IN THE SUPREME COURT OF OHIO

STATE OF OHIO Plaintiff-Appellee, v. MAURICE MASON Defendant-Appellant.

Case No. 2017-0200

On Appeal from the Marion County Court of Appeals, Third Appellate District

Court of Appeals Case No. 9-16-34

_________________________________________________________________________________________________________

BRIEF OF AMICUS CURIAE THE CUYAHOGA COUNTY PROSECUTOR’S OFFICE ON BEHALF OF APPELLEE

_________________________________________________________________________________________________________

Counsel for Amicus Curiae MICHAEL C. O’MALLEY CUYAHOGA COUNTY PROSECUTOR CHRISTOPHER D. SCHROEDER (0089855) Assistant Prosecuting Attorney The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 (216) 443-7733

cschroeder@prosecutor.cuyahogacounty.us Counsel for Defendant-Appellant Counsel for Plaintiff-Appellee KORT W. GATTERDAM (0040434) Carpenter, Lipps & Leland LLP RAY A. GROGAN (0084002) 280 North High Street, Suite 1300 MARION COUNTY PROSECUTOR Columbus, OH 43215 (614) 365-4100 KEVIN P. COLLINS (0029811) gatterdam@carpenterlipps.com *Counsel of record Assistant Prosecuting Attorney TODD A. ANDERSON (0066346) 134 East Center Street 127 East Center Street Marion, Ohio 43302 Marion, Ohio 43302 (740) 223-4292 (740) 382-3231 kcollins@co.marion.oh.us Andersonlaw0305@yahoo.com

Supreme Court of Ohio Clerk of Court - Filed November 21, 2017 - Case No. 2017-0200

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TABLE OF CONTENTS

TABLE OF CONTENTS .......................................................................................................................................... i

TABLE OF AUTHORITIES ................................................................................................................................... ii

INTRODUCTION AND STATEMENT OF INTEREST OF AMICUS CURIAE ........................................ 1

STATEMENT OF THE CASE AND FACTS ...................................................................................................... 1

LAW AND ARGUMENT ........................................................................................................................................ 1

A. Ohio law already requires the jury to find both the existence of any aggravating

circumstances and that the aggravating circumstances outweigh the mitigating

factors........................................................................................................................................................... 2

B. The Florida statute in Hurst differed from the Ohio statute in seven significant respects

that deprived defendants of many of the protections the Ohio statute provides .......... 4

C. The numerous differences between the Ohio and Florida statutes are outcome-

determinative under Hurst .................................................................................................................. 8

D. The Sixth Amendment does not apply to mitigating factors ............................................... 10

E. Hurst did not create a right for capital defendants to be sentenced by a jury .............. 11

F. The purpose of requiring the judge to independently weigh the aggravating factors

against the mitigating circumstances is to give the defendant a second chance at a life

sentence ................................................................................................................................................... 12

G. Mason’s argument, if accepted, would preclude trial courts from departing downward

at sentencing and deprive capital defendants of a second chance at life ....................... 17

CONCLUSION ....................................................................................................................................................... 18

CERTIFICATE OF SERVICE ............................................................................................................................. 19

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TABLE OF AUTHORITIES Cases Page(s) Apprendi v. New Jersey,

530 U.S. 466, 120 S. Ct. 2348, 147 L.Ed.2d 435 (2000) ................................................................ 11 Ault v. State,

53 So. 3d 165 (Fla. 2010) ............................................................................................................................ 4 Chinn v. Jenkins,

S.D. Ohio No. 3:02-cv-512, 2017 U.S. Dist. LEXIS 22088 (Feb. 13, 2017) ............................. 2-3 Davis v. State,

703 So. 2d 1055 (Fla. 1998) ....................................................................................................................... 7 Dobbert v. Florida,

432 U.S. 282, 97 S. Ct. 2290, 53 L.Ed.2d 344 (1977) ..................................................................... 12 Engle v. State,

438 So.2d 803 (Fla.1983) ........................................................................................................................... 6 Hurst v. Florida,

___ U.S. ___, 136 S. Ct. 616, 193 L.Ed.2d 504 (2016) ............................................................... passim Ring v. Arizona,

536 U.S. 584, 122 S. Ct. 2428, 153 L.E2d.2d 556 (2002) ................................................. 2, 10, 11 Russ v. State,

73 So.3d 178 (Fla. 2011) ............................................................................................................................. 7 Spencer v. State,

615 So. 2d 688 (Fla. 1993) ......................................................................................................................... 6 State v. Belton,

149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319 ...................................................................... 2 State v. Buell,

22 Ohio St.3d 124, 489 N.E.2d 795 (1986), ......................................................................................... 6 State v. Crawford,

9th Dist. Wayne No. 99CA0035, 2001 Ohio App. LEXIS 185 (Jan. 24, 2001) ....................... 14 State v. Cooey,

46 Ohio St.3d 20, 544 N.E.2d 895 (1989) ............................................................................................. 7

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State v. Cunningham, 2d Dist. Clark No. 10-CA-57, 2012-Ohio-2794................................................................................. 16

State v. Fuller,

12th Dist. Butler Nos. CA2000-11-217, CA2001-03-048, CA2001-03-061, 2002-Ohio-4110 ................................................................................................................................................................. 14

State v. Hancock,

3d Dist. Allen No. 1-91-87, 1992 Ohio App. LEXIS 4121 (July 28, 1992) .............................. 15 State v. Hancock,

108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032 ................................................................... 15 State v. Hancock,

12th Dist. Warren No. CA2007-03-042, 2008-Ohio-5419 .......................................................... 15 State v. Kiser,

4th Dist. Ross No. 1029, 1985 Ohio App. LEXIS 8347 (June 20, 1985) .................................. 12 State v. Mason,

3d Dist. Marion No. 9-16-34, 2016-Ohio-8400 .................................................................. 5, 6, 9, 11 State v. Parsons,

10th Dist. Franklin No. 91AP-84, 1992 Ohio App. LEXIS 641 (Feb. 13, 1992) .................... 13 State v. Robertson,

2d Dist. Montgomery No. 11572, 1990 Ohio App. LEXIS 1862 (May 18, 1990) .......... 13-14 State v. Shine,

8th Dist. Cuyahoga No. 105352 ............................................................................................................. 17 State v. Siler,

5th Dist. Ashland No. 02 COA 208, 2003-Ohio-5749 .................................................................... 16 State v. Steele,

921 So.2d 538 (Fla. 2006) ...................................................................................................................... 4-5 State v. Wright,

8th Dist. Cuyahoga No. 53733, 1988 Ohio App. LEXIS 1806 (May 12, 1988) ...................... 13 Tedder v. State,

322 So.2d 908 (Fla. 1975) .......................................................................................................................... 8 Walton v. Arizona,

497 U.S. 639, 110 S. Ct. 3047, 111 L.Ed. 2d 511 (1990) ........................................................... 7, 10

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Williams v. State, 967 So.2d 735 (Fla. 2007) .......................................................................................................................... 8

Statutes Page(s) Fla. Stat. § 921.141(1) ......................................................................................................................................... 5

Fla. Stat. § 921.141(2) ......................................................................................................................................... 5

Fla. Stat. § 921.141(2)(a) ................................................................................................................................... 7

Fla. Stat. § 921.141(2)(b) ................................................................................................................................... 4

Fla. Stat. § 921.141(3) ........................................................................................................................... 4, 5, 6, 8

Fla. Stat. § 921.141(5)(a)-(p) ........................................................................................................................... 7

R.C. 2929.03.............................................................................................................................................. 1, 12, 18

R.C. 2929.03(B) ...................................................................................................................................................... 5

R.C. 2929.03(D)(1) ............................................................................................................................................... 7

R.C. 2929.03(D)(2) .......................................................................................................................................... 4, 9

Other sources Page(s) Andrew Welsh-Huggins, Judge’s Rejection of Jury’s Execution Recommendation is Rare, (January 1, 2017), https://apnews.com/807dbae0f5034748a6a67152d212274b/judges-rejection-jurys-execution-recommendation-rare .......................................................................... 16-17

Andrew Welsh-Huggins, No Winners Here Tonight: Race, Politics, and Geography in One of the Country’s Busiest Death Penalty States at 185 (2009) ................................................................... 12-17

Fla. Std. Jury Instructions Crim. No. 7.11(2) ........................................................................................... 5-6

Samantha Sommer, Judge Explains Why He Didn’t Give Cunningham the Death Penalty, (May 27, 2010), http://www.springfieldnewssun.com/news/crime--law/judge-explains-why-didn-give-cunningham-the-death-penalty/hbTVynWJJhI4BctD8LuxvL/ .................................. 5-6

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INTRODUCTION AND STATEMENT OF INTEREST OF AMICUS CURIAE

The Cuyahoga County Prosecutor’s Office is responsible for all felony prosecutions in

common pleas court in Cuyahoga County, Ohio. The Cuyahoga County Prosecutor’s Office

has a special interest in this case and its outcome because it is responsible for prosecuting

all death penalty cases in Cuyahoga County. The trial court’s decision to dismiss the death

penalty specifications in this case has already been cited as in several Cuyahoga County cases

for the proposition that Ohio’s death penalty statute, R.C. 2929.03, is unconstitutional. The

Cuyahoga County Prosecutor’s Office has an interest in ensuring that it can enforce the law

as written by seeking the death penalty where appropriate as provided by Ohio’s General

Assembly. The Cuyahoga County Prosecutor’s Office also has an interest in ensuring the

uniform application of Ohio law in each of these cases to ensure consistency and to promote

confidence in the justice system.

STATEMENT OF THE CASE AND FACTS

Amicus Curiae the Cuyahoga County Prosecutor’s Office hereby adopts and

incorporates by reference the Statement of the Case and Statement of Facts as set forth by

the Appellee, the State of Ohio, in its merit brief.

LAW AND ARGUMENT

APPELLANT’S PROPOSITION OF LAW: OHIO’S DEATH PENALTY SCHEME IS UNCONSTITUTIONAL PURSUANT TO HURST V. FLORIDA, 136 S. CT. 616 (216).

Amicus Curiae hereby adopts all of the arguments of Appellee the State of Ohio in its

merit brief in support of affirming the Third District Court of Appeals’ thorough and well-

reasoned opinion in this case. Amicus Curiae further submits the following additional

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argument in support of the State’s position that Ohio’s death penalty statute remains

constitutional under Hurst v. Florida, ___ U.S. ___, 136 S. Ct. 616, 193 L.Ed.2d 504 (2016).

A. Ohio law already requires the jury to find both the existence of any aggravating circumstances and that the aggravating circumstances outweigh the mitigating factors.

The Sixth Amendment right to a jury trial requires that “[i]f a State makes an increase

in a defendant's authorized punishment contingent on [a] finding of fact, that fact — no

matter how the State labels it — must be found by a jury beyond a reasonable doubt.” Ring

v. Arizona 536 U.S. 584, 602, 122 S. Ct. 2428, 153 L.E2d.2d 556 (2002). In Ohio, the finding

of fact that makes a defendant eligible for the death penalty is the existence of an aggravating

circumstance. The jury must find the defendant guilty of at least one aggravating

circumstance before the case can proceed to a second phase. And the jury must then

recommend the death penalty before the trial court could impose it. Unlike the Florida

statute in Hurst, no part of this process requires the court to make any additional factual

findings at all. It is therefore “not possible [for the trial court] to make a factual finding

during the sentencing phase that will expose a defendant to greater punishment.” State v.

Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 59.

Mason argues that under Hurst, the weighing of aggravating circumstances against

mitigating factors is now a finding of fact that the jury must make. Even if this is so, however,

there is still no defect in Ohio’s statute. Under Ohio law, the jury is required to find that the

aggravating circumstances outweigh the mitigating factors before recommending the death

penalty:

“At the time of Chinn's trial, Ohio law required that, before a sentence of death could be imposed, the jury must find, beyond a reasonable doubt, that the aggravating circumstances outweighed the mitigating factors. That is to say, every fact necessary for imposition of a death sentence, including the fact that

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the proved aggravating circumstances outweigh the mitigating factors had to be proved to the jury beyond a reasonable doubt. * * * It is true, of course, that the Ohio trial judge has to weigh the aggravating circumstances against the mitigating factors and that weighing is independent of the jury's weighing in the sense that the judge must do it himself or herself. But that weighing is, so to speak, on top of the jury's weighing: if the jury does not find the aggravating circumstances outweigh the mitigating factors, the judge cannot overrule that finding.”

Chinn v. Jenkins, S.D. Ohio No. 3:02-cv-512, 2017 U.S. Dist. LEXIS 22088, *5 (Feb. 13, 2017)

(emphasis added). This is fatal to Mason’s argument. Even if the weighing process is a

finding of fact under Hurst, Ohio law already requires the jury to unanimously find that the

aggravating circumstances outweigh the mitigating factors before recommending a sentence

of death. There is absolutely no factual finding in Ohio’s process that the jury does not

already make.

This is no different than a case in which a jury finds the defendant guilty of a felony of

the first degree. The jury’s verdict renders the defendant eligible for a sentence of up to 11

years in prison. It is still up to the judge to determine what sentence to impose after weighing

various factors at sentencing. If the judge chooses a sentence of 11 years, the judge has not

somehow elevated the defendant’s sentence based on judicial fact-finding. The jury found

the facts that made that defendant eligible for that sentence when it returned its verdict.

The same is true in capital cases. When the jury recommends the death penalty, the

jury has returned a verdict that allows the judge to impose a sentence up to and including

the death penalty. No additional fact-finding is required. Just as in non-capital cases, the

judge must still make the ultimate determination at sentencing as to what sentence to

impose, and must do so based on the judge’s own consideration of a number of statutorily-

enumerated factors. To say that the judge’s selection of a sentence within that range is based

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on impermissible judicial fact-finding would invalidate all statutory sentencing ranges and

render all non-jury sentencing unconstitutional under Hurst.

B. The Florida statute in Hurst differed from the Ohio statute in seven significant respects that deprived defendants of many of the protections the Ohio statute provides.

The Florida statute that the Supreme Court invalidated in Hurst differed from Ohio’s

death penalty statute in at least seven significant respects:

1. Florida’s statute required only a simple majority of jurors to impose the death penalty.

In Florida, only “a majority vote is necessary for a death recommendation.” Ault v.

State, 53 So. 3d 165, 205 (Fla. 2010), citing Fla. Stat. § 921.141(3). For example, the jury in

Hurst only voted 7-5 in favor of death. Hurst v. Florida, 136 S. Ct. at 620, 193 L.Ed.2d 504.

Although the Supreme Court has never held that unanimity is constitutionally required, Ohio

juries must nevertheless be unanimous to recommend a death sentence. R.C. 2929.03(D)(2).

2. The Florida statute effectively created a presumption in favor of death.

The Florida statute directed the jury to ask “[w]hether sufficient mitigating

circumstances exist which outweigh the aggravating factors found to exist[.]” Fla. Stat. §

921.141(2)(b). The Ohio statute places the burden on the prosecution to prove that the

aggravating circumstances outweigh the mitigating factors. R.C. 2929.03(D)(2).

3. Florida juries did not make findings about aggravating circumstances and did not have to unanimously find any aggravating circumstances.

The Florida statute did “not require jury findings on aggravating circumstances.”

State v. Steele, 921 So.2d 538, 544 (Fla. 2006). Florida trial courts were actually prohibited

from using verdict forms that would have required the jury to record its vote on each

aggravating factor the prosecution presented. Id. at 544-548.

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Instead, the Florida judge first conducted an evidentiary hearing before a jury. State

v. Mason, 3d Dist. Marion No. 9-16-34, 2016-Ohio-8400, ¶ 24, citing Fla. Stat. § 921.141(1).

“Next, the jury render[ed] an ‘advisory sentence’ of life or death without specifying the

factual basis of its recommendation.” Id., quoting Fla. Stat. § 921.141(2). “Notwithstanding

the recommendation of a majority of the jury, the court, after weighing the aggravating and

mitigating circumstances, [was to] enter a sentence of life imprisonment or death.” Id.,

quoting Fla. Stat. § 921.141(3). “Although the judge [was to] give the jury recommendation

‘great weight,’ the sentencing order [was to] ‘reflect the trial judge’s independent judgment

about the existence of aggravating and mitigating factors.’” Id., quoting Hurst at 620.

Moreover, “[n]othing in [Florida law] * * * require[d] a majority of the jury to agree

on which aggravating circumstances exist.” Steele at 545 (emphasis in original). Florida law

permitted a jury to recommend a death sentence where four jurors believe one aggravator

applied and three jurors believed a second aggravator applied, because in that situation,

“seven jurors believe[d] that at least one aggravator applies.” Id.

Ohio’s statute requires the jury to render a unanimous verdict on each individual

aggravating circumstance, in writing, before either the jury or the judge may consider

circumstance may be considered in the second phase. See R.C. 2929.03(B) (“the verdict shall

separately state * * * whether the offender is guilty or not guilty of each specification”).

4. Florida trial courts instructed the jurors that their verdict was merely a recommendation.

The Standard Jury Instructions for the state of Florida actually informed the jury that

their verdict was only a non-binding recommendation: “The decision as to which

punishment shall be imposed rests with the judge of this court; however, the law requires

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that you, the jury, provide an advisory sentence as to which punishment should be imposed

upon the defendant.” Fla. Std. Jury Instructions Crim. No. 7.11(2).

The Ohio Jury Instructions do not contain any reference to an “advisory sentence” or

to a “recommendation,” nor do they say anything that would lead the jury to believe that its

verdict is anything other than final. In fact, this Court has “emphatically emphasize[d]” that

“the better procedure would be to have no comment by the prosecutor or by the trial judge

on the question of who bears the ultimate responsibility for determining the penalty.” State

v. Buell, 22 Ohio St.3d 124, 144, 489 N.E.2d 795 (1986).

5. The Florida statute allowed the parties to present additional evidence, never presented to the jury, to the judge in a separate hearing.

Once a Florida jury rendered what the statute referred to as an “advisory sentence,”

the trial court made the final decision as to whether to “enter a sentence of life imprisonment

or death[.]” Fla. Stat. § 921.141(3). To make that determination, the Florida trial court

typically conducted a separate sentencing hearing, known as a Spencer hearing, without a

jury present. At that hearing, both sides were given “an opportunity to be heard,” “to present

additional evidence,” and “to comment on or rebut information in any presentence or

medical report.” Spencer v. State, 615 So. 2d 688, 690-691 (Fla. 1993). The court was “not

limited in sentencing to consideration of only that material put before the jury,” and “during

sentence, evidence may be presented as to any matters deemed relevant[.]” Engle v. State,

438 So.2d 803, 813 (Fla.1983).

“In Ohio, there is no separate hearing or opportunity to present any additional

evidence – that is, the trial court is not permitted to consider any evidence not presented to

the jury.” Mason, ¶ 28. The trial court may only consider the evidence offered at trial, along

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with the statements of counsel and any presentence or mental examination reports

requested by the defendant. R.C. 2929.03(D)(1).

6. Florida judges had unbridled discretion to choose which of 16 aggravating circumstances applied to the case.

The Florida trial court was not limited to the aggravating circumstances found by the

jury and could “consider and find an aggravator that was not presented to or found by the

jury.” Davis v. State, 703 So. 2d 1055, 1061 (Fla. 1998). In fact, this had to occur by necessity

because “in Florida the jury * * * does not make specific factual findings with regard to the

existence of mitigating or aggravating circumstances[.]” Walton v. Arizona, 497 U.S. 639, 648,

110 S. Ct. 3047, 111 L.Ed. 2d 511 (1990). The trial court received only a “yes” or “no” answer

to the question, “[w]hether sufficient aggravating circumstances exist as enumerated in

subsection (5)” of Florida’s death penalty statute. Fla. Stat. § 921.141(2)(a). That statute

contained 16 different aggravating circumstances. Fla. Stat. § 921.141(5)(a)-(p). As a result,

the trial court did not even know what aggravators the jury found existed, or how many

jurors found any particular aggravator. Thus, “the trial court is required to make

independent findings on aggravation, mitigation, and weight.” Russ v. State, 73 So.3d 178,

198 (Fla. 2011). The judge could pick any of the 16 aggravators she believed applied.

In Ohio, the jury does make specific factual findings with regard to the existence of

any aggravating circumstances. In the mitigation phase, both the jury and the trial court are

limited to the aggravating circumstances unanimously found by the jury during the first

phase. See State v. Cooey, 46 Ohio St.3d 20, 544 N.E.2d 895 (1989), paragraph three of the

syllabus (“[o]nly the aggravating circumstances related to a given count may be considered

in assessing the penalty for that count”).

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7. Florida judges could impose the death penalty even when the jury recommended life imprisonment.

The Florida trial court could impose a death sentence as long as it found beyond a

reasonable doubt that at least one “sufficient” aggravating circumstance existed and that the

aggravators were not outweighed by any mitigation. Fla. Stat. § 921.141(3). In making this

determination, the court “is not bound by the jury’s recommendation.” Williams v. State, 967

So.2d 735, 751 (Fla. 2007); see also Fla. Stat. § 921.141(3) (“[n]otwithstanding the

recommendation of a majority of the jury, the court, after weighing the aggravating and

mitigating circumstances, shall enter a sentence of life imprisonment or death”).

The Florida judge could thus override the jury’s recommendation regardless of what

that recommendation actually was. The judge could impose death if the jury recommended

life, and could impose life if the jury recommended death. See Hurst at 625 (Alito., J.

dissenting), citing Tedder v. State, 322 So.2d 908, 910 (Fla. 1975). This gave Florida courts

the discretion to not only depart downward and impose a lesser sentence, but also to depart

upward and impose a greater sentence.

In Ohio, the only circumstance in which the judge may ever override a jury’s verdict

in a death penalty case is if the judge elects to depart downward by imposing a sentence of

life over a jury’s recommendation of death. If the jury recommends life, the judge is bound

by that recommendation and must impose that sentence without discretion. See R.C.

2929.03(D)(2) (if the jury recommends one of three life options, “the court shall impose the

sentence recommended by the jury upon the offender”).

C. The numerous differences between the Ohio and Florida statutes are outcome-determinative under Hurst.

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As the Third District held, “[t]he stark differences between Ohio’s and Florida’s death-

penalty statutes are outcome-determinative for Mason’s challenge to Ohio’s death-penalty

statute under Hurst.” Mason, ¶ 29. The “most important feature that render’s Ohio’s death-

statute constitutional under the Sixth Amendment” is “that the jury, not the judge,

determines beyond a reasonable doubt the existence of an aggravating circumstances – the

feature that subjects a defendant to the possibility of death as a sentence.” Id.

The Ohio statute requires the jury to find, unanimously and beyond a reasonable

doubt, the existence of any aggravating circumstances. The judge has absolutely no

discretion to make any factual findings apart from those the jury has already made. The

judge is limited to the aggravating circumstances that the jury found in the first phase. She

can neither add to, nor subtract from, those findings under any circumstances.

In Hurst, the Supreme Court struck down the Florida statute because “Florida does

not require the jury to make the critical findings necessary to impose the death penalty.

Rather, Florida requires a judge to find these facts.” Hurst at 622. The “findings” and “facts”

that the Court was referring to were the aggravating circumstances. Under the Florida

statute, Florida juries never rendered any verdict regarding any aggravating circumstances

at all. Once the case proceeded to the second phase, the jury simply chose, from a list of 16

aggravators, any that they believed applied. The jury did not have to be unanimous and could

mix and match aggravators to arrive at a simple majority of seven to recommend death. And

once the trial court received the jury’s death penalty recommendation, the trial court did not

even know what aggravators the jury found. As a result, the trial court judge was, in every

case, the first fact-finder permitted to make the findings that made the defendant eligible for

death. On appeal, the Florida Supreme Court could only review the judge’s finding of

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aggravating circumstances because only the judge ever made any findings in the record. The

jury’s vote as to any particular aggravating circumstances was unknown.

Against this backdrop, the Supreme Court in Hurst found the jury’s role in

recommending a sentence was insufficient to survive under Ring because a Florida jury

“does not make specific factual findings with regard to the existence of mitigating or

aggravating circumstances[.]” Id., quoting Walton at 648. Instead, the Florida statute

required the judge to issue specific factual findings as to which aggravating circumstances

applied, but deprived the jury of any opportunity to do so. The statute thus “required the

judge alone to find the existence of an aggravating circumstance[.]” Hurst at 624.

The Supreme Court in Hurst criticized the Florida statute for reducing the jury’s role

to what it referred to as an “advisory verdict.” Hurst at 620. That verdict was truly “advisory”

in that the jury never made any findings regarding aggravating circumstances. The trial

court had unlimited discretion to find any aggravators it wished and to return any verdict it

wished. It was that “advisory” nature of the verdict that the Supreme Court struck down in

Hurst. Ohio’s statute does not allow this. Ohio judges may only consider the aggravating

circumstances found by the jury, and they must impose a life sentence if the jury so

recommends. The fact that an Ohio judge always has the opportunity to veto the jury’s

recommendation of death does not make that verdict “advisory” in the sense that the

Supreme Court used the term in Hurst. An Ohio jury’s verdict is binding, not advisory, as to

which aggravating circumstances exist.

D. The Sixth Amendment does not apply to mitigating factors.

Mason correctly notes that the Ohio statute does not require the jury to make any

specific findings of fact about “the existence of mitigating factors or the weight to be given to

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them[.]” See Appellant’s Brief, p. 11. This is true, but irrelevant, because the Sixth

Amendment right to jury fact-finding does not apply to mitigating evidence.

Unlike aggravating circumstances, mitigating factors by definition cannot “make[] an

increase in the defendant’s authorized punishment” possible. Ring v. Arizona 536 U.S. at 602,

122 S. Ct. 2428, 153 L.E2d.2d 556. They can only result in a decrease in punishment. The

jury’s consideration of a mitigating factor “neither expos[es] the defendant to a deprivation

of liberty greater than that authorized by the verdict according to statute, nor * * * impos[es]

upon the defendant a greater stigma than that accompanying the jury verdict alone. Core

concerns animating the jury and burden-of-proof requirements are thus absent from such a

scheme.” Apprendi v. New Jersey, 530 U.S. 466, 490, fn. 16, 120 S. Ct. 2348, 147 L.Ed.2d 435

(2000). As a result, the Sixth Amendment never requires a jury to make any findings

regarding mitigating circumstances. “Because mitigating factors are not facts that expose

defendants to harsher penalties, there is no requirement that the jury unanimously find a

mitigating factor.” Mason, ¶ 44.

E. Hurst did not create a right for capital defendants to be sentenced by a jury.

Nor does Hurst itself require a jury to impose a capital sentence. In fact, Justice Breyer

concurred in the result only in Hurst and authored a brief, separate opinion reiterating his

position that “the Eighth Amendment requires that a jury, not a judge, make the decision to

sentence a defendant to death.” Hurst v. Florida, 136 S. Ct. at 624, 193 L.Ed.2d 504 (Breyer,

J., concurring). If the majority in Hurst had held there was a constitutional right to be

sentenced by a jury, Justice Breyer would not have concurred and written that “I cannot join

the Court’s opinion.” Id. There is thus no right to jury-sentencing in capital cases, and Ohio’s

statute remains unaffected.

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F. The purpose of requiring the judge to independently weigh the aggravating factors against the mitigating circumstances is to give the defendant a second chance at a life sentence.

Finally, R.C. 2929.03 gives the judge the power to accept or reject a jury’s

recommendation of death as a benefit to the defendant, not as a detriment. Ohio’s statute

“affords significantly more safeguards to the defendant” than a statute that does not allow a

judge to override the jury’s recommendation of death because it gives the defendant “a

second chance for life with the trial judge[.]” Dobbert v. Florida, 432 U.S. 282, 296, 97 S. Ct.

2290, 53 L.Ed.2d 344 (1977). An Ohio trial court is never, under any circumstances, able to

depart upward from a jury’s recommendation and impose a sentence of death if the jury has

already recommended life. The trial court has only two options: (1) adopt the jury’s

recommendation, or (2) depart downward and impose a lesser sentence. The trial court’s

independent weighing exists to protect the defendant, not the State, by giving the defendant

a second chance at a life sentence. It is, however, that second chance that Mason now asks

this Court to declare unconstitutional.

Since Ohio reinstated capital punishment in 1981, ten trial court judges have

overridden a jury’s recommendation of the death penalty in favor of a sentence of life

imprisonment:

1. Drewey Kiser, Ross County, 1982

Drewey Kiser executed Donald Writsel during a robbery in Ross County in 1982 and

threw Writsel’s body off a bridge into a creek. See State v. Kiser, 4th Dist. Ross No. 1029, 1985

Ohio App. LEXIS 8347 (June 20, 1985). The trial court set aside the jury’s recommendation

of the death penalty, citing “Kiser’s age (twenty-three), lack of previous significant criminal

history, and mental-illness diagnosis of alcoholism.” Andrew Welsh-Huggins, No Winners

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Here Tonight: Race, Politics, and Geography in One of the Country’s Busiest Death Penalty

States at 185 (2009).

2. Alonzo Wright, Cuyahoga County, 1986

Alonzo Wright broke into the home of Grover and Belinda Lang on the east side of

Cleveland on August 15, 1986. See State v. Wright, 8th Dist. Cuyahoga No. 53733, 1988 Ohio

App. LEXIS 1806 (May 12, 1988). Wright, wearing a mask, pointed a gun at the Langs and

ordered them to lie on the floor. Id. at *2-3. Grover Lang got up and struggled with Wright.

Wright shot Grover twice in the chest, killing him. Id. at *3. The trial court “cited the victim’s

decision to rush Wright instead of obeying a request to look for money.” Welsh-Huggins at

186.

3. John Parsons, Franklin County, 1987

John Parsons set fire to Michael Gustin’s mobile home on the north side of Columbus

on December 13, 1987. See State v. Parsons, 10th Dist. Franklin No. 91AP-84, 1992 Ohio App.

LEXIS 641 (Feb. 13, 1992). Gustin had filed an assault charge against Parsons following an

altercation approximately two months earlier. Id. at *3. As Gustin fled his burning mobile

home, Parsons shot and killed him with a twelve-gauge shotgun from where Parsons lay in

wait outside. Id. The trial court “cited Parsons’s background and lack of a prior criminal

record and said that a death sentence would not be equivalent to five other death sentences

imposed in Franklin County up to that time.” Welsh-Huggins at 186.

4. Eddie Robertson, Montgomery County, 1988

Eddie Robertson shot Timothy Boyd and Stephanie Hiatt during a robbery at the

Warehouse Beer Drive-In in Dayton on September 4, 1988. See State v. Robertson, 2d Dist.

Montgomery No. 11572, 1990 Ohio App. LEXIS 1862 (May 18, 1990). Robertson ordered

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Boyd and Hiatt to get into a walk-in cooler and lie down on the floor. Id. at *3. Robertson

then shot both Boyd and Hiatt several times as they lay on the floor of the cooler. Id. Boyd

was transported to the hospital where doctors removed five bullet fragments from his skull.

Id. at *4. Hiatt died on the scene from her injuries. Id. The trial court “cited Robertson’s lack

of a significant criminal history, his relative youth (thirty), his pursuit of education beyond

high school, and the lack of an advance plan to kill anyone.” Welsh-Huggins at 186. The trial

court also found that “it appeared Robertson shot Hiatt on the spur of the moment, fearing

that she recognized him.” Id.

5. Gregory Crawford, Wayne County, 1998

Gregory Crawford fatally beat Gene Palmer during a robbery in Wayne County on July

23, 1998. See State v. Crawford, 9th Dist. Wayne No. 99CA0035, 2001 Ohio App. LEXIS 185

(Jan. 24, 2001). Crawford struck Palmer 6 to 10 times with a blunt force object while Palmer

worked in a barn near his home. Id. at *8. Crawford then stole Palmer’s van. Id. The trial

court “cited Crawford’s age (thirty-seven), his good behavior in jail, his strong relationship

with his family, his work completing his high school degree, and his conversion [to

Christianity].” Welsh-Huggins at 187.

6. Christopher Fuller, Butler County, 2000

Christopher Fuller raped and murdered his two-year old daughter Randi Fuller in

Hamilton on March 21, 2000. See State v. Fuller, 12th Dist. Butler Nos. CA2000-11-217,

CA2001-03-048, CA2001-03-061, 2002-Ohio-4110. Fuller confessed to Randi’s murder and

to sexually abusing her for months prior to her death. Id., ¶ 7. The trial court “cited Fuller’s

job supporting his family, his military service, his lack of a prior criminal record, and the

remorse he showed over the girl’s death.” Welsh-Huggins at 187. The trial court further

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stated that a life sentence would require Fuller “to spend the rest of your life in prison with

little to think about but what you did to that little girl.” Id.

7. Timothy Hancock, Warren County, 2000

Timothy Hancock was serving a life sentence at the Warren Correctional Institution

after pleading guilty to the aggravated murder of Alice Miller in 1989. See State v. Hancock,

3d Dist. Allen No. 1-91-87, 1992 Ohio App. LEXIS 4121 (July 28, 1992). On November 13,

2000, Hancock strangled his cellmate Jason Wagner to death with a bedsheet. State v.

Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 1. The trial court set aside

the jury’s recommendation of the death penalty on legal grounds, finding that “the jury had

improperly received a number of items of evidence, including photos of the victim’s body,

statements made to police, and the rolled-up bedsheet that Hancock used to strangle

Wagner.” Welsh-Huggins at 187-188.

Ultimately, this Court found that it was within the trial court’s discretion whether to

admit or exclude the guilt-phase exhibits into evidence in the sentencing phase. State v.

Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶¶ 120-133. Because the

judge was within his discretion to exclude the exhibits, those exhibits should not have been

submitted to the jury. Id., ¶¶ 132-133. The fact that the exhibits nevertheless were

submitted meant that the “jury’s recommendation of death was tainted by its exposure,

during penalty-phase deliberations, to evidence that the trial court had reasonably excluded

from that phase.” Id., ¶ 133. This Court thus remanded for resentencing. Id.

Following the new hearing, the jury recommended a life sentence, and the trial court

sentenced Hancock to life without parole. See State v. Hancock, 12th Dist. Warren No.

CA2007-03-042, 2008-Ohio-5419, ¶¶ 4, 22.

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8. Brian Siler, Ashland County, 2001

Brian Siler strangled his estranged wife Barbara to death on September 19, 2001 in

her home in Nankin, Ohio. See State v. Siler, 5th Dist. Ashland No. 02 COA 208, 2003-Ohio-

5749. Siler beat Barbara and then strangled her to death before hanging her body from a

rope in her garage in an attempt to make it appear as though Barbara had committed suicide.

Id., ¶ 2. The trial court cited “the absence of a criminal background and active participation

in church and the community.” Welsh-Huggins at 188. The trial court also “questioned

whether the death sentence was an attempt by the community for failing to do more to

prevent Barbara Siler’s death.” Id.

9. Charles Cunningham, Clark County, 2008

On the night of October 3, 2008, Charles Cunningham shot and killed his ex-girlfriend

Jessica Serna and her friend Heidi Shook in Springfield. See State v. Cunningham, 2d Dist.

Clark No. 10-CA-57, 2012-Ohio-2794. Cunningham pursued Serna, the mother of two of his

children, to several bars in downtown Springfield that night. Id., ¶¶ 4-7. During an argument,

Cunningham shot Serna in the leg or punched Serna in the stomach, causing her to fall to the

ground. Id., ¶ 9; see also Samantha Sommer, Judge Explains Why He Didn’t Give Cunningham

the Death Penalty, (May 27, 2010), http://www.springfieldnewssun.com/news/crime--

law/judge-explains-why-didn-give-cunningham-the-death-penalty/hbTVynWJJhI4BctD8Lu

xvL/ (accessed November 19, 2017). Cunningham pursued Shook as she tried to run and

shot her several times, killing her. Cunningham, ¶ 10. Cunningham then returned to where

Serna was lying and shot her again, killing her. Id.

The trial court wrote that “there was ‘a fine line’ between the evidence that

Cunningham killed Serna ‘with prior calculation and design,’ an element necessary for a

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death sentence, and whether he shot her ‘on the spur of the moment’ out of frustration with

his unsuccessful attempts to reestablish a relationship.” Andrew Welsh-Huggins, Judge’s

Rejection of Jury’s Execution Recommendation is Rare, (January 1, 2017), https://apnews.

com/807dbae0f5034748a6a67152d212274b/judges-rejection-jurys-execution-recommen

dation-rare (accessed November 19, 2017).

10. Douglas Shine, Cuyahoga County, 2015

Finally, Douglas Shine, Jr. committed a mass shooting on February 5, 2015 in which

he opened fire with two semiautomatic handguns into a crowded barbershop full of people

in Warrensville Heights, Ohio. Shine killed three men – Walter Barfield, William Gonzales,

and Brandon White-Ladson – in the shooting, and wounded three other victims. After his

arrest, Shine and his brother Kevin McKinney then arranged the murder-for-hire of a fourth

victim, Aaron Ladson, to prevent Ladson from testifying against Shine in the barbershop

shooting. The trial court sentenced Shine to life without the possibility of parole based on

Shine’s poor relationship with his mother. See State v. Shine, 8th Dist. Cuyahoga No. 105352

(appeal pending).

G. Mason’s argument, if accepted, would preclude trial courts from departing downward at sentencing and deprive capital defendants of a second chance at life.

The reason Ohio law requires a trial court to conduct an independent reweighing in

capital cases is to give the defendant a second chance at a life sentence. It was that second

chance that resulted in a life sentence for all ten of the men listed above rather than a death

sentence. Mason is now arguing that this Court should not allow him that second chance.

Mason’s Hurst claim thus has a considerable irony to it, in that Mason’s interpretation of the

Sixth Amendment would have precluded the trial court in each of these cases from departing

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downward and imposing a life sentence. Instead, Mason would have required the trial court

to rubber-stamp the jury’s recommendation without discretion (with the possible exception

of Hancock, whose sentence was vacated on legal grounds).

If this Court were to agree with Mason’s argument, it would only need to sever and

strike down that portion of R.C. 2929.03 that provides Mason and other capital offenders

with that additional safeguard. Under Mason’s interpretation of Hurst, the trial court cannot

make any determination as to sentencing in a capital case, and must invariably impose the

sentence the jury recommends. This would solve what Mason claims to be the problem in

the statute, but it would also result in a statute that offers fewer protections for capital

defendants rather than more. Ohio certainly could adopt such a version of the statute that

lessens the State’s burden, but the Sixth Amendment surely does not require it do so.

CONCLUSION

Amicus Curiae the Cuyahoga County Prosecutor’s Office respectfully asks this Court

to affirm the Third District’s well-reasoned opinion in this case and hold that R.C. 2929.03

remains constitutional under Hurst v. Florida.

Respectfully submitted,

MICHAEL C. O’MALLEY CUYAHOGA COUNTY PROSECUTOR /s/ Christopher D. Schroeder______

CHRISTOPHER D. SCHROEDER (0089855) Assistant Prosecuting Attorney The Justice Center

1200 Ontario Street Cleveland, OH 44113 (216) 443-7733 cschroeder@prosecutor.cuyahogacounty.us

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CERTIFICATE OF SERVICE

A copy of the foregoing Brief of Amicus Curiae the Cuyahoga County Prosecutor’s Office

on Behalf of Appellee was served by email this 21st day of November, 2017 to:

Kort W. Gatterdam (gatterdam@carpenterlipps.com) and Todd A. Anderson

(Andersonlaw0305@yahoo.com), counsel for Defendant-Appellant Maurice Mason,

Kevin P. Collins (kcollins@co.marion.oh.us), counsel for Plaintiff-Appellee the State of

Ohio,

Steven L. Taylor (staylor@franklincountyohio.gov), counsel for Amicus Curiae the

Ohio Prosecuting Attorney’s Association, and

Jeffry M. Gamso (jgamso@cuyahogacounty.us), counsel for Amicus Curiae the Ohio

Association of Criminal Defense Lawyers.

/s/ Christopher D. Schroeder______ CHRISTOPHER D. SCHROEDER (0089855)

Assistant Prosecuting Attorney