State v. Jenkins (15 Ohio St. 3d 164, 1984)

Celebrezze, C.J.

Today we review for the first time a conviction and death sentence subsequent to the reenactment of the death penalty in Ohio. See R.C. 2929.03 et seq. For the reasons to follow, we hold the death penalty statutes to be constitutional and, in this case, to have been applied in a constitutional manner. We further affirm appellant’s conviction and hold that the death sentence in the case at bar is proper.

I

At the outset, we direct our attention to appellant’s arguments that in spite of the overhaul undertaken by the General Assembly subsequent to the decision of the United States Supreme Court in Lockett v. Ohio (1978), 438 U.S. 586 [9 O.O.3d 26], the Ohio death penalty scheme is both unconstitutional on its face and as applied to appellant in this case in violation of the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 2, 9,10 and 16, Article I of the Ohio Constitution.

Appellant first challenges the imposition of the death penalty on the basis that where a right as fundamental as life is at stake, a state must employ the least restrictive means possible to achieve a compelling interest. Appellant contends that the societal interests at stake in the present case include deterrence and incapacitation which, according to appellant, can be adequately protected with a less restrictive approach than the imposition of death, i.e., life imprisonment.

Appellant’s “least restrictive” argument, however, was rejected over eight years ago when the United States Supreme Court released its decisions in Gregg v. Georgia (1976), 428 U.S. 153; Proffitt v. Florida (1976), 428 U.S. 242; Jurek v. Texas (1976), 428 U.S. 262; Woodson v. North Carolina (1976), 428 U.S. 280; and Roberts v. Louisiana (1976), 428 U.S. 325.

In Gregg, supra, the court stated that “* * * the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community’s belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.” The Supreme Court stated that the death penalty “* * * is an extreme sanction, suitable to the most extreme of crimes.” Appellant’s argument is predicated upon societal protection, while the Supreme Court, has recognized that the death penalty, as a sanction or punishment, is proper in extreme cases.

Alternatively, appellant argues that the death penalty violates the prohibition under the Eighth Amendment against cruel and unusual punishment and is therefore per se unconstitutional. We disagree. Clearly, any vitality which this argument may have had at the time of Furman v. Georgia (1972), 408 U.S. 238, was rejected in Gregg and its companion cases when the high court stated:

“We hold that the death penalty is not a form of punishment that may never be imposed, regardless of the circumstances of the offense, regardless of the character of the offender, and regardless of the procedure followed in reaching the decision to impose it.”

Moreover, since the decision in Gregg, the recurring theme has been that states may constitutionally impose the sentence of death as long as the discretion of the sentencing authority is “suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action” in imposing the sentence. Zant v. Stephens (1983),_U.S--- 77 L.Ed. 2d 235, at 248. The Supreme Court has stressed the necessity of “genuinely narrow[ing] the class of persons eligible for the death penalty,” id. at 249, while requiring the capital sentencing procedure guide and focus “the jury’s objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death.” Jurek, supra, at 273-274. With these principles in mind, appellant’s argument, which requests the erection of a per se rule against the death penalty, must be rejected.

Appellant maintains, however, that the death penalty is applied in an arbitrary and capricious fashion since in administering capital statutory schemes prosecutors will inevitably exercise a certain degree of discretion. A similar argument was considered and rejected by both the majority and concurring opinions in Gregg.

Justice Stewart, writing for the court, addressed the argument at 199 as follows:

“First, the petitioner focuses on the opportunities for discretionary action that are inherent in the processing of any murder case under Georgia law. He notes that the state prosecutor has unfettered authority to select those persons whom he wishes to prosecute for a capital offense and to plea bargain with them. Further, at the trial the jury may choose to convict a defendant of a lesser included offense rather than find him guilty of a crime punishable by death, even if the evidence would support a capital verdict. And finally, a defendant who is convicted and sentenced to die may have his sentence commuted by the Governor of the State and the Georgia Board of Pardons and Paroles.

“The existence of these discretionary stages is not determinative of the issues before us. At each of these stages an actor in the criminal justice system makes a decision which may remove a defendant from consideration as a candidate for the death penalty. Furman, in contrast, dealt with the decision to impose the death sentence on a specific individual who had been convicted of a capital offense. Nothing in any of our cases suggests that the decision to afford an individual defendant mercy violates the Constitution. * * *”

In his concurring opinion, Justice White, joined by Chief Justice Burger and Justice Rehnquist, discussed the allegation of the exercise of arbitrary and capricious prosecutorial discretion as follows:

“Petitioner’s argument that prosecutors behave in a standardless fashion in deciding which cases to try as capital felonies is unsupported by any facts. Petitioner simply asserts that since prosecutors have the power not to charge capital felonies they will exercise that power in a standardless fashion. This is untenable. Absent facts to the contrary, it cannot be assumed that prosecutors will be motivated in their charging decision by factors other than the strength of their case and the likelihood that a jury would impose the death penalty if it convicts. Unless prosecutors are incompetent in their judgments, the standards by which they decide whether to charge a capital felony will be the same as those by which the jury will decide the questions of guilt and sentence. Thus defendants will escape the death penalty through prosecutorial charging decisions only because the offense is not sufficiently serious; or because the proof is insufficiently strong. This does not cause the system to be standardless any more than the jury’s decision to impose life imprisonment on a defendant whose crime is deemed insufficiently serious or its decision to acquit someone who is probably guilty but whose guilt is not established beyond a reasonable doubt. Thus the prosecutor’s charging decisions are unlikely to have removed from the sample of cases considered by the Georgia Supreme Court any which are truly ‘similar.’ If the cases really were ‘similar’ in relevant respects, it is unlikely that prosecutors would fail to prosecute them as capital cases; and I am unwilling to assume the contrary.” Id. at 225.

Moreover, as recognized by Justice White in his concurring opinion in Gregg, appellant’s argument represents an indictment of our entire criminal justice system which must be constitutionally rejected. Id. at 226.

Next, appellant contends the Ohio death penalty scheme is unconstitutional for failing to require premeditation or deliberation as the culpable mental state for defendants in all capital cases. Specifically, appellant relies upon the concurring opinion of Justice White in Lockett v. Ohio, supra, at 621, wherein the view was expressed that the imposition of the death penalty upon one who did not possess at least a purpose “to cause the death of the victim” would likely violate the prohibition contained in the Eighth Amendment against cruel and unusual punishment.

In Edmund v. Florida (1982), 458 U.S. 782, Justice White, writing for the majority, concluded that imposition of the death sentence upon an individual who aids or abets a felony but who does not kill, attempt to kill or intend to kill, violates the Eighth Amendment. In that decision, the high court favorably cited a number of state statutes, including R.C. 2903.01(B), (C) and (D), as well as R.C. 2929.02(A) and 2929.04(A)(7), which preclude the imposition of a death sentence unless the defendant is specifically found to have intended to cause the death of another by proof beyond a reasonable doubt. Id. at 790, fn. 7.

Contrary to appellant’s contention, the Eighth Amendment does not require that in order to be subject to a death sentence, the defendant must have committed the murder with prior calculation and design. Cf. Ed mund, supra. Instead, the culpable mental state which must be proven in Ohio, consistent with Eighth Amendment protections, is that the defendant specifically intended to cause the death of another. Accordingly, we find appellant’s contention to be without merit.

Without citation to legal authority, appellant further argues that the death penalty in Ohio is constitutionally defective since the state is not required to prove the absence of any of the mitigating factors. Simply stated, this argument represents an attempt by appellant to have this court impose upon the state a burden not required under either the Ohio or United States Constitutions. The concept of weighing aggravating circumstances proved beyond a reasonable doubt against any existing mitigating factors was approved in Proffitt, and its vitality continues today. See Barclay v. Florida (1983),_U.S._, 77 L.Ed. 2d 1134.

Appellant also contends his death sentence should be set aside for the reason that R.C. Chapter 2929 fails to explicitly identify whether the defendant bears the burden of proving the existence of mitigating factors, and what standard of proof must be utilized in determining their presence. We disagree. An examination of the pertinent statutory provisions which address the subject of mitigating factors demonstrates that the statute does indeed provide the direction that appellant claims is lacking.

For example, R.C. 2929.03(D)(1) provides, in pertinent part:

“The defendant shall have the burden of going forward with the evidence of any factors in mitigation of the imposition of the sentence of death. The prosecution shall have the burden of proving, by proof beyond a reasonable doubt, that the aggravating circumstances the defendant was found guilty of committing are sufficient to outweigh the factors in mitigation of the imposition of the sentence of death.”

This statutory section unambiguously answers appellant’s charge as to who bears the burden of proving the existence of mitigating circumstances, by specifically placing the burden on the defendant to go forward with evidence of mitigation. The question remains, however, as to what standard of proof applies to mitigating factors.

Although the standard is not readily apparent from a reading of R.C. 2929.03 or 2929.04, the Committee Comment to the former R.C. 2929.03 resolves any uncertainty. Therein, it is stated that “* * * [mitigation must be established by a preponderance of the evidence, and the rules of evidence also apply in this phase of the trial [except that] (the requirement for a pre-sentence investigation and report, the requirement for a psychiatric examination and report, and the provision for an unsworn statement by the defendant, represent partial exceptions to the rules of evidence).”

In the present case, the trial court placed the burden of proving mitigating factors by a preponderance of the evidence upon appellant. Thereafter, the state carried the burden of proving by proof beyond a reasonable doubt that the aggravating circumstances appellant was found guilty of committing outweighed the mitigating factors. Since the trial court correctly interpreted the standards governing the burden of proving mitigating factors and by what degree, we are unable to find merit in this assignment of error.

Appellant next maintains that the imposition of the death penalty under Ohio’s statutory structure is constitutionally infirm for failing to provide necessary and adequate guidance to the sentencing authority in relation to “weighing” aggravating circumstances and mitigating factors.

R.C. 2929.03(D)(2) provides in relevant part:

“Upon consideration of the relevant evidence raised at trial, the testimony, other evidence, statement of the offender, arguments of counsel, and, if applicable, the reports submitted pursuant to division (D)(1) of this section, the trial jury, if the offender was tried by a jury, shall determine whether the aggravating circumstances the offender was found guilty of committing are sufficient to outweigh the mitigating factors present in the case. If the jury unanimously finds, by proof beyond a reasonable doubt, that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors, the trial jury shall recommend to the court that the sentence of death be imposed on the offender. Absent such a finding, the jury shall recommend that the offender be sentenced to life imprisonment with parole eligibility after serving twenty full years of imprisonment or to life imprisonment with parole eligibility after serving thirty full years of imprisonment.”

Specifically, appellant focuses upon that portion of R.C. 2929.03(D)(2) which requires that the jury weigh aggravating circumstances against mitigating factors which are present in the case, arguing that the “weighing” process is an inarticulate and amorphous standard which deprived him of his Eighth Amendment protections due to the absence of a discernible legal standard. According to appellant, the constitutional defect arises because the sentencing authority receives no guidance in measuring such disparate factors as aggravating circumstances and mitigating factors beyond the term “weigh.”

Appellant’s argument is not novel. In Proffitt, supra, at 248, the Florida statute directed that the jury consider “ ‘* * * [w]hether sufficient mitigating circumstances exist * * * which outweigh the aggravating circumstances found to exist; and * * * [b]ased on these considerations, whether the defendant should be sentenced to life imprisonment or death.’ [Fla. Stat. Ann. Sections 921.141(2)(b) and (c) (1976-1977 Supp.)] * * *.” In his argument before the Supreme Court the petitioner maintained that the weighing process was an inarticulate standard, making it impossible for the sentencing authority to rationally determine whether, in a given case, aggravating circumstances outweigh the mitigating factors.

In upholding the Florida standard, the court reasoned as follows:

“While these questions and decisions may be hard, they require no more line drawing than is commonly required of a factfinder in a lawsuit. For example, juries have traditionally evaluated the validity of defenses such as insanity or reduced capacity, both of which involve the same considerations as some of the above-mentioned mitigating circumstances. While the various factors to be considered by the sentencing authorities do not have numerical weights assigned to them, the requirements of Fur-man are satisfied when the sentencing authority’s discretion is guided and channeled by requiring examination of specific factors that argue in favor of or against imposition of the death penalty, thus eliminating total arbitrariness and capriciousness in its imposition.

“The directions given to judge and jury by the Florida statute are sufficiently clear and precise to enable the various aggravating circumstances to be weighed against the mitigating ones. As a result, the trial court’s sentencing discretion is guided and channeled by a system that focuses on the circumstances of each individual homicide and individual defendant in deciding whether the death penalty is to be imposed.” Id. at 257-258.

In view of the foregoing, we are constrained to reject appellant’s argument that by requiring sentencing authorities to “weigh” aggravating circumstances against mitigating factors, the General Assembly somehow failed to limit the sentencing authority’s discretion and focus its attention upon the circumstances of the capital offense and the individual offender when considering whether to return a verdict imposing the death penalty.

Appellant next maintains that by requiring proof of aggravating circumstances at the guilt phase of the trial, rather than at the sentencing phase, Ohio has effectively prohibited individualized sentencing required under post-Nurrocm cases. In support of this contention, appellant directs our attention to the Georgia and Florida statutes at issue in Gregg and Proffitt, where under each statute the determination of guilt is separated from the consideration of aggravating circumstances.

In considering this contention, it is important to keep in mind the following principle stressed in Gregg, supra, at 195:

“We do not intend to suggest that only the above-described procedures would be permissible under Furman or that any sentencing system constructed along these general lines would inevitably satisfy the concerns of Furman, for each distinct system must be examined on an individual basis.”

Thus, although Ohio’s capital scheme does differ from those under consideration in Gregg and Proffitt insofar as when aggravating circumstances are considered in a capital case, this difference does not, in and of itself, render the Ohio scheme unconstitutional. On the contrary, in Jurek the high court upheld the Texas death penalty statute which, like Ohio’s, requires the jury to consider at the guilt phase whether the crime falls into a particular category justifying capital punishment.

In comparing the Georgia and Florida statutes with the Texas statute the court observed that “[e]ach [statute] requires the sentencing authority to focus on the particularized nature of the crime.” Id. at 271. Equally important was the court’s lack of concern for whether aggravating circumstances are proven at the guilt or sentencing phase, as long as at the sentencing phase the jury is allowed to consider factors in mitigation of the imposition of a death sentence. Id.

The system currently in place in Ohio does require the sentencing authority to focus on the particular nature of the crime as well as allow the accused to present a broad range of specified and nonspecified factors in mitigation of the imposition of a death sentence. Thus, we are unable to agree with appellant’s contention that the consideration of aggravating circumstances at the guilt stage of his trial was constitutionally prohibited.

In his next contention appellant focuses upon the requirements of R.C. 2929.021, 2929.03 and 2929.05, arguing that the extent of proportionality review in Ohio is constitutionally infirm. In the main, appellant contends that proportionality review in Ohio is flawed since there is no requirement for a jury, when recommending a sentence of life imprisonment over the imposition of the death penalty, to identify the existence of mitigating factors and why those factors outweigh the aggravating circumstances.

We first observe that appellant’s argument that proportionality review is constitutionally required is without merit. In Pulley v. Harris (1984), _U.S. _, 79 L. Ed. 2d 29, the Supreme Court held that neither Gregg, Proffitt nor Jurek established proportionality review as a constitutional requirement. Id. at 39. In reaching this conclusion, the court reasoned as follows:

“Needless to say, that some schemes providing proportionality review are constitutional does not mean that such review is indispensable. We take statutes as we find them. To endorse the statute as a whole is not to say that anything different is unacceptable. As was said in Gregg, ‘[w]e do not intend to suggest that only the above-described procedures would be permissible under Furman or that any sentencing system constructed along these general lines would inevitably satisfy the concerns of Furman; for each distinct system must be examined on an individual basis.’ 428 U.S., at 195 * * *. Examination of our 1976 cases makes clear that they do not establish proportionality review as a constitutional requirement.”

Thus, although viewed as commendable, the decision in Pulley demonstrates that proportionality review is not constitutionally required in every case. Other factors which minimize the risk of arbitrary and capricious sentencing include bifurcated proceedings, the limited number of chargeable capital crimes, the requirement that at least one aggravating circumstance be found to exist and the consideration of a broad range of mitigating circumstances. In conjunction with prior United States Supreme Court decisions, the General Assembly incorporated the aforementioned factors into Ohio’s death penalty statutes, as well as providing proportionality review — a meaningful function which reduces the arbitrary and capricious imposition of death sentences.

The question remains whether the absence of a requirement that juries specify the mitigating factors which they found to exist, and why these factors outweigh aggravating circumstances, creates a fatal defect in the statutes. We hold that it does not.

The fundamental purpose behind proportionality review is to ensure that sentencing authorities do not retreat to the pre-Furman era when sentences were imposed arbitrarily, capriciously and indiscriminately. To achieve this result, state courts traditionally compare the overall course of conduct for which a capital crime has been charged with similar courses of conduct and the penalties inflicted in comparable cases. See Gregg at 204-206, and Proffitt at 259-260.

The system currently in place in Ohio enables this court to obtain a vast quantity of information with which to effectuate proportionality review, beginning with data pertinent to all capital indictments and concluding with the sentence imposed on the defendant, whether or not a plea is entered, the indictment dismissed or a verdict is imposed by the sentencing authority. See R.C. 2929.021, supra, at fn. 13. Although appellant would have this court require juries returning a life sentence to specify which mitigating factors were found to exist and why they outweigh aggravating circumstances, we conclude that such information is not an indispensable ingredient in assisting us to determine whether the imposition of a death sentence is disproportionate to sentences imposed for similarly proscribed courses of conduct.

Appellant further asserts that R.C. 2929.03 and 2929.04 are unconstitutional for treating felony murders in a different manner than premeditated murders. According to appellant, a principal in a felony murder is treated more harshly than a defendant charged with a premeditated murder, since a felony murder constitutes one of the eight aggravating circumstances under R.C. 2929.04, while premeditation is not set forth as an aggravating circumstance. Stated otherwise, appellant argues that aggravating factors for felony murders simply duplicate an element of the offense while a murder by prior calculation and design requires proof of a separate aggravating circumstance in order to justify a death sentence. As such, appellant argues that a single act should not both convict and aggravate.

Assuming, arguendo, that the elements set forth under R.C. 2929.04(A)(7) are identical to those set forth under R.C. 2903.01(B), we need only review the Texas statute at issue in Jurek to determine whether such a practice is constitutionally proscribed.

The Texas statute under consideration in Jurek did not set forth a category of statutory aggravating circumstances which, if proven, would justify the imposition of the death penalty. Instead, the Texas system set forth five classes of murders the existence of any one of which would justify the imposition of a death sentence. The high court took notice of the fact that the five classes of murder set forth in the Texas statute encompassed the separate aggravating circumstances set forth in the Georgia and Florida statutes under consideration in Gregg and Proffitt.

In sustaining the Texas statute, wherein the conduct which convicts also aggravates, the court stated:

“* * * So far as consideration of aggravating circumstances is concerned, therefore, the principal difference between Texas and the other two States is that the death penalty is an available sentencing option — even potentially — for a smaller class of murderers in Texas. Otherwise the statutes are similar. Each requires the sentencing authority to focus on the particularized nature of the crime.” Jurek, supra, at 271.

Applying Jurek to the arguments raised by appellant in the present case demonstrates that even if we were to construe the aggravated conduct of felony murder set forth within R.C. 2903.01(B) as functionally equivalent to the aggravating circumstance under R.C. 2929.04(A)(7), no constitutional infirmities would arise. On the contrary, any duplication is the result of the General Assembly having set forth in detail when a murder in the course of a felony rises to the level of a capital offense, thus, in effect, narrowing the class of homicides in Ohio for which the death penalty becomes available as a sentencing option.

Under his final contention, appellant maintains that the sentencing scheme in Ohio falls below constitutional standards by failing to afford the sentencing authority the option to impose a life sentence of imprisonment or to grant mercy, regardless of whether aggravating circumstances outweigh mitigating factors. In support of this contention, appellant focuses upon both the Florida and Georgia statutes which, as discussed by Justice Stevens in his concurrence in Barclay v. Florida, supra, at 1149, authorize the sentencing authority to grant life imprisonment even where the defendant has crossed the statutory threshold and could be subjected to death.

Appellant seizes upon the following language of Justice Stevens’ concurrence, arguing that the sentencing authority must be given an opportunity to find the death penalty inappropriate when “statutory aggravating circumstances exist, and arguably outweigh statutory mitigating circumstances, but they are insufficiently weighty to support the ultimate sentence * * *.” Id. at 1153. As Justice Stevens noted, however, immediately following the above-described passage, is that a second category exists under the Florida scheme where “even though statutory mitigating circumstances do not outweigh statutory aggravating circumstances, the addition of nonstatutory mitigating circumstances tips the scales in favor of life imprisonment.” (Emphasis sic.) Id.

Under R.C. 2929.04(B)(7) and (C), defendants are given great latitude in the presentation of any relevant factors in mitigation of the imposition of a death sentence. Accordingly, even if states were constitutionally required to adopt one of the two methods described by Justice Stevens in his concurrence in Barclay, Ohio’s system presently coincides with the second category by requiring the sentencing authority to consider and weigh against aggravating circumstances any relevant mitigating factors which the defendant presents.

In conclusion, we hold that Ohio’s statutory framework for imposition of capital punishment, as adopted by the General Assembly effective October 19,1981, and in the context of the arguments raised herein, does not violate the Eighth and Fourteenth Amendments to the United States Constitution or any provision of the Ohio Constitution.

II

Appellant next argues that he was denied his right to a fair trial by an impartial jury when the trial court excused four jurors for cause under the authority of Witherspoon v. Illinois (1968), 391 U.S. 510 [46 O.O.2d 368], and its progeny. Appellant further argues that the so-called death qualification process of a jury prior to the guilt phase of a capital prosecution is a per se violation of an accused’s Sixth and Fourteenth Amendment rights since the death-qualified jury is claimed to be predisposed to convict.

In Witherspoon v. Illinois, supra, at 522, the United States Supreme Court held “that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” The rationale of the Witherspoon decision was that the exclusion of prospective jurors who voiced general objections to the death penalty produced a jury “uncommonly willing to condemn a man to die.” Id. at 521. Specifically, however, the Supreme Court stated:

“* * * [Njothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.” (Emphasis sic.)Id. at 522-523, fn. 21.

R.C. 2945.25 provides in part that:

“A person called as a juror in a criminal case may be challenged for the following causes:

* *

“(C) In the trial of a capital offense, that he unequivocally states that under no circumstances will he follow the instruction of a trial judge and consider fairly the imposition of a sentence of death in a particular case. A prospective juror’s conscientious or religious opposition to the death penalty in and of itself is not grounds for a challenge for cause. All parties shall be given wide latitude in voir dire questioning in this regard.”

In applying the principle set forth in Witherspoon, supra, and reflected in R.C. 2945.25(C), in order to uphold appellant’s conviction and death sentence, we must be able to safely conclude from the record that the four jurors excluded under the authority of Witherspoon, supra, would have been “unwilling ‘to consider all of the penalties provided by state law,’ and that each was ‘irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings.’ * * *” (Emphasis sic.) State v. Anderson (1972), 30 Ohio St. 2d 66, 70 [59 O.O.2d 85], quoting Witherspoon, supra, at 522. See, also, State v. Bayless (1976), 48 Ohio St. 2d 73 [2 O.O.3d 249], vacated in part on other grounds (1978), 438 U.S. 911. Thus we held at paragraph three of the syllabus in State v. Watson (1971), 28 Ohio St. 2d 15 [57 O.O.2d 95], that:

“In selecting the members of a jury, unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it cannot be assumed that this is his position.”

As a necessary corollary to the requirement that a potential juror unequivocally state that he or she would never vote to impose death as a penalty, this court has steadfastly recognized that:

“Compliance with the requirements of Witherspoon v. Illinois, 391 U.S. 510 [46 O.O.2d 368], necessarily includes sufficient latitude in the voir dire examination of prospective jurors in a capital case to establish that those who are dismissed for cause upon the basis of their scruples regarding capital punishment would automatically vote against the imposition of a sentence of death no matter what the trial might reveal.” State v. Anderson, supra, at paragraph one of the syllabus.

However, in State v. Wilson (1972), 30 Ohio St. 2d 199 [59 O.O.2d 220], syllabus, this court held:

“After a venireman has unambiguously stated, on jury voir dire, that he could not vote for the death penalty under any circumstances, a Witherspoon violation cannot be predicated merely upon his ambiguous response to a question of defendant's counsel as to whether there is ‘anything about the nature of this case that would keep you from listening on the question of the death penalty.’ ”

The focus of our inquiry must now turn to the voir dire of the four excluded jurors.

The first potential juror so excused was Bernard Klein. Klein first responded to the trial judge that he did not believe in capital punishment. Upon further examination by the prosecutor, Klein made the following responses:

“Q. I believe you told Judge Matia that you do not believe in capital punishment.

“A. That’s right.

“Q. Many of us have a philosophy one way or we do believe or we do not believe. I am going to ask you, Mr. Klein, even though you do not believe in capital punishment, is it your statement that your disbelief in capital punishment is such that you could not and would not find somebody guilty of a crime in any instance wherein the punishment was capital punishment?

“MR. TITTLE [appellant’s trial counsel]: Objection.

“THE COURT: Overruled.

* *

“A. * * * There is — how shall I put it? I could say yes, he is guilty, but I could not say, ‘Well, this man should be committed to whatever the capital punishment would be.’

“This, I couldn’t live with.

“Q. You would consider that in no way?

“A. I couldn’t do it.” (Emphasis added.)

Appellant’s counsel was then able to elicit a statement from Klein to the effect that he would consider the death penalty if an individual had murdered one of Klein’s sons in the presence of Klein. Nevertheless, Klein further responded to questioning by appellant’s counsel in the following manner:

“Q. Are you saying, sir, that even in a case where a multiple murderer were brought into this courtroom, who had committed vicious ungodly acts, that you would be unable to impose the death penalty?

“A. Yes.

“q * * * gu-(- j understand you correctly, and you correct me if I am wrong, if there were a violent crime that was proved to your absolute satisfaction, you could do it then?

“A. You always have that doubt in your mind, you would always have that doubt in your mind and say, gee, I sent this man to his death or whatever.

“Q. You have said in the case properly proven you would consider it as a penalty?

“A. No, I didn’t say that.

“Q. Also the law, sir, does not say that you will ever, ever have to impose the death penalty, only that you would have to consider it as a possible penalty.

“Could you tell me that you would never consider it as a possible penalty?

“A. I told you in such cases I would.” (Emphasis added.)

The examination of Klein reveals quite clearly that his feelings regarding capital punishment transcended mere moral opposition against its imposition. Rather, Klein unequivocally stated that he would not consider capital punishment as a penalty under any circumstance. At this point, this potential juror was subject to challenge for cause under the authority of Witherspoon and its progeny. In our view, Witherspoon does not require a formalistic examination of potential jurors using the precise language of the Witherspoon opinion. We need only be satisfied that the potential juror be unwilling to consider capital punishment as a penalty and was committed to voting against the death penalty regardless of the facts of the case. To that extent we are satisfied that Klein unambiguously expressed those commitments.

We are cognizant that Klein’s commitment against imposition wavered momentarily when asked if he could consider the death penalty if someone had murdered one of Klein’s sons in Klein’s presence. Such a momentary hesitation on the part of this potential juror, in response to a hypothetical factual situation not presented by the facts of the case to be tried, will not be considered to abate this potential juror’s commitment not to consider the death penalty. We faced a similar situation in State v. Wilson, supra, where a potential juror gave an ambiguous response to a question after having unambiguously stated that the juror was unalterably opposed to the death penalty. In upholding the challenge for cause of that juror, we stated in Wilson, supra, at 202, that the juror’s “prior unambiguous responses showed that she was irrevocably committed before the trial began to vote against the death penalty regardless of the facts and circumstances that might emerge in the course of the proceedings.” Such is the case at bar and does not command a finding that the trial court committed prejudicial error in excusing Klein as a juror in the trial of appellant.

Appellant next challenges the propriety of the exclusion of potential juror Margaret Sealey. Sealey was initially examined by the prosecutor as to her views on capital punishment as follows:

“Q. * * * Does this mean then in a properly proven case, proof beyond a reasonable doubt, all of the elements of the charge, all the elements of the charge, all the elements of the aggravated murder, all the elements of the aggravated circumstances, that regardless of the nature of the case, and with that degree of proof, that you would, under those circumstances, vote yes for the death penalty?

“A. No, I wouldn’t.

* *

“Q. You wouldn’t what?

“A. I wouldn’t vote yes.

“Q. You would not vote for the death penalty?

“A. No.”

Sealey reiterated her sentiment on examination by appellant’s trial counsel that she would refuse to consider the death penalty as possible punishment. Sealey affirmatively responded to inquiry by the trial court as to whether she was religiously or morally against the imposition of the death penalty. Ultimately, Sealey indicated that, if she had no other choice, she would follow the law and vote to impose the death penalty. Neither side challenged this juror for cause.

Several days later, while voir dire was still taking place, Sealey approached the trial judge and privately informed him that she suffered from hypertension, the symptoms of which were headaches and nosebleeds. Sealey also explained that she had trouble sleeping since being selected as a juror. The trial court transcribed Sealey’s discussion in chambers and had it read to the prosecutor and appellant’s counsel. The prosecutor stated that he had no objection to excusing Sealey but appellant’s counsel insisted that she remain. The trial court declined to excuse her at that point.

Sealey approached the trial court again the next day. Sealey made the following remark to the trial court in chambers:

“I don’t feel that I could go through with it, with this case, that long, that length of time, and then, too, I don’t believe in capital punishment and I don’t think it would be fair for me to proceed with it, with the way I feel, because I — if everybody else votes for capital punishment, I will have to vote against it, even if I feel that he is guilty.”

This statement was read to counsel at which point the prosecutor challenged for cause on the basis of Sealey’s unequivocal opposition to capital punishment. The trial court proceeded to examine this potential juror as follows:

“Q. Your conscientious, religious, philosophic or other objections to the death penalty are not grounds for you to be excused as a juror. I ask you, therefore, this question: Are you in fact religiously, morally, philosophically or otherwise against the imposition of the death penalty?

“A. Yes.

“Q. Even though you have a conscientious, religious, philosophic, or other opposition to the death penalty, will you nevertheless follow my instructions, as Judge, and fairly consider the imposition of a death sentence, if appropriate in this case? Yes or no, Mrs. Sealey?

“A. No.

“Q. What?

“A. No.

“Q. Mrs. Sealey, are you stating to me unequivocally that under no circumstances will you follow my instructions as Judge, and that you cannot and will not consider fairly and [sic] imposition of the sentence of death, if appropriate, in this case?

“Yes.” (Emphasis added.)

Upon examination by the prosecutor, Sealey testified:

“Q. So that if you came to that point and if your fellow jurors came to the point that the man is guilty, and that proof is beyond a reasonable doubt, and that is the instructions of Judge Matia would call for a vote of guilty under those circumstances, and if that vote of guilty meant that he would go to the electric chair, is it my understanding you could not and would not vote for the death penalty?

“A. I would not” (Emphasis added.)

On examination by appellant’s trial counsel, Sealey denied making the foregoing statements in order to be removed from the jury and explained that her prior statements to the effect that she would follow the trial court’s instructions had not been completely accurate. Sealey then responded that she had misunderstood the earlier inquiry and had felt that she was required to respond in the manner that she did. The trial court thereafter excused Sealey for cause.

We find no error in this procedure. Appellant’s argument to the contrary notwithstanding, we are not of the opinion that once a potential juror has been passed for cause, that juror may never be challenged for cause at a later stage in the proceedings should it subsequently become apparent that a seated juror is subject to a challenge for cause. Neither Crim. R. 24 nor R.C. Chapter 2945 prohibits a challenge for cause after the parties have initially declined to challenge the potential juror for cause. To fashion such a rule as appellant advocates would mean that a juror who becomes properly subject to a challenge for cause after having survived the initial voir dire would become immune from such a challenge for cause. Here, Sealey, upon reflection, stated that under no circumstance would she vote for the death penalty, after having testified earlier that she would follow the judge’s instructions. It is beyond question that Sealey’s statements satisfy the Witherspoon standard for exclusion. It is of no moment that her statements to that effect came after she had stated that, if she had no other choice, she would follow the trial court’s instructions. Sealey’s statement that she would follow the law is, at best, ambiguous in light of her preceding statement that she would not vote for the death penalty. State v. Wilson, supra. Accordingly, given Sealey’s unequivocal commitment to vote against the death penalty under any circumstance and no matter what the facts were, the trial court did not err in excusing this juror in the trial of appellant.

Appellant next contends that the excusal of potential juror Sherry A. Tedeschi was improper. The examination of Tedeschi by the trial court proceeded as follows:

“Q. So what I ask you then is, are you religiously, morally, philosophically or otherwise against the imposition of the death penalty?

“A. Yes.

“Q. Listen to the second question as carefully as you obviously did the first.

“Even though you have a conscientious, religious, philosophic or other opposition to the death penalty, will you nevertheless, notwithstanding your feeling you have just told me about, would you nevertheless follow my instructions as Judge and fairly consider the imposition of a sentence of death, if appropriate in this case? Yes or no.

“A. No.

“Q. I ask you further, understanding your two answers, are you stating to me unequivocally that under those circumstances will you follow my instructions as Judge and that you cannot and will not consider fairly the imposition of the sentence of death if appropriate, in this case?

“A. That is correct.

“Q. Now, you understand the question fully?

“A. I will not deliver that sentence.

“Q. I will ask the question in stronger terms. Do you unequivocally state that under no circumstances will you follow my instructions as Judge and consider fairly the imposition of the sentence of death, if appropriate, in this case?

“A. That is right.” (Emphasis added.)

On examination by appellant’s counsel, Tedeschi responded as follows to the following inquiry:

“Q. You have heard, I am sure in your lifetime, things concerning some very vicious and heinous acts, where multiple murders occurred and one person was responsible, correct?

“A. Yes, I have.

“Q. If it were shown that a defendant in a particular case was that type of person, guilty of those types of crimes, and you were called to deliberate on a verdict on that type of case, are you saying to the court and to me that even in that circumstance, you could not impose the death penalty?

“A. That’s correct.” (Emphasis added.)

Tedeschi was thereupon excused. The record amply establishes Tedeschi’s unequivocal commitment not to consider the death penalty under any circumstance and not to follow the trial court’s instruction relating to capital punishment. This potential juror’s exclusion was consequently proper under Witherspoon and the trial court committed no error in so doing.

The final potential juror excused under the authority of Witherspoon was Bonnie Gwynn who was excused as an alternate juror. Upon examination by the trial court and the prosecutor, Gwynn stated initially that she would follow the trial court’s instructions and was not against capital punishment. However, when the discussion turned to the potential penalty phase of this proceeding the following exchange took place:

“Q. [By the prosecutor] If you find it to be appropriate, based upon your determination of that evidence and the law that his Honor gives you, it will then become necessary that a jury of 12 people unanimously sign the verdict form indicating, if appropriate, that they recommend the imposition of the death penalty. You must sign a form. Are you with me?

“A. Yes, I follow you.

“Q. If that comes to pass if it is appropriate based upon the information given to you and the law that his Honor gives you, are you telling us that you could not sign such a verdict form?

“A. I could not sign a verdict form.

“Q. If I understand you correctly, you are saying unequivocally at this point you will not sign a verdict form if appropriate to capital punishment in this case?

“A. That’s right.” (Emphasis added.)

Appellant’s counsel declined to inquire of Gwynn and the trial court excused this potential juror for cause upon the prosecutor’s request. Gwynn’s remarks unquestionably indicate that she was “irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings.” Witherspoon, supra, at 522, fn. 21; State v. Anderson, supra, at 70. As a result, Gwynn was properly excused under Wither-spoon. Moreover, the jury that was ultimately impaneled served as originally constituted throughout the guilt and penalty phases. Thus, there was no need to seat an alternate juror at any stage of the proceeding. Even if Gwynn had not been excused, she would not have deliberated appellant’s fate. Accordingly, there was no error in excusing this potential juror from appellant’s trial.

Appellant argues that he was not afforded sufficient latitude in voir dire to properly examine the potential jurors regarding their attitudes concerning capital punishment. Appellant correctly states that sufficient latitude must be afforded in the voir dire of prospective jurors in a capital case in order to establish that any jurors excused as being opposed to capital punishment were excused within the confines of Witherspoon. See State v. Anderson, supra, at paragraph one of the syllabus, and R.C. 2945.25(C). Examination of the record in the case at bar indicates that any restrictions placed on appellant’s examination of prospective jurors did not constitute reversible error. The general rule is that the scope of the examination of prospective jurors is within the discretion of the trial court and the judgment will only be reversed upon a showing that the trial court abused its discretion in restricting the scope of voir dire. Pavilonis v. Valentine (1929), 120 Ohio St. 154, 157; Dowd-Feder, Inc. v. Truesdell (1936), 130 Ohio St. 530 [5 O.O. 179]; State v. Anderson, supra, at 72-73.

In the case at bar, appellant sought to ask questions of the prospective jurors who had expressed a commitment to vote against the death penalty under all circumstances concerning whether these prospective jurors would vote for the death penalty if Adolf Hitler or Charles Manson were the accused. While the trial court did not permit such questioning, appellant was permitted to ask Klein whether he would agree to the death penalty if one of his sons had been murdered. Appellant was likewise permitted to propose the situation of a mass murder to Klein and Tedeschi. We find no abuse of discretion in the limitation of voir dire by the trial court. Appellant’s reliance on State v. Anderson, supra, does not compel reversal of appellant’s death sentence. In Anderson both the prosecutor and defense counsel were prohibited from asking any questions whatsoever of prospective jurors concerning their attitudes toward capital punishment. Appellant is hardly in a position to argue that an analogous situation is presented in the instant case.

Accordingly, the jurors in this case who were dismissed based on their views against capital punishment were excused in a manner consistent with Witherspoon v. Illinois, supra, and its progeny, as well as within the standard set forth in R.C. 2945.25(C).

Appellant next argues that two separate juries are required in a capital case since “death-qualifying” a jury prior to the guilt phase renders that jury prone to convict and deprives a capital defendant of an impartial and representative jury. Appellant’s position is that a non-death-qualified jury must decide guilt or innocence and then, if the defendant is convicted of a capital offense, a second jury, which may be death-qualified, must be impaneled to determine whether to recommend the death penalty. We are unpersuaded by appellant’s argument.

As we have already discussed under Part I of this decision, the United States Supreme Court, although sanctioning the bifurcation of capital prosecutions into guilt and penalty phases, has never required separate juries for each phase. Appellant argues herein that the United States Supreme Court in Witherspoon v. Illinois, supra, at 517-518, left the question open due to insufficient scientific data where it was stated:

“* * * We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. In light of the presently available information, we are not prepared to announce a per se constitutional rule requiring the reversal of every conviction returned by a jury selected as this one was.”

Appellant now suggests that scientific data indicates that death-qualified juries, that is, juries whose members do not include individuals excused under Witherspoon, supra, are prone to convict. It is appellant’s contention that the question reserved in Witherspoon may now be answered by adopting a per se rule against death-qualifying a jury prior to the guilt phase of a bifurcated capital prosecution. We reject appellant’s contention for the following reasons.

In Keeten v. Garrison (C.A.4, 1984), 742 F. 2d 129, the identical argument was rejected for what we believe to be sound reasons. The court in Keeten, supra, stated at 133:

“Although the right to a jury trial includes the right to a jury venire drawn from a representative cross-section of the community, [] it does not include the right to be tried by jurors who are unable or unwilling to follow the law and the instructions of the trial judge in a capital case.”

It was stated by the United States Supreme Court in Adams v. Texas (1980), 448 U.S. 38, 45, that:

“The State may insist, however, that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court.”

The thrust of appellant’s argument is that he feels entitled to a jury more likely to acquit rather than an impartial jury. Keeten, supra, at 134. It was stated in Smith v. Balkcom (C.A. 5, 1981), 660 F. 2d 573, 579, certiorari denied (1982), 459 U.S. 882:

“The guarantee of impartiality cannot mean that the state has a right to present its case to the jury most likely to return a verdict of guilt, nor can it mean that the accused has a right to present his case to the jury most likely to acquit. But the converse is also true. The guarantee cannot mean that the state must present its case to the jury least likely to convict or impose the death penalty, nor that the defense must present its case to the jury least likely to find him innocent or vote for life imprisonment.” (Emphasis sic.)

It follows that, in striving to achieve an impartial jury — one that will fairly judge the facts and apply the law as instructed — the principles set forth in Witherspoon, supra, justify excluding those jurors who would never impose the death penalty. Jurors subject to challenge under Witherspoon because they refuse to follow the law not only render the jury impartial for the penalty phase, but also for the guilt phase, of the trial as well. Accord Rector v. State (1983), 280 Ark. 385, 659 S.W. 2d 168.

Accordingly, we hold that to death-qualify a jury prior to the guilt phase of a bifurcated capital prosecution does not deny a capital defendant a trial by an impartial jury.

Ill

Appellant next argues that he was denied his statutory and constitutional rights to present evidence in mitigation of the death penalty by the trial court’s action in excluding, as either irrelevant or incompetent, evidence proffered for purposes of mitigation at the sentencing phase of trial.

R.C. 2929.04(B) requires the court and jury to consider as mitigating factors:

“* * * the nature and circumstances of the offense, the history, character, and background of the offender, and all of the following factors:

“(1) Whether the victim of the offense induced or facilitated it;

“(2) Whether it is unlikely that the offense would have been committed, but for the fact that the offender was under duress, coercion, or strong provocation;

“(3) Whether, at the time of committing the offense, the offender, because of a mental disease or defect, lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law;

“(4) The youth of the offender;

“(5) The offender’s lack of a significant history of prior criminal convictions and delinquency adjudications;

“(6) If the offender was a participant in the offense but not the principal offender, the degree of the offender’s participation in the offense and the degree of the offender’s participation in the acts that led to the death of the victim;

“(7) Any other factors that are relevant to the issue of whether the offender should be sentenced to death.”

R.C. 2929.04(C) further provides that a defendant shall be given great latitude in the presentation of evidence concerning mitigating factors.

These provisions are in conformity with the holding of the United States Supreme Court that “* * * the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” (Emphasis sic.) Lockett v. Ohio, supra (438 U.S.), at 604. This holding was recently reaffirmed in Eddings v. Oklahoma (1982), 455 U.S. 104, 113-114, the court stating:

“Just as a State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, os a matter of law, any relevant mitigating evidence.” (Emphasis sic.)

Thus, courts are required to consider all relevant mitigating evidence. As a footnote to the passage cited above from Lockett, the court stated that, “[n]othing in this opinion limits the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant’s character, prior record, or the circumstances of his offense.” Lockett, supra, at 604, fn. 12.

The testimony of three witnesses was excluded as irrelevant, including that of Dr. William C. Bailey, a social scientist from Cleveland State University. Bailey’s testimony, to the effect that statistics failed to show that capital punishment was a deterrent to murder, was proffered for the record.

Second, the trial court excluded as irrelevant the testimony of Lloyd McClendon, a former death row inmate. He would have testified generally as to the potential for rehabilitation of death row inmates. Third, the court refused requested funds to obtain the expert testimony of Dr. Nemunaitis, a specialist in the rehabilitation of paraplegics. Nemunaitis had never examined or evaluated appellant, but would have testified as to the specific physical problems faced by paraplegics. He would also have testified that paraplegics have a shorter life expectancy which would be further reduced under conditions of imprisonment.

We agree that this testimony was clearly irrelevant. Bailey and Mc-Clendon would have testified regarding issues directed to the philosophy behind capital punishment, generally, as opposed to anything directly related to appellant. Indeed, we believe admission of this type of evidence would divert the jury from its duty to impose a sentence within the confines of the guidelines fixed by statute and turn its attention to the wisdom of enacting it in the first place. That is a matter within the province of the General Assembly. Similarly, Nemunaitis’ testimony would have offered no insight into the character of appellant or the circumstances of this offense. Other evidence at trial established that appellant is a paraplegic as the result of a gunshot wound he received during the exchange of gunfire with Officer Johnson. Since Nemunaitis had never examined or evaluated appellant, we fail to see any relevance of his testimony to appellant. As the United States Supreme Court has stressed, “[wjhat is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime.” Zant v. Stephens, supra (77 L. Ed. 2d), at 251; Barclay v. Florida, supra (77 L. Ed. 2d), at 1149.

The court also excluded, as incompetent hearsay, the testimony of Loretta T. Jenkins, appellant’s wife, to the effect that sometime after the offense she learned that Lester Jordan had allegedly threatened harm against her to appellant in order to induce appellant to participate in the bank robbery. The testimony was offered to show that appellant had acted under duress in committing the robbery and was manipulated by Jordan. The substance of this testimony was not corroborated by any other witness, but was mentioned by appellant in his statement to the jury. The court refused to allow this testimony for the reason that Mrs. Jenkins had no personal knowledge of the threats but had heard about them after the crime. Mrs. Jenkins was permitted to testify that she perceived appellant to be somewhat protective of her prior to the offense.

It is uncontroverted that this testimony was hearsay and outside the personal knowledge of the witness and thus inadmissible under Evid. R. 802 and 602. We recognize that “ ‘the hearsay rule may not be applied mechanistically to defeat the ends of justice.’ ” Green v. Georgia (1979), 442 U.S. 95, 97, quoting Chambers v. Mississippi (1