal with whom he had kept in touch since the mid-1990s. She said she loved him, too. "God bless you," he said as the injection began. His mouth moved slightly and his chest appeared to rise and fall several times before he became still.
Prison staff appeared to have some difficulty inserting the IVs into one arm, prompting an attorney witnessing the execution to leave the witness room to call a colleague with concerns about how many times Bedford's arm had been poked. She also shouted to Bedford through the glass viewing window and asked if there were problems. He replied that he'd been poked several times. The attorney declined to comment after the execution.
Bedford's attorneys had pushed to block the lethal injection in a last-minute legal battle. They argued Bedford had dementia and a mild mental disability and wasn't competent enough to understand why he was being executed. They also said he was denied legal proceedings to which he was entitled. Prosecutors challenged the idea that Bedford wasn't competent and successfully appealed a stay of execution issued Monday by a federal judge. The U.S. Supreme Court on Tuesday refused the defense's request to block the execution.
Bedford is the fourth Ohio inmate put to death this year. He was sentenced to death after confessing to authorities that he shot Gwen Toepfert, 25, and John Smith, 27, at Toepfert's Cincinnati apartment, apparently because he was jealous after finding the couple there several days before the slayings. Bedford learned from Toepfert's roommate that the couple were home and waited at the apartment where, armed with a revolver and a shotgun, he killed Smith and shot Toepfert multiple times before returning to her body and firing a shotgun blast into her groin to be sure she was dead, prosecutors said.
Bedford told the state parole board in March he didn't remember the slayings but that his attorneys had told him details and he was "sorry it happened."
Relatives of Toepfert and Smith expressed support for the execution, saying they believe the killings were merciless and Bedford knew what he was doing. Gov. John Kasich denied clemency, and the Ohio Supreme Court also refused to block the execution, rejecting the defense's arguments about Bedford's competency.
In 1978, Daniel Lee Bedford met Gwen Toepfert, whose father owned the bar where Bedford worked, and for the next several years the two were involved in an “on-again, off-again” relationship. Gwen graduated from Colerain High School in Cincinnati in 1978. By 1984, the couple was estranged. Bedford’s feelings for Gwen remained, however, prompting him to try to “rekindle our prior romance.”
On April 21, 1984, he visited her apartment bearing a gift and hoping to make amends—only to learn that Gwen’s new boyfriend, John Smith, was already there. Three days later, Bedford tried again. At around 2:30 a.m. on Tuesday, April 24, Bedford, who had spent the evening working at one bar and patronizing another, telephoned Gwen’s apartment—only to learn from her roommate, Jo Ann, that Gwen was asleep and that Smith was with her.
Later that morning, Jo Ann woke to the sounds of “gunshots and screams.” Apparently overcome by Gwen’s rejection, Bedford entered her apartment armed with a .38 revolver and a shotgun, shot John Smith after a brief struggle and shot Gwen. During the melee, Gwen ran into Funk’s bedroom, screaming that she had been shot. Bedford found her there and shot her again with the revolver and the shotgun. John and Gwen both died from the gunshots.
Bedford fled to Tennessee. Once there, he visited an acquaintance, to whom he confessed his crime, and who reported Bedford to the police. After Tennessee police arrested Bedford and Mirandized him, he gave a statement admitting the crimes and eventually gave a similar statement to Cincinnati authorities. An Ohio jury convicted Bedford of the aggravated murder of Gwen Toepfert and the murder of John Smith. After a mitigation hearing, the jury recommended the death penalty, and the trial court agreed. Bedford, who was 36 at the time of the murders, is now 63 years old.
Ohio Death Row: Daniel Lee Bedford News & Blog
Ohio Attorney General - 2009 Capital Crimes Annual Report
Ohioans to Stop Executions
List of individuals executed in Ohio
A list of individuals convicted of murder that have been executed by the U.S. State of Ohio since 1976. All were executed by lethal injection.
1. Wilford Berry, Jr. (19 February 1999) Charles Mitroff
2. Jay D. Scott (14 June 2001) Vinnie M. Price
3. John William Byrd, Jr. (19 February 2002) Monte Tewksbury
4. Alton Coleman (26 April 2002) Tonnie Storey and Marlene Walters
5. Robert Anthony Buell (24 September 2002) Krista Lea Harrison
6. Richard Edwin Fox (February 12, 2003) Leslie Renae Keckler
7. David M. Brewer (April 29, 2003) Sherry Byrne
8. Ernest Martin (June 18, 2003) Robert Robinson
9. Lewis Williams, Jr. (14 January 2004) Leoma Chmielewski
10. John Glenn Roe (3 February 2004) Donette Crawford
11. William Dean Wickline (30 March 2004) Peggy and Christopher Lerch
12. William G. Zuern, Jr. (8 June 2004) Phillip Pence
13. Stephen Allan Vrabel (14 July 2004) Susan Clemente and Lisa Clemente
14. Scott Andrew Mink (July 20, 2004) William Mink and Sheila Mink
15. Adremy Dennis (October 13, 2004) Kurt Kyle
16. William Smith (March 8, 2005) Mary Bradford
17. Herman Dale Ashworth (27 September 2005) Daniel L. Baker
18. William James Williams, Jr. (25 October 2005) William Dent, Alfonda R. Madison, Sr., Eric Howard and Theodore Wynn Jr.
19. John R. Hicks (29 November 2005) Brandy Green
20. Glenn L. Benner II (7 February 2006) Trina Bowser, Cynthia Sedgwick
21. Joseph L. Clark (4 May 2006) David Manning
22. Rocky Barton (12 July 2006) Kimbirli Jo Barton
23. Darrell Ferguson (8 August 2006) David A. Gowdown, Dennis J. Langer, Jeffrey M. Welbaum
24. Jeffrey Lundgren (24 October 2006) Dennis Avery, Cheryl Avery, Trina Avery, Rebecca Avery, Karen Avery
25. James J. Filiaggi (24 April 2007) Lisa Huff Filiaggi
26. Christopher J. Newton (24 May 2007) Jason Brewer
27. Richard Cooey (October 14, 2008) Wendy Offredo and Dawn McCreery
28. Gregory Bryant-Bey (November 19, 2008) Dale Pinkelman
29. Daniel E. Wilson (June 3, 2009) Carol Lutz
30. John Fautenberry (July 14, 2009) Joseph Daron Jr.
31. Marvallous Keene (July 21, 2009) Joseph Wilkerson, Danita Gullette, Sarah Abraham, Marvin Washington, Wendy Cottrill
32. Jason Getsy (August 18, 2009) Ann R. Serafino
33. Kenneth Biros (December 8, 2009) Tami Engstrom
34. Vernon Lamont Smith (January 7, 2010) Sohail Darwish
35. Mark Aaron Brown (February 4, 2010) Isam Salman, Hayder Al Tuyrk
36. Lawrence Reynolds Jr. (March 16, 2010) Loretta Mae Foster
37. Darryl Durr (April 20, 2010) Angel Vincent
38. Michael Francis Beuke (May 14, 2010) Michael Craig
39. William Garner (July 13, 2010) Deondra Freeman, Richard Gaines, Markeca Mason, Mykkila Mason, and Denitra Satterwhite
40. Roderick Davie (August 10, 2010 John Ira Colema Tracey Jeffries
41. Michael Benge (October 6, 2010) Judith Gabbard
42. Frank G. Spisak Jr. (February 17, 2011) Rev. Horace Rickerson, Timothy Sheehan, Brian Warford
43. Johnnie R. Baston (March 10, 2011) Chong Mah
44. Clarence Carter (April 12, 2011) Johnny Allen
45. Daniel Lee Bedford (May 17, 2011) Gwen Toepfert, John Smith
State v. Bedford, 39 Ohio St.3d 122, 529 N.E.2d 913 (Ohio 1988). (Direct Appeal)
Defendant was convicted of capital murder. The Court of Appeals for Hamilton County affirmed the conviction and the sentence, and defendant appealed as of right. The Supreme Court, Moyer, C.J., held that: (1) any improprieties in prosecutor's closing argument did not warrant reversal, and (2) aggravating factor outweighed mitigating factors beyond reasonable doubt. Affirmed. Wright, J., dissented and filed opinion in which Sweeney and Brown, JJ., joined.
On May 17, 1984, Daniel Lee Bedford, appellant herein, was indicted on two counts of aggravated murder pursuant to R.C. 2903.01(A). Both counts alleged that Bedford purposely and with prior calculation and design caused the death of another. Each count was accompanied by the specification that the murder was committed as part of a course of conduct involving the purposeful killing of two or more persons. R.C. 2929.04(A)(5).
At approximately 2:30 a.m. on Tuesday, April 24, 1984, Bedford telephoned the apartment shared by his ex-girlfriend, Gwen Toepfert, and Jo Ann Funk. Bedford asked to speak with Toepfert. Funk refused to awaken Toepfert, although she reluctantly told Bedford that both Toepfert and her boyfriend, John Smith, were at the apartment. It seems Bedford had attempted to speak with Toepfert because he had been hoping for some time to rekindle a prior romance. On the prior Saturday, he came to the apartment to deliver a plant to Toepfert but discovered her new boyfriend there. Bedford became very upset and departed after giving the plant to Toepfert.
Later that Tuesday morning, Jo Ann Funk was awakened by gunshots and screams. Toepfert ran into Funk's bedroom, crying that she had been shot. After Funk attempted to phone for help, Bedford entered the room and shot Toepfert as she lay on the floor.FN1 Bedford did not shoot Funk, although she heard the .38 caliber revolver click after Bedford shot her roommate.
FN1. It is not entirely clear how Bedford gained access to the apartment. Bedford told an examining psychologist that he had hidden in the laundry room of the apartment building to avoid being seen prior to gaining entrance to the apartment. Bedford left the bedroom and Funk followed him into the living room. She saw Bedford with a shotgun. He was looking behind the open front door and yelling, “Come out, mother-fucker.” Outside the building, Smith's body lay on the landing of the front steps.
Funk ran to the bathroom and slammed the door. During that time, she heard a loud shot fired. Bedford then left the apartment. Upon coming out of the bathroom, Funk noticed that Toepfert had sustained a shotgun blast to the lower abdomen, in the pelvic region.
Bedford fled to Tennessee. While there, he visited an acquaintance from his boyhood days, Jimmy Joe Pennington. Later that same Tuesday evening, Pennington asked why Bedford looked troubled and Bedford replied that he had killed two people. Pennington told a store clerk to phone the police and, although Bedford guessed that Pennington had turned him in, Bedford waited for the arrival of the authorities.
Upon arriving, a deputy sheriff asked Bedford if the police could help him. He replied that he had killed two people in Cincinnati earlier in the day. Appellant was frisked, given his Miranda rights, and taken to jail. Bedford again received his Miranda rights, signed a waiver, and gave police an inculpatory statement. He later gave Cincinnati authorities a similar inculpatory statement.
At trial, Bedford attempted to establish that he was extremely upset and depressed due to the break-up with his girlfriend and that he was intoxicated when he went to her apartment.FN2 His statement indicated that he shot Smith after Smith wrestled away the shotgun and that he would not have killed either victim if Smith had not wrestled the shotgun from him.
FN2. There was no evidence corroborating Bedford's intoxication claim. Funk testified to the effect that he did not seem intoxicated either on the telephone or when he was at the apartment. Pennington testified that, while Bedford appeared very tired, Bedford did not seem to be intoxicated. Finally, the police testified that Bedford did not appear intoxicated. There was testimony that Bedford made the early morning call from a bar. A jury convicted Bedford on one count of aggravated murder (Toepfert) with a specification and one count of murder (Smith). This same jury, after hearing the evidence of mitigating factors, recommended that defendant be sentenced to death. The trial court, in its separate findings of fact and opinion, concurred and sentenced Bedford to death. After conducting an independent review, the Court of Appeals for Hamilton County affirmed the conviction and death sentence.
The cause is now before this court upon an appeal as of right.
Arthur M. Ney, Jr., Pros. Atty., Leonard Kirschner, Christian J. Schaefer, Thomas P. Longano and Patrick Dinkelacker, Cincinnati, for appellee. H. Fred Hoefle and Peter Rosenwald, Cincinnati, for appellant.
MOYER, Chief Justice.
Daniel Bedford appeals his aggravated murder conviction and death sentence. In reviewing a death penalty case, this court must review the proceedings in the appellate and trial courts. Second, we must independently review the death sentence to determine whether the aggravating circumstance outweighs the mitigating factors beyond a reasonable doubt. Finally, we must consider whether appellant's sentence is proportionate to the penalty in other cases. For the reasons stated below, we affirm appellant's conviction and sentence of death.
I Bedford's first proposition of law challenges the prosecutor's closing argument and the trial court's jury instructions. He argues that both impermissibly informed the jury that they did not have the final responsibility for determining whether he should receive the death penalty. While acknowledging that the challenged comments were consistent with this court's prior holdings, Bedford nonetheless urges us to reverse those decisions as being in conflict with the holding of Caldwell v. Mississippi (1985), 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231.
A review of the record confirms that both the prosecutor's closing argument and the trial court's jury instructions were within the permissible boundaries established by our prior holdings. The comments neither reduced the jury's sense of responsibility nor increased the possibility of a recommendation of death in reliance upon the appellate process. State v. Thompson (1987), 33 Ohio St.3d 1, 6, 514 N.E.2d 407, 413; State v. Steffen (1987), 31 Ohio St.3d 111, 113-114, 31 OBR 273, 275, 509 N.E.2d 383, 387-388; see, also, State v. Beuke (1988), 38 Ohio St.3d 29, 526 N.E.2d 274, and cases cited therein. Bedford's first proposition of law is overruled.
In his second proposition of law, Bedford identifies four remarks made by the prosecutor during the closing arguments at the sentencing phase of trial and contends these comments require that his death sentence be vacated. We do not agree with this contention.
At the sentencing phase of appellant's trial, the prosecutor read a passage from the decision in Gregg v. Georgia (1976), 428 U.S. 153, 183, 96 S.Ct. 2909, 2929, 49 L.Ed.2d 859, to the effect that capital punishment is an expression of society's moral outrage at particularly offensive conduct. This court has previously disapproved of such a closing argument and we reiterate our caution to prosecutors to avoid such argument. However, such an argument is not grounds for reversal. State v. Byrd (1987), 32 Ohio St.3d 79, 82-83, 512 N.E.2d 611, 615-616. Additionally, during this portion of closing argument, the prosecutor also reminded the jury, no less than four times, to carefully weigh the evidence and identified the appropriate standard of review no less than three times. Thus, the prosecutor's comment, in context, does not merit reversing the death sentence.
The second portion of the state's closing argument, made after appellant's closing argument, presents a closer question. During this argument, the assistant prosecutor stated that there was no guarantee that Bedford would serve either a twenty- or thirty-year sentence without parole because the statute could be changed, mentioned that the prosecution was not permitted to cross-examine Bedford after he made his unsworn statement, and also showed pictures of the two victims originally introduced at the guilt phase of trial. Undeniably, the conduct of the prosecutor was ill-advised. The issue, however, is whether the conduct requires that the death sentence be vacated. We conclude that it does not.
The prosecutor argued that a life sentence was not guaranteed because the General Assembly could amend the statute and the term of imprisonment. This comment, that the court could not guarantee that Bedford would serve a twenty-or thirty-year sentence, after an objection, was followed with the prosecutor's observation that the jury could not base its decision on that fact because it would violate its oath.
We expressly disapprove of arguing to a jury that a statutory penalty could be amended. However, reviewing the closing argument as a whole along with the prosecutor's observation and the correct jury instructions, we determine the comment is not grounds for reversing Bedford's sentence. The comment that appellant's testimony was not under oath must also be read in context. The brief reference was directed at the credibility of the testimony. Such argument has been held to be proper. State v. Mapes (1985), 19 Ohio St.3d 108, 116, 19 OBR 318, 324-325, 484 N.E.2d 140, 147; State v. Jenkins (1984), 15 Ohio St.3d 164, 217, 15 OBR 311, 356-357, 473 N.E.2d 264, 309-310.
Finally, it is not per se error to reintroduce to the jury photographs originally shown at the guilt phase. Our decision in State v. Thompson, supra, does not require such a result and differs from this case in three distinct respects.
First, in Thompson, the prosecutor continued with inappropriate closing argument despite the sustaining of several objections by the trial court. Second, the prosecutor referred to Thompson's failure to testify during the guilt phase of the trial and thereby violated Thompson's constitutional rights. Finally, the prosecutor in Thompson, during the sentencing phase, reminded the jury about the photographic slides originally introduced at the guilt phase. This court concluded that it was harmless error to introduce the gruesome and repetitive photographic slides at the guilt phase because of the overwhelming evidence of guilt. However, the reference to the objectionable slides combined with the prosecutor's objectionable closing arguments impaired Thompson's right to a fair mitigation hearing. In this case, the photographs in question did not taint the guilt phase of the trial. Based on the foregoing, Bedford's second proposition of law is overruled.
In his third proposition of law, Bedford asserts that the jury was coerced into recommending the death penalty. During its deliberations at the penalty phase, the jury sent the following inquiry to the trial judge: “ * * * ‘If we cannot reach a unanimous decision for this part of the trial, what would happen? Is there an approximate time frame of deliberation before which we can declare that we are unable to reach a verdict?’ ” The judge responded: “ * * * Ladies and gentlemen of the jury, the Court is advised that you have indicated difficulty in making a recommendation of sentence. Now the Court suggests to you that since the trial of this case means a great deal to the parties and to the public and has been expensive in time, effort and money, the Court urges you to make every reasonable effort to agree on a recommendation.
“In an ordinary case where the jury is deadlocked, the Judge can declare a mistrial and another jury can be selected to rehear the case. In this matter, such a solution is, obviously, undesirable since this jury has already decided guilt and no new jury could balance as easily the aggravating circumstance and mitigating factors. You then must consider that you are the jury that is in the best position to make an intelligent and fair recommendation in this matter, and the Court urges you to make every reasonable conscience [ sic] effort to do so.
“There's no time limit set by law to the time a jury may take to make a recommendation. The Court, in an effort to help you in your deliberations, suggests the following: Return to the jury room and consider whether you are, in fact, unable with reasonable anticipation to come to an agreement. If you believe an agreement may be reached, continue to deliberate. If then you reach a unanimous decision to recommend the death penalty or life sentence, do so under the instructions previously given.
“If, after exhausting all reasonable discussion, you remain hopelessly deadlocked on the issue of the death penalty, then you will consider that the prosecution has failed to prove to you as a unanimous group that the aggravating circumstance outweighs beyond a reasonable doubt the mitigating factors. If you in fact reach the last conclusion, proceed to recommend the appropriate life sentence.”
In addition, Bedford notes that one juror required medical attention for stress during the jury's deliberations.
The thrust of Bedford's argument is that the instruction given to the jury was overly coercive and encouraged the jury to make a death recommendation. However, the trial court was not advised that the jury was, in fact, deadlocked. His advice to the jury was a reasonable response to the jury's question and complied with this court's decision in State v. Maupin (1975), 42 Ohio St.2d 473, 71 O.O.2d 485, 330 N.E.2d 708, where we indicated that a trial court should urge a jury to reach a decision only if it could conscientiously do so. Here, the jury was instructed to further deliberate and determine whether it could reach a fair and intelligent recommendation after making every reasonable, conscious effort to do so. This instruction did not unduly coerce a verdict. The cases cited by appellant are inapplicable because they are concerned with a trial court's instructions to a deadlocked jury.
The mere fact that a juror suffered a stress-related temporary illness does not bolster Bedford's proposition. It is not surprising that occasionally a juror will become somewhat stressed while making a life or death determination. After being polled, the juror stated that she concurred in the death verdict. There is no reversible error and this proposition of law is overruled.
Bedford maintains, in the fourth proposition of law, that his right to a fair trial was compromised when, in closing argument at the guilt phase, the prosecutor referred to him as a “demon.” He also challenges the prosecutor's urging of the jury to do justice to the victims in referring to appellant's defense as a smoke screen. Parties are granted latitude in closing argument. State v. Maurer (1984), 15 Ohio St.3d 239, 269, 15 OBR 379, 404-405, 473 N.E.2d 768, 794-795. If it is clear beyond a reasonable doubt that, absent the prosecutor's comment, the jury would have found Bedford guilty, then his conviction need not be reversed. State v. Smith (1984), 14 Ohio St.3d 13, 14 OBR 317, 470 N.E.2d 883.
While we do not condone such argument, a review of the entire proceedings establishes that appellant was not prejudiced by these remarks. Accordingly, the fourth proposition of law is without merit.
In his fifth proposition of law, Bedford objects to the trial court's refusal to allow expert testimony regarding the “treatability” of his personality disorder (borderline personality) as compared to other capital defendants. He contends that such evidence was important for the jury to consider. R.C. 2929.04(B)(7) states that any factors relevant to the issue of whether a defendant should be sentenced to death must be weighed by the jury. A defendant has broad latitude in the presentation of evidence. R.C. 2929.04(C).
All relevant evidence must be considered in mitigation. State v. Jenkins, supra, 15 Ohio St.3d at 189, 15 OBR at 332, 473 N.E.2d at 289. Comparing Bedford's treatability with that of other capital defendants is in the nature of the proportionality review which is the function of an appellate court rather than of a jury. R.C. 2929.05(A). Further, it would be impossible for the jury to adequately weigh the testimony without knowing the facts of each capital case. The trial court permitted the expert witness' testimony that, in comparison with other “folks I've seen in courts,” Bedford was one of the most treatable.
Here, appellant was not prevented from presenting relevant mitigation evidence and his proposition of law is without merit.
As the sixth proposition of law, appellant argues that the court of appeals failed to apply the correct burden of proof in weighing the aggravating circumstance against the mitigating factors. However, a review of the entire decision indicates that the court of appeals applied the correct standard of review. Therefore, this proposition of law is overruled.
In propositions of law seven, eight, and nine, Bedford urges that two prospective jurors were improperly removed for cause, thereby denying him a fair trial. The proper standard for determining when a prospective juror may be excluded for cause is whether that juror's views would prevent or substantially impair the performance of duties in accordance with both the oath and instructions given a juror. State v. Steffen, supra, 31 Ohio St.3d at 120-121, 31 OBR at 281, 509 N.E.2d at 393; State v. Rogers (1985), 17 Ohio St.3d 174, 17 OBR 414, 478 N.E.2d 984.
Juror Tucker clearly indicated that, although she could “follow the law,” she could not consider the death penalty.FN3 Thus, she was properly excluded for cause. FN3. “Q. [By the court] Let me ask you this: Is this an opposition based upon religious belief, philosophy or what? “ * * * “A. [Juror Tucker] * * * I don't think I could be a part of convicting someone to the death sentence. “Q. * * * “Now, let me ask you first of all does it make any difference that you'll only be recommending the penalty? * * * Would you make such a recommendation? “A. I don't believe so. “Q. * * * Can you follow * * * [the] law? “A. No. “ * * * “A. * * * I would follow all instructions. “Q. [By Mr. Longano] Including recommending death if that's warranted? “A. Excluding recommending death. “ * * * “A. I feel that they should not have that ability to take the life of another person. “ * * * “A. I will follow all the laws until such time that I would be asked to say something about the death penalty. “ * * * “JUROR TUCKER: No, I cannot. The way the two of you is [ sic ] saying it is different. He's saying could I follow the law. I could follow the law all the way up, and I think-I know if I make the recommendation for death, then that means he may get it, and no, I can't. “ * * * “THE COURT: * * * Can you or can you not make that recommendation? “JUROR TUCKER: Not for the death penalty, no.” Juror Herweh presents a closer question. However, Herweh did indicate that he could not sign a statement putting anyone to death. FN4 FN4. “Q. [The Court] Assuming that you have found that the aggravating factors outweigh the mitigating factors, will you sign the recommendation of the death penalty? “A. [Juror Herweh] I have my doubts that I would because I don't feel that I would really have the knowledge being a novice, that I could condemn somebody- “Q. * * * Will you or won't you sign that recommendation if you reach that point, or are you unable definitely to tell us whether you would or wouldn't? “A. I definitely don't think that I would be able to sign such a waiver. “ * * * “Q. [Mr. Breyer] Now, sir, you indicated, I believe in response to the Judge's question, that you would have difficulty recommending a verdict of-signing your name to a verdict form which recommended that the Judge impose the death penalty. “A. This is true. “ * * * “THE COURT: Well, now can you tell us that you will sign a recommendation of the death penalty if the law-if the aggravating circumstances outweigh the mitigating factors? Can you tell us you will or won't, or you don't know? “JUROR HERWEH: I don't think I would. I don't believe I would sign the statement putting anyone to death.” Here, the trial court carefully questioned the juror to determine whether he could properly fulfill his oath and obligation as a juror. There will be situations where the trial court, after observing the demeanor and behavior of the juror, concludes that the juror cannot fulfill the duties incumbent with the oath and instructions given by the trial court. Some deference must be given to the trial court in those circumstances. Wainwright v. Witt (1985), 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841.
After careful consideration of the record, we conclude that the trial court did not err in dismissing the prospective jurors for cause. Therefore, propositions of law seven, eight, and nine are overruled.
In his tenth, eleventh, and twelfth propositions of law, Bedford challenges the voir dire process and asserts that he was denied an impartial jury. The trial court did not permit defense counsel to inquire of prospective jurors whether they would find as mitigating factors Bedford's alcohol abuse and his father's murder. The trial court reasoned that the question sought a commitment of prospective jurors prior to the introduction of any evidence. It applied the same rule to similar questions posed by the prosecutor.
The scope of voir dire is within the trial court's discretion and varies depending on the circumstances of each case. State v. Anderson (1972), 30 Ohio St.2d 66, 73, 59 O.O.2d 85, 89, 282 N.E.2d 568, 572. Any limits placed thereon must be reasonable. State v. Bridgeman (1977), 51 Ohio App.2d 105, 109-110, 5 O.O.3d 275, 277, 366 N.E.2d 1378, 1383. The trial court did permit defense counsel to ask questions regarding the statutorily defined mitigating factors including whether they would consider relevant evidence pursuant to R.C. 2929.04(B)(7). Indeed, at times the trial court, after sustaining objections, advised defense counsel to rephrase the questions and such advice was refused.
Reviewing the voir dire as a whole, the trial court did not abuse its discretion by limiting certain areas of inquiry and Bedford was not denied a fair and impartial jury. These propositions of law are therefore without merit.
In his thirteenth proposition of law, Bedford maintains that his initial arrest in Tennessee was improper and therefore his statements to police after the arrest were improperly admitted. He claims that the arresting officers lacked probable cause. The record indicates that Bedford, after fleeing to Tennessee, told a friend there that he had killed two people in Cincinnati. The friend caused the local sheriff's department to be contacted. Upon arrival, a sheriff's deputy asked Bedford if he could help him in any way. Bedford dropped his head and the officer then asked, “Can I help you?” Bedford told the officers that he had killed two people. He was searched, given Miranda rights, and taken to jail. After his rights were again explained to him, Bedford gave police the statement. Bedford's claim that he was arrested without probable cause is clearly meritless.
Contrary to his claims, Bedford's detention and subsequent arrest were based on reasonably objective grounds. United States v. Mendenhall (1980), 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497. The police had more than mere suspicion, Florida v. Royer (1983), 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229; in fact, they had been told by Bedford that he had killed two people. Accordingly, the incriminating statements made after the arrest based on probable cause were lawfully obtained. Brown v. Illinois (1975), 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416.
In his fourteenth proposition of law, Bedford claims that one of the jurors repeatedly violated the trial court's instructions by listening to extrajudicial information about the case. One of the jurors indicated that he had heard a radio report about the start of the trial and later in that same morning the broadcast again mentioned the trial. He stated that he had “blocked it out,” that he could ignore the reports, and that he could decide the case on the facts presented at trial.
The record reveals that the juror learned only information that he already knew. The juror knew the name of the defendant, that a double murder was involved, and that the trial was to begin that morning. Bedford does not establish any prejudice or harm resulting from the juror's having inadvertently heard two references to the trial. Therefore, he has failed to supply a threshold showing of bias or prejudice. State v. Jenkins, supra, 15 Ohio St.3d at 237, 15 OBR at 374, 473 N.E.2d at 325. Appellant's fourteenth proposition of law is overruled.
In his fifteenth, sixteenth, and seventeenth propositions of law, Bedford challenges certain evidentiary rulings by the trial court.
First, he challenges the testimony regarding possible fingerprints taken from a shotgun found at the scene. In response to a Crim.R. 16 discovery motion, the appellant was informed that no fingerprint evidence was discovered. However, the state introduced evidence regarding partial, though unidentifiable, fingerprints. During a bench conference at trial, the prosecution indicated the defense counsel knew of the evidence. The state originally did not intend to use the evidence until defense counsel impugned the investigative procedures. Thereafter, the state used the evidence to show how the investigation was conducted. Defense counsel refused the offer of a continuance. Bedford now speculates that, had he known of the evidence, defense experts might have examined it. However, as noted above, there was information that defense counsel did know about the evidence. Further, Bedford can show no prejudice because the expert testified that none of the parties' prints could be identified.
Second, Bedford challenges the use of the statement taken at the sheriff's office in Tennessee. The testifying officer used this statement to refresh his recollection of what Bedford had told him after he was arrested. Bedford claims that this was a “charade” designed to allow his statement to be read into the record. The officer was permitted to use his notes, in this case the statement, to refresh his memory. Evid.R. 612. Defense counsel cross-examined the officer extensively regarding his notes. The trial court did not abuse its discretion in allowing the witness to use the statement to refresh his recollection.
Finally, Bedford challenges the admission of photographs he claims are repetitive and prejudicial. The test for admitting gruesome photographic evidence is twofold. First, the probative value of the photographs must outweigh their prejudicial impact. Second, the photographs cannot be repetitive or cumulative. State v. Thompson, supra, 33 Ohio St.3d at 9, 514 N.E.2d at 416; State v. Morales (1987), 32 Ohio St.3d 252, 257-258, 513 N.E.2d 267, 273-274; State v. Maurer, supra, at paragraph seven of the syllabus.
Few of the photographs in this record are particularly gruesome or repetitive. There were two photographs of the same side of Toepfert's face and two photographs of the same angle portraying Toepfert's abdominal wound. We have concluded in prior cases that photographs more numerous than those in this case were not repetitive or cumulative. Further, the two photographs of the abdominal wound, inflicted after the victim's death, go to establishing the killer's state of mind. Therefore, the admission of the photographs was not error. Bedford's fifteenth, sixteenth, and seventeenth propositions of law are overruled.
In his eighteenth proposition of law, Bedford urges that the trial court's instruction on voluntary manslaughter improperly deleted a definition based on extreme emotional distress. First, we note that the jury was given the proper instruction regarding the elements of voluntary manslaughter. The only issue is whether, in addition to the terms “sudden passion” and “sudden fit of rage” explicitly contained in R.C. 2903.03(A), the trial court should have included extreme emotional distress. However, extreme emotional distress is no longer a component of the definition of voluntary manslaughter. The trial court correctly cited the elements defined in R.C. 2903.03(A).
Further, the jury was not foreclosed from finding that Bedford acted with a mens rea that was less than purposeful. If the jury had concluded that he acted under the influence of a sudden passion, it could have found him guilty of voluntary manslaughter. State v. Solomon (1981), 66 Ohio St.2d 214, 219, 20 O.O.3d 213, 216, 421 N.E.2d 139, 142. Therefore, appellant's eighteenth proposition of law is overruled.
In his nineteenth proposition of law, appellant contends that it was error to instruct the jury that he had to prove the defense of intoxication by a preponderance of the evidence. Bedford's contention is not well-taken. Such an instruction does not remove the state's burden of proving its case against the defendant beyond a reasonable doubt. Even if the jury concluded that Bedford failed to establish the defense of intoxication, it was permitted to consider whether his claim of intoxication created a reasonable doubt as to his guilt. Martin v. Ohio (1987), 480 U.S. 228, 107 S.Ct. 1098, 94 L.Ed.2d 267.
Here, the state was required to prove its case beyond a reasonable doubt. The burden of proof never improperly shifted to appellant. This proposition of law is overruled.
Bedford's twentieth proposition of law places in issue the weight and sufficiency of the aggravating circumstance as compared to the mitigating factors. As discussed infra, we conclude that the aggravating circumstance outweighed the mitigating factors beyond a reasonable doubt. Accordingly, this proposition of law is overruled.
In his twenty-first proposition of law, Bedford challenges the method of conducting the proportionality review. He argues that a proportionality review must include those defendants eligible for capital punishment but not so indicted. Likewise, in his twenty-second proposition of law, he contends that a proportionality review must include all defendants either eligible for the death penalty and not so indicted and those prosecuted but not sentenced to death.
This court has repeatedly held that, because a proportionality review is not mandated in a constitutionally valid sentencing scheme, Ohio is free to define the proportionality review. This court has also previously rejected the arguments advanced by appellant. State v. Poindexter (1988), 36 Ohio St.3d 1, 4, 520 N.E.2d 568, 571, and cases cited therein. Accordingly, these propositions of law are overruled.
In his twenty-third proposition of law, Bedford maintains that Ohio's capital sentencing scheme is unconstitutional because it violates the Equal Protection Clause. He acknowledges that the holding of McCleskey v. Kemp (1987), 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262, precludes a federal constitutional challenge. Bedford nonetheless urges this court to find a violation of equal protection under the Fourteenth Amendment. This proposition of law is overruled on the authority of the syllabus set forth in State v. Zuern (1987), 32 Ohio St.3d 56, 512 N.E.2d 585.
In his twenty-fourth and final proposition of law, Bedford raises several constitutional issues to preserve them for further appeal. We answer each challenge briefly. The state has a rational interest in imposing the death penalty and the statutory scheme is constitutional. State v. Jenkins, supra; State v. Beuke, supra, 38 Ohio St.3d at 38-39, 526 N.E.2d at 285. We also reject Bedford's argument that the statutory scheme is unconstitutional because the death penalty is disproportionately inflicted by racial classification, based on our discussion above.
Bedford's argument that the statute is unconstitutional because it provides harsher treatment for felony-murder than for some premeditated murders is rejected on the authority of State v. Jenkins and State v. Maurer, supra. Bedford contends that the statutory scheme is unconstitutional because a jury must recommend death where the aggravating circumstance outweighs the mitigating factors ever so slightly. First, appellant misstates the applicable standard of proof. Second, we have previously noted our confidence in Ohio juries to fairly and seriously weigh the evidence during the sentencing phase. State v. Coleman (1988), 37 Ohio St.3d 286, 294, 525 N.E.2d 792, 800.
Bedford's claim that a jury is precluded from considerations of mercy is overruled on the authority of State v. Beuke, supra, 38 Ohio St.3d at 38-39, 526 N.E.2d at 285; State v. Jenkins, supra. Crim.R. 11(C)(3) does not needlessly encourage guilty pleas or waiver of any fundamental rights. State v. Buell (1986), 22 Ohio St.3d 124, 138, 22 OBR 203, 215, 489 N.E.2d 795, 808. Finally, the statutory scheme does not encourage the arbitrary or capricious infliction of the death penalty. State v. Jenkins; State v. Maurer; State v. Coleman, supra.
Having disposed of all the propositions of law set forth above, we must weigh the aggravating circumstance against the mitigating factors and determine whether the death penalty was properly imposed. The jury convicted Bedford on one count of aggravated murder (R.C. 2903.01 [A] ), that he purposely and with prior calculation and design caused the death of Gwen Toepfert, and one count of murder (R.C. 2903.02[A] ), that he purposely caused the death of John Smith. The jury also found Bedford guilty on the specification to Count One, that he committed aggravated murder as part of a course of conduct that resulted in the purposeful killing of Gwen Toepfert and John Smith (R.C. 2929.04[A] ). This constitutes the single aggravating circumstance.
We now focus attention on the mitigating factors. A review of the nature and circumstances reveals that Bedford's claim of intoxication is cast in serious doubt by the evidence. He searched for Smith after killing Toepfert. He shot both victims several times. Indeed, after Toepfert was dead, he fired a shot into her pelvic region. He thereafter fled to Tennessee, where he appeared coherent and sober to several witnesses. Therefore, we assign little weight to his claim of intoxication.
Likewise, we give consideration to his claim of emotional stress. The expert testimony indicated that while Bedford was very stressed at the time of examination, he was able to make judgments and distinguish right from wrong. Though he was both alcohol dependent and generally dependent on others for reinforcement, his state of depression at the time of the killing could not be characterized as a mental illness. Finally, Bedford told the examining expert that once he entered the apartment building, he waited to enter the apartment, pondering what to do next. The expert did state that Bedford's depression, if he was incarcerated, was treatable.
With regard to appellant's history, character, and background, the record establishes that Bedford experienced several unfortunate, perhaps tragic, incidents during his lifetime. However, such experiences do not mitigate the crimes he committed. We find no persuasive evidence that Bedford's victims induced or facilitated his crimes. It cannot be said that Toepfert's rejection of appellant's affections induced or facilitated the killings.
The next factor to consider is whether the offenses would have been committed but for the fact that Bedford was under duress, coercion, or strong provocation. While there is evidence that Bedford was under stress because of the relationship between Toepfert and himself, it cannot be classified as coercion or strong provocation. Likewise, duress generally indicates that some compulsion by threat exists, which is not the case here. Nonetheless, we shall consider as a mitigating factor the claimed stress experienced by Bedford.
Next, we consider whether Bedford, at the time of committing the offenses, lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law due to mental disease or defect. As the expert testimony previously discussed indicates, Bedford could distinguish right from wrong and did not have a mental disease. We give this factor little weight.
Concerning Bedford's youth, he was thirty-six at the time of the killings and we give this factor no weight. The next factor to consider is the lack of a criminal conviction history. Bedford lacks a significant criminal background and this factor must be given weight. Finally, in looking at any other relevant factors, we consider Bedford's claim of remorse, his poor communication skills, and the fact that he is a father of six children.
Balancing the mitigating factors enumerated above against the aggravating circumstance, we conclude that the aggravating circumstance outweighs the mitigating factors beyond a reasonable doubt. Bedford was able to distinguish right from wrong, yet engaged in a specific and deliberate course of conduct which resulted in two brutal slayings. While waiting outside the site of the killings, he pondered his actions. After wounding Toepfert and killing Smith, he deliberately sought out Toepfert and killed her. He then sought Smith and returned to shoot his ex-girlfriend in the abdomen. Bedford's stress, personal problems, and difficult life do not mitigate the circumstances of such a course of conduct.
Having so held, it only remains for us to determine whether Bedford's death sentence is disproportionate or excessive. We conclude it is not. Recently, this court upheld the death penalty under somewhat similar circumstances. See State v. Poindexter, supra. We have also upheld other death sentences when the defendant committed aggravated murder as part of a course of conduct. See State v. Brooks (1986), 25 Ohio St.3d 144, 24 OBR 190, 495 N.E.2d 407; State v. Spisak (1988), 36 Ohio St.3d 80, 521 N.E.2d 800.
Accordingly, the judgment of the court of appeals is affirmed. LOCHER, HOLMES and DOUGLAS, JJ., concur. SWEENEY, WRIGHT and HERBERT R. BROWN, JJ., dissent.
WRIGHT, Justice, dissenting.
At the risk of violating the Biblical proverb that “ * * * he that repeateth a matter separateth very friends,” FN5 I must respectfully dissent in this case. FN5. Proverbs 17:9.
For reasons that escape me, this court has been confronted with a veritable flood of death penalty cases involving a pernicious pattern of prosecutorial misconduct. See, e.g., State v. Thompson (1987), 33 Ohio St.3d 1, 514 N.E.2d 407 (misconduct resulting in vacation of death sentence); State v. Williams (1988), 38 Ohio St.3d 346, 359-360, 528 N.E.2d 910, 924-925 (Sweeney, J., dissenting); State v. Esparza (1988), 39 Ohio St.3d 8, 16, 529 N.E.2d 192, 200 (H. Brown, J., dissenting); and State v. DePew (1988), 38 Ohio St.3d 275, 293-299, 528 N.E.2d 542, 560-566 (Wright, J., concurring in part and dissenting in part). One can only hope that these practices have abated as a result of the warnings contained in DePew, supra, at 288-289, 528 N.E.2d at 556-557, and the deep concerns expressed by most, if not all, of the members of this court.
I am hopeful that repeating my concerns will not detract from the impact of previous treatment of this subject. Nevertheless, with a man's life at stake, I feel compelled to again write in dissent to censure a pervasive practice among far too many prosecutors-conduct that I find in direct conflict with the foundation of our system of criminal jurisprudence.
I recognize that our system often places a prosecutor in the difficult position of being a vigorous advocate for guilt and punishment while at the same time that same prosecutor must be mindful of the accused's right to a fair trial. The prosecutor's function “ * * * is not to tack as many skins of victims as possible to the wall. His function is * * * to give those accused of crime a fair trial.” Donnelly v. DeChristoforo (1974), 416 U.S. 637, 648-649, 94 S.Ct. 1868, 1873-1874, 40 L.Ed.2d 431 (Douglas, J., dissenting). See, also, EC 7-13 of the Code of Professional Responsibility.
In my view, the prosecutor in this case failed to maintain this crucial balance. The concern of improper prosecutorial influence upon a jury is particularly acute in the penalty phase of a capital case, especially where it tends to rebut a substantial amount of mitigation, as was the case here. FN6 “[I]t is most important that the sentencing phase of the [capital] trial not be influenced by passion, prejudice, or any other arbitrary factor. * * * With a man's life at stake, a prosecutor should not play on the passions of the jury.” Hance v. Zant (C.A. 11, 1983), 696 F.2d 940, 951, certiorari denied (1983), 463 U.S. 1210, 103 S.Ct. 3544, 77 L.Ed.2d 1393.
FN6. The evidence presented during the sentencing hearing established Bedford's low intelligence quotient (seventy), his limited ability to read and write, his poor academic record, and his lack of a prior felony record. Expert testimony substantiated that Bedford was severely depressed, very dependent on others, and that his emotional state was consistent with suicide, an act he apparently contemplated the evening before the murders. Indeed, Dr. Nancy Schmidtgoessling, a clinical psychologist, explained that a love interest's rejection would be a crisis point for Bedford, although in her opinion his illness was treatable.
In an unsworn statement, Bedford recounted his tragic life story which included the murder of his father and the early death of his mother. Bedford married at fifteen and the marriage produced six children, all of whom eventually went to live with their mother when she moved out to live with another man. In addition, Bedford had consistently abused alcohol. That the jury considered this evidence of great significance is supported by the questions it posed to the trial court. After almost twelve hours of deliberation, the jury inquired as to what would happen if it could not reach a unanimous verdict and how long it had to keep trying before a deadlock could be declared. These questions suggest that, without more, the jury could not have found these mitigating factors were outweighed by the aggravating circumstance beyond a reasonable doubt.
For the reasons noted below, I believe the facts here belie a finding beyond a reasonable doubt that the jury would have recommended the death penalty absent the improper arguments by the prosecution. As a result, I believe appellant was denied fundamental due process and a fair trial pursuant to the Fifth and Fourteenth Amendments to the United States Constitution.
Improper conduct by the prosecutor during the penalty phase of this case falls into three main categories. Examples of this conduct are discussed below. The cumulative effect of this misconduct dictates a remand to the trial court for resentencing. “Any egregious error in the penalty phase of a death penalty proceeding, including prosecutorial misconduct, will be cause to vacate the sentence of death with a subsequent remand to the trial court for a new sentencing procedure pursuant to R.C. 2929.06.” Thompson, supra, at syllabus.
In his argument at the penalty phase, the prosecutor showed the jury photographs that were previously admitted during the guilt phase and improperly commented upon them. Before the prosecutor readmitted the photographs at this stage, he told the jury that: “Whatever Mr. Bedford experienced, whatever he was feeling is not grounds to take two people's lives; and I'm going to show you the photographs in the case. You've already seen them, but I'll remind you of them because this is what the whole case is about; this is the reason we are here, okay? This is [ sic] the aggravating circumstances, this is the course of conduct which brought us all here together * * *.” (Emphasis added.)
In State v. Thompson, supra, this court vacated a death sentence and remanded for resentencing for prosecutorial misconduct less severe than that found in this case. In Thompson, during the guilt phase of a capital case, the prosecutor presented gruesome photographic slides to illustrate expert testimony. Later, during argument in the penalty stage, the prosecutor referred to these slides but did not show them again.
This court stated that introduction of the slides during the guilt phase was harmless error, but held that the subsequent reference to them during the penalty phase was prejudicial. “Although the prosecutor did not actually show the slides again, his entreaty that the jury should remember the slides could have had no other effect than to cause the jurors to re-experience the horror and outrage they must have felt upon viewing the slides earlier in the trial. * * *” Thompson, supra, 33 Ohio St.3d at 15, 514 N.E.2d at 420.
In the instant case, not only did the prosecutor refer to the gruesome photographs that were presented during the guilt phase, but he actually resubmitted the photos to the jury during the penalty phase. These photographs, including color close-ups, show Smith lying with his head in a pool of blood on the porch. In addition, several photographs show Toepfert's body lying inside the apartment with a portion of her bowels protruding. It does not take much imagination to appreciate the revulsion the jury must have felt when these photographs were again presented to it. Therefore, if the tactics used by the prosecutor in Thompson were prejudicial, then surely the tactics used by the prosecutor in this case warrant vacation of the death sentence and a remand for resentencing pursuant to R.C. 2929.06.
Finally and most importantly, in State v. Davis (1988), 38 Ohio St.3d 361, 367-376, 528 N.E.2d 925, 931-937, Justice Locher correctly pointed out that only those aggravating circumstances specifically enumerated in R.C. 2929.04(A) may be considered in imposing the death penalty. In Davis, we remanded the case to the trial court because the three-judge panel weighed aggravating circumstances that were outside the statute. “ ‘This weighing process is designed to guide the sentencing authority's discretion by focusing on the “circumstances of the capital offense and the individual offender * * *,” thus reducing the arbitrary and capricious imposition of death sentences. * * * Like all penalty provisions, R.C. 2929.04(B) must “ * * * be strictly construed against the state, and liberally construed in favor of the accused.” R.C. 2901.04(A).’ ” Id. at 369, 528 N.E.2d at 933, quoting State v. Penix (1987), 32 Ohio St.3d 369, 371, 513 N.E.2d 744, 746-747. See, also, Esparza, supra, 38 Ohio St.3d at 16, 529 N.E.2d at 200 (Locher, J., concurring).
The presentation of the photographs during the penalty phase and the prosecutor's related statement that “this is [ sic ] the aggravating circumstances, this is the course of conduct which brought us all here together” are precisely the types of nonstatutory circumstances that Davis proscribes. Therefore, it is obvious that this jury could not help but weigh the “nature and circumstances” of the offense, which is clearly improper. See Esparza, supra, at 16, 529 N.E.2d at 200 (Locher, J., concurring). The prosecutorial misconduct in introducing these nonstatutory aggravating circumstances to the jury during its weighing process was prejudicial to the defendant in that it allowed the jury to arbitrarily and capriciously impose the death penalty.
The prosecutor misled the jury when he improperly argued that the statutory minimum sentences under a life verdict failed to assure that appellant would not be released before that sentence was served. The prosecutor told the jury: “The law says that the parole eligibility is 30 years and the parole eligibility is 20 years, and that's the way it is today; but you don't know how it's going to be a year from now, two years from now, three years from now. * * * ”
The prosecutor was speculating that the present law may somehow be amended so that appellant could receive parole to shorten his sentence. As I recently stated in DePew, supra, 38 Ohio St.3d at 297, 528 N.E.2d at 564 (Wright, J., concurring in part and dissenting in part), such speculation is improper since early parole, as suggested by the prosecutor, is impossible under present law. In addition, the possibility of parole is outside the province of the jury. See California v. Ramos (1983), 463 U.S. 992, 1026, fn. 13, 103 S.Ct. 3446, 3466, fn. 13, 77 L.Ed.2d 1171 (Marshall, J., dissenting).
In Farris v. State (Tenn.1976), 535 S.W.2d 608, 614, the Tennessee Supreme Court stated that jurors should not be informed about the possibility of parole because “ * * * jurors tend to attempt to compensate for future clemency by imposing harsher sentences.” Similarly, in the present case, appellant was prejudiced beyond doubt because the jurors may have imposed a harsher sentence because of the prosecutor's comments. See, also, People v. Brisbon (1985), 106 Ill.2d 342, 88 Ill.Dec. 87, 478 N.E.2d 402 (reference to possibility of early parole); and People v. Davenport (1985), 41 Cal.3d 247, 221 Cal.Rptr. 794, 710 P.2d 861 (comment on possible commutation).
Quoting from the United States Supreme Court decision of Gregg v. Georgia (1976), 428 U.S. 153, 183, 96 S.Ct. 2909, 2929, 49 L.Ed.2d 859, the prosecutor in this case told the jury during the penalty phase that “ * * * capital punishment is an expression of society's moral outrage at particularly offensive conduct. This function may be unappealing to many, but it is essential in an ordered society that asks its citizens to rely on legal processes rather than self-help to vindicate their wrongs.” The prosecutor then quoted from the concurring opinion of Justice Stewart in Furman v. Georgia (1972), 408 U.S. 238, 308, 92 S.Ct. 2726, 2761, 33 L.Ed.2d 346, which states: “ * * * The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they ‘deserve,’ then there are sown the seeds of anarchy-of self-help, vigilante justice, and lynch law.”
We have held that “[a] closing argument that goes beyond the record may constitute prejudicial error, * * * particularly where the remarks call for the jury to convict to meet a public demand.” State v. Moritz (1980), 63 Ohio St.2d 150, 157, 17 O.O.3d 92, 96-97, 407 N.E.2d 1268, 1273. The above quotations, particularly the passage from the Gregg opinion, are being used more and more frequently by prosecutors in the penalty phase of capital cases, both in this state and elsewhere. This is a practice that I find improper.
In Wilson v. Kemp (C.A. 11, 1985), 777 F.2d 621, the United States Court of Appeals analyzed the use of such a quotation during the penalty phase of a capital trial and found that such use, combined with other improper comments, constituted reversible error. In addressing the prosecution's use of the very same Gregg excerpt quoted in this case, the court stated: “As used by the prosecutor, the Gregg passage conveys the impression that ‘this function’- i.e., capital punishment-is ‘essential in an ordered society.’ By contrast, the Supreme Court's intended meaning was quite different, as shown by a reading of the entire Gregg passage in context. The intended meaning was that recognition of the function of retribution is ‘essential in an ordered society.[’] * * * [O]ne need only read the relevant portion of the prosecutor's closing argument to appreciate its message: the United States Supreme Court has stated that in its view, capital punishment is essential in an ordered society. The fact that many states and countries do not have capital punishment and yet enjoy ordered societies belies this conclusion, which in any event has never been expressed by the Supreme Court. * * * [A] review of the entire context of the Gregg opinion shows that this was not the Supreme Court's intended meaning. Therefore, we conclude that the prosecutor's misleading use of the passage was improper argument * * *.” Id. at 625.
In Ohio, the sentencing jury's responsibilities are limited. At the penalty phase, the jury must first determine whether or not any mitigating factors have been established. Then the jury must weigh against the existing mitigating factors the aggravating circumstance(s) of which it convicted the defendant at the guilt phase of the trial. If the aggravating circumstance(s) outweigh the mitigating factors beyond a reasonable doubt, then the death penalty is required. Otherwise, the jury recommends a sentence of life, with either twenty or thirty years of actual incarceration prior to parole consideration. R.C. 2929.03(D).
Thus, any opinion of the United States Supreme Court as to the desirability of the death penalty is completely irrelevant to the decision to be made by the jury. The only possible purpose for injection of the Gregg quotation is a thinly veiled attempt to advise the jury that the Supreme Court condones the death penalty as the proper response to a public demand for retribution. This, in my view, is constitutionally impermissible.
Therefore, for the foregoing reasons, I must dissent with respect to the sentence imposed, but would uphold the jury's finding of guilt. SWEENEY and HERBERT R. BROWN, JJ., concur in the foregoing dissenting opinion.
Bedford v. Collins, 567 F.3d 225 (6th Cir. 2009). (Habeas)
Background: Following affirmance on direct appeal of petitioner's convictions for murder and aggravated murder, and his death sentence, 39 Ohio St.3d 122, 529 N.E.2d 913, he filed petition for federal habeas relief. The United States District Court for the Southern District of Ohio, George C. Smith, J., denied petition. Petitioner appealed.
Holdings: The Court of Appeals, Sutton, Circuit Judge, held that: (1) striking of prospective jurors based on determination that they were substantially impaired in their ability to impose the death penalty was warranted; (2) trial court did not improperly limit scope of voir dire; (3) prosecutor's disparaging remarks during closing argument about defense counsel's tactics did not violate due process; (4) closing arguments during penalty phase of capital murder trial did not deprive petitioner of due process; (5) prosecutor's argument about possibility of early parole did not render trial unfair; (6) prosecutor's argument was not flagrant violation of Fifth Amendment right against self-incrimination; (7) supplemental jury instruction to possibly deadlocked jury was not coercive; and (8) petitioner was not deprived of effective assistance of counsel during penalty phase. Affirmed.
SUTTON, Circuit Judge.
A jury convicted Daniel Bedford of the aggravated murder of Gwen Toepfert and the murder of John Smith, and at the jury's recommendation a state trial court sentenced him to death. The Ohio courts affirmed his convictions and sentence on direct review and denied postconviction relief. Bedford sought a writ of habeas corpus under 28 U.S.C. § 2254, which the district court denied. We affirm.
In 1978, Bedford met Toepfert, whose father owned the bar where Bedford worked, and for the next several years the two were involved in an “on-again, off-again” relationship. JA 491. By 1984, they were estranged. See State v. Bedford, 39 Ohio St.3d 122, 529 N.E.2d 913, 915 (1988).
Bedford's feelings for Toepfert remained, however, prompting him to try to “rekindle [their] prior romance.” Id. On April 21, 1984, he visited her apartment bearing a gift and hoping to make amends-only to learn that Toepfert's new boyfriend, John Smith, was already there. Id. Three days later, Bedford tried again. At around 2:30 a.m. on Tuesday, April 24, Bedford, who had spent the evening working at one bar and patronizing another, telephoned Toepfert's apartment-only to learn from her roommate, Jo Ann Funk, that Toepfert was asleep and that Smith was with her. Id.
Later that morning, Funk woke to the sounds of “gunshots and screams.” Id. Apparently overcome by Toepfert's rejection, Bedford entered her apartment armed with a .38 revolver and a shotgun, shot Smith after a brief struggle and shot Toepfert. During the melee, Toepfert ran into Funk's bedroom, screaming that she had been shot. Bedford found her there and shot her again with the revolver and the shotgun. Smith and Toepfert died from the gunshots. See id.
Bedford fled to Tennessee. Once there, he visited an acquaintance, to whom he confessed his crime, and who reported Bedford to the police. After Tennessee police arrested Bedford (and Mirandized him), he gave a statement admitting the crimes and eventually gave a similar statement to Cincinnati authorities. Id.
An Ohio jury convicted Bedford of the aggravated murder of Toepfert and the murder of Smith. Id. at 916. After a mitigation hearing, the jury recommended the death penalty, and the trial court agreed. Id. On direct review, the state court of appeals and the Ohio Supreme Court affirmed Bedford's conviction and death sentence. See State v. Bedford, No. C-840850, 1986 WL 11287, at * 14 (Ohio Ct.App. Oct.8, 1986) (per curiam), aff'd, Bedford, 529 N.E.2d at 916. Bedford sought state post-conviction relief, which the Ohio courts denied. See State v. Bedford, No. C-900412, 1991 WL 175783 (Ohio Ct.App. Sept.11, 1991) (per curiam), appeal denied, State v. Bedford, 62 Ohio St.3d 1508, 583 N.E.2d 1320 (1992). He filed a motion for reconsideration and another seeking reinstatement of his direct appeal, both to no avail. See *231 State v. Bedford, 68 Ohio St.3d 1453, 626 N.E.2d 957 (1994); State v. Bedford, 67 Ohio St.3d 1509, 622 N.E.2d 656 (1993).
In 1992, Bedford filed a federal petition for habeas corpus in the district court. As amended, his petition raised 87 separate grounds for relief. In a pair of thorough opinions spanning 251 pages, the district court denied each of Bedford's claims. Most of the claims, the court concluded, were procedurally defaulted or otherwise not cognizable in federal court, and the remainder failed on the merits. The court granted a certificate of appealability on several claims. See Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).
Because Bedford filed his federal habeas petition before AEDPA's effective date, AEDPA's standard of review does not apply, see Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). We thus give fresh review to the state courts' legal conclusions and clear-error review to their fact findings. See Fitzgerald v. Withrow, 292 F.3d 500, 503 (6th Cir.2002).
Bedford first claims that the trial court unfairly limited his questioning of prospective jurors during voir dire: (1) by too quickly dismissing four prospective jurors for cause that he wished to rehabilitate and (2) by precluding his counsel from asking certain questions of the jurors.
A prospective death-penalty juror may be struck for cause if he is “substantially impaired in his ... ability to impose the death penalty under the state-law framework.” Uttecht v. Brown, 551 U.S. 1, 127 S.Ct. 2218, 2224, 167 L.Ed.2d 1014 (2007). That includes jurors who express an unwillingness to recommend the death penalty, no matter what the weighing of aggravating and mitigating factors suggests. See Dennis v. Mitchell, 354 F.3d 511, 522-23 (6th Cir.2003).
The four dismissed jurors each expressed views that qualified them as “substantially impaired.” Juror Herweh told the court that he “definitely” did not think he could sign a death-penalty recommendation, JA 2192, even if the aggravating factors outweighed the mitigating factors. Juror Tucker did not think she “could be a part of convicting someone to the death sentence,” would not recommend a death sentence under any circumstance and could “not follow [a] law” requiring her to do so. JA 2132-34. And Jurors Dotterweich and Jordan stated that they could not sign a verdict recommending the death penalty. Based on these statements, the trial court had ample cause to excuse each juror, see Dennis, 354 F.3d at 522-23, a view amplified by the considerable deference we give to the trial court's on-the-ground assessment of each juror's capacity to serve. See Uttecht, 127 S.Ct. at 2224; Bowling v. Parker, 344 F.3d 487, 519 (6th Cir.2003).
Bedford counters that his counsel might have rehabilitated the jurors had the trial judge not cut short each colloquy. But the court did allow Bedford's lawyers to follow up with questions after initial inquiries elicited disqualifying responses, and each time the additional questions confirmed the juror's unwillingness to sign a death verdict. The question, then, is not whether the trial court was required to permit follow-up questions; it is whether the court was required to permit still further follow-up questions. Bedford contends that, had the jurors been reminded that their task required them only to make a recommendation to impose the death penalty the jurors might have modified their views. But Bedford's counsel did mention to all four jurors that they would make only a recommendation.
Bedford adds that further questioning might have shown that the jurors were “simply confused” about the task before them, not unwilling to do their duty. Br. at 112. But chalking up the jurors' statements to confusion does not help Bedford, because voir dire responses that signal serious confusion about the jury's role in the process suffice to excuse a juror. See Morales v. Mitchell, 507 F.3d 916, 941-42 (6th Cir.2007).
Even if Bedford could show that the trial court erred in excusing the jurors, at any rate, he still could not obtain relief. To prevail, he must show not only that the trial court's decision was incorrect but also that it resulted in an actually biased jury. Hill v. Brigano, 199 F.3d 833, 844-45 (6th Cir.1999). Yet Bedford has not alleged, let alone proved, that the jury that convicted him was biased. Wilson v. Mitchell, 498 F.3d 491, 514 (6th Cir.2007). 2.
Also unavailing is Bedford's claim that the trial court improperly limited the scope of questioning at voir dire. The Constitution “does not dictate a catechism for voir dire, but only that the defendant be afforded an impartial jury.” Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). Neither due process nor the Sixth Amendment entitles a defendant to ask prospective jurors every question that might prove helpful. Mu'Min v. Virginia, 500 U.S. 415, 425-26, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991). What matters is whether the defendant's inability to ask a question renders the proceeding “fundamentally unfair” by making it impossible to identify an unqualified juror. Id. at 426, 111 S.Ct. 1899. And in answering that question, we again remain mindful that the trial court's vantage point gives it a superior perspective to assess which inquiries will be fruitful in uncovering bias and which will not be. See Morgan, 504 U.S. at 729, 112 S.Ct. 2222.
The court gave each side ample opportunities to explore the venire members' views-devoting five days (spanning nearly 900 pages of transcript) to the task. Nor did it restrict either side to abstract questions about whether a juror would follow instructions or perform his duties impartially, cf. Morgan, 504 U.S. at 734-35, 112 S.Ct. 2222; it allowed the parties to press jurors about their attitudes.
The trial court, it is true, drew the line at questions that sought to elicit the jurors' views on Bedford's specific case-but many judges understandably (and properly) would do the same thing to prevent the lawyers from previewing their case through voir dire. Cf. United States v. Lawes, 292 F.3d 123, 128 (2d Cir.2002); 6 Wayne R. LaFave et al., Criminal Procedure § 22.3(a) n. 5 (3d ed.2007). The court allowed defense counsel to ask whether a juror would consider a specific fact at all during the sentencing phase, whichever way that fact might cut, but it barred Bedford's lawyers from asking whether a juror would find that fact to be mitigating. The court allowed his lawyers to explore each juror's general attitudes about the death penalty, but it did not permit them to ask for what crimes the juror thought it appropriate or whether death always would be warranted for intentional homicide. And it allowed counsel to ask whether a juror thought various alternatives to the death penalty such as prison time were “serious” punishments, but it did not let them ask whether such sentences would be “serious” for defendants who committed murder. JA 2165, 2223.
These limitations did not render the process fundamentally unfair. See Dennis, 354 F.3d at 523-25 (upholding similar restrictions). They reflect instead a reasonable effort to enable adequate exploration of juror biases (on the one hand) while preventing counsel from extracting commitments from individual jurors as to the way they would vote (on the other). Cabining counsel's questions in this way did not block Bedford from uncovering a juror's unwillingness to consider relevant factors, nor did it inhibit him from exploring any avenues where bias might lurk. It merely prevented Bedford's counsel from mapping every alley and side street of each juror's mind, a level of detail that the Constitution does not entitle criminal defendants (or the prosecution) to obtain.
Bedford next claims that the prosecutor's closing arguments at the guilt and penalty phases violated due process. To prevail, Bedford must show that the prosecutor's remarks were not just improper but that they were “flagrant.” United States v. Carson, 560 F.3d 566, 574 (6th Cir.2009). Flagrancy turns on content and context: (1) whether the comment was likely to mislead the jury or otherwise prejudice the defendant; (2) whether it was an isolated occurrence or part of an extensive pattern; (3) whether it was made deliberately or by accident and (4) whether the prosecution's other evidence was strong. See id.
Guilt phase. Bedford complains about comments by the prosecutor in closing argument at the guilt phase that allegedly disparaged defense counsel's tactics. The prosecutor called “[s]ome” of Bedford's “arguments” “Mickey Mouse defenses,” JA 2301, and he characterized others as attempts to “confuse” the jury by “fill[ing] the courtroom with as much smoke as you possibly can,” JA 2304, casting aspersions “all around the courtroom” and putting “everyone on trial in the case except our little boy over here”-all in the hope that the jury would “lose sight of the real issues in the case,” JA 2315. Attempting to deflate an attempt by the defense to discredit a particular government witness, the prosecutor also predicted that the witness would “be dragged through the mud by the defense.” JA 2258.
These comments were not improper. The prosecution necessarily has “wide latitude” during closing argument to respond to the defense's strategies, evidence and arguments. United States v. Henry, 545 F.3d 367, 377 (6th Cir.2008); see Byrd v. Collins, 209 F.3d 486, 535 (6th Cir.2000). How far the government may go, true enough, depends on what the defense has said or done (or likely will say or do). See United States v. Young, 470 U.S. 1, 12-13, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). And in all events the prosecutor may not simply belittle the defense's witnesses or deride legitimate defenses, see Slagle v. Bagley, 457 F.3d 501, 522 (6th Cir.2006); Gall v. Parker, 231 F.3d 265, 314-16 (6th Cir.2000), abrogated on other grounds as recognized in Bowling v. Parker, 344 F.3d 487, 501 n. 3 (6th Cir.2003), nor may he offer his own opinion about a witness's credibility, see Cristini v. McKee, 526 F.3d 888, 901 (6th Cir.2008). But the prosecutor's remarks in this case-all made in the course of the fast-moving thrust and parry of a criminal trial-did no more than respond to Bedford's actual and reasonably likely contentions and tactics. See United States v. Bernard, 299 F.3d 467, 487-88 (5th Cir.2002); United States v. Rivera, 971 F.2d 876, 883 (2d Cir.1992).
Several of the prosecutor's comments, Bedford adds, were calculated to incite the jury's passions and were engineered to elicit an emotional, not a reasoned, reaction to the evidence. Responding to the defense theory that Bedford's conduct was the culmination of an unplanned outburst-fueled by alcohol and emotion and sparked by a life-threatening confrontation with Toepfert's new paramour-the prosecutor argued: (1) that the evidence, including graphic photographs of Toepfert's and Smith's bodies, proved Bedford's conduct was purposeful and planned; (2) that Bedford's inner “demon”-his alcohol dependence-was not responsible for his behavior, as the only “demon in this case” was Bedford and (3) that the jurors' duty required finding Bedford guilty and that, if they did so, each juror could say to himself “I did Gwen justice and I did Johnny justice,” JA 78.
These comments did not deprive Bedford of a fair trial. By alluding to the victim photographs, already admitted into evidence, and arguing that they established Bedford's intent, the prosecutor permissibly sought to draw an inference from the evidence. See Byrd, 209 F.3d at 535. Calling Bedford a “demon” comes closer to the line-it was unnecessary and unprofessional-but it goes no further than similar comments that have not required setting aside a state conviction. See Olsen v. McFaul, 843 F.2d 918, 930 (6th Cir.1988) (holding that prosecutor's deliberate, repeated references to defendant as a “deadbeat,” a “thief,” a “creep” and a “liar” did not violate due process); see also Byrd, 209 F.3d at 536 (same regarding prosecutor's repeated references to defendant as a “predator”).
Neither did the prosecutor overstep by urging the jury to do justice for Smith and Toepfert. Nothing prevents the government from appealing to the jurors' sense of justice, see Coe v. Bell, 161 F.3d 320, 351 (6th Cir.1998), or from connecting the point to the victims in the case, cf. Hicks v. Collins, 384 F.3d 204, 222 (6th Cir.2004). The prosecution, to be sure, may not urge jurors to identify individually with the victims with comments like “[i]t could have been you” the defendant killed or “[i]t could have been your children,” Johnson v. Bell, 525 F.3d 466, 484 (6th Cir.2008), nor may it fan the flames of the jurors' fears by predicting that if they do not convict, a crime wave or some other calamity will consume their community, see United States v. Solivan, 937 F.2d 1146, 1152-53 (6th Cir.1991). But the prosecutor did no such thing here.
Penalty phase. In arguing that the prosecutor's penalty-phase summation contained unfairly prejudicial comments, Bedford targets the following: (1) The prosecutor reminded the jury that they make only a recommendation, not a final decision, on Bedford's sentence; (2) he read a passage from Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), concerning the death penalty's role in society; (3) he suggested that it was “unpleasant” for Bedford's counsel to represent him, JA 2432; (4) he redisplayed photographs of both victims and argued that they established an aggravating circumstance; (5) he speculated that despite the minimum imprisonment under current law, Bedford might be paroled sooner and (6) he commented on Bedford's unsworn in-court statement.
We can quickly dispatch with Bedford's complaints about the first four comments. There was nothing improper about accurately explaining to the jury that, under Ohio's death-penalty scheme, they recommend-but do not definitively determine-the defendant's sentence. Hicks, 384 F.3d at 223. That was an accurate statement of the law. See id.; see also Coleman v. Mitchell, 268 F.3d 417, 435-36 (6th Cir.2001). It was not improper-and in any case did not render the trial fundamentally unfair-to quote from the Supreme Court's opinion in Gregg to support the State's argument that the death penalty is consistent with, and in some instances necessary to, an ordered society. Cf. Byrd, 209 F.3d at 538-39. That, too, was an accurate statement of what the Supreme Court said. Nor did the prosecutor's reference to the unpleasantness of representing Bedford cross the line. Viewed in context, the prosecutor did no more than urge the jurors not to shrink from their difficult duty even though the process was “unpleasant” for all involved-prosecutors, defense counsel and jury included. JA 2432.
The prosecutor also did not overstep by using the pictures of the victims as evidence of an aggravating circumstance. True, only Bedford's conviction for Toepfert's aggravated murder carried a death specification, see Bedford, 529 N.E.2d at 915-16, and yet the pictures depicted Toepfert and Smith. But the specification itself-the fact that Toepfert's murder was “part of a course of conduct involving the purposeful killing of ... two or more persons,” Ohio Rev.Code § 2929.04(A)(5) (1994)-made Smith's murder relevant, and thus by putting pictures of Smith before the jury again the prosecutor did not invite them to consider a non-statutory aggravating factor. See also Smith v. Mitchell, 348 F.3d 177, 210 (6th Cir.2003) (consideration of non-statutory aggravating factors, even if contrary to state law, does not violate Federal Constitution). Nor was it improper to use the photographs to make the point: The jury saw the images during the guilt phase, and the prosecution may use victim-impact evidence at sentencing, see Beuke v. Houk, 537 F.3d 618, 648 (6th Cir.2008).
The remaining two statements require more explanation. The prosecutor suggested that, even though under then-existing state law a life sentence would keep Bedford behind bars for 20 or 30 years before he could obtain parole, the law could change, enabling Bedford to obtain parole sooner. That statement is similar to informing the jury that if it selects a life sentence, state officials might commute the sentence to a shorter term. So long as the jury receives accurate information, it may consider the possibility, speculative though it may be, that future decisions of state executive officials could lead to the defendant's early release. See California v. Ramos, 463 U.S. 992, 1001-03, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983).
Even if we assumed for the sake of argument that the prosecutor's comments crossed the line, they were not sufficiently flagrant to make Bedford's trial unfair. Cf. Carson, 560 F.3d at 574. The prosecutor's statement, for one thing, was unlikely to mislead the jury: The prosecutor said nothing untruthful-Ohio's General Assembly, or state or federal courts, could change the application of life sentences in the future-and both the trial court and the defense made the current law clear to the jury. The remark also was isolated, and it may have been accidental, as the prosecutor appeared to downplay the point almost immediately. The other evidence relevant to the jury's sentencing decision also was strong. As the Ohio Supreme Court observed, the evidence showed that Bedford could distinguish right from wrong, considered his conduct in advance, lay in wait for his victims and after shooting Toepfert once returned twice to shoot her again. See Bedford, 529 N.E.2d at 924.
Bedford's claim about the prosecutor's comments on his unsworn statements fares no better. Under the Fifth (and Fourteenth) Amendment, the prosecution ordinarily may not comment on a defendant's refusal to testify. See Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Durr v. Mitchell, 487 F.3d 423, 443 (6th Cir.2007). Ohio law, however, adds a wrinkle: It allows a capital defendant, at his option, to make an unsworn statement at the sentencing phase, which is not subject to cross-examination. See Ohio Rev.Code § 2929.03(D)(1). When the defendant exercises that option, we have held that the prosecution may “ remind [ ] the jury that the defendant's statement was not made under oath, in contrast to the testimony of all other witnesses.” Durr, 487 F.3d at 443 (internal quotation marks omitted and emphasis added). But the prosecution may go no further and may not disparage the defendant's decision not to testify under oath. See id.; DePew v. Anderson, 311 F.3d at 742, 750 (6th Cir.2002).
After noting that Bedford's statement was unsworn and not subject to cross-examination, the prosecutor continued: ... I think because of that you can judge his credibility and the things that he had to say to you with a jaundice[d] eye because even if a person is under oath, you don't have to believe what they say.... And the mere fact that this man elected to avoid being scrutinized by the prosecutor in this case should be considered by you. JA 2434. Whether that comment was improper is a close call. The only point of allowing the prosecution to remind the jury that the defendant's statement was not made under oath, after all, is to enable the State (since it cannot cross-examine him) to challenge his credibility. At least the first part of the prosecutor's comment seemed trained on that objective, encouraging the jury to question the truthfulness of what Bedford did say, not his refusal to testify under oath on another subject. Cf. DePew, 311 F.3d at 749-50 (holding improper prosecutor's statement that the defendant's decision to give unsworn statement but not to undergo cross-examination under oath prevented the prosecutor from questioning him about a different subject). The last part of his comment, however, may have gone too far, arguably inviting the jury to draw an adverse inference from the fact that Bedford never testified under oath at all. Cf. Durr, 487 F.3d at 443, 445.
Even assuming the prosecutor crossed the line, however, any violation was not flagrant. The likelihood that the jury was misled was low, as the court and the prosecutor told the jury Bedford was entitled to make an unsworn statement. The comment was isolated, and the prosecution's other evidence was plentiful. The potential for prejudice was reduced still further by the fact that the state trial and appellate courts independently weighed the aggravating and mitigating circumstances. Bedford, 529 N.E.2d at 916, 923-24; see Lundgren v. Mitchell, 440 F.3d 754, 783 (6th Cir.2006). Even if improper, in short, the prosecutor's comments do not require setting aside Bedford's sentence.
Before turning to Bedford's next argument, we must acknowledge one oddity about this analysis. Simply put, it is strange to think of Bedford's contention in conventional Fifth Amendment terms. The guarantee says that an individual shall not “be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. Yet this issue arose not because the prosecution compelled Bedford to testify or because he exercised his right to remain silent and the prosecution disparaged his silence-the classic settings in which Fifth Amendment violations arise-but because Bedford did speak to the jury. Bedford voluntarily invoked a state allocution procedure that federal law does not require and that allowed him to make an unsworn statement to the jury during the penalty phase. At least ten States by our rough count have similar procedures that apply at the penalty phase of capital cases. See Jeffries v. Blodgett, 5 F.3d 1180, 1191-92 (9th Cir.1993) (applying Washington law); People v. Borrego, 774 P.2d 854, 856 (Colo.1989); Shelton v. State, 744 A.2d 465, 496-97, 501-03 (Del.2000); Booth v. State, 306 Md. 172, 507 A.2d 1098, 1111-12 (1986), vacated on other grounds, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), overruled by Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991); State v. Zola, 112 N.J. 384, 548 A.2d 1022, 1046 (1988), superseded by statute on other grounds as stated in State v. Delibero, 149 N.J. 90, 692 A.2d 981, 987 (1997); Homick v. State, 108 Nev. 127, 825 P.2d 600, 603-05 (1992); State v. Herrera, 102 N.M. 254, 694 P.2d 510, 516 (1985); State v. Wilson, 161 Or.App. 314, 985 P.2d 840, 843-44 (1999); Bassett v. Commonwealth, 222 Va. 844, 284 S.E.2d 844, 853-54 (1981); Idaho Death Penalty Criminal Jury Instruction 1709 (2005); see also Jones v. State, 381 So.2d 983, 993-94 (Miss.1980); State v. Young, 853 P.2d 327, 372 (Utah 1993) (opinion of Durham, J.). And because these procedures are creations of the States, the States are fully entitled to adopt an assortment of limitations on the exercise of the right as well as limitations on what the prosecution may say about a defendant's exercise of the right.
Why any of this raises an issue of federal law in this case, however, is not self-evident. Doubtless, the invocation of the state-law right could implicate the Fifth Amendment if the prosecution insisted on cross-examining the defendant about other crimes. See, e.g., DePew, 311 F.3d at 749-50. Or the invocation of this state-law right could implicate the Sixth Amendment if the prosecution violated state-law rules about the allocution procedure and defendant's counsel unreasonably failed to object. See, e.g., Durr, 487 F.3d at 443, 445. But it is far from obvious why the Fifth Amendment, as opposed to state law, constrains a prosecutor who wishes to comment not on a defendant's silence but on his voluntary choice to speak. As the above analysis confirms, we need not decide the case on this ground, and therefore we have not done so. We simply register the observation in the event future litigants or panels of the court may profit from it.
Bedford next argues that the trial court gave an unduly coercive Allen charge to the jury during the penalty phase. A day into its deliberations, the jury sent a note to the court asking “what would happen” if the jury could not reach a unanimous sentencing recommendation and whether there was “an approximate time frame” for reaching a decision. JA 2462. After consulting with the parties, the court responded with a supplemental instruction informing the jury that there was no fixed time limit but urging the jurors to “make every reasonable effort to agree on a recommendation,” given the time and energy already invested in the trial and the jurors' superior position (having already participated in the guilt phase) to make a fair decision. JA 2468. The court “suggest[ed]” that the jury first determine whether they were in fact deadlocked and, if so, to return a life-sentence recommendation. JA 2469.
The question is whether the instruction, viewed in context, was “coercive.” Lowenfield v. Phelps, 484 U.S. 231, 241, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988) (internal quotation marks omitted); see Mason v. Mitchell, 320 F.3d 604, 640 (6th Cir.2003). Bedford says it was for several reasons: it omitted the standard language directing all jurors-the majority and minority-to reconsider their views; it failed to caution them not to abandon their conscientiously held views; and it misled the jury by suggesting that if they could not reach a decision, another jury would take up their task, when in reality a deadlock would force the judge to impose a life sentence.
By instructing the entire jury to make every reasonable effort to agree on a recommendation if they could do so in good faith, the trial court at least implicitly encouraged all of the jurors to reconsider their positions. Yes, the court did not explicitly direct the majority and the minority to do so. But that did not make the charge coercive. Reminding both sides of a split jury to remain open-minded no doubt may ensure that those in the minority are not singled out and pressured to acquiesce in the majority's view, see Williams v. Parke, 741 F.2d 847, 850 (6th Cir.1984), and it may prevent those in the majority from dismissing their own reservations or second thoughts as counterproductive. But a general instruction, addressed to all jurors, suffices so long as it does not imply that only those in the minority should rethink their position. See id. at 850-51.
Nor was the charge coercive because it omitted a caution that the jurors not abandon their honest convictions. There is no iron-clad rule that a trial court's failure to include that reminder, though unfortunate and ill-advised, is invariably fatal to the conviction. See id. at 851. In this case, the trial court had instructed the jurors only the day before in its general charge not to “surrender honest convictions” in the interest of consensus. JA 2449. And although it could have done so more clearly, the court's supplemental instruction alluded to the need to hold on to conscientiously held views. See JA 2468-69 (instructing the jurors “to make every reasonable conscien[tious] effort” to agree on a recommendation if possible).
The lack of other coercive language in the charge also diminished the need for an honest-conviction caveat. The reminder serves primarily to counterbalance the potentially coercive effect of the rest of the instruction, and the need for it depends on what sits on the other side of the scale. Here, the trial court responded to the jurors' questions by informing them that there was no set time limit to reach a consensus, encouraging them to make reasonable efforts to agree and suggesting how they might proceed. The court never intimated that the jury had to reach agreement, instead explaining only what to do if consensus proved impossible. Cf. Williams, 741 F.2d at 850. Nor did it browbeat the jurors with concerns about the inconvenience to the court or the costs of delay. Cf. United States v. Scott, 547 F.2d 334, 337-38 (6th Cir.1977).
The trial court's explanation of what would happen if the jury deadlocked also did not make the instruction coercive. The first part of the instruction, we realize, was inaccurate. It indicated that the court would declare a mistrial and call another jury in its place if the jury could not agree, even though Ohio law requires a judge confronted with an “irreconcilably deadlocked” jury to impose a life sentence, not empanel a new jury to start over. See State v. Springer, 63 Ohio St.3d 167, 586 N.E.2d 96, 100 (1992); Mason, 320 F.3d at 641. But the trial court quickly corrected its mistake, clarifying that if the jury deadlocked, they should return a life-sentence recommendation. Despite its shortcomings, the trial court's charge does not require setting aside Bedford's sentence.
Bedford claims that his attorneys' representation at both phases of the trial was constitutionally ineffective. To prevail, he must show that their performance was deficient and that, but for their poor performance, “there is a reasonable probability” the result would have been different. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Bedford argues that his counsel should have objected to prosecutorial misconduct and incorrect jury instructions. As for their failure to object to the prosecutors' guilt- and penalty-phase closing arguments, that did not constitute ineffective assistance because the comments were not flagrant. See Slagle, 457 F.3d at 514.
As for the jury instructions, even if the court's directions were incorrect, they did not render his trial fundamentally unfair. See Lawrence v. 48th Dist. Court, 560 F.3d 475, 484 (6th Cir.2009). In instructing the jury that it could consider “any other factors that are relevant” to whether Bedford should receive the death penalty, JA 2448, the court merely quoted the statute's catchall provision, see Ohio Rev.Code § 2929.04(B)(7); see also Boyde v. California, 494 U.S. 370, 381-82, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). The definition of mitigating factors the court gave-equating mitigation with reducing the defendant's blameworthiness-exceeded what Ohio courts allow, see, e.g., State v. Frazier, 115 Ohio St.3d 139, 873 N.E.2d 1263, 1295-96 (2007). But the error was harmless under federal and Ohio law given the state courts' independent reweighing of the aggravating and mitigating factors. See Nields v. Bradshaw, 482 F.3d 442, 451 (6th Cir.2007); State v. Holloway, 38 Ohio St.3d 239, 527 N.E.2d 831, 835 (1988). As for his claims that the court “divided” the one death specification into two and that it told the jury that “the facts of the case were an aggravating circumstance,” Br. at 79, he is simply mistaken: The trial court did neither in its penalty-phase instructions.
Bedford also argues that the court should have given (and his counsel should have requested) an instruction at the outset that if the jury could not agree, they must impose a life sentence. But the trial court in fact instructed the jury to impose a life sentence if they could not agree. A death-penalty defendant, at any rate, has no constitutional entitlement to an instruction informing the jury of the effect of a deadlock. See Jones v. United States, 527 U.S. 373, 381-82, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999).
Bedford also argues that his attorneys failed adequately to prepare and present mitigating evidence. In its detailed discussion of this claim, the district court explained why his counsel's investigation was adequate and why their decisions about what witnesses and evidence to present reflected reasonable choices. We have nothing to add to its analysis on that score and cannot improve on it. We instead address only why the defense counsel's conduct, even if it were deficient, did not prejudice Bedford.
To establish prejudice flowing from deficient penalty-phase preparation and presentation, the defendant must show that the evidence his attorneys should have discovered and put forward “differ[s] in a substantial way-in strength and subject matter-from the evidence actually presented.” Hill v. Mitchell, 400 F.3d 308, 319 (6th Cir.2005). Bedford has not made that showing.
The jury heard mitigating evidence from four witnesses. Dr. Donna Winter, a clinical psychologist who had examined Bedford, testified in the guilt phase that Bedford had a history of chronic depression dating back a decade, exhibited “extreme stress” reflecting a “cry-for-help profile” in psychological tests, JA 2228, had a “borderline mentally retarded” IQ of 76, JA 2229, and would have had great difficulty handling the emotional and psychological strain (not helped by his alcohol consumption) caused by Toepfert's rejection and his encounter with Smith. At the penalty phase, Dr. Nancy Schmidtgoessling elaborated on Bedford's emotional instability-and the volatility his alcohol intake added to the mix-but she also underscored that he was “one of the more treatable” inmates she had encountered. JA 2352. Winter and Schmidtgoessling each prepared written reports-which they discussed in their testimony and which the jury was entitled to review, see Ohio Rev.Code § 2929.03(D)(1)-that fleshed out their findings and filled in details of Bedford's troubled personal and family history.
Bedford's attorneys also presented the testimony of Jackie Schmidt, a friend and former girlfriend of Bedford's, who spent several hours with him the night before the murders and who confirmed his frayed emotional state. Bedford, who had been drinking a great deal, was deeply upset over Toepfert's rejection, to the point of crying, and at one point he played Russian roulette with a loaded gun.
Finally, in his own (unsworn) testimony, Bedford told his life story, from his parents' deaths while he was still young to his teenage marriage, his inability to care for his six children, his difficulty holding a job and maintaining healthy relationships and his long-running dependence on alcohol. Bedford described his relationship with Toepfert, his memory of the murders (much of which he could not recall) and his confession.
The evidence Bedford now says his lawyers overlooked (or never uncovered) does not differ “markedly” in strength or subject matter from the evidence they presented. Hill, 400 F.3d at 319, 331-32. Bedford argues that his attorneys should have put on testimony from various members of his family, but their accounts largely duplicated what Bedford and the psychologists had already told the jury-describing Bedford's parents, his alcoholism, his unsuccessful marriage and inability to care for his children-and added no critical pieces to the puzzle. Cf. Carter v. Mitchell, 443 F.3d 517, 530-31 (6th Cir.2006); Clark v. Mitchell, 425 F.3d 270, 286-87 (6th Cir.2005). Not calling Bedford's ex-wife as a witness not only avoided similar redundancy but also avoided the risk that she would reveal Bedford's history of abusing her when intoxicated. Nor has Bedford shown what value engaging a mitigation specialist to oversee an investigation of his background would have added. Cf. White v. Mitchell, 431 F.3d 517, 529-30 (6th Cir.2005).
Neither did the additional expert assessments differ substantially from what the jury heard. Schmidtgoessling, who was appointed to examine Bedford for purposes of a possible insanity plea, stated that, had she evaluated Bedford with mitigation in mind, she would have included additional facts from Bedford's “social history.” JA 1694. But the facts she describes differ only marginally from the story the jury did hear, and although she might have connected the dots more closely, none of the links likely would have led the jury to a different conclusion.
Schmidtgoessling's testimony, it is true, did not address the fact that Bedford allegedly had been “eating speed like candy” the two nights before the murders, JA 1691-a fact Schmidtgoessling herself did not know when she testified. But Bedford's attorneys apparently were also unaware of this fact, as neither Jackie Schmidt (who brought this fact to light in her postconviction affidavit) nor Bedford himself told them about it when asked by counsel what drugs Bedford consumed before the murders. (Schmidt mentioned only alcohol, and Bedford mentioned alcohol and marijuana.)
Two other experts-Dr. Thomas Heiskell, a clinical psychologist, and Dr. James Tanley, a neuropsychologist-critiqued the accounts Schmidtgoessling and Winter offered at trial and suggested Bedford's counsel should have arranged for more rigorous testing. But even assuming they are right, Bedford suffered no cognizable prejudice. Heiskell and Tanley raised only the possibility that more testing would have revealed other psychological or neurological problems, and neither highlighted any substantially different or stronger evidence of impairment that could have turned the tide. Each one, for instance, indicated that Bedford's experts should have explored the possibility of organic brain damage, and Winter stated she would have pursued the possibility if she had received more information, but none of them concluded based on subsequent examinations that Bedford actually had brain damage at the time of the crime that more testing would have uncovered. See Smith, 348 F.3d at 202.
Bedford adds that the district court erred in denying his request for an evidentiary hearing regarding evidence his attorneys failed to explore or present. See 28 U.S.C. § 2254(d) (1994). The issues he seeks to develop, however, pertain to the adequacy of his counsel's performance, and there is no need to build a record on that issue because, as noted, he cannot show his attorneys' performance prejudiced him. See Ivory v. Jackson, 509 F.3d 284, 298 (6th Cir.2007).
For these reasons, we affirm.