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2006-1578. State v. Were, Slip Opinion No. 2008-Ohio-2762.
Hamilton App. No. C-030485, 2006-Ohio-3511. Judgment affirmed.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Opinion: http://www.supremecourtofohio.gov/rod/docs/pdf/0/2008/2008-Ohio-2762.pdf
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(June 17, 2008) The Supreme Court of Ohio today voted 7-0 to uphold the conviction and death sentence of James Were for the aggravated murder of Corrections Officer Robert Vallandingham during the 1993 prisoner uprising at the Southern Ohio Correctional Facility (SOCL) in Lucasville.
In April 1993, a group of prisoners seized control of an area of the SOCL identified as “L Block.” The rioting inmates overpowered several guards, including Vallandingham, and held authorities at bay for several days. Before prison officials regained control, several prisoners and Officer Vallandingham were killed.
Were, a leader of one of the prisoner factions involved in the riot, was originally convicted for his role in the killing of Vallandingham and sentenced to death by the Hamilton County Court of Common Pleas in 1995. His convictions and sentence were affirmed by the 1st District Court of Appeals in 1998, but were subsequently overturned in 2002 by the Supreme Court of Ohio, which remanded the case for a new trial because the trial court had failed to conduct a required hearing to determine whether Were was mentally competent to stand trial.
Following a hearing, at which the trial court found Were competent to face charges, he was retried before a new jury in 2003 and again found guilty of aggravated murder and sentenced to death. On review, his conviction and sentence were affirmed by the 1st District in July 2006.
In today’s decision, written by Justice Paul E. Pfeifer, the Supreme Court unanimously overruled all 33 allegations of legal and procedural error by the lower courts that were advanced by Were as grounds for reversal of his conviction or reduction of his death sentence.
Among the arguments rejected by the Court, Justice Pfeifer found no merit in Were’s claim that the trial court erred in imposing a death sentence because he is mentally retarded and therefore ineligible for capital punishment under the U.S. Supreme Court’s 2002 ruling in Atkins v. Virginia. “In Atkins, ... the United States Supreme Court held that executing a mentally retarded person violates the Eighth Amendment’s proscription against cruel and unusual punishment,” wrote Justice Pfeifer. “Atkins did not establish procedures for determining whether an individual is mentally retarded. Rather, the Supreme Court left it to the states to develop ‘appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.’
“In State v. Lott, ...we set forth the ‘substantive standards and procedural guidelines’ for determining mental retardation in Ohio. ... Lott adopted clinical definitions of mental retardation, cited with approval in Atkins for evaluating an individual’s claim of mental retardation. Lott holds that the defendant must raise and prove mental retardation by presenting evidence that he or she (1) suffers from ‘significantly subaverage intellectual functioning,’(2) experienced ‘significant limitations in two or more adaptive skills, such as communication, self-care, and self-direction,’ and (3) manifested ‘onset before the age of 18.’”
Justice Pfeifer noted that, after finding Were guilty of the kidnapping and aggravated murder of Officer Vallandingham, the trial court followed the guidelines set forth in Lott by conducting a hearing at which it evaluated evidence and expert testimony and determined that Were did not establish proof of the three Lott criteria of retardation, and therefore was eligible for the death penalty.
Citing hearing testimony by Dr. W. Michael Nelson, a clinical psychologist who appeared as the state’s expert witness, Justice Pfeifer wrote: “Nelson’s testimony and Were’s school records support the trial court’s findings that Were is not mentally retarded. Nelson testified that Were’s scores of 69 on the Stanford-Binet IQ test were not indicative of mental retardation. Moreover, Were’s school records completed at the time of his first IQ test stated that Were was functioning in the ‘slow learner’ range of mental ability, not that he was mentally retarded. Nelson’s testimony showed that Were failed to prove that he suffered significant limitations in two or more adaptive skills. Were argues that the trial court erred by ignoring defense experts. He also asserts that Nelson’s opinion was discredited during defense cross-examination. The weight to be given the evidence and the credibility of the expert witnesses are primarily for the trier of the fact. State v. Nemeth (1998) ... Thus, the trial court could rely on Nelson’s testimony and other evidence in finding that Were failed to meet his burden of proving that he is mentally retarded.”
The Court also rejected Were’s argument that the trial judge committed reversible error by ruling from the bench on Were’s claim of retardation, based on recent U.S. Supreme Court decisions requiring that jurors, not judges, must make any factual findings that result in the enhancement of an offender’s sentence.
“Were invokes Apprendi v. New Jersey (2000), Ring v. Arizona (2002), Blakely v. Washington (2004), and United States v. Booker (2005), in arguing that a jury must determine whether a capital defendant is mentally retarded,” wrote Justice Pfeifer. “In Apprendi, a noncapital case, the Supreme Court of the United States held that ‘[o]other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ ... In Ring, a capital case, the Supreme Court of the United States held that a trial judge may not make findings of fact on the aggravating circumstances necessary to impose the death penalty because such a determination is within the province of the jury. ... Blakely, a noncapital case, held that the Sixth Amendment prohibits a judge from making a finding on a fact that allowed him to impose a sentence greater than that allowed by a jury verdict or by the defendant’s admissions at a plea hearing. ... In Booker, the Court applied Blakely to make the Federal Sentencing Guidelines advisory, rather than mandatory.”
“Based on the Apprendi line of cases,” Justice Pfeifer noted, “Were claims that the determination of whether a capital defendant is mentally retarded was a factor that eliminated the possibility of a death sentence, and thus must be decided by the jury. The fact that a capital defendant is not mentally retarded, however, is not an aggravating circumstance that increases a defendant’s punishment. Rather, the failure to find mental retardation simply means that the capital defendant remains eligible to be sentenced to death. Such a finding can affect a sentence only by mitigating it. Other jurisdictions that have considered this argument have reached similar conclusions. We conclude that the trial court, not the jury, determines whether a capital defendant is mentally retarded. Nothing in the Apprendi line of cases requires otherwise.”
Among multiple other claims of error rejected by the Court, Justice Pfeifer denied Were’s claim that witness testimony placing him in the shower room where Vallandingham was strangled at the time of the killing was insufficient to support a conviction for aggravated murder or a sentence of death. “Were also argues that his ‘mere presence’ in the company of others who killed Vallandingham does not establish his guilt,” wrote Justice Pfeifer. “Were was not an innocent bystander when Vallandingham was killed. He advocated killing a corrections officer and voted to do so. Subsequently, Were orchestrated Vallandingham’s murder by removing Vallandingham from his cell, taking him to the shower area, and overseeing the inmates who killed him. Were’s argument is without merit.”
Contacts
Mark E. Piepmeier, 513.733.8276, for the State of Ohio and Hamilton County prosecutor’s office.
E. Fred Hoefle, 513.579.8700, for James Were.