MEDIA ADVISORY - FOR IMMEDIATE RELEASE July 5, 2006

Inmate Barton Execution

(Columbus)— Ohio Department of Rehabilitation and Correction authorities have confirmed that inmate Rocky Barton is scheduled for execution on Wednesday, July 12, 2006, at 10:00 AM. The execution will take place at the Southern Ohio Correctional Facility located in Lucasville, Ohio. The Ohio Revised Code mandates lethal injection as the manner of execution. Inmate Barton will be the fifth “volunteer” to be executed in the state of Ohio.

Barton was convicted and sentenced to death for the 2003 Aggravated Murder of Kimbirli Jo Barton, Warren County, Ohio.

NAME: Rocky Barton
RACE: Caucasian
DOB: 7/28/56
CRIME: Aggravated Murder
SENTENCE: Death
COUNTY: Warren County

For further information please contact the DRC Office of Public Information at (614) 752-1150.

Cleveland Plain Dealer

"Man who shot wife executed with new injection method," by Matt Leingang. (Associated Press Thursday, July 13, 2006)

Lucasville, Ohio -- A man who fatally shot his wife because she wanted to leave him was executed Wednesday in what prison officials say was a successful first test of lethal injection guidelines adopted after the last execution was plagued with problems. Two injection sites were established on Rocky Barton -- one as a backup in case something went wrong with a vein -- and the whole process went smoothly, prisons Director Terry Collins said.

Barton, 49, said he deserved execution and gave up his appeals that could have delayed his sentence for years. He died at 10:27 a.m. at the Southern Ohio Correctional Facility.

The state's lethal injection protocol was changed after Joseph Clark's execution in May, which was held up 90 minutes when prison staff struggled to find a useable vein and one they used collapsed. The state now requires staff to make every effort to find two injection sites and use a low-pressure saline drip to make sure the veins stay open once entryways are inserted. The execution team appeared more relaxed and less hurried after the new guidelines advised staff against feeling pressured to follow what had become an artificial, self-imposed timeframe to complete an execution quickly, Collins said. "I think that was the biggest thing," Collins said. "I noticed a different relaxation." Barton also was examined closely for any medical problems a day before his execution and again on Wednesday morning.

Previously, examinations of inmates before an execution consisted of a visual check of the inmate and a review of his medical file, according to a June report by the Ohio Department of Rehabilitation and Correction. The May execution, when Clark asked prison staff to find another way to kill him, drew criticism from death penalty opponents who said the problems illustrated why the method of capital punish ment is cruel and unconsti tutional. It came amid a growing na tional debate about lethal in jection.

Barton was convicted of aggravated murder for shooting Kimbirli Jo Barton, 44, up close with a shotgun in 2003 outside their farmhouse while his 17-year-old stepdaughter watched. Kimbirli Jo had returned to get some belongings from the home in Waynesville, about 35 miles northeast of Cincinnati.

In his final statement, Barton turned to Kimbirli Jo's son and two daughters and said: "I'm sorry for what I done, sorry for killing your momma and for what I done to you." Kimbirli Jo Barton died in the arms of her daughter, Jamie Reising, who was allowed to leave a jail in Lebanon across the state to watch the execution. Reising is being held on a drug trafficking charge.

Barton told Kimbirli Jo's son, Joseph Reynolds, not to let anger and hate toward him destroy his life, and he told his own mother, father and uncle he was sorry for bringing shame to the family. Just before the lethal drugs were administered, Barton said, "As Gary Gilmore said, Let's do it.' " Gilmore, who was convicted in Utah of shooting two people, said the same thing before he became the first person put to death after a 1976 Supreme Court ruling that the death penalty was legal. He was executed Jan. 17, 1977, by firing squad.

Following Barton's execution, Reising said she's reaching the point where she can forgive Barton, but not yet. She said she doesn't want to carry hate in her heart for the rest of her life. Barton, who did not seek clemency from Gov. Bob Taft, had asked the trial court to sentence him to death. A judge ruled last week that he was competent to give up his appeals.

Columbus Dispatch

"Man executed less than 4 years after killing wife; FIRST LETHAL INJECTION WITH NEW PROCEDURES," by Alan Johnson. (Thursday, July 13, 2006)

What Rocky Barton started when he put a shotgun to his chin after killing his wife three years ago, the state of Ohio finished yesterday. Barton, 49, was executed at the Southern Ohio Correctional Facility near Lucasville. His death by injection occurred without incident at 10:27 a.m.

In a sense, Barton died a little every day since Jan. 16, 2003, when he shot and killed Kimbirli Barton, the woman he said he loved more than anyone else and could not live without. Consumed by guilt, Barton said he deserved to die and didn’t want to "have to wait around no 10, 20 years and go through the appeals process." From crime to punishment, it was the shortest time in Ohio’s 22 executions during the past seven years. Donald and Wilma Barton, the condemned man’s parents, and two of his victim’s daughters, Tiffany and Jamie Reising, witnessed the execution from a few feet away, separated by a sheet of glass.

"I’m sorry for what I done," Barton said in his last words. "I’m sorry for killing your mama. I’m not asking you to forgive me. Not a day goes by that I’m not trying to forgive myself. "As Gary Gilmore said, ‘Let’s do it.’ "

The execution was the first using new procedures ordered by prisons Director Terry Collins after problems developed at the May 2 execution of Joseph Clark. Clark’s lethal injection was delayed more than an hour when a vein collapsed and medical technicians struggled to restore an intravenous line. Barton was examined the day before the execution, and it was found that his veins weren’t at risk for collapse. The execution team also was told to take its time in connecting the lethalinjection lines so there was no "artificial time barrier," Collins said. The only problem reported by media witnesses was a considerable amount of blood that pooled under Barton’s arm as one of the intravenous lines was inserted. Collins said it was normal.

Barton killed his estranged wife with two blasts from a .410-caliber shotgun as she attempted to retrieve her belongings from their Warren County farmhouse. He then turned the gun on himself, blowing out most of his teeth and requiring four surgeries to insert pins, wires and screws to hold his eyes in their sockets and the cadaver’s jaw to replace his shattered one.

Jamie Reising, 21, who watched Barton kill her mother, was given permission to leave the Warren County jail to witness the execution. She is serving time on a drug charge. "This is closure for our family," she said afterward. "He took the glue that was holding us together."

Her sister, Tiffany, 24, who was wearing a button with her mother’s picture on it, said she would "mourn the loss of Rocky Barton," but she was glad that "justice was served." "We’re going to try and move forward as a family. We know that’s what our mother would want us to do." Barton’s nephew, Andy Mitchell, said, "Rocky is home now. He’s in a better place."

Donald Barton issued a written statement in which he complained about the "callous and cruel" handling of his son’s case by Warren County Prosecutor Rachel A. Hutzel. He called it "assisted suicide."

Barton was the third Ohioan executed this year.

Youngstown Vindicator

"State executes man who killed wife; third person executed this year," by Jeff Ortega. (Friday, July 14, 2006)

LUCASVILLE, Ohio — Convicted killer Rocky Barton went to his death, expressing sorrow for taking the life of his wife, Kimbirli Jo, in 2003. Looking at his victim's family, Barton's voice cracked. "I'm sorry for what I done," Barton, 49, said at the Southern Ohio Correctional Facility near here, just before he was executed Wednesday by lethal injection. "I'm not asking you to forgive me," Barton said, looking at two of Kimbirli's daughters and her son, who witnessed the execution, "because it was hard enough to forgive myself." Looking at his mother and father, Wilma and Donald Barton, and his uncle, Larry Barton, Rocky Barton said, "I love you. I love you all." Then Barton said, "Let's do it." Clad in a white T-shirt and blue pants, he looked up and became still.

Prison officials injected three drugs into Barton — Sodium Pentothal, which puts the condemned to sleep; Pancuronium Bromide, which stops the breathing; and Potassium Chloride, which stops the heart. Warden Edwin C. Voorhies Jr. pronounced Barton dead at 10:27 a.m. Barton became the 22nd person executed in Ohio since the state resumed the death penalty in 1999 and the third person executed by the state this year.

Barton was convicted in Warren County Common Pleas Court of killing Kimbirli Jo in 2003, reportedly after she informed him that she was leaving him. Barton shot and killed his wife with a shotgun at close range, authorities said. He was convicted of one count of aggravated murder and one count of being a convicted felon in possession of a weapon, and was sentenced to death.

"This is closure for our family," said Jamie Reising, 21, Kimbirli's daughter who witnessed the execution. "I've started to forgive him." In a statement distributed to reporters, Barton's father criticized the Warren County prosecutor, saying the prosecutor "has spent, approaching three years, beating her chest and directing her comments on Rocky to the media. Her campaign literature boasts of his conviction." "He was convicted by a jury of his peers," Rachel Hutzel, Warren County prosecutor, said of Barton.

Barton has said he deserved to die for killing his wife. He also had waived legal appeals. Ortega was a media pool witness to Barton's execution.

Reuters News

"Ohio executes convicted murderer." (Wed Jul 12, 2006 11:49 AM ET)

COLUMBUS, Ohio (Reuters) - The state of Ohio on Wednesday executed a man convicted of killing his wife in 2003 and then turning the same gun on himself in a failed suicide. Rocky Barton, 49, was pronounced dead at 10:27 a.m. EDT 1427 GMT following an injection of lethal chemicals, said officials at the Southern Ohio Correctional Facility in Lucasville.

It was the first execution in Ohio since early May when the veins of a condemned man collapsed and he roused himself in the middle of the process telling his executioners it wasn't working. Prison officials had checked Barton's veins in advance to make sure there would be no repeat, and have instituted a new procedure in which a second injection site is chosen in advance in case there is trouble with the first.

Barton had waived appeals and said in a number of interviews that he deserved to die. The National Coalition to Abolish the Death Penalty said he suffered from depression and schizophrenia, and was not capable of making decisions about his right to appeal.

In a final statement Barton told his wife's children "I'm sorry for killing your mama. I am not asking you to forgive me, not a day goes by that I am not trying to forgive myself. Don't let your anger and hate for me destroy your lives." He also apologized to his parents for the "embarrassment and shame" brought on the family, adding "as Gary Gilmore said, 'Let's do it'." Gilmore was the first person executed after the United States reinstated capital punishment in 1976.

Barton was sentenced to death for killing his wife Kimbirli with two shotgun blasts in front of her daughter in January 2003. He had earlier served a prison sentence for attempting to kill a former wife. He placed the shotgun under his chin after the slaying and fired but survived the wounds.

Barton was given a meal of his request Tuesday evening -- pork chops, potatoes, biscuits with gravy, fried eggs over easy, cherry pie and a caffeine-free soft drink.

His was the 1,031st U.S. execution since capital punishment was restored.

Cincinnati Post

"New execution process used on Barton," by Matt Leingang. (Associated Press Thursday, July 13, 2006)

LUCASVILLE - The state's new lethal injection process takes more time than the old one, but in its first test, it didn't produce the delay that led an inmate to ask prison staff to kill him another way. Wednesday's execution of Rocky Barton, 49, was the first using new guidelines adopted after an execution in which prison staff had such extensive problems delivering the fatal drugs that the inmate asked them to find another way to kill him.

Barton said he deserved execution and gave up appeals that could have delayed his sentence for years. He died at 10:27 a.m. at the Southern Ohio Correctional Facility here, about a half-hour after being taken to the death house.

The state's lethal injection method was changed after Joseph Clark's execution in May, which was held up 90 minutes when staff struggled to find a useable vein and one they used collapsed. The state now requires staff to make every effort to find two injection sites and use a low-pressure saline drip to make sure the veins stay open once entryways are inserted. Barton was examined closely for any medical problems a day before his execution and again Wednesday morning. Before Clark's execution, the process usually took about 10-15 minutes.

Barton was convicted of aggravated murder for shooting Kimbirli Jo Barton, 44, with a shotgun in 2003 outside their farmhouse in Waynesville, about 35 miles northeast of Cincinnati. She died in the arms of her daughter, Jamie Reising, who was allowed to leave a jail in Lebanon to watch the execution. Reising is being held on a drug trafficking charge.

In his final statement, Barton apologized to his own family and turned to Kimbirli Jo Barton's son and two daughters and said: "I'm sorry for what I done, sorry for killing your momma and for what I done to you."

Cincinnati Enquirer

"Execution proceeds smoothly; 'I'm sorry,' Barton tells his victim's three children," by Jon Craig and Allison D'Aurora. (Thursday, July 13, 2006)

LUCASVILLE - Rocky Barton's execution took 14 minutes Wednesday, a fittingly swift end for the man whose death penalty case is the quickest in modern Ohio history. The state adopted new procedures for the Warren County man's lethal injection Tuesday to avoid a replay of the 90-minute ordeal of May 2. That's when correction workers couldn't find a usable vein to execute Lucas County's Joseph Clark, prompting Clark to ask them to find another way to kill him.

Barton, 49, who shot his wife Kimbirli Jo on the front lawn of their Waynesville farmhouse in 2003, waived his appeals - prompting his father to denounce the execution as "assisted suicide." "I can honestly say I am neither an opponent or proponent of the death penalty. I do feel, however, that Rocky's execution is one of assisted suicide. ... The Warren County prosecutor will probably be in the limelight on many occasions, now and in the future, boastfully and callously singing her own praises for participating in one." Warren County Prosecutor Rachel A. Hutzel did not attend the execution, but sent three advocates from her office to assist the victim's family. "I believe justice was served today," she said.

The execution began at 10 a.m. Minutes before his execution, Barton craned his head from the gurney on which he was strapped down, looked toward Kimbirli Jo's son and two daughters and said: "I'm sorry for what I've done, sorry for killing your momma and for what I done to you."

Barton told Kimbirli Jo's 26-year-old son, Joseph Reynolds, not to let anger and hate toward him destroy his life. And he told his own mother, father and uncle he was sorry for bringing shame to the family, according to media witnesses. Kimbirli Jo died in the arms of her daughter, Jamie Reising, who was allowed to leave Warren County Jail to watch the execution. Reising is being held on a drug-trafficking charge. "Seeing him go, now I know for sure that he's gone," said Reising, 21, of Lebanon. "It's kind of putting a dot at the end of the sentence."

In an unusual move, Hutzel joined Reising's attorney in seeking a furlough for Reising to witness Barton's execution. Common Pleas Court Judge James Heath issued an order late Tuesday allowing the temporary release. The furlough allowed Reising to leave county jail early Wednesday with Cheryl Taylor, an investigator with Hutzel's staff, who has police training and also serves as a victims' advocate. She was to return to Warren County jail later Wednesday, according to the court order.

During court and parole board hearings, Hutzel portrayed Barton as a jealous, controlling husband, whose violence toward women escalated over the years. Barton served eight years in a Kentucky prison for attempting to murder his second wife in 1991. She was beaten with a shotgun, stabbed three times, cut across the throat, tied up and left for dead.

In a June 30 death row interview with The Enquirer, Barton refused to discuss the brutal assault on Brenda Johnson near Lexington, Ky. Terry Collins, director of the state Department of Rehabilitation and Correction, met with Barton about 9:15 a.m. to check on him. Collins said Wednesday's execution went smoothly. "I didn't see anything abnormal about this at all,'' he said.

Akron Beacon Journal

"Milestones in death penalty case of Rocky Barton." (Associated Press Posted on Wed, Jul. 05, 2006)

Milestones in the sentencing and scheduled execution of Rocky Barton:

THE CRIME: Kimbirli Jo Barton, 44, is shot to death outside her home near Waynesville on Jan. 16, 2003.

THE CONVICTION: Her husband, Rocky Barton, 49, is convicted of aggravated murder Sept. 29, 2003, and urges jurors to recommend the death penalty. In one automatic appeal, the Ohio Supreme Court upholds Barton's sentence.

COMPETENCY HEARING: After a hearing ordered by the Ohio Supreme Court, Warren County Common Pleas Judge Neal Bronson rules that Barton is competent to waive his right to further appeals; Bronson declines to order a psychiatric evaluation.

THE EXECUTION: Barton is to be executed by injection July 12.

Ohio Adult Parole Authority (Clemency)

IN RE: ROCKY BARTON, MANCI #A457-297
STATE OF OHIO ADULT PAROLE AUTHORITY
COLUMBUS, OHIO
Date of Meeting: June 19, 2006

Minutes of the SPECIAL MEETING of the Adult Parole Authority held at 1030 Alum Creek Drive, Columbus, Ohio 43205 on the above date.

SUBJECT: Death Sentence Clemency
CRIME, CONVICTION: Aggravated Murder with Gun Specification and Aggravating Circumstance Specification consecutive with Having Weapon While under Disability
DATE, PLACE OF CRIME: January 16, 2003; Waynesville, Ohio
COUNTY Warren
CASE NUMBER: #03CR20526
VICTIM: Kimbirli Jo Barton

INDICTMENT: 2/10/2003: Counts 1: Aggravated Murder with Gun Specification and Aggravating Circumstance Specification. Count 2: Having Weapon While Under Disability

PLEA / VERDICT: 9/23/2003: Pled Guilty to Count 2, Having Weapon While Under Eligibility.

9/30/2003: Found guilty by Jury as charged in Count 1, Aggravated Murder with Gun Specification and Aggravating Circumstance Specification.

SENTENCE: 10/10/2003: Count 1: Death consecutive with 3 years for Gun Specification and consecutive with Count 2: 5 years.

ADMITTED TO INSTITUTION: October 10, 2003
TIME SERVED: 32 months prison
AGE AT ADMISSION: 47 years old (D.O.B. - 7/28/56)
CURRENT AGE: 49 years old
JAIL TIME CREDIT: 268 days (unverified)
PRESIDING JUDGE: Honorable Neal B. Bronson
PROSECUTING ATTORNEY: Rachel A. Hutzel.

FOREWORD:
Clemency in the case of Rocky Barton #A457-297 was initiated by The Honorable Bob Taft, Governor of the State of Ohio, and the Ohio Parole Board, pursuant to Sections 2967.03 and 2967.07 of the Ohio Revised Code and the Parole Board Policy #105-PBD- 05.

On May 19, 2006, Rocky Barton declined an opportunity to be interviewed by a representative of the Parole Board at Mansfield Correctional Institution. Mr. Barton has since submitted two (2) letters to the Parole Board in which he indicates that he does not want clemency nor did he want his attorney, Christopher Pagan to represent him at the Clemency Hearing. The Parole Board subsequently met on June 19, 2006 to hear the case of Rocky Barton. The inmate’s counsel, Christopher J. Pagan and co-counsel Chris McEvilley were not present at this hearing.

Arguments in opposition to clemency were presented by Warren County Prosecutor Rachel A. Hutzel and the victim’s family including Sheri Hathway (sister), Tiffany Reising (daughter) and Julie Vickers (daughter). Also present at the hearing were Warren County Assistant Prosecutor Andrew Sievers, Warren County Prosecutors Office Law Clerk Katie Stenman, Senior Deputy Attorney General Heather Gosselin, Deputy Attorney General Matthew Hellman, Assistant Attorney General Anna Franceschelli and Assistant Attorney General Thomas Madden. At the conclusion of all testimony, the Board adjourned to deliberate and discuss the case.

The Board gave careful review, consideration and discussion to all testimony, and to all available facts pertaining to the crime including all supplemental materials submitted by the Warren County Prosecutor’s Office. The Board deliberated extensively upon the propriety of clemency in the form of commutation and in the form of reprieve. With seven (7) members participating, the Board voted unanimously to provide an UNFAVORABLE recommendation to the Honorable Bob Taft, Governor of the State of Ohio.

DETAILS OF THE OFFENSE:
The following details are taken from the Ohio Supreme Court Decision dated April 5, 2006: Kimbirli and Rocky Barton had known each other for many years and married on June 23, 2001, during his incarceration for attempted murder in Kentucky. Following his release from prison in 2002, he lived in a Warren County farmhouse on Bellbrook Road owned by his father, Donald, with Kim and Jamie, her 17-year-old daughter from a prior marriage.

Barton and Kimbirli generally had an amicable relationship and planned to renew their wedding vows in May or June 2003. Tiffany, Kim’s 22-year-old daughter from a prior marriage, described Kim’s relationship with Barton as “sometimes good, sometimes bad, the highs were very high, the lows were really low.” Julie, Kim’s 27-year-old daughter from a prior relationship, also described Kim and Barton’s relationship as “up and down. Really good or really bad.”

Tiffany described Barton as “very moody, possessive, controlling, and just very manipulative.” Julie also thought Barton could be, at times, “very jealous, very controlling, very manipulative, always accusing Kim of things, causing fights.” Jamie agreed that Barton acted “controlling and possessive,” although she felt close to him and described him as the only father figure that she could depend upon.

On January 16, 2003, the morning of the murder, Barton awakened Jamie at 7:20 a.m. and told her to get her things together: “You’re going to Tiff’s house. The wedding’s off. Your mom’s a psycho bitch.” Barton then drove Jamie to Tiffany’s home and told Tiffany that her mother “had gone off the deep end and that she was crazy and she was leaving him.” Jamie described Barton as acting “really strange” and “aggravated.” Around 7:30 that morning, Kim arrived at Lasik Plus, where she worked as a technical assistant. Karla Reiber and Molly Wolfer, her co-workers, recalled that Barton had called more than six times that morning. He insisted on being placed on hold while Kim tended to patients, often for as long as 10 or 15 minutes, until she became available. Reiber described Barton as “very angry,” and Wolfer described him as “very agitated, very angry,” and “very irate.”

After speaking with Barton on the phone around 10:30 a.m., Kim related to co-workers that she had heard shots fired. She told others that she had heard a “bang” over the phone. Police later recovered a spent shotgun shell in a bedroom at Barton’s home, which supported her suspicion that Barton had fired a shotgun while talking with her on the telephone.

Wolfer described Kim as crying, “very frantic,” and “very scared” when she left work around 10:30 a.m. Before leaving, Kim called Tiffany and asked whether she and Jamie could live with her temporarily. Tiffany described her mother as hysterical, frantic, and scared and agreed to have her mother and sister move in with her.

Barton also talked on the telephone with several others that day. Around 7:45 a.m., he left a message with his employer, saying that he would not be at work that day because of a family emergency. Around 10:45 a.m., he spoke with his supervisor, Carol Williamson, and informed her that Kim had been “acting strange” due to her medication and that Kim intended to leave him.

Barton also called Randy Hacker, Julie’s former husband, and complained about Kim and Julie. Barton seemed “edgy” and “irritated,” according to Hacker, and left Hacker a message, saying, “Before I go on to my demise, I should call you.” In a later call, Barton informed Hacker that Kim intended to move out and that he would be going back to jail. Barton also spoke on the telephone several times that day with Glen Barker, an insurance agent. Barker has a background in counseling, and he offered to serve as a mediator between Barton and Kim. Barton visited Barker at his office around 9:30 a.m. and seemed calm and quiet, but Barton was anxious to speak with his father, who was in Florida. Barker called Kim at work on Barton’s behalf, but Kim would not discuss the matter. Barker testified that Barton adamantly refused to allow Kim to collect her possessions from their house.

Barton’s father, Donald, talked with Barton and Kim from Florida that morning in an effort to defuse the situation. Donald told Barton not to worry because anything that Kim might take from the farmhouse could be replaced, and he informed Kim that she could keep his car, which she currently drove. Larry Barton, Barton’s uncle, also spoke with Barton several times by telephone on the day of the murder, and he offered assistance. Barton told Larry that he thought the police would be called, and he vowed that “he wouldn’t go back to jail.”

Around 11:00 a.m., Kim arrived at Tiffany’s home. Barton called 25 or 30 times; Jamie and Tiffany overheard Barton cursing and yelling on the telephone and described his voice as “scary.” Jamie overheard him tell Kim, “I’m going to kill you, you f* * *ing bitch,” causing Kim to become “really nervous and scared” while “crying and shaking.” Around 3:00 p.m., Kim and Jamie made plans to return to their Bellbrook Road home to retrieve some clothing and personal effects. When Larry arrived at Tiffany’s house, however, he strongly advised Kim not to go home. She agreed to stay away but gave Larry a list of things that she and Jamie wanted him to retrieve.

Immediately after Larry left to retrieve the items, Barton called again and persuaded Kim and Jamie to come to Bellbrook Road to obtain their things. When Larry arrived at Bellbrook Road, Barton had locked the gate, something he rarely did. Larry asked Barton to open the gate, but Barton absolutely refused to allow him onto the property. He kept saying, “I’ve lost it.” Barton stood near his own truck behind the locked gate while Larry’s truck remained parked on the road.

When Kim and Jamie arrived, however, Barton unlocked the gate and instructed Larry to lock it after they entered because he did not want “the police coming in.” Then Barton got in his truck, backed up “real fast” into the garage, and closed the garage door. Larry and Kim separately drove onto the property. As Kim got out of the car and turned to shut her door, Barton came out the side door of the garage with a shotgun. As he ran toward Kim, he yelled “You aren’t going anywhere, you f* * *ing bitch,” and he then fired the shotgun while four to six feet from her and struck her in her side. Feeling the impact, Kim fell, but moved toward her daughter, yelling, “Oh, Jamie, Oh Jamie.” As Jamie reached for her mother, Barton shot her in the back from a distance of one to two feet. Kim fell to the ground, while Jamie screamed, “Mom, can you hear me? Can you hear me? Please stay with me, mommy, please stay with me.” Barton then aimed the gun at Jamie’s head and at Larry. Barton next walked to the side of Larry’s truck and said, “I told you I was insane,” dropped to his knees, and shot himself in the face. Barton then walked into the house.

Jamie and Larry called 911. Emergency Medical Services (“EMS”) personnel arrived and upon examining Kim found her ashen in color, not breathing, and with fixed and dilated pupils and no pulse. Following an autopsy, Dr. Karen Powell, a forensic pathologist, determined that Kim had died from “shotgun wounds of the left shoulder and right back regions” that caused injuries to her lungs, heart, and liver.

In response to the emergency call, police arrived and located Barton, alert and cooperative, inside the house. An EMS technician described him as suffering from a gunshot wound with non-life-threatening injuries to his chin, mouth, and nose. Upon investigation, police confiscated the murder weapon, a .410 pump-style shotgun, and four spent shotgun shells. Police also recovered six live shotgun shells from Barton at the hospital.

CRIMINAL HISTORY:
Juvenile Offenses
None Known
Adult Offenses

10/15/1986 Driving Under the Influence Fairborn, Ohio11/30/1988: (Age 30) Guilty
11/12/1988 Driving Under the Influence Lebanon, Ohio 9/14/1989: (Age 32) Guilty
9/13/1989 Driving Under the Influence Warren County, Ohio 1/11/1990: (Age 33) Guilty

1/4/1991 1.Attempted Murder 2.Theft by Unlawful Taking Madison County, Kentucky 4/9/1991: 15 years concurrent w/ 2 years; (Age 34) 6/30/1999: paroled; Case #91-CR-021 2/9/2001: returned to Kentucky as a parole violator due to conviction for Domestic Violence; 2/1/2002: discharged.

Details: On 1/4/1991, the subject was with his ex-wife Brenda Johnson at her home in Madison County, Kentucky. The subject struck her over the head with a shotgun and continued to beat her until she passed out. She woke up as the subject tied her feet with electrical tape and her hands with an electrical cord. The subject told her he had planned to kill her for some time. He went through her purse and ransacked the house. He forced the victim to take several pills and to lick the blood off of his hands and shoes. The subject then stabbed the victim three times in the back and cut her throat. She lost consciousness. The subject then stole the victim’s car, leaving her for dead. When the victim awoke, she was able to make it to a neighbor’s home for help. On 2/7/1991, the subject was arrested in San Diego, California and was subsequently extradited to Kentucky on 2/14/1991 as a result of the above offense.

9/18/2000 Domestic Violence Waynesville, Ohio 12/5/2000: 30 days (Age 44) Jail (with credit for time served), 2 years probation, $200 fine; 2/9/2001: probation terminated due to Parole violation.
Details: On 9/18/2000, Jamie Barton of Waynesville, Ohio reported to police that she is in the process of divorcing the subject, Rocky Barton. She reported that the subject had just tried to enter her house, had caused damage to the doorframe and that she had been receiving numerous phone calls from the subject.

1/16/2003 Aggravated Murder, Having Weapon Under DisabilityWaynesville, Ohio - INSTANT OFFENSE (Age 46) Case #03CR20526

Dismissed, Nolled, and Unknown Dispositions:
On 5/12/1975, the subject was arrested for Burglary and Assault in Polk County, Oregon. No information regarding this arrest is available.
On 11/14/1985, the subject was charged with Felonious Assault by the Lebanon, Ohio Police Department in Case #85CRA47809. This case was dismissed.
On 6/10/1988, the subject was arrested for Possession of Cocaine by the New Jersey Race Track Unit; this charge was dismissed.
On 8/5/1988, the subject was charged with Possession of Marijuana and Cocaine by the New Jersey Race Track Unit. The charge was remanded to a lower court, with the disposition being unknown.
On 9/18/2000, the subject was charged with Tele-communications Harassment and Criminal Damage; on 12/5/2000, the charge was dismissed.
On 9/5/2002, the subject was arrested for Disrupting Public Service and Domestic Violence. On 9/5/2002, police spoke with Kimbirli Barton who advised that her husband, Rocky Barton, had grabbed her by the shoulders, pushed her against a kitchen wall and then down into a chair, and then onto the living room couch. She advised that tried to telephone her daughter, but the subject grabbed the phone and pulled the cord out from the wall. The subject told the victim that if she left him, it would be a murder-suicide situation. The victim stated that since the subject had left the house, it was over and she did not want to file charges. She refused to provide a written statement. On 9/17/2002, the charges were dismissed.

Institutional and/or Supervision Adjustment:
On 4/9/1991, the subject was sentenced to 15 years prison in the State of Kentucky for Attempted Murder and Theft by Unlawful Taking. He was paroled in June of 1999 and his supervision was transferred to Ohio. On 10/5/2000, the State of Kentucky released the subject from active supervision, but this was rescinded when Kentucky was notified that he had been arrested for domestic violence. Upon conviction, the subject was ordered to two (2) years of reporting probation, and he was returned to Kentucky for parole violation proceedings. He remained incarcerated until 2/1/2002, when the subject was discharged due to reaching the minimum expiration of his sentence.

On 10/10/2003, the subject was admitted to the Department of Rehabilitation & Correction to serve his sentence in the Instant Offense. Mr. Barton is currently housed at the Mansfield Correctional Institution. Institution records reveal that his adjustment to incarceration has been without incident. His work assignment is that of a porter.

Mr. Barton’s Mental Health Status & Competency:
Notwithstanding Mr. Barton’s repeated requests that he no longer be represented by Attorney Christopher J. Pagan or any other counsel, Attorney Pagan filed a Motion for an Evaluation to Determine Competency to Waive Further Direct and Collateral Challenges to His Death Sentence. The Motion raises two (2) important issues: 1) whether the sentencing court should have directly inquired of Mr. Barton, on the record, to ascertain if Mr. Barton knowingly & intelligently understood the potential consequences of his decision to not offer any mitigation evidence at the penalty phase of the trial, eg. an Ashworth waiver colloquy; and 2) whether there are sufficient indicia of incompetence to require a Berry hearing to determine Mr. Barton’s competence to waive his rights to future direct appeals and collateral proceedings. As of June 22, 2006 the Supreme Court of Ohio remanded the case to the trial court for the limited purpose of holding “an evidentiary hearing to determine whether the defendant’s competency to waive further appeals should be psychiatrically evaluated. The court shall further determine whether such decision was voluntarily, knowingly, and intelligently made.”

Mr. Barton is currently housed in the mental health unit at the Mansfield Correctional Institution [ManCI] with a diagnosis of Major Depression with psychotic features and a self-reported history of delusional thinking, auditory hallucinations, impaired insight and his attempted suicide during commission of the instant offense. In July 2005 he was admitted to the Oakwood Correctional Facility for more extensive evaluation, treated with medication and discharged after one (1) week. Prior to these reported mental problems beginning in May 2005 Mr. Barton has no documented history of mental illness other than a five (5) hour pre-trial session with a neuropsychologist [Dr. Smalldon] who noted no indications of mental disturbance. Moreover, there are no indications in the trial record to indicate that Mr. Barton suffered from any mental illness. As of this date Mr. Barton remains cooperative with the mental health treatment staff and compliant with his medications.

CONCLUSION:
The Board finds that Mr. Barton is lawfully convicted of the Aggravated Murder of his 4th wife, Kimbirli Barton, and lawfully convicted of the specification for his prior conviction of the Attempted Murder of his 2nd wife. He also was lawfully convicted of Domestic Violence with death threats against his 3rd wife. Without question, Mr. Barton is a repeat violent offender of serious magnitude.

The Board finds that Mr. Barton’s diagnosis of Major Depression with psychotic features does not rise to the level of a serious mental disease or defect to warrant significant or sufficient mitigation against imposition of the death penalty. The Board further finds that a recommendation for a Reprieve or for Stay of Execution is not warranted due to any credible evidence of Mr. Barton’s incompetence. Credible and convincing evidence was presented by Warren County Prosecutor Rachel Hutzel to support a finding that Mr. Barton appeared fully competent to voluntarily, intelligently and knowingly waive his right to present mitigation evidence at trial, and that he appears fully competent to waive his right to counsel, and to waive his right to further appeals and collateral proceedings. To this date Mr. Barton has repeatedly expressed his intentions in this regard by clear, concise, precise, logical, well stated and well written language. The Board notes that Mr. Barton’s post conviction diagnosis of Major Depression with psychotic features and his resulting mental health treatment for the past year is additional mitigation evidence that was not known by the jury or by the sentencing judge. However, the overwhelming weight of the aggravating circumstance in this case remains more than sufficient to outweigh the mitigating factors beyond a reasonable doubt. The Board fully concurs with Mr. Barton’s accurate self-assessment & unsworn statement to the jury during the mitigation phase of the trial, which states in pertinent part: “ And for the ruthless, cold-blooded act that I committed, if I was sitting over there, I’d hold out for the death penalty”. … “Punishment would be to wake up every day and have a date with death. That’s the only punishment for this crime.”

RECOMMENDATION:
The Board gave careful review, consideration and discussion to all testimony, and to all available facts pertaining to the crime including all supplemental materials submitted by the Warren County Prosecutor’s Office and Mr. Barton’s letter to the Board. The Board deliberated extensively upon the propriety of clemency in the form of commutation and in the form of reprieve. With seven (7) members participating, the Board voted unanimously to provide an UNFAVORABLE recommendation to the Honorable Bob Taft, Governor of the State of Ohio.

ProDeathPenalty.Com

On 1/16/03, Rocky Lee Barton murdered his fourth wife, 43-year-old Kimbirli Jo Barton, at their home in Waynesville. Kimbirli and Barton had gotten in a domestic dispute that morning and she was returning home to gather her belongings in order to move out, when Barton ambushed her. Barton's uncle and Kim's 17-year-old daughter witnessed the shooting. Barton called and threatened his wife several times the day of the killing before persuading her to come to the house to get her belongings. He had directed another relative to lock the gate at the driveway's end after she arrived. Barton admitted that he had hidden a shotgun in the garage.

When Kimbirli arrived, he appeared and shot Kimbirli once in the shoulder and then again in the back. "He had the gun in his hand and he was just running toward me and my mom," said Jamie Reising, victim's daughter. "She just put her hands up and was running towards me screaming 'Oh Jamie, oh Jamie'," she said. After being shot, Kim crawled back towards the girl. The second time she was shot, Jamie was holding her mother in her arms. "I was trying to hold her up and then she fell to the ground...'please stay with me, please stay with me'," Jamie recounted. Barton then shot himself with an upward blast to the chin, leaving just a scar below his ear.

Barton has a history of arrests for burglary, assault, drug and DUI charges and violence against women. He beat one of his ex-wives with a shotgun, stabbed her three times, cut her throat and left her for dead, but she survived. Kimbirli had known Barton for many years, but the couple had just married two years earlier while Barton was in prison for the attempted murder of his ex-wife in Kentucky.

At trial, Barton admitted to the murder and told the jury that he deserved to die. At his trial, Barton urged the jury to recommend death rather than life in prison. "My attorneys advised me to beg for my life," Barton said then. "I can't do that. "I strongly believe in the death penalty. And for the ruthless, cold-blooded act that I committed, if I was sitting over there, I'd hold out for the death penalty." He has requested to drop his appeals and be executed. "This court sentenced me to death. All I'm asking is to go ahead and carry out that sentence," Rocky Barton said during a court hearing. "I committed a senseless crime," he said. "I took the life of a beautiful person. There's not a day goes by I don't think about what I done."

Barton said he faked it when he told prison doctors last year that he was seeing things and hearing voices. Barton said he lied to prison doctors because he didn't like the prospect of being moved farther from his family when he heard last year that death row inmates might be moved to Youngstown. The concocted tale was supposed to increase his chances of being transferred to a psychological unit at a prison in Warren County to keep his family visiting. The transfer didn't come through. But, prison doctors diagnosed him with severe depression and a schizoid affective disorder, and put him on medication.

Two of Kimbirli's daughters and her sister testified before the state Parole Board that Barton is manipulating the court system. "We hope they just kill him and let it be done,'' Julie Vickers, 29, of Trenton, the oldest of three daughters. "As long as he's alive, we are constantly reminded of him. We have no closure," Vickers said. Warren County prosecutor Rachel Hutzel called it a "planned and calculated crime," and said Barton had a long history of extreme violence and intent to harm each of his wives. "This is a dangerous, dangerous man who has an extreme, deep-seated hatred of women," Hutzel said. "He planned for a long time that he was going to kill her."

The judge ruled that Rocky Barton is competent to refuse further appeals that would delay his execution. "I just hope they go ahead and let him do what he wants to do," said Larry Barton, an uncle from Clearcreek Township who witnessed the shooting and can't forget it. "I know both sides of the family are taking it tough. There are no hard feelings in the family because we're all together on this," he said. "Tiffany Reising, Kim Barton's daughter, said, "We're really saddened by the whole ordeal. Nothing they do to him is going to bring her back, but I think justice will be served. She was our mother. She's not just a victim, or that woman in Waynesville. She was our mother and we miss her dearly. She never missed a soccer game, and she would scream her heart out when I had the ball,'' recalled Reising, now 24. "It's funny. When I play today, I can still hear her (shout) 'Go T-bird, go!'" Kimbirli's older sister, Sheri Hathaway, of Lebanon, said the murder has had a lasting impact on the youngest daughter, Jamie, now 21. "She hasn't been able to get that scene out of her head," Tiffany Reising said. "It has truly ruined our lives.''

Ohioans to Stop Executions

Wikipedia

List of individuals executed in Ohio

A total of 22 individuals convicted of murder have been executed by the U.S. state of Ohio since 1976. All were executed by lethal injection.

1 Wilford Berry, Jr. (19 February 1999) Charles Mitroff

2 Jay D. Scott (14 June 2001) Vinnie M. Price

3 John William Byrd, Jr. (19 February 2002) Monte Tewksbury

4 Alton Coleman (26 April 2002) Tonnie Storey and Marlene Walters

5 Robert Anthony Buell (24 September 2002) Krista Lea Harrison

6 Richard Edwin Fox (February 12, 2003) Leslie Renae Keckler

7 David M. Brewer (April 29, 2003) Sherry Byrne

8 Ernest Martin (June 18, 2003) Robert Robinson

9 Lewis Williams, Jr. (14 January 2004) Leoma Chmielewski

10 John Glenn Roe (3 February 2004) Donette Crawford

11 William Dean Wickline (30 March 2004) Peggy and Christopher Lerch

12 William G. Zuern, Jr. (8 June 2004) Phillip Pence

13 Stephen Allan Vrabel (14 July 2004) Susan Clemente and Lisa Clemente

14 Scott Andrew Mink (July 20, 2004) William Mink and Sheila Mink

15 Adremy Dennis (October 13, 2004) Kurt Kyle

16 William Smith (March 8, 2005) Mary Bradford

17 Herman Dale Ashworth (27 September 2005) Daniel L. Baker

18 William James Williams, Jr. (25 October 2005) William Dent, Alfonda R. Madison, Sr., Eric Howard and Theodore Wynn Jr.

19 John R. Hicks (29 November 2005) Brandy Green

20 Glenn L. Benner II (7 February 2006) Trina Bowser, Cynthia Sedgwick

21 Joseph L. Clark (4 May 2006) David Manning

National Coalition to Abolish the Death Penalty

Rocky Barton, OH - July 12

Do Not Execute Rocky Barton!

Rocky Barton is scheduled to be executed for the killing of his wife Kim Barton in Warren County. Early on the morning of January 16, 2003 Rocky woke his stepdaughter, stating that his wife was crazy and that both Kim and her daughter needed to leave. Kim and her daughter left to stay with family until the situation could be diffused. Later that day Kim, her daughter and Mr. Barton’s uncle went back to the property to pick up the family’s belongings.

This is when Barton approached the group with a loaded shotgun. Barton shot Kim in the face and as she struggled to get away he shot her again in the back, leaving her to die in her daughter’s arms. Immediately after the shooting Barton, who had just gotten out of jail after serving nine months for attempted murder, was heard saying that he wasn’t going back to jail. Barton then turned the shotgun on himself pointing the barrel at his face and pulling the trigger. Barton received only minor injuries and was treated at a local hospital.

Barton later confessed to this crime and was convicted of capital murder. During the punishment phase of the trial, Barton waived his right to present mitigating evidence, offering only a statement to the court. Barton told jurors that “if given the opportunity he would vote to impose the death penalty” and that the death penalty was “the only punishment for this crime.”

After the punishment phase of his trial Barton filed an appeal based on the grounds that the court should have investigated to see if he was competent to stand trial. When a defendant waives his right to present mitigating evidence, the court must proceed with such a competency investigation. In Barton’s case however, the court saw his statement as presenting mitigating evidence and therefore denied his appeal.

Judge C.J Moyer dissented. He believed that Barton should have had an investigation into his competence to stand trial based on two grounds. The first was that the precedents the majority cited as a basis to deny Barton’s appeal actually supported his appeal. There were three precedents the court used in which defendants had waived their right to mitigate. In the first case the defendant actually called one witness and gave a statement to the court. The witness that testified in that case constituted mitigating evidence, therefore the defendant did not entirely waive his right to present mitigating evidence. In the other two cases the defendants waived their right to present mitigation and gave a statement to the court. What the majority opinion neglected to mention was that in both of these cases a competency investigation was held prior to the trial. The defendant’s mental healths were already in question, regardless of waived mitigation, so a pre-trial investigation was held. Judge Moyer also wrote that Barton’s plea for the jury to sentence him to death warranted an investigation into his competency in and of itself, with or without Barton’s waiving his right to present mitigation. Moyer states, “A trial court must be cognizant of actions on part of the defendant that would call into question the defendant’s competency.” Moyer added that in view of Barton’s statement, “It is hard to imagine a more compelling indicia of incompetence.”

That was the first and only appeal that Barton filed, making him a “volunteer” in his death sentence. A “volunteer” is someone who does not fight their death sentence but instead chooses to die by the hands of the state. There are several reasons that a person may choose to be a volunteer; either the person is remorseful for their crimes and cannot live with what they did, the person is tired of being held in the horrid conditions of death row, or the person’s mental health is deteriorated by their being held in solitary confinement, often for many years. The last group composes a majority of volunteers.

Rocky Barton falls in that majority. His mental health was already unstable; in May of 2005 Barton was diagnosed with schizophrenia and severe depression by a jailhouse psychiatrist. Twenty three hours a day of solitary confinement in a cell no bigger than eight feet by nine feet would drive the sanest man mad, forcing them to escape any way that they could, even if that escape was through death.

Based on statements made on the day of the murder by Barton that he did not want to go back to jail, his statement in the punishment phase of his trial, and his refusal to file additional appeals, it is evident that Barton wants to die. Barton deserves the right to a fair trial, one in which his mental competency is taken into account. He cannot handle the pressure of incarceration on death row and is looking for the only way out of his cell, death. Do not let the state of Ohio participate in an assisted suicide.

Please write to Gov. Bob Taft on behalf of Rocky Barton!

Akron Beacon Journal

"Rocky Barton to be executed Wednesday for murdering his wife," by Terry Kinney. (Associated Press Posted on Sat, Jul. 08, 2006)

LEBANON, Ohio - Rocky Barton beat one of his ex-wives with a shotgun, stabbed her three times, cut her throat and left her for dead. She survived. Kimbirli Jo Barton - Rocky Barton's fourth wife - wasn't so lucky. He killed her with a point-blank blast from a .410-gauge shotgun. For that, he is scheduled to be executed by lethal injection on Wednesday.

"Without question, Mr. Barton is a repeat violent offender of serious magnitude," the Ohio Parole Board concluded in recommending against clemency. Barton himself has said repeatedly he deserves to die and has rejected legal appeals that would have delayed his execution.

The 49-year-old has a history of arrests on burglary, assault, drug, drunken driving and domestic violence charges. He served eight years of a 15-year sentence in Kentucky for the attempted murder of his second wife. He was paroled but was returned to prison for another year after his third wife - while trying to divorce him - accused him of domestic violence and threatening her life. While still in prison, he married fourth wife Kimbirli Jo Barton, whom he had known since they attended Springboro High School in the 1970s, and they launched an often-stormy 1 1/2-year marriage. Within months of his release from prison, Barton was arrested in September 2002, accused of threatening his new wife and pushing her around, but she refused to file charges. Four months later, on Jan. 16, 2003, she said she was leaving and Barton went into a rage.

"I still can't figure out what happened or why," an uncle, Paul Barton, said last week. "I thought Rocky was fine."

Barton called the print shop where he worked and said he wouldn't be in that day because of a family emergency. He made numerous threatening calls to his wife over the next several hours, but later convinced her it was safe to return to their home near Waynesville to pick up some of her belongings. When she arrived with her youngest daughter and one of Barton's uncles, Barton retrieved a shotgun he had put in a garage and ran toward the woman. His first shot wounded her in the shoulder, and she tried to crawl toward her daughter. Rocky Barton's second shot - from about one or two feet away - hit his 44-year-old wife in the back and killed her. "I couldn't stand the thought of living without her," Barton said in a death-row interview last month. "I was more in love than I've ever been in my life."

Prosecutors portrayed Barton as a possessive and controlling husband. "I was just a jealous husband," he said. After shooting his wife, Barton put the barrel of the shotgun under his chin and pulled the trigger, resulting in extensive wounds to his chin and face. "I blowed out all my teeth except for 11," Barton said. "I had four major surgeries for reconstructing my face." Barton said he planned to kill himself in front of his wife, and that shooting her was a spur-of-the-moment decision. "I remember shooting my wife, but I just don't know what was clicking in my head at the time that I pulled the trigger," Barton said.

Barton has said many times that he deserved to die for his act. At his trial in September 2003 for aggravated murder, he urged jurors to recommend the death sentence. "My attorneys advised me to beg for my life," Barton said then. "I can't do that. "I strongly believe in the death penalty. And for the ruthless, cold-blooded act that I committed, if I was sitting over there, I'd hold out for the death penalty."

Warren County Common Pleas Judge Neal Bronson imposed the death sentence on Oct. 10, 2003. Barton disavowed the appeals process, so there was only the mandatory appeal that goes to the Ohio Supreme Court, and the court upheld the sentence. Over his objection, Barton's lead attorney filed a motion in May requesting a psychiatric evaluation, saying he had a responsibility to safeguard Barton's rights. Barton, who had refused to asked the Parole Board for clemency, threatened to have the attorney removed.

The Supreme Court ordered a hearing on the motion, which has held July 3. Barton said he felt remorse and wanted to die. Two days later, Bronson denied the motion for a mental evaluation, saying Barton was competent to waive his right to appeals. "In each of his discussions with counsel or the court, he gave a consistent understanding of the proximity and finality of his death," Bronson wrote. "He consistently gave an explanation of why his execution made sense to him."

Barton said at the hearing that his family and his wife's family had accepted his decision to ask that the execution be carried out without delay. "I loved him at one time in my life, but it's over," said Tiffany Reising, one of Kimbirli Jo Barton's daughters. "He died that day to my family. He died that day, so he's been gone for three years." Barton said he regretted killing his wife, whom he called a beautiful person, and he hoped her family would forgive him. And he had this advice to others: "The world moves at a fast pace, and anger's something that is hard to harness so, I mean, if you got an anger problem, get help," Barton said.

In his death-row interview, Barton said he wasn't worried about the lethal injection method of execution, even thought the state's most recent execution was delayed about 90 minutes when the medical staff at the Southern Ohio Correctional Facility at Lucasville had trouble finding a second suitable vein to install a backup shunt. "I got good veins," Barton said.

Because of the difficulty in the May 2 execution of Joseph Clark, new guidelines have been put into effect to ensure that two suitable injection sites are found and that the veins stay open once entryways are inserted.

State v. Barton, 108 Ohio St.3d 402, 844 N.E.2d 307 (Ohio 2006). (Direct Appeal)

Background: Defendant was convicted by jury in the Court of Common Pleas, Warren County, No. 03 CR 20526, of aggravated murder with prior calculation and design, and unlawful possession of a firearm while under a disability. Defendant received a sentence of death. Defendant appealed.

Holdings: The Supreme Court, O'Donnell, J., held that:
(1) sentencing court was not required to conduct inquiry under State v. Ashworth during penalty phase;
(2) trial court had no duty to sua sponte order evaluation of defendant's competence to stand trial;
(3) trial court's refusal to permit defendant to use question-and-answer format to present his unsworn statement during penalty phase did not violate his constitutional right to counsel;
(4) indictment charging defendant of having a weapon while under a disability was not defective;
(5) aggravating circumstance that defendant had prior conviction for attempted murder outweighed mitigating factors; and
(6) death sentence was not excessive or disproportionate. Affirmed.

Syllabus of the Court

1. In a capital case, when a defendant waives all mitigating evidence, a trial court must conduct an inquiry of the defendant on the record to determine whether the waiver is knowing and voluntary. ( State v. Ashworth (1999), 85 Ohio St.3d 56, 706 N.E.2d 1231, approved but held inapplicable.)

2. Presentation of any mitigating evidence during either the guilt phase or the penalty phase of a capital-murder trial relieves the trial court of the duty to conduct an Ashworth inquiry.

3. Only a waiver of all mitigating evidence during the guilt phase and the penalty phase of a capital-murder trial triggers the trial court's duty to inquire as to whether the waiver is knowingly and voluntarily made. Rachel Hutzel, Warren County Prosecuting Attorney, Andrew L. Sievers, and Derek B. Faulkner, Assistant Prosecuting Attorneys, for appellee. Christopher J. Pagan and Chris McEvilley, for appellant.

O'DONNELL, J.
{¶ 1} Rocky Barton appeals from a judgment of the Warren County Common Pleas Court entered pursuant to a jury verdict finding him guilty of the aggravated murder with prior calculation and design of his 44-year-old wife, Kimbirli Barton, and of a firearm specification. Separately, the court found him guilty of the death-penalty specification for a prior attempted-murder conviction and accepted his guilty plea to the charge of having a weapon while under a disability. Barton also appeals from those convictions and from the sentence of capital punishment entered in accordance with the recommendation of the jury.FN1

FN1. On October 4, 2004, Barton filed a pro se motion “to withdraw any and all direct appeals filed on his behalf.” Further, he filed a pro se motion to “waive all review of his conviction” on October 24, 2005, seeking to cease all review by this court and forgo “all federal habeas and future pending appeals.” As we have decided the appeal, these pro se motions are moot.

{¶ 2} On appeal, Barton presents four propositions of law, alleging that the trial court failed to adhere to our dictate in State v. Ashworth (1999), 85 Ohio St.3d 56, 706 N.E.2d 1231, regarding his waiver of the presentation of mitigating evidence during the penalty phase of his capital-murder trial; that the court erred in failing to order an evaluation of his competency after his waiver of mitigating evidence and his attempted suicide; that the court denied his right to counsel by precluding him from presenting an unsworn statement in a question-and-answer format; and finally, that the state improperly indicted him for having a weapon while under a disability. Upon review, we reject each proposition of law and therefore affirm his convictions. Further, upon reviewing and independently weighing all the facts and other evidence in the record and considering the offense and the offender, we have determined that the aggravating circumstance-his prior attempted-murder conviction-outweighs the mitigating factors in this case and that the sentence of death is appropriate. And after conducting a proportionality review of the death penalty in conformity with R.C. 2929.05, we affirm the judgment of the trial court regarding the imposition of sentence.

{¶ 3} Kimbirli and Rocky Barton had known each other for many years and married on June 23, 2001, during his incarceration for attempted murder in Kentucky. Following his release from prison in 2002, he lived in a Warren County farmhouse on Bellbrook Road owned by his father, Donald, with Kim and Jamie, her 17-year-old daughter from a prior marriage.

{¶ 4} Barton and Kimbirli generally had an amicable relationship and planned to renew their wedding vows in May or June 2003. Tiffany, Kim's 22-year-old daughter from a prior marriage, described Kim's relationship with Barton as “[s]ometimes good, sometimes bad, the highs were very high, the lows were really low.” Julie, Kim's 27-year-old daughter from a prior relationship, also described Kim and Barton's relationship as “up and down. * * * [R]eally good [or] really bad.”

{¶ 5} Tiffany described Barton as “[v]ery moody, possessive, * * * controlling [,] * * * just very manipulative.” Julie also thought Barton could be, at times, “very jealous, very controlling, very manipulative, always accusing [Kim] of things, causing fights.” Jamie agreed that Barton acted “controlling and possessive,” although she felt close to him and described him as the only father figure that she could depend upon.

{¶ 6} On January 16, 2003, the morning of the murder, Barton awakened Jamie at 7:20 a.m. and told her to get her things together: “You're going to Tiff's house. The wedding's off. Your mom's a psycho bitch.” Barton then drove Jamie to Tiffany's home and told Tiffany that her mother “had gone off the deep end and that she was crazy and she was leaving him.” Jamie described Barton as acting “[r]eally strange” and “aggravated.”

{¶ 7} Around 7:30 that morning, Kim arrived at Lasik Plus, where she worked as a technical assistant. Karla Reiber and Molly Wolfer, her co-workers, recalled that Barton had called more than six times that morning. He insisted on being placed on hold while Kim tended to patients, often for as long as 10 or 15 minutes, until she became available. Reiber described Barton as “very angry,” and Wolfer described him as “very agitated, very angry,” and “very irate.”

{¶ 8} After speaking with Barton on the phone around 10:30 a.m., Kim related to co-workers that she had heard shots fired. She told others that she had heard a “bang” over the phone. Police later recovered a spent shotgun shell in a bedroom at Barton's home, which supported her suspicion that Barton had fired a shotgun while talking with her on the telephone.

{¶ 9} Wolfer described Kim as crying, “very frantic,” and “very scared” when she left work around 10:30 a.m. Before leaving, Kim called Tiffany and asked whether she and Jamie could live with her temporarily. Tiffany described her mother as hysterical, frantic, and scared and agreed to have her mother and sister move in with her.

{¶ 10} Barton also talked on the telephone with several others that day. Around 7:45 a.m., he left a message with his employer, saying that he would not be at work that day because of a family emergency. Around 10:45 a.m., he spoke with his supervisor, Carol Williamson, and informed her that Kim had been “acting strange” due to her medication and that Kim intended to leave him.

{¶ 11} Barton also called Randy Hacker, Julie's former husband, and complained about Kim and Julie. Barton seemed “edgy” and “irritated,” according to Hacker, and left Hacker a message, saying, “[B]efore I go on to my demise, I should call you.” In a later call, Barton informed Hacker that Kim intended to move out and that he would be going back to jail.

{¶ 12} Barton also spoke on the telephone several times that day with Glen Barker, an insurance agent. Barker has a background in counseling, and he offered to serve as a mediator between Barton and Kim. Barton visited Barker at his office around 9:30 a.m. and seemed calm and quiet, but Barton was anxious to speak with his father, who was in Florida. Barker called Kim at work on Barton's behalf, but Kim would not discuss the matter. Barker testified that Barton adamantly refused to allow Kim to collect her possessions from their house.

{¶ 13} Barton's father, Donald, talked with Barton and Kim from Florida that morning in an effort to defuse the situation. Donald told Barton not to worry because anything that Kim might take from the farmhouse could be replaced, and he informed Kim that she could keep his car, which she currently drove. Larry Barton, Barton's uncle, also spoke with Barton several times by telephone on the day of the murder, and he offered assistance. Barton told Larry that he thought the police would be called, and he vowed that “he wouldn't go back to jail.”

{¶ 14} Around 11:00 a.m., Kim arrived at Tiffany's home. Barton called 25 or 30 times; Jamie and Tiffany overheard Barton cursing and yelling on the telephone and described his voice as “scary.” Jamie overheard him tell Kim, “I'm going to kill you, you f* * *ing bitch,” causing Kim to become “really nervous and scared” while “crying and shaking.”

{¶ 15} Around 3:00 p.m., Kim and Jamie made plans to return to their Bellbrook Road home to retrieve some clothing and personal effects. When Larry arrived at Tiffany's house, however, he strongly advised Kim not to go home. She agreed to stay away but gave Larry a list of things that she and Jamie wanted him to retrieve.

{¶ 16} Immediately after Larry left to retrieve the items, Barton called again and persuaded Kim and Jamie to come to Bellbrook Road to obtain their things. When Larry arrived at Bellbrook Road, Barton had locked the gate, something he rarely did. Larry asked Barton to open the gate, but Barton absolutely refused to allow him onto the property. He kept saying, “I've lost it.” Barton stood near his own truck behind the locked gate while Larry's truck remained parked on the road.

{¶ 17} When Kim and Jamie arrived, however, Barton unlocked the gate and instructed Larry to lock it after they entered because he did not want “the police * * * coming in.” Then Barton got in his truck, backed up “real fast” into the garage, and closed the garage door. Larry and Kim separately drove onto the property.

{¶ 18} As Kim got out of the car and turned to shut her door, Barton came out the side door of the garage with a shotgun. As he ran toward Kim, he yelled “You aren't going anywhere, you f* * *ing bitch,” and he then fired the shotgun while four to six feet from her and struck her in her side. Feeling the impact, Kim fell, but moved toward her daughter, yelling, “Oh, Jamie, Oh Jamie.” As Jamie reached for her mother, Barton shot her in the back from a distance of one to two feet. Kim fell to the ground, while Jamie screamed, “Mom, can you hear me? Can you hear me? Please stay with me, mommy, please stay with me.” Barton then aimed the gun at Jamie's head and at Larry. Barton next walked to the side of Larry's truck and said, “I told you I was insane,” dropped to his knees, and shot himself in the face. Barton then walked into the house.

{¶ 19} Jamie and Larry called 911. Emergency Medical Services (“EMS”) personnel arrived and upon examining Kim found her ashen in color, not *406 breathing, and with fixed and dilated pupils and no pulse. Following an autopsy, Dr. Karen Powell, a forensic pathologist, determined that Kim had died from “shotgun wounds of the left shoulder and right back regions” that caused injuries to her lungs, heart, and liver.

{¶ 20} In response to the emergency call, police arrived and located Barton, alert and cooperative, inside the house. An EMS technician described him as suffering from a gunshot wound with non-life-threatening injuries to his chin, mouth, and nose.

{¶ 21} Upon investigation, police confiscated the murder weapon, a .410 pump-style shotgun, and four spent shotgun shells. Police also recovered six live shotgun shells from Barton at the hospital.

Indictment and Trial Result

{¶ 22} The grand jury returned a two-count indictment against Barton, charging him in the first count with the aggravated murder of Kimbirli with prior calculation and design, a gun specification, and a death-penalty specification for his prior conviction for attempted murder. The second count charged unlawful possession of a firearm while under a disability from a prior conviction. Barton pleaded guilty to the weapon-under-disability charge, but elected a jury trial on the aggravated-murder charge. The death-penalty specification was separately tried to the court.

{¶ 23} The state's case-in-chief included the following witnesses: Jamie, Carol Williamson, Peggy Barton, and her husband, Larry Barton. Through cross-examination of these witnesses, defense counsel elicited mitigating evidence about Barton. Williamson, Barton's supervisor, knew the family socially and testified on cross-examination that Barton and Kim seemed like a happy, affectionate couple, very much in love. She also testified that she never thought that Barton would harm Kim.

{¶ 24} Kim's daughter, Jamie, testified on direct examination that she had witnessed Barton shoot her mother twice with a shotgun and had watched her die in her arms. She testified on cross-examination that she and Barton had been close and that he had served as her only reliable father figure by helping her secure a car and driver's license and by insisting that she obtain a good education.

{¶ 25} On direct examination, Barton's uncle, Larry, stated that he watched Barton shoot Kim twice with the shotgun. Nonetheless, during cross-examination Larry described Kim and Barton as “best friends” who got along well. According to Larry, Barton worked hard seven days a week. Also, Barton had bought Christmas presents for Larry's grandchildren, and Larry loved Barton as if he were his brother.

{¶ 26} Additionally, on cross-examination, Peggy Barton discussed Barton and Kim's good relationship and Barton's friendship with Larry.

{¶ 27} Other evidence presented by the state established that on April 9, 1991, Barton pleaded guilty to attempted murder in Madison County, Kentucky. He received a sentence of up to 15 years. In accordance with Barton's request, the state presented no further details of that conviction at trial.

{¶ 28} The jury convicted Barton of aggravated murder with prior calculation and design in addition to the firearm specification, and the trial court found Barton guilty of the death-penalty specification.

{¶ 29} At the start of the penalty phase of the trial, the following colloquy occurred between defense counsel, Barton, and the trial court:

{¶ 30}“MR. HOWARD [defense counsel]: * * * Since we're beginning to start the mitigation phase in this case, I want to put on the record that throughout the representation that Mr. Oda and I have undertaken on behalf of Mr. Barton, he has consistently, from day one, * * * insisted that we not call any family members on his behalf as witnesses in mitigation.

{¶ 31} “We have enlisted, with the court's approval, a neuropsychologist to examine Mr. Barton for the possibility of offering testimony or mitigation evidence in regard to this case. That was a Jeffrey Smalldon.

{¶ 32} “Dr. Smalldon came down from Columbus on two occasions, spent about five or six hours with Mr. Barton. Mr. Barton basically refused to cooperate with any testing or participate in any testing with Dr. Smalldon and has instructed us not to call Dr. Smalldon as a potential witness.

{¶ 33} “And we just wanted to put that on the record and have Mr. Barton acknowledge that for purposes of the record; is that true?

{¶ 34} “MR. BARTON: Yes.

{¶ 35} “THE COURT: Okay. Mr. Barton, that's a fair representation of what's transpired in your case, sir? That's a fair representation that Mr. Howard has just made for the record?

{¶ 36} “MR. BARTON: Yes.”

{¶ 37} Penalty-phase evidence consisted of an unsworn statement made by Barton. The trial court denied Barton's pretrial motion to use a question-and-answer format to present his unsworn statement. Although denying the request, the trial court declared that Barton “would have every opportunity to review [the statement] with his counsel, reduce it to writing, and touch all points per the direction and advice of counsel.” Nevertheless, Barton instead made only the following unsworn statement to the jury:

{¶ 38}“MR. BARTON: At this time my attorneys advised me to beg for my life. I can't do that. I strongly believe in the death penalty. And for the ruthless, cold-blooded act that I committed, if I was sitting over there, I'd hold out for the death penalty. * * * I've recently done 10 years in prison. Life in prison would be a burden to all the citizens of Ohio. It would be at their cost. I wouldn't have nothing to worry about. I'd get fed every day, have a roof over my head, free medical, you people pay for it, I'd have a stress-free life. That's not much of a punishment.

{¶ 39} “Punishment would be to wake up every day and have a date with death. That's the only punishment for this crime. That's all I've got to say.”

{¶ 40} Following Barton's unsworn statement, Barton's counsel strongly urged the jury to impose a life sentence. Defense counsel highlighted the close relationships between Barton and several members of his family, asserted that Kim would not have married Barton if she had not seen some good in him, and argued that Kim had facilitated the offense by returning to her home on the day of her murder. Highlighting Barton's unsworn statement, Barton's counsel claimed that Barton wanted to die, and if the jury were to impose death, it would be giving Barton “what he wanted on January the sixteenth and what he wants today.” Counsel concluded by arguing for a life sentence without the possibility of parole: “Death is not a stiff enough sentence for Rocky Barton because it completes the plan * * *.”

{¶ 41} Following the court's instructions and deliberation, the jury recommended a sentence of death. The trial court sentenced Barton to death on the aggravated murder count together with consecutive terms of three years' and five years' imprisonment for the firearm specification and the weapons-under-disability offense.

{¶ 42} On appeal, Barton now presents four propositions of law for our consideration. Upon careful review, we have concluded they are not well taken, and therefore, we affirm the judgment of the court regarding the criminal convictions. Upon further review, independently weighing all the facts and other evidence in the record and considering the offense and the offender, we have determined that the aggravating circumstance-Barton's prior attempted-murder conviction-outweighs the mitigating factors in this case and that the sentence of death is appropriate. And after conducting proportionality review of the death penalty in conformity with R.C. 2929.05, we affirm the judgment of the trial court regarding the imposition of sentence.

Presentation of Mitigating Evidence

{¶ 43} Based on our ruling in State v. Ashworth, 85 Ohio St.3d 56, 706 N.E.2d 1231, Barton argues that the trial court should have inquired whether he had knowingly and intelligently waived his right to present mitigating evidence before proceeding in the penalty phase.

{¶ 44} The state asserts that this case does not warrant an Ashworth inquiry because Barton did not waive presentation of all mitigating evidence. Therefore, the issue for our resolution concerns whether Ashworth applies to the facts of this case.

{¶ 45} Upon review, we have determined that Ashworth is distinguishable on its facts and therefore does not apply. Ashworth pleaded guilty to aggravated murder, together with two death-penalty specifications, merged at sentencing. The court convicted him of aggravated murder and a single death-penalty specification at the conclusion of the guilt phase of trial, and Ashworth waived presentation of all mitigating evidence during the penalty phase of trial. Id. at 61, 65, and 71, 706 N.E.2d 1231. There, we held, “In a capital case, when a defendant wishes to waive the presentation of all mitigating evidence, a trial court must conduct an inquiry of the defendant on the record to determine whether the waiver is knowing and voluntary.” (Emphasis sic.) Id. at paragraph one of the syllabus.

{¶ 46} And in State v. Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, 827 N.E.2d 285, defense counsel honored the defendant's request not to call his family members to testify on his behalf during the penalty phase of trial and insisted that defense counsel present only his unsworn statement and the testimony from one witness. Id. at ¶ 98. There, we held: “ Ashworth has no applicability here because Monroe did not waive presentation of all mitigating evidence. Given our emphasis in Ashworth on the word ‘all,’ it is clear that we intended to require an inquiry of a defendant only in those situations where the defendant chooses to present no mitigating evidence whatsoever. Moreover, Monroe's claim that he essentially presented no mitigating evidence is not borne out by the record. Regardless of how Monroe characterizes it, he did in fact present mitigating evidence.” (Emphasis sic.) Id. at ¶ 74-75.

{¶ 47} Although Ashworth mandates that the trial court protect the defendant's rights when the defendant waives all mitigating evidence, a capital defendant generally has the right to control the defense. State v. Tyler (1990), 50 Ohio St.3d 24, 28-29, 553 N.E.2d 576. A defendant is entitled to “great latitude” and may decide what mitigating evidence he wishes to present in the penalty phase. R.C. 2929.04(C); see, also, State v. Jenkins (1984), 15 Ohio St.3d 164, 189, 15 OBR 311, 473 N.E.2d 264, citing Lockett v. Ohio (1978), 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973. Furthermore, this court has long recognized that “the jury is not restricted to considering mitigating evidence presented in the penalty phase. Rather, the jury is required to consider ‘any evidence raised at trial that is relevant * * * to any factors in mitigation.’ ” State v. *410 Jordan, 101 Ohio St.3d 216, 2004-Ohio-783, 804 N.E.2d 1, at ¶ 80, quoting R.C. 2929.03(D)(1). Other capital defendants have chosen to present mitigating evidence only through an unsworn statement asking for the death penalty. See State v. Mink, 101 Ohio St.3d 350, 2004-Ohio-1580, 805 N.E.2d 1064, ¶ 113-114; State v. Vrabel, 99 Ohio St.3d 184, 2003-Ohio-3193, 790 N.E.2d 303, ¶ 22.

{¶ 48} In this case, we reject Barton's contention that the facts and circumstances warranted an Ashworth inquiry, because Barton did not waive the presentation of all mitigating evidence. Only waiver of all mitigating evidence triggers the requirement for an Ashworth inquiry. Ashworth, 85 Ohio St.3d 56, 706 N.E.2d 1231, paragraph one of the syllabus.

{¶ 49} Here, during the guilt phase of trial, Barton, through counsel, cross-examined several prosecution witnesses-Barton's supervisor, his father, his uncle, his uncle's wife, and his stepdaughter-and elicited mitigating testimony on his behalf, in contrast with Ashworth, who pleaded guilty. Such factual information concerned Barton's love of his family-including Kim-and his hard-working and nonviolent nature. The testimony also described and characterized his relationships with Jamie and other family members.

{¶ 50} Further distinguishing this case from Ashworth, Barton presented an unsworn statement during the penalty phase of trial in which he told the jury that he “strongly believe[d]” in the death penalty, that if he were a juror, he would “hold out for the death penalty,” and that death is “the only punishment for this crime.” Barton also explained why he believed the jury should impose the death penalty. Barton's recognition that this aggravated murder deserved the death penalty reflected his personal acknowledgment of the gravity of his crime. In fact, defense counsel used his statement to strongly urge the jury to impose a life sentence rather than the death sentence that Barton wanted.

{¶ 51} Presentation of mitigating evidence during either the guilt phase or the penalty phase of a capital-murder trial relieves the trial court of the duty to conduct an Ashworth inquiry. Ashworth applies only where the record demonstrates a waiver of the presentation of all mitigating evidence in a capital-murder trial. And only a waiver of all mitigating evidence during the guilt phase and the penalty phase of trial triggers the trial court's duty to inquire as to whether the waiver is knowingly and voluntarily made.

{¶ 52} We conclude that the evidence of mitigation presented during the guilt phase of trial as contained in the record, together with Barton's unsworn statement during the penalty phase of trial and defense counsel's closing argument, rendered Ashworth inapplicable to this case because Barton did not waive the presentation of all mitigating evidence. Accordingly, this proposition of law is not well taken.

Competency Evaluation

{¶ 53} Next, Barton asserts that the trial court erred in failing to sua sponte order an evaluation of his competency in light of his waiver of mitigation and attempted suicide nine months before trial.

{¶ 54} The state counters by arguing that Barton did not waive the presentation of mitigating evidence and did not demonstrate any indicia of incompetence so as to trigger the trial court's duty to sua sponte order an evaluation.

{¶ 55} We are asked to consider whether Barton's actions indicated such incompetence that the trial court should have ordered a competency evaluation.

{¶ 56}R.C. 2945.37(G) creates a rebuttable presumption that a defendant is competent to stand trial. “This presumption remains valid under R.C. 2945.37(G) unless ‘after a hearing, the court finds by a preponderance of the evidence’ that the defendant is not competent.” State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 74, quoting R.C. 2945.37(G). The “decision as to whether to hold a competency hearing once trial has commenced is in the court's discretion.” State v. Rahman (1986), 23 Ohio St.3d 146, 156, 23 OBR 315, 492 N.E.2d 401.

{¶ 57}“The right to a hearing rises to the level of a constitutional guarantee when the record contains sufficient ‘indicia of incompetency * * * ’ ” State v. Thomas, 97 Ohio St.3d 309, 2002-Ohio-6624, 779 N.E.2d 1017, ¶ 37, quoting State v. Were (2002), 94 Ohio St.3d 173, 175, 761 N.E.2d 591. We have further held that the trial court has no duty to question the accused's competence when “ ‘nobody on the spot thought [the defendant's] behavior raised any question as to his competence’ ” and no evidence of “outrageous, irrational behavior during trial” or complaints about the accused's lack of cooperation in his defense exists. (Emphasis deleted [sic.].) State v. Williams, 99 Ohio St.3d 439, 2003-Ohio-4164, 793 N.E.2d 446, ¶ 63, quoting State v. Cowans (1999), 87 Ohio St.3d 68, 84, 717 N.E.2d 298. We have noted that “[f]actual determinations are best left to those who see and hear what goes on in the courtroom.” Id., 87 Ohio St.3d at 84, 717 N.E.2d 298.

{¶ 58} In prior capital cases, we recognized that “[a]n otherwise logical, competent defendant may choose to waive mitigation simply because he wishes to exercise the right to do so” and that a capital defendant's decision to forgo mitigation does not by itself call his competence into question. State v. Jordan, 101 Ohio St.3d 216, 2004-Ohio-783, 804 N.E.2d 1, ¶ 64, 54; see, also, Cowans, 87 Ohio St.3d at 81, 717 N.E.2d 298, quoting Tyler, 50 Ohio St.3d at 29, 553 N.E.2d 576. In State v. Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, 827 N.E.2d 285, ¶ 80, we recognized that “[a] court is required to inquire into a capital defendant's competence only if some reason other than the decision to forgo presentation of mitigation evidence exists that calls into question the defendant's competence.” (Emphasis added.) As previously discussed, Barton did not waive the presentation of all mitigating evidence.

{¶ 59} Despite his attempted suicide nine months before trial, the record does not contain any specific facts suggesting that Barton lacked competency to stand trial. No evidence in the record indicates that Barton was ever treated or hospitalized for mental disorders or that his friends or family questioned his sanity. Nor did events during the trial indicate any lack of competence. Neither defense counsel nor a retained psychologist who interviewed Barton for several hours raised any issue regarding his competence, and they closely interacted with him and had every opportunity to observe his demeanor.

{¶ 60} Barton's decision to limit mitigating evidence and his prior suicide attempt do not constitute sufficient indicia to trigger the trial court's duty to sua sponte order evaluation of his competence. Accordingly, we reject this claim.

Unsworn Statement

{¶ 61} Barton contends that the trial court denied his constitutional right to counsel by overruling the pretrial motion to use a question-and-answer format to present an unsworn statement. See Ferguson v. Georgia (1961), 365 U.S. 570, 596, 81 S.Ct. 756, 5 L.Ed.2d 783. In Ferguson, the United States Supreme Court held that the state, “consistently with the Fourteenth Amendment, could not * * * deny [the defendant] the right to have his counsel question him to elicit his [unsworn] statement.” Id.

{¶ 62} The state maintains that Barton has misinterpreted decisions of this court and the United States Supreme Court and asserts that the trial court did not abuse its discretion in denying his motion to present mitigating evidence in this format.

{¶ 63} The issue for our resolution, then, concerns whether the trial court's decision regarding the format of Barton's unsworn statement deprived him of his constitutional right to counsel.

{¶ 64} In State v. Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284, 787 N.E.2d 1185, ¶ 103, we squarely addressed this issue and held: “[T]he trial court did not violate [the defendant's] constitutional rights by denying his request” to use a question-and-answer format in making an unsworn statement. While stating that the trial court has the discretion to allow counsel to ask questions in presenting an unsworn statement, we held that neither R.C. 2929.03(D)(1) nor the Constitution compels such a practice. Id. at ¶ 103, 110.

{¶ 65} Furthermore, Ferguson arose in the entirely different context of “the common-law rule [codified in Georgia] that a person charged with a criminal offense is incompetent to testify under oath in his own behalf at his trial.” Id., 365 U.S. at 570, 81 S.Ct. 756, 5 L.Ed.2d 783. The defendant in Ferguson had a constitutional right to the assistance of counsel to present his view of events in an unsworn statement because, pursuant to Georgia law, he could not testify at all under oath. Id. at 596, 81 S.Ct. 756, 5 L.Ed.2d 783.

{¶ 66} In contrast, Barton could have chosen to testify under oath with the assistance of counsel either at the guilt phase or the penalty phase of trial. Thus, Ferguson does not apply to this case. Additionally, we have declined to adopt a constitutional right to a question-and-answer format in other cases. See Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284, 787 N.E.2d 1185, ¶ 103 .

{¶ 67} Although rejecting the merits of his position on legal grounds, we also note that Barton failed to preserve the issue for appellate review because he failed to renew his objection to the format of his unsworn statement at trial and neglected to proffer the evidence he wished to present in the question-and-answer format. See Gable v. Gates Mills, 103 Ohio St.3d 449, 2004-Ohio-5719, 816 N.E.2d 1049, ¶ 34; State v. Murphy (2001), 91 Ohio St.3d 516, 532, 747 N.E.2d 765; Evid.R. 103(A)(2); State v. Mitts (1998), 81 Ohio St.3d 223, 227, 690 N.E.2d 522; State v. Gilmore (1986), 28 Ohio St.3d 190, 191, 28 OBR 278, 503 N.E.2d 147.

{¶ 68} For the foregoing reasons, this proposition of law is overruled.

Indictment for Weapons Under Disability

{¶ 69} In his final proposition, Barton contends that the grand jury did not properly indict him for the offense of having a weapon while under a disability pursuant to R.C. 2923.13(B) because Ohio's first- and second-degree felonies are not so identified in Kentucky. R.C. 2923.13(B) increases the offense level for committing this crime when the offender was released from prison within five years of the offense. Barton pleaded guilty to R.C. 2923.13(B). According to Barton, his guilty plea does not waive the issue because a jurisdictional defect such as this may be raised at any time. {¶ 70} The state disputes the merits of his allegation and asserts that Barton's guilty plea precludes him from attacking the sufficiency of the indictment.

{¶ 71} The indictment charged that Barton violated R.C. 2923.13(A) because he (1) did “knowingly acquire, have, carry, or use” a firearm on January 16, 2003, in Warren County, Ohio, and (2) did so, having “been convicted of [a] felony offense of violence: to wit: Attempted Murder” in Kentucky in June 1991. The indictment also charged the more serious offense of violating R.C. 2923.13(B)-namely, that Barton had the firearm “within five years of the date of [his] release from imprisonment” for attempted murder.

{¶ 72} Contrary to Barton's claims, the indictment correctly referred to both R.C. 2923.13(A) and 2923.13(B) because division (A) sets forth the basic offense, and division (B) adds elements of a more serious offense. See R.C. 2923.13(B) and 2923.13(C).

{¶ 73} Having rejected the merits of this argument, we also agree with the state that Barton waived any deficiency in the indictment by failing to object to the indictment and by pleading guilty to the offense. Crim.R. 12(C)(2) mandates that “Defenses and objections based on defects in the indictment” must generally be raised “[p]rior to” trial, and we have previously held that “failure to timely object to the allegedly defective indictment constitutes a waiver of the issues involved.” State v. Biros (1997), 78 Ohio St.3d 426, 436, 678 N.E.2d 891, citing State v. Joseph (1995), 73 Ohio St.3d 450, 455, 653 N.E.2d 285. Crim.R. 11(B)(1) states, “The plea of guilty is a complete admission of the defendant's guilt.”

{¶ 74} Based on the foregoing analysis, the language of the statute, Barton's failure to timely object to the indictment, and his plea of guilty, this proposition is not well taken.

Independent Sentence Evaluation

{¶ 75} Pursuant to R.C. 2929.04(A)(5), the penalty for a conviction of aggravated murder can include death when the evidence reveals a previous conviction “of an offense an essential element of which was the purposeful killing of or attempt to kill another.” The record demonstrates Barton's prior conviction for attempted murder in Kentucky beyond a reasonable doubt.

{¶ 76} Regarding mitigation, the nature and circumstances of the instant offense reveal no mitigating features. Evidence demonstrates that Barton planned to kill Kim on the day of the murder. After Barton repeatedly telephoned her that day, Kim and her 17-year-old daughter, Jamie, returned to Barton's home to retrieve their personal belongings. Upon their arrival, Barton told Larry to close the gate behind Kim's car to prevent the police from coming onto the property, and he thereafter immediately backed his truck into the garage, retrieved a shotgun, ran toward Kim, and shot her twice, with the fatal shotgun blast discharged into her back while he was less than two feet from her body. Kim died there in the arms of her daughter, Jamie. The nature and circumstances of this offense reveal no mitigating features.

{¶ 77} Further, although Barton chose not to present any mitigating evidence during the penalty phase of trial, he did make an unsworn statement to the jury in which he recognized the gravity of his conduct. Beyond that, we know about his history, character, and background from defense counsel's cross-examination of the state's witnesses during the state's case-in-chief. Larry, Donald, Jamie, and Barton's uncle, father, and stepdaughter testified that they loved and cared for him. The love and support of his family carry mitigating weight. See State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 199. The record also reflects that at the time of the offense, Barton had had gainful employment for about a year and worked hard at his job. We therefore accord *415 some mitigating weight to his employment. Cf. State v. Fox (1994), 69 Ohio St.3d 183, 194, 631 N.E.2d 124.

{¶ 78} The record does not contain evidence to support the statutory mitigating factors in R.C. 2929.04(B)(1) through (B)(6). For example, Kim did not induce or facilitate the offense, R.C. 2929.04(B)(1), by returning to her residence to retrieve her clothing, although Barton argued at trial that by doing so, she facilitated her own murder. Nor did Barton act under “duress, coercion, or strong provocation,” R.C. 2929.04(B)(2). No evidence at trial established that Barton suffered from an R.C. 2929.04(B)(3) “mental disease or defect.” Barton, age 46 at the time of the offense, cannot assert that the offense occurred as result of his youth. See R.C. 2929.04(B)(4). Barton has a criminal record, which renders R.C. 2929.04(B)(5) inapplicable. And he cannot claim accomplice status under R.C. 2929.04(B)(6).

{¶ 79} As to “other factors,” R.C. 2929.04(B)(7), Barton accepted responsibility in his unsworn statement for what he had done. In that statement, he acknowledged that he had committed a “ruthless, cold-blooded act” that warranted the death penalty and noted that if he were on the jury, he would hold out for the death penalty. Thus, Barton did not attempt to minimize his conduct or blame others, but acknowledged the severity of what he had done. We recognize that he offered his unsworn statement in mitigation. Cf. State v. Ashworth, 85 Ohio St.3d 56, 72, 706 N.E.2d 1231 (“willingness to step forward and take responsibility for his actions, without any offer of leniency by the state, indicates a person who is remorseful for the crimes he has committed”). Remorse is a mitigating factor. State v. O'Neal (2000), 87 Ohio St.3d 402, 420-421, 721 N.E.2d 73; State v. Mitts (1998), 81 Ohio St.3d 223, 236, 690 N.E.2d 522. In accepting responsibility for his conduct, Barton indicated his remorse to the jury.

{¶ 80} Other than his unsworn statement and the evidence elicited from the cross-examination of his family members during the guilt phase of trial, no evidence of any other mitigating factors exists in the record of this case.

{¶ 81} In accordance with our duty pursuant to R.C. 2929.05(A) to “review and independently weigh all of the facts and other evidence disclosed in the record in the case and consider the offense and the offender to determine whether the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors in the case, and whether the sentence of death is appropriate,” we have concluded that the aggravating circumstance of Barton's aggravated murder of Kim with prior calculation and design, together with his prior conviction for attempted murder, outweighs the mitigating factors in this case. We have further concluded that the sentence of death is appropriate.

{¶ 82} We are further required by R.C. 2929.05(A) to consider whether the sentence is excessive or disproportionate to the penalty imposed in similar cases. Upon review, we have concluded that the death penalty is not disproportionate in this case when compared with other convictions for aggravated murder involving a previous conviction for attempted murder or purposeful killing. See, e.g., State v. Taylor (1997), 78 Ohio St.3d 15, 676 N.E.2d 82; State v. Davis (1992), 63 Ohio St.3d 44, 584 N.E.2d 1192.

{¶ 83} Accordingly, we affirm the judgment of the common pleas court. Judgment affirmed.

LUNDBERG STRATTON, O'CONNOR and LANZINGER, JJ., concur.

MOYER, C.J., concurs in part and dissents in part.

PFEIFER, J., dissents.

MOYER, C.J., concurring in part and dissenting in part.
{¶ 84} I write separately because I believe the majority misapplies our precedent and because a competency hearing should be required any time a capital defendant waives his or her right to present mitigation during the penalty phase.

{¶ 85} In State v. Ashworth (1999), 85 Ohio St.3d 56, 706 N.E.2d 1231, we held, “[W]hen a defendant wished to waive the presentation of all mitigating evidence, a trial court must conduct an inquiry of the defendant on the record to determine whether the waiver is knowing and voluntary.” (Emphasis sic.) Id. at paragraph one of the syllabus. Although this court stopped short of requiring a competency hearing in every case in which a defendant chooses to waive mitigation evidence, we did hold, “A trial court should be cognizant of actions on the part of the defendant that would call into question the defendant's competence.” Id. at 62, 706 N.E.2d 1231.

{¶ 86} Barton told the jury that if given the opportunity, he would vote to impose the death penalty and that the death sentence is “the only punishment for this crime.” It is difficult to imagine more compelling indicia of incompetence. Yet through inverse logic, the majority holds that by stating to the jurors his feelings on the death penalty and its appropriateness for the crime that he, Barton, committed, he actually did present mitigating evidence. I cannot support this proposition.

{¶ 87} The majority cites three cases suggesting that they are analogous and that this court's disposition of Barton's argument is in line with precedent.

{¶ 88} In the first case relied upon by the majority, we specifically held that an Ashworth hearing was not required because defendant “Monroe did not waive *417 presentation of mitigating evidence. Monroe called a former neighbor to testify in his behalf * * *.” State v. Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, 827 N.E.2d 285, ¶ 98. The addition of witness testimony to his unsworn statement removes Monroe from the Ashworth requirements. We have never held that a defendant must present all possible mitigation evidence. Here, though, Barton's sole evidence was his statement requesting the death penalty. There is no other “mitigating” evidence. The facts of Barton are clearly distinguishable from Monroe.

{¶ 89} The majority cites two other cases in which this court has allowed capital defendants to limit mitigating evidence to an unsworn statement. Yet in both cases, the trial court judge first conducted an in-depth hearing to determine that the defendant was competent to waive mitigation. In State v. Mink, 101 Ohio St.3d 350, 2004-Ohio-1580, 805 N.E.2d 1064, the defendant argued that his waiver was entitled to greater scrutiny because he had actively sought the death penalty. Id. at ¶ 56. In rejecting that argument and affirming his death sentence, we noted that “prior to the penalty phase, the three-judge panel thoroughly questioned Mink before finding that he was competent to waive the presentation of mitigating evidence.” Id. at ¶ 60. Later, in rejecting his claim that his plea was not voluntarily and knowingly made, we observed, “Before finding that Mink was competent to waive mitigation and allowing him to waive the presentation of mitigating evidence, the trial court fully questioned Mink about mitigation during the Ashworth hearing.” Id. at ¶ 83.

{¶ 90} Similarly, in State v. Vrabel, 99 Ohio St.3d 184, 2003-Ohio-3193, 790 N.E.2d 303, ¶ 36, upon a jury verdict of guilty on all counts, the defendant filed a motion requesting that no mitigating evidence be presented other than his own statement. “The court then ordered [the defendant] examined by psychiatrist Dr. Robert Algaier to determine whether he was competent to waive presentation of mitigation evidence. * * * Dr. Algaier found him capable of ‘waiving mitigation with full understanding of possible outcome and implications.’ Prior to the mitigation hearing, the trial court tried several times to persuade appellant to change his mind; he declared, ‘I don't wish my attorneys to say anything.’ Subsequently, appellant presented only a short unsworn statement at the mitigation hearing.” Id. at ¶ 36-37. <

{¶ 91} In both of these cases, this court approved the death sentence after determining that the trial court judge had properly conducted a competency hearing.

{¶ 92} As I stated in my concurrence in Ashworth,“A court must determine that the defendant has the mental capacity to understand the choice between life and death, to make a knowing and intelligent decision not to pursue the presentation of evidence, and to fully comprehend the ramifications of that *418 decision, and possess the ability to reason logically.” Id., 85 Ohio St.3d at 74, 706 N.E.2d 1231 (Moyer, C.J., concurring).

{¶ 93} I do not know whether Barton was competent to waive the presentation of mitigation evidence during the penalty phase of the trial. I do not know whether he understood the ramifications of his statements to the jury suggesting that he deserved the death penalty. On the record before us, no one can be certain of Barton's competence when he urged the jury to sentence him to death. At a minimum, the trial court should have followed our precedent and conducted a colloquy with Barton to determine whether he was competent, whether he knowingly and voluntarily waived his right to present evidence, and whether he understood the ramifications of his actions. To enable the trial court to make an adequate competency determination and to preserve the record for this court to review, the trial court should conduct a competency evaluation any time a capital defendant wishes to waive the presentation of all mitigation evidence or requests imposition of the death penalty. Such a rule would greatly diminish the appellate review of an issue that should be resolved with certainty at trial.

{¶ 94} For the foregoing reasons, Barton's death sentence should be reversed and the cause remanded to the trial court for a competency hearing to determine whether Barton is indeed competent to waive mitigation evidence.

PFEIFER, J., dissenting.
{¶ 95} The majority so distinguishes State v. Ashworth (1999), 85 Ohio St.3d 56, 706 N.E.2d 1231, as to render it meaningless. Its opinion essentially says that any testimony that could possibly be construed as mitigating, even if given during the guilt phase, will be construed as if it had been offered in mitigation by the defendant. The syllabus law declares that any testimony that reflects positively on the defendant-even a single, stray statement not elicited by counsel-could be sufficient to deny that defendant an Ashworth hearing. This standard is so restrictive that it ought not to be countenanced. Indeed, Ashworth would not pass this new standard because Ashworth expressed remorse. Id. at 61, 706 N.E.2d 1231.

{¶ 96} In an unsworn statement, Barton told the jury that death is “the only punishment for this crime.” Our country's most creative writers of fiction would be hard-pressed to spin Barton's statement as evidence offered in mitigation. Yet a majority of this court unquestioningly accepts that it was. The majority's conclusion is in sharp contrast to its analysis in State v. Vrabel, 99 Ohio St.3d 184, 2003-Ohio-3193, 790 N.E.2d 303, ¶ 77, in which this court stated that Vrabel *419 “presented no mitigating evidence,” even though he had offered his unsworn statement.

{¶ 97} Finally, I do not believe that the facts of this case justify imposing a sentence of death. The murder that Barton committed was heinous, and his guilt is undeniable, but Barton's crime is not deathworthy. See Crocker, Concepts of Culpability and Deathworthiness: Differentiating Between Guilt and Punishment in Death Penalty Cases (1997), 66 Fordham L.Rev. 21. This case involves a hot-blooded domestic killing. Absent evidence that Barton's previous attempted murder occurred in similar circumstances-evidence not present here-upon independent weighing, I do not believe that the death penalty is appropriate. I dissent.