Executed August 10, 2010 10:31 a.m. by Lethal Injection in Ohio
34th murderer executed in U.S. in 2010
1222nd murderer executed in U.S. since 1976
7th murderer executed in Ohio in 2010
40th murderer executed in Ohio since 1976
(Race/Sex/Age at Murder-Execution) |
Birth |
(Race/Sex/Age at Murder) |
Murder |
Murder |
to Murderer |
Sentence |
||||
(34) |
Roderick Davie B / M / 19 - 38 |
John Ira Coleman B / M / 38 Tracey Jeffries W / F / 21 |
Beating with Chair |
Davie went to his former workplace, Veterinary Companies of America in Warren, armed with a revolver, and ordered three workers to lie face down on the floor. He had been fired from the company two months earlier. Davie shot John Coleman, 38, who died almost immediately, and William John Everett, who remained conscious after being shot in the head, shoulder and left arm. Out of bullets, Davie then pursued Tracey Jefferys, 21, when she got up and ran toward the company's lunch room, and beat her to death with a folding chair. Everett escaped the warehouse and made his way out of the building, where Davie attempted to run him down with a truck, then beat him with a stick and attempted to gouge out his eyes before fleeing the scene. When police arrested Davie later that day, he told detectives, "I just flipped out this morning. I went down to the VCA and shot 'em up." Everett survived and testified at trial.
Citations:
State v. Davie, Not Reported in N.E.2d, 1995 WL 870019 (Ohio App. 1995). (Direct Appeal)
Davie v. Mitchell, 547 F.3d 297 (6th Cir. 2008). (Habeas)
Final/Special Meal:
Davie, who also goes by an Islamic name, fasted until sundown on Monday. He was served a vegetarian meal and drank several cups of coffee during the night.
Final Words:
Davie apologized to Everett and the families of Coleman and Jefferys before his execution. His entire final statement was, "I'd like to thank my parents for their unconditional love and support throughout all this. My daughter, Paris, for helping me become a man and change. And my niece, Brittany, for holding my heart. To Ms. Jefferys, I'm sorry. I don't know if it means anything, Ms. Jefferys, but from the bottom of my heart, I mean that. I'm sorry. To the Colemans – Cathy, I don't see her here, but you all tell Cathy I'm sorry. I mean that. John (Everett), I hope you can let it go, man and forgive me. You hear me, John? I'm done. That's it."
Internet Sources:
Ohio Department of Rehabilitation and Correction
Name: Roderick Davie
County: Trumbull County
Date of Birth: 10/6/1971
Executed: 08/10/2010
On August 10, 2010, Roderick David was executed for the 1991 aggravated murders of John Ira Coleman and Tracey Jeffreys.
Ohio Department of Rehabilitation and Correction (Clemency Report)
Inmate#: OSP #A253-718
Inmate: Roderick Davie
DOB: October 6, 1971
County of Conviction: Trumbull County
Date of Offense: June 27, 1991
Case Number: 91-CR-288
Date of Sentencing: March 23, 1992
Presiding Judge: John M. Stuard
Prosecuting Attorney: Dennis Watkins
Institution: Ohio State Penetentiary
Convictions: Aggravated Murder-2 Counts (Death), Attempted Aggravated Murder (7-25 years), Aggravated Burglary (10-25 years), Aggravated Robbery (10-25 years), Kidnapping-3 Counts (7-25 years).
"Ohio executes Davie for 1991 Trumbull County killings," by Joe Guillen. (August 10, 2010, 5:26 PM)
LUCASVILLE, Ohio - Family members of Roderick Davie's two victims sat quietly together as they watched the state of Ohio execute him Tuesday morning. Davie, 38, was convicted of killing a man and a woman at his former workplace in Trumbull County in 1991. Another man Davie shot three times during the attack lived and was among the witnesses at the execution.
Davie, strapped to a bed inside the "death house" at the Southern Ohio Correctional Facility, turned his head toward the witnesses and apologized to the family members and the survivor of the attack in his final statement. He also thanked his parents, adult daughter and niece for their love and support.
After his statement, Davie's body lay still on the bed as the lethal injection ran through his veins. He turned his head to look at the witnesses a last time and closed his eyes before the warden pronounced him dead at 10:31 a.m. He was the seventh Ohio death row inmate executed this year and the 40th since 1999. The witnesses were generally quiet and calm as they watched the execution up close from behind a glass divider. They declined to speak with the media afterward.
On the morning of June 27, 1991, Davie went to his former workplace, Veterinary Companies of America in Warren, armed with a revolver, and ordered three workers to lie face down on the floor. He had been fired from the company in April of that year. Davie shot John Coleman, 38, who died almost immediately, and William John Everett, who remained conscious after being shot in the head, shoulder and left arm. Davie then pursued Tracey Jefferys, 21, when she got up and ran toward the company's lunch room. He found her and beat her to death with a folding chair, according to Davie's clemency report last month.
When police arrested Davie later that day, he told detectives, "I just flipped out this morning. I went down to the VCA and shot 'em up." Davie was friendly with Everett and Jefferys while he worked at the company, a distributor of pet and veterinary supplies. He even had a cordial conversation with Everett when he ran into him at a restaurant a week earlier. Coleman, on the other hand, was a stranger to Davie.
Davie apologized to Everett and the families of Coleman and Jefferys before his execution. His entire final statement was, "I'd like to thank my parents for their unconditional love and support throughout all this. My daughter, Paris, for helping me become a man and change. And my niece, Brittany, for holding my heart. "To Ms. Jefferys, I'm sorry. I don't know if it means anything, Ms. Jefferys, but from the bottom of my heart, I mean that. I'm sorry. "To the Colemans – Cathy, I don't see her here, but you all tell Cathy I'm sorry. I mean that. "John (Everett), I hope you can let it go, man and forgive me. You hear me, John? I'm done. That's it."
Randy and Benny Coleman, brothers of John Coleman, sat next to each other during the execution. Randy held a dated picture of three men -- who appeared to be the three brothers -- posing outside in a neighborhood. Everett sat beside Randy Coleman and shook his hand after a curtain was pulled across the window while medical staff checked Davie's vital signs about eight minutes after he let out his last visible breath.
In front of the Coleman brothers and Everett sat Jefferys' mother, Sandra Richmond, and her husband, Kenny Richmond. At Davie's clemency hearing last month, Sandra Richmond showed a picture of her daughter taken four months before the murder. She said her daughter was a friendly person who would buy Davie lunch and loan him her car. Richmond told the clemency board she wanted justice for her daughter's murder.
"Killer of 2 is executed at Lucasville; No complications," by James Nash. (August 10, 2010 10:32 AM)
A Warren man who admitted that he "flipped out" and murdered two former coworkers and tried to kill a third in 1991 was put to death this morning. Roderick Davie, 38, was declared dead at 10:31 a.m. after receiving a lethal dose of thiopental sodium at the Southern Ohio Correctional Facility. There were no complications, prison officials said.
Davie had confessed to going on a murderous rampage at the Veterinary Companies of America warehouse in Warren on June 27, 1991, two months after the veterinary-supply firm fired him. Davie was convicted of murdering John Coleman and Tracey Jefferys and attempting to kill another former co-worker, John Everett, by running him down with a pickup truck after Davie ran out of bullets. Davie crashed the truck into a bridge but, undeterred, chased Everett and beat him in the head with a stick and attempted to gouge Everett's eyes out with the stick.
Everett came to the Lucasville prison to witness Davie's execution this morning.
Hours after he was arrested, Davie confessed to the murders to a Warren detective. His lawyers argued that the confession had improperly been entered into evidence because Davie had not signed a waiver-of-rights form and because police allegedly had been too aggressive in trying to elicit a confession.
Yesterday, Gov. Ted Strickland followed the recommendation of the Ohio Parole Board in denying clemency to Davie. Davie was the seventh person put to death this year and the 40th since Ohio resumed capital punishment in 1999.
He spent much of the night and early morning on the phone with family members, including his adult daughter Paris. Davie declined to speak with his attorney. Prison officials said medical teams checked Davie's veins twice yesterday and found no complications. Julie Walburn, spokeswoman for the Ohio Department of Rehabilitation and Correction, said Davie appeared calm in his final hours.
"Ohio executes man who killed 2 at warehouse in '91," by Jeannie Nuss. (AP) – Aug 10, 2010
LUCASVILLE, Ohio — An Ohio man asked for a survivor's forgiveness before he was executed Tuesday for a rampage at a pet supply company in 1991 where he murdered two co-workers and shot another, then tried to run over him with a truck.
Roderick Davie, 38, died by lethal injection at 10:31 a.m., moments after he apologized to the victims' families and the former co-worker whom he shot three times and tried to gouge out his eyes with a stick. "John, I hope you can let it go, man, and forgive me," Davie said as he looked at William John Everett. "You hear me, John?" Everett, sitting in the second row of witnesses, silently stared back at his attacker.
Davie confessed to shooting Everett and John Coleman in the head at a pet supply warehouse near Youngstown, where he had been fired months before. When he ran out of bullets, he beat 21-year-old Tracey Jefferys to death with a metal folding chair.
Strapped down to a gurney on Tuesday, Davie apologized to Jefferys' mother, who rocked back and forth and held the hand of a victim advocate. "To Ms. Jefferys, I'm sorry," Davie said, part of a tattoo peeking out from the medical tape and tubes that covered his left arm. "I don't know if it means anything, Ms. Jefferys, but from the bottom of my heart, I mean that. I'm sorry." Randy Coleman, whose brother was hired after Davie was fired, held a sepia photograph of three men as Davie apologized to his family. Next to him, another of his brothers looked straight ahead at the gurney.
Davie said he was done and the warden took the microphone. His lips continued to move like those of a praying man, but the words were lost. He turned toward the window separating him from the witnesses and closed his eyes. A curtain was closed over the window, separating the witnesses from Davie. The room was silent, except for the rustling of cellophane as Everett opened a piece of candy. Then the warden said Davie had died.
In 1991, then-19-year-old Davie had been working at the Veterinary Companies of America for just under a year. He got along well with co-workers, including Everett and Jefferys. He was fired in April 1991 after a fight with the building's owner, according to the state's clemency report. Less than three months later, Davie went back to the warehouse. He ordered Everett, Jefferys and Coleman to lie face down on the floor. He shot the men and beat Jefferys, then snatched Everett's wallet from his back pocket and took Jefferys' change purse before he left the warehouse. Everett stumbled into the parking lot, where Davie got into a truck and tried to run him over. But he crashed, hopped out and tried to gouge out Everett's eyes with a stick. Davie fled when he saw someone watching and was later arrested. He confessed that he "flipped out" and "went down to VCA and shot 'em up," according to the clemency report. A federal appeals court upheld Davie's death sentence in 2008 and rejected claims that police questioned him illegally. Davie's attorney declined to comment. Davie spent the hours before his scheduled execution praying and visiting in person and on the phone with family, prisons spokeswoman Julie Walburn said. Davie, who also goes by an Islamic name, fasted until sundown on Monday. He was served a vegetarian meal and drank several cups of coffee during the night. Davie was the seventh person executed in Ohio this year, tying a record the state set in 2004.
Warren County Tribune Chronicle
"Survivor, victims’ families gather for Davie penalty," by Virginia shank. (August 10, 2010
LUCASVILLE - John Everett and Sandra Richmond want Roderick D. Davie to know they are here. They want him to see their faces as he walks into the room, to know their presence as he takes his last breath and to feel their eyes watching him as he is put to death by lethal injection today.
Everett and Richmond are among a group of survivors and families of victims who traveled to Lucasville on Monday to witness Davie's sentence of death carried out this morning. Even as the survivors and family made their way from Warren to southern Ohio, Davie also was en route - to Ohio's Death Chamber at the Southern Ohio Correctional Facility in Lucasville, which houses the state's execution chamber.
Earlier in the day, Gov. Ted Strickland rejected clemency for 38-year-old Davie, who admitted to and was convicted of killing John Coleman and Tracey Jefferys and shooting and seriously injuring Everett in a pet food warehouse on June 27, 1991. Davie's attorney said he had no pending appeals.
"None of this is easy," Everett, the lone survivor of Davie's attack, said Monday evening. Everett was shot three times and jumped over a bridge near the warehouse in his attempts at escape. "But it's what has to be done. I want him to see me. I want him to know I'm there, that I'm in the room. I need to do that for myself and for John and Tracey."
Davie admitted to killing Coleman and Jefferys and to shooting Everett during an attack on his former co-workers at the VCA Warehouse on Warren's South Main Avenue. He had been fired from the warehouse three months earlier after a fight with the building's owner.
Richmond, Jefferys' mother, said her daughter "wasn't even suppose to be at work" that June day. "She went in to work as a favor to her boss," Richmond said. "That's the kind of person she was, always helping out and doing for people."
Davie was convicted of killing Coleman with several blasts of a handgun. After he ran out of bullets, he beat Jefferys to death with a folding chair. He shot Everett, who initially played dead, three times. When Everett got up, Davie chased him with a truck and continued attacking him. "It's something that will never go away," Everett said. "Nothing can ever make it go away. It happened and it's something that's always there."
Richmond said she doesn't believe anything, even watching Davie executed, could bring closure to her family or to the families of his other victims. However, she agrees with Everett that it will mark the end of a chapter. "It's like closing the chapter on everything that has happened to this point," she said. "It's the next step in a process and the final step in this part of it. But nothing will ever close it completely. Tracey was my baby, my only daughter. Nothing will bring closure to that or what (Davie) did."
Everett and Richmond said they have not seen Davie since he was convicted of the crimes. "There's been no reason to see him, no reason to talk to him," Richmond said. "Why should we? He has shown no remorse, no sorrow, nothing."
Everett said he has never understood Davie's reasons for attacking him and the others. "I tried being nice to him," he said. "I showed him how to play pool. Tracey was kind to him. She was just a sweet person. None of us did anything to him. He didn't even know who would be there that day. So what, you lose your job and that's what you do? It makes no sense."
Everett said he thinks about Coleman and Jefferys often. He and the families of the other victims now share a bond he said can never be broken. Representatives from the Coleman family will stand alongside Everett and Richmond and her husband, Kenneth, as they watch Davie die today. "It's his sentence," Everett said. "It's what the court sentenced him to, to die. This is justice being served. That's why we're here, to see justice."
Roderick Davie returned to his former place of employment in Warren, Ohio and ordered three employees, two men and a woman, to lie face down. He shot both men in the head and back. After running out of bullets, Davie chased the escaping woman and killed her. One of the men survived the shooting; Davie tried to kill him by running him down with a truck and then by beating him with a stick. The woman died due to blunt force trauma, the man died of a gunshot to the head.
The details are that on June 27, 1991, Roderick Davie killed John Coleman and Tracey Jefferys, and tried to kill John Everett. In a taped confession, Davie admitted that he “flipped out” the morning of the crime and “went down to VCA and shot ’em up.” He described how he entered the building, made his three victims lie on the floor, and shot them. He described how he beat one victim with a chair when he ran out of bullets, and attempted to run down one victim with a truck. He also described his activities after he committed the shootings.
At trial, Donna Smith, an eye witness, testified that, as she approached the Veterinary Companies of America (“VCA”) warehouse in Warren, Ohio on the morning of the shootings, she noticed a bleeding man stumble across the parking lot and collapse on a sidewalk. Smith then noticed another man come out of the building and run around to the driver’s side of a truck in the dock area. Thereafter, Smith testified that the truck came “flying out” of the parking lot across both lanes of the street in an attempt to hit the injured man. The injured man was able to shield himself from the truck by falling underneath a bridge, and the truck rammed into the bridge. Smith testified that the man in the truck left the truck and jumped over the side of the bridge.
John Everett, one of Davie’s victims and the man that Smith witnessed stumble across the parking lot, testified to the following events. On the morning of the shootings, Everett was in the VCA lunch room. Davie, accompanied by a crying Tracey Jefferys (another VCA employee), came up from behind Everett holding a gun. Davie ordered Everett out of the lunch room and, once in the warehouse area, ordered Everett and Jefferys to “lay face down.” Davie then ordered John Coleman, who was loading his truck at the loading dock, to join Everett and Jefferys. After Everett, Jefferys, and Coleman had complied with Davie’s commands, Davie began shooting.
Everett testified that after numerous shots were fired, Jefferys got up and ran away. Davie brought Jefferys back, and Everett heard Davie remark to Coleman “You ain’t dead yet, huh, brother?” and fire another shot. Everett testified that Davie then took Everett’s wallet and told Jefferys that she was lucky that he was out of bullets. At that point, Jefferys again attempted to flee, and Davie followed. Everett heard Jefferys scream for three or four minutes and, eventually, the screaming stopped. Tracey Jefferys died in VCA’s lunch room due to blunt force trauma. A metal folding chair was found next to her body. Coleman died in the warehouse as a result of five bullet wounds—two of which were located in the back of his head.
Everett escaped the warehouse and made his way out of the building and to the street. Thereafter, Everett noticed Davie revving the engine of a truck in the parking lot. Davie attempted to use the truck to run Everett down, but Everett escaped by jumping under a bridge. Everett heard the truck crash into the bridge and, shortly thereafter, Davie arrived under the bridge. At that time, Davie began beating Everett with a stick on the left side of Everett’s head, and attempted to gouge Everett’s eyes out with the stick. Everett testified that Davie had the look of “a man on a mission and he was definitely going to kill me.” At some point, Davie stopped beating Everett, looked up over the bridge, and left the area. Everett was treated at the hospital for, among other things, three gunshot wounds—one to the head, one to the shoulder, and one to the arm. The remainder of the trial testimony established overwhelmingly that Davie committed a bloody and gruesome series of crimes on the morning of June 27, 1991.
List of individuals executed in Ohio
A total of 40 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
22. Rocky Barton (12 July 2006) Kimbirli Jo Barton
23. Darrell Ferguson (8 August 2006) David A. Gowdown, Dennis J. Langer, Jeffrey M. Welbaum
24. Jeffrey Lundgren (24 October 2006) Dennis Avery, Cheryl Avery, Trina Avery, Rebecca Avery, Karen Avery
25. James J. Filiaggi (24 April 2007) Lisa Huff Filiaggi
26. Christopher J. Newton (24 May 2007) Jason Brewer
27. Richard Cooey (October 14, 2008) Wendy Offredo and Dawn McCreery
28. Gregory Bryant-Bey (November 19, 2008) Dale Pinkelman
29. Daniel E. Wilson (June 3, 2009) Carol Lutz
30. John Fautenberry (July 14, 2009) Joseph Daron Jr.
31. Marvallous Keene (July 21, 2009) Joseph Wilkerson, Danita Gullette, Sarah Abraham, Marvin Washington, Wendy Cottrill
32. Jason Getsy (August 18, 2009) Ann R. Serafino
33. Kenneth Biros (December 8, 2009) Tami Engstrom
34. Vernon Lamont Smith (January 7, 2010) Sohail Darwish
35. Mark Aaron Brown (February 4, 2010) Isam Salman, Hayder Al Tuyrk
36. Lawrence Reynolds Jr. (March 16, 2010) Loretta Mae Foster
37. Darryl Durr (April 20, 2010) Angel Vincent
38. Michael Francis Beuke (May 14, 2010) Michael Craig
39. William Garner (July 13, 2010) Deondra Freeman, Richard Gaines, Markeca Mason, Mykkila Mason, and Denitra Satterwhite
40. Roderick Davie (August 10, 2010 John Ira Colema Tracey Jeffries
State v. Davie, Not Reported in N.E.2d, 1995 WL 870019 (Ohio App. 1995). (Direct Appeal)
MAHONEY, J.
Defendant-appellant, Roderick Davie, appeals from the judgment of the Trumbull County Court of Common Pleas convicting him of two counts aggravated murder with specifications of four aggravating circumstances, two counts of felony murder with specification of four aggravating circumstances, one count attempted murder with specification of a firearm possession, three counts of kidnaping, two counts of aggravated robbery, and one count of aggravated burglary; and from the judgment imposing the penalty of death.
Upon a thorough review of the record and in consideration of appellant's twenty-nine assignments of error, this court affirms appellant's convictions. After independently reweighing the aggravating circumstances and the mitigating factors, this court further affirms the imposition of the penalty of death.
I.
On July 1, 1991, appellant was indicted on ten counts: Counts 1 and 2 alleged the aggravated murder of John Ira Coleman and Tracey Jefferys (a.k.a. Tracy Jefferys), respectively, in violation of R.C. 2903.01(A); Counts 3 and 4 alleged the aggravated murder of John Ira Coleman and Tracy Jefferys, respectively, in violation of R.C. 2903.01(B); Count 5 alleged the attempted aggravated murder of William J. Everett in violation of R.C. 2923.02 with a firearm possession specification pursuant to R.C. 2941.141; Counts 6, 7, and 8 alleged the kidnapping of John Ira Coleman, Tracey Jefferys, and William J. Everett, respectively, in violation of R.C. 2905.01(A)(2) and (3); Counts 9 and 10 alleged the aggravated robbery of Tracey Jefferys and William J. Everett, respectively, in violation of R.C. 2911.01(A) and (B). Counts 1 through 4 were accompanied by specifications of multiple victims pursuant to R.C. 2929.04(A)(5), kidnapping pursuant to R.C. 2929.04(A)(7)), aggravated robbery pursuant to R.C. 2929.04(A)(7), and aggravated burglary pursuant to R.C. 2929.04(A)(7). Each count was based on an incident that occurred on June 27, 1991.
On March 2, 1992, a jury trial commenced, and the following facts were adduced from the testimony at trial. In December 1990, William J. Everett was employed as a truck driver for the Veterinary Companies of America (“VCA”) at its warehouse located at 860 South Main Street, Warren, Ohio, which distributes dog food and pet supplies to veterinarians. Everett often socialized with the other VCA employees including appellant who had been employed as a warehouse worker but was fired in April 1991.
Sometime around 7:00 a.m on June 27, 1991, Everett arrived at the warehouse and was let in by the secretary, Tracey Jefferys. The entrance to the VCA building was secured by a locked gate, a locked main door, and a locked interior door with a buzzer. Around 7:20 a.m., the other truck driver, John Ira Coleman, arrived at work and was also let in by Jefferys. By that time, Everett had begun loading his truck parked at one of the three loading docks located off the warehouse.
Around 7:30 to 7:35 a.m., Everett saw appellant in the warehouse, and they talked briefly. Everett finished loading the truck and walked into the lunch room to review the invoices for the day scheduled deliveries. The lunch room was an enclosed room with doors accessing both the warehouse and the offices. While in the lunch room, Everett heard someone come up from behind him. When he turned around, he saw Jefferys standing next to him, crying and shaking, and appellant holding a gun. Everett described the gun as a black revolver with a four to six inch barrel and as either a .38 or .357 caliber.
Appellant told Jefferys and Everett to go into the warehouse. Jefferys and Everett complied and stopped right outside the lunch room. Thereafter, appellant told Jefferys and Everett to “get down” on the floor and yelled at Coleman who was loading his truck to join them. When Coleman came over, appellant told them to lie face down on the floor. After the three complied, appellant said, “So, you all work for VCA, huh?” and then there were gunshots.
Everett was struck in the back of the head, left shoulder, and left arm. Despite these injuries, Everett heard Jefferys get up and run and appellant start running after her yelling, “Come here, bitch.” Appellant returned with Jefferys, and Everett heard him say to Coleman, “So you ain't dead yet, huh, brother,” followed by another shot.
Thereafter, appellant walked over to Everett and took his wallet out of his left rear pocket. Everett heard appellant unload the gun and tell Jefferys, “You're lucky, I'm out of bullets.” Once again, he heard Jefferys start to run followed by a squeak from the opening of the lunch room door. Everett heard appellant run after her, and Jefferys start to scream. After three or four minutes, the screaming stopped, and Everett got up and saw appellant standing with his back toward him in the doorway of one of the offices. Everett made his way out of the building through one of the loading docks to the VCA parking lot. At no time did Everett see or hear anyone else in the warehouse other than appellant, Jefferys, and Coleman.
While Everett was in the VCA parking lot, he was seen by Donna Smith who was driving by on her way to work. Smith saw Everett stumbling in the parking lot with blood all over his shirt. Smith also saw a black man coming out of the building and running around the front of a truck parked near the loading docks. Smith and Sandra Alough, another driver who was passing by, stopped their cars. As they were attempting to reach Everett who had made his way to the sidewalk, they saw a truck pull out of VCA's parking lot and drive straight at Everett. Everett who had also seen the truck managed to go across the street and jump over the end of the bridge. The truck hit the side of the bridge and stopped.
The driver got out, walked over to the bridge, and looked over the side. After a few moments, the driver turned around and stared at Smith and Alough who were standing about forty yards away. After about fifteen seconds, the driver jumped over the bridge. Smith described the driver as a thin, young, black man of medium height who was wearing a short sleeve, light colored shirt, dark pants, and dark shoes. Smith later identified the driver in a photographic line-up as appellant. Everett, who had been sitting against the wall of the bridge, saw appellant jump over the bridge. Appellant began to strike Everett with a stick, but Everett managed to get the stick from him. Appellant found a larger stick and began hitting Everett again. Suddenly, appellant stopped, looked up at the top of the bridge, and left the area.
Smith and Alough who had been standing at the top of the bridge left to summon help, but someone had already called the police. As Smith and Alough were going back to the bridge, Officer Michael Albanese arrived. Smith showed Officer Albanese the location where Everett went over the bridge, and they heard him say, “I'm under here.”
Officer Albanese went down to help Everett who was weak and bleeding. Officer Albanese asked Everett if he knew who shot him, and he heard the name “Robert Davis,” so he gave out that name over the police radio. When Officer Albanese asked Everett again who shot him, Everett told him, “Roderick Davies,” with whom he had worked at the VCA, and Officer Albanese corrected the name on the police radio. Everett also told Officer Albanese that two more people had been shot at the VCA. Shortly thereafter, an ambulance arrived, and Officer Albanese proceeded to the VCA with another
officer. The officers found Coleman's body in the warehouse and Jefferys' body in the lunchroom. An autopsy of Coleman's body showed that he died immediately from five bullet wounds: Two in the back of his head, one in the back of his neck, and two in the upper portion of his right thigh. An autopsy of Jefferys' body showed that she had multiple lacerations about the face and head, multiple skull fractures, lesions to her back and legs, and defensive lesions of both forearms. The coroner determined that these wounds were caused by blunt force trauma inflicted while she was still alive.
A metal folding chair and a coffee maker were found next to Jefferys' body in the lunch room. Hairs removed from both the coffee maker and chair were found to match those of Jefferys. A bloody fingerprint found on the base of the folding chair was identified as that of appellant's and was believed to have been made at the same time the blood came in contact with the chair. The officers also found several overturned bookcases and debris on the floor of one of the offices, and a broken window adjacent to the interior entrance door.
Inside the truck cab, the police officers found a .38 caliber Smith and Wesson with three spent shells inside the gun. The gun was determined to be operable, and was identified as the gun that fired the spent shells found between the dumpster and the VCA building, the bullet recovered from Coleman's body, and the bullet found on the floor of the VCA warehouse.
At around 8:30 a.m., Carl Miller, chief bailiff for the Warren Municipal Court, received a telephone call from Dwayne Thomas, a.k.a. Styx, indicating that he had some information regarding the murders at the VCA and that he and appellant were at appellant's house at 436 White Court. Miller who had known Styx for about five or six years believed him to be reliable. After the telephone call, Miller went to the VCA warehouse where he informed Captain Timothy Downs about the conversation with Styx. The two men proceeded to 436 White Court. Appellant was advised of his Miranda rights and arrested. Styx was placed in the police cruiser along with appellant. As the police cruiser was backing out of White Court, appellant asked Captain Downs if they could drive by the VCA warehouse, but he denied appellant's request.
At the police station, Sergeant Mark A. Massucci took a statement from Styx. Based on the information given by Styx, Sergeant Massucci went with Styx to his house which was also located on White Court. In a wooded area behind Styx's house, they found a plastic bag containing a pair of LA Gear, brown and black suede shoes, a blood stained T-shirt, a pair a blue jeans, and a blood stained, green, short sleeved shirt. The blood found on the clothing was determined to be consistent with Jefferys' blood. Inside the pockets of the blue jeans, there were several items including a checkbook belonging to Jefferys and some .38 caliber spent shells. It was later determined that these spent shells had been fired from the gun found in the truck.
Later that day, two detectives went over to 436 White Court to talk with Sonya Barnes, appellant's girlfriend and mother of his two year old daughter. With Barnes' consent, the detectives searched the house and found a black pouch belonging to Jefferys in plain view on the kitchen table. Barnes' father found a wallet belonging to Everett on the top of the refrigerator.
In a statement given to the police, Barnes stated that appellant came home before 8:00 a.m. that morning wearing “a green like khaki green short sleeve shirt, with a red T-shirt under it, and jeans.” Appellant told her, “I'm in trouble. Some people have been shot,” and then he said he shot them. Thereafter, appellant took a shower and put some of his clothing in a plastic bag which he took outside.
At trial, Barnes testified that “appellant told [her] to say that he did it, for reasons unknown to [her].” Barnes also testified that after appellant came back inside the house, Styx came over carrying a checkbook in his hand and that Styx asked appellant if he wanted to take some money out of it, but appellant declined and Styx kept the checkbook. Barnes also claimed that Styx asked appellant if he had any money and that when appellant said, “No,” Styx pulled a .38 revolver on him. According to Barnes, appellant told Styx that he would have to kill Barnes too, and Styx put the gun down at his side and then made two phone calls including his call to Miller. Barnes testified that when appellant and Styx were taken away in the police cruiser, she did not see the black pouch on the table or the wallet on the refrigerator.
Appellant testified that he went to the VCA around 7:00 a.m. on June 27, 1991 to see if he could borrow some money from Jefferys and Everett to pay Styx the money that he owed him for a drug deal gone bad. Appellant claimed that on several occasions including the previous night, Styx had threatened him, Barnes, and his daughter if he did not repay the money. When he arrived at the VCA, appellant claimed that Jefferys let him into the building, and he spoke to her about borrowing some money. Appellant also claimed that he spoke to Everett about borrowing money and that when he finished speaking to him, he went into one of the offices where he found Jefferys and Styx. Styx who was holding a gun handed it to appellant and told him to take Jefferys and Everett out to the warehouse while he looked for some money in the office. Appellant complied and ordered Coleman to join them and lie face down on the ground. At that time, Styx came out of the office and told appellant that he could not find any money. Appellant handed Styx the gun, and went into the office. According to appellant, he heard gunshots and saw Jefferys run into the office with Styx running behind her carrying a coffee maker. Appellant went to help Jefferys, but Styx pointed the gun at him and told him to stay out of it. Appellant went back into the offices where he could hear
Jefferys screaming, and then he heard silence. When appellant walked back into the lunch room, he saw Jefferys lying on the floor. He picked the chair off of her, determined that she was not breathing, hugged her and then laid her down. Then, he took Jefferys' car keys which were lying on the lunch room table and drove home.
Following the testimony at the guilt phase, the jury returned a verdict of guilty on all counts and specifications listed in the indictment. Counts 3 and 4 were removed from the jury prior to the commencement of the penalty phase in response to the state's motion to dismiss these counts. On March 19, 1992, the penalty phase commenced on Counts 1 and 2 and on the four specifications as to each count. After the mitigation evidence was presented, the jury recommended that a sentence of death be imposed on appellant for each count.
On March 25, 1992, the trial court held that the aggravating circumstances outweighed the mitigating factors beyond a reasonable doubt as to both Counts 1 and 2, and accordingly sentenced appellant to death on Count 1 and sentenced appellant to death on Count 2. Appellant was also sentenced to an indeterminate period of incarceration of seven to twenty-five years on Count 5 with three years actual incarceration to be served prior to and consecutive with the principal sentence and to an indeterminate period of incarceration of ten to twenty-five years each on Counts 6, 7, 8, 9, 10, and 11. The trial court ordered all sentences to be served consecutively to each other and all terms of imprisonment be actual incarceration. Appellant filed a timely notice of appeal, and now presents the following twenty-nine assignments of error for review:
“1. The trial court erred in intimidating a prospective juror and overruling the appellant's motion to supplement the annual jury list with names drawn from Trumbull County residents holding a valid driver's license. “2. The trial court erred in its handling of the appellant's presence in the courtroom and mischaracterization of appellant's statement. “3. Admission of certain photographs was an abuse of discretion. “4. It is error for the prosecutor to repeatedly engage in improper argument and comments throughout the trial. “5. The trial court erred in repeatedly allowing the prosecutor to comment that the appellant had an expert witness which the appellant did not have testify. “6. The trial court erred in admitting into evidence statements of the appellant. “7. The trial court erred in not suppressing the identification testimony of Donna Smith. “8. The trial court erred in not allowing the use of a questionnaire to prospective jurors. “9. The trial court erred in repeatedly instructing the jury that its verdict was only a recommendation. “10. The trial court erred in allowing the appellee to use peremptory challenges to exclude any prospective juror who expressed reservation about the death penalty. “11. The trial court erred in the admission of ‘other acts' testimony. “12. It is a violation of Evid.R. 607 to allow the prosecutor to impeach his own witness. “13. The trial court's instructions during the trial phase were erroneous. “14. The trial court erroneously instructed the jury during the trial phase. “15. R.C. 2901.05 violates the due process clause of the fourteenth amendment. “16. The trial court erred in not granting a Crim.R. 29 motion to dismiss. “17. The admission of exhibit 2 and 3 (photographs of Tracey Jefferys and John Coleman), as well as character and background of Everett, Coleman and Jefferys, was error. “18. The trial court erred in changing the verdict form after the jury rendered its verdict. “19. The trial court erred in limiting the admission of mitigation evidence. “20. The trial court erred in admitting evidence of non-statutory aggravating circumstances. “21. The trial court erred by not complying with R.C. 2929.03. “22. The trial court violated R.C. 2929.41 in its sentencing of the appellant. “23. The appellant was denied the effective assistance of counsel. “24. The conviction and sentence herein are against the manifest weight of the evidence. “25. The multiplicative indictment and the repetitive use of the felony allegations violated the appellant's constitutional rights. “26. The trial court was improperly prevented from deciding whether death was the appropriate punishment. “27. The Ohio statutory scheme concerning the imposition of the death penalty is unconstitutional. “28. This court cannot find that after reviewing all of the factors of R.C. 2929.05(A) that death was the appropriate sentence for Roderick Davie. “29. The trial court erred in not allowing the appellant to be present for the hearing before a trial court to correct a record.”
* * *
THIRD ASSIGNMENT OF ERROR “Admission of certain photographs was an abuse of discretion.” In his third assignment of error, appellant asserts that the admission of inflammatory and gruesome photographs, slides, diagrams, and a video tape violated his rights guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and by Section 9, 10 and 16, Article I, of the Ohio Constitution. Appellant argues that the inflammatory and cumulative nature of this photographic evidence outweighed any probative value because the cause of death was uncontested with the admission of the coroner's report and testimony.
At the outset, we note that the Supreme Court of Ohio in State v. Slagle (1992), 65 Ohio St.3d 597, stated that: “As a general rule an appellate court will not consider an alleged error that the complaining party did not bring to the trial court's attention at the time the alleged error is said to have occurred. * * * Crim.R. 52(B) softens the general rule forbidding our consideration of unobjected-to errors. The rule provides that: ‘Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.’ This rule allows the appellate court * * * to consider a trial error that was not objected to when that error was ‘plain error.’ ” Id. at 604.
In reviewing for plain error, the reviewing court must consider all the evidence at trial and determine whether the alleged error substantially affected the outcome of the trial and influenced the jury to enter a verdict that it would not have otherwise entered if the error had not occurred. Id. at 605.
As to the admission of photographic evidence, the Supreme Court of Ohio in State v. Maurer (1984), 15 Ohio St.3d 239, set forth the following evidentiary standard for the introduction of photographic evidence in capital cases: “Properly authenticated photographs, even if gruesome, are admissible in a capital prosecution if relevant and of probative value in assisting the trier of fact to determine the issues or are illustrative of testimony and other evidence, as long as the danger of material prejudice to a defendant is outweighed by their probative value and the photographs are not repetitive or cumulative in number.” Id. at paragraph seven of the syllabus. See, also, Slagle, 65 Ohio St.3d at 601-602; State v. Morales (1987), 32 Ohio St.3d 252, 257-258.
“[T]he mere fact that a photograph is gruesome or horrendous is not sufficient to render it per se inadmissible[,]” nor is a photograph automatically rendered inadmissible because the accused stipulates to the cause of death. Id. at 265. “The trial court has broad discretion in the admission * * * of evidence and unless it has clearly abused it discretion and the defendant has been materially prejudiced thereby, this court should be slow to interfere.” State v. Hymore (1967), 9 Ohio St.2d 122, 128. See, also, Maurer, 15 Ohio St.3d at 625; Slagle, 65 Ohio St.3d at 601; State v. Landrum (1990), 53 Ohio St.3d 107, 121. “The term ‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable.* * * ” (Citations omitted.) State v. Adams (1980), 62 Ohio St.2d 151, 157-158.
In the instant case, the trial transcript indicates that six of the nineteen proposed slides taken during Coleman's autopsy and fifteen of the thirty-one slides taken during Jefferys' autopsy were admitted by the trial court. However, in the record before this court, there are seven slides relating to Coleman's autopsy and fourteen slides relating to Jefferys' autopsy; the same number cited in appellant's brief. The seven slides of Coleman depict each of the three wounds on the back of his head and neck, the two wounds on his right leg, an abrasion on his left shoulder, and the two bullets extracted from his body during the autopsy. None of the Coleman slides were gruesome or repetitive.
As to the Jefferys slides, six slides depict the bruising and abrasions over her knees, hands, wrists and elbows. Six slides depict multiple gapping lacerations over her head; one large laceration on the back of her head, one on the left side of her head, three on the top of her head, one over her left eyebrow, one near her right eye, and one near her right ear. The two remaining slides depict a facial view of Jefferys from slightly different distances and show several head lacerations and profound bruising.
After the trial court eliminated the other slides, appellant objected to the admission of the No. 2 Jefferys' slide arguing that it was repetitive of slide No.1. The trial court overruled his objection stating that “[o]ne shows both sides of the injury to the brow area and the other picture shows just the one side.” However, none of the slides in the record before this court are numbered and, thus, we cannot determine the slide to which appellant made his objection. Notwithstanding, we must conclude that the slides depicting the multiple lacerations on Jefferys' head as well as the two facial views are gruesome and that the two slides depicting Jefferys' face are repetitive in nature.
The record reflects that there are seven diagrams depicting the location and size of the wounds on both Coleman's and Jefferys' body. Two of the diagrams depicted Coleman's body and the base of his skull, and the remaining five depicted Jefferys' body, head, and the base of her skull. The wounds were marked in red ink. Appellant offered no objection to the admission of these diagrams, and we conclude that the diagrams were neither gruesome nor repetitive.
The record also indicates that both the slides and the diagrams were used to illustrate the coroner's testimony concerning the injuries and cause of death of each victim and were probative with regard to showing intent and deliberation on the part of appellant.
According to the trial transcript, it indicates that thirty-one, three by five photographs were admitted into evidence. Of those thirty-one photographs, appellant cites to twenty-five photographs. Four photographs depict the bruising and abrasions over Jefferys' wrists, knees, and forearms, and are repetitive of some of the Jefferys' slides but are not gruesome. Seven photographs depict Everett under the bridge and the wounds located on his head, neck, face, left shoulder, torso, and left arm. None of these photographs are gruesome or repetitive.
The remaining fourteen photographs depict the crime scene at the VCA warehouse. Concededly, several of these photographs are gruesome as they show both Coleman and Jefferys as they were found in the VCA warehouse. Appellant only objected to the crime scene photographs marked as exhibits No. 46 and No. 35 as being repetitive of previous photographs. The trial court overruled his objection.
We agree that the photographs are not repetitive of each other. Both pictures depict Jefferys' head and torso, but one is taken while she is lying prone and the other while she is lying supine. We also conclude that none of the remaining crime scene photographs are repetitive of each other. The record indicates that all of the photographs were used to illustrate the testimony of the state's witnesses, and are of probative value in assisting the jury to understand the condition of Coleman and Jefferys at the murder site and the culpability of the appellant.
A videotape was admitted into evidence and represents the redacted version of an original videotape objected to by appellant. Appellant did not object to this redacted version. The redacted videotape depicts the crime scene from 8:25 a.m. to 11:05 a.m., and includes views of the bridge, the truck and its interior, the gate around the VCA warehouse, the two entrance doors, the broken window, the offices, the interior of the warehouse, the lunchroom, and the dock area. The videotape also shows the locations of both Coleman and Jefferys before and after their bodies were removed and is repetitive in that regard to some of the crime scene photographs. It is clear that several of the views are gruesome including the views of the victims and the blood stains located throughout the warehouse. However, it is also clear that the videotape was illustrative of the testimony of the state's witnesses concerning the crime scene and probative of the location of the victims in relation to the interior of the warehouse.
In sum, we determined that two of the slides were repetitive of each other and that some views in the videotape were repetitive of the crime scene photographs. However, we also determine that all of the gruesome photographic evidence was of distinct probative value in assisting the jury to determine the issues, and this probative value outweighed the material prejudice to appellant. Thus, we cannot conclude that the trial court's admission of this evidence was unreasonable or arbitrary.
Accordingly, appellant's third assignment of error is without merit.
FOURTH ASSIGNMENT OF ERROR
“It is error for the prosecutor to repeatedly engage in improper argument and comments throughout the trial.”
In his fourth assignment of error, appellant asserts that he was denied his rights to a fair trial, due process, and a reliable determination of his guilt and sentence as guaranteed under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Sections 10 and 16, Article I, of the Ohio Constitution when the prosecutor repeatedly engaged in improper argument and comment throughout the trial.
The prosecutor's remarks alleged to be improper include five categories: (1) comments aligning himself to truth and justice; (2) repeated references to the gruesomeness of the crime and use of gruesome photos to appeal to the jury's emotions; (3) comments denigrating appellant and his trial counsel; (4) comments expressing his personal belief and opinions; and (5) improper statements of the law.
As to claims of prosecutorial misconduct, “[t]he test * * * is whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant.” State v. Brown (1988), 38 Ohio St.3d 305, 316, citing State v. Smith (1984), 14 Ohio St.3d 3, 4. Moreover, the prosecutor's argument must be viewed in its entirety to determine whether the remarks were prejudicial. State v. Byrd (1987), 32 Ohio St.3d 79, 82.
In the first category, appellant argues that in the opening statement, the prosecutor began to align himself with “truth and justice” with statements such as: “ * * * as prosecutor representing the people of Trumbull County * * *. “In our system of justice, the best system in the world * * *. “ * * * so truth and justice will be served in our opinion.”
Appellant argues that the prosecutor continued to align himself with truth and justice in closing arguments of the guilt phase with the comment, “A beacon for all human kind to follow, the greatest system ever on this good earth,” and in closing arguments of the penalty phase with the following comments: “You are the conscience of the community. What you do affects the quality of life that we have. “Otherwise we'll have chaos. There's going to be a lot more dead people around if we don't have the laws followed and obeyed.” Appellant further argues that these comments were improperly made in an attempt to inflame the jury and sentence him based on a fear for their own safety and on some misplaced duty to the community.
The general rule is that both parties are granted some latitude in making their arguments before the jury. State v. Byrd (1987), 32 Ohio St.3d 79, 82. However, arguments that are made to incite a jury to convict based upon public demand rather than the facts proven beyond a reasonable doubt under the applicable law, are contrary to the basic rights of the accused and, thus, constitute prejudicial error. See State v. Davis (1978), 60 Ohio App.2d 355; State v. Agner (1972), 30 Ohio App.2d 96.
After reviewing the record, we note that there was no objection at the time these comments were made and, thus, must be reviewed for plain error. Concededly, some of the prosecutor's comments, particularly those made in closing arguments in the penalty phase, raise some question as to whether those comments appeal to considerations not relevant to appellant's guilt or innocence or the penalty to be imposed. However, when we view these comments in the context of their respective arguments, we conclude that the outcome of the trial was not affected by these comments.
In the second category of comments, appellant argues the prosecutor repeatedly focused on the horror of the crime rather than the evidence during his arguments. Appellant cites to the following comments made in opening statements:
“ * * * while he engaged in his mass murder attempt of that day. “Coleman had no chance. Three right into the brain. Absolutely no chance. “ * * * after he pummels the victim to death * * *. “ * * * Dwayne Thomas saw and smelled the blood.” Appellant also cites to the following comments made during closing arguments in the guilt phase and the penalty phase, respectively: “This is the way the victims looked before he got to them, and that is what we're clear about. This isn't an intellectual game of being cute. “ * * * and this is before the supposedly blood loss defense. It's malarkey. “ * * * you will have a slide projector if you need to go through those terrible, terrible photographs of Tracey. “Every part of her body was bruised, contused, cut and lacerated. “How does Roderick [ sic], probably just like he is now, when he's turning himself in for shooting people, very calm, very relaxed, very cooperative. “Seldom does a Jury have this much evidence and because of the evidence and the brutality of this case, I submit from the evidence, guilty of all of the aggravated murders, and all of the specifications. This Defendant, from the evidence, on the Richter scale of crimes, is off the scale.” and “In short, this Defendant is eligible for the death penalty eight times over. “ * * * sometimes you get what you deserve.”
Appellant argues that the prosecutor also used these comments along with the gruesome photographs to further direct the jury's attention on the brutality of the crime and, thus, inflame its emotions. We disagree.
“ ‘ * * * [A] conviction based solely on the inflammation of fears and passions, rather than proof of guilt, requires reversal * * *.’ ” State v. Beuke (1988), 38 Ohio St.3d 29, 33 quoting State v. Williams (1986), 23 Ohio St.3d 16, 20. Similar prosecutorial comments made during the penalty phase can require reversal if such statements inflame the jury and influence it to render a more severe recommendation than it otherwise would have made. Maurer, 15 Ohio St.3d at 267-268.
A review of the record again indicates that appellant did not object to the prosecutor's comments and, thus, his argument will be considered under a plain error standard. We concede that the prosecutor's statements and the use of photographs during arguments had the inherent danger of appealing to the emotions of the jury. However, when most of these statements and the photographs presented are viewed in the context of the entire argument, it is apparent that such statements were predicated on the evidence before the jury.
In the third category of statements, appellant argues that the prosecutor denigrated him and his trial counsel in closing arguments with the following statements in the guilt phase: “ * * * the Defense has been classical. It's the wait and see defense. “The Defense has waited and has seen from the evidence what the State had * * *. “This isn't an intellectual game of being cute. “ * * * and this is before the supposedly blood loss defense. It's malarkey. “ * * * another part of the smoke screen justice in this case. “If you can believe that, honestly, I think that maybe, just maybe, Roseanne can sing the National anthem. It's absolutely ridiculous.”
Appellant argues that the prosecutor continued to denigrate him and his counsel with the following statements in the penalty phase: “ * * * he has no empathy-boy, he doesn't have any feelings or conscience. “ * * * we first had the mistaken identity plot, and then we get into now, the post-concussion syndrome, come on. “He's a sociopath. He doesn't feel. He doesn't have a conscience.”
Appellant argues that these unwarranted remarks undermined the integrity of his trial counsel in the eyes of the jury and deprived him of the effective assistance to which he was entitled.
We agree with appellant that it is improper for a prosecutor to denigrate defense counsel in the jury's presence because the prosecutor carries the prestige of a government representative whose role is to seek justice, and “[c]onsequently, improper suggestions, insinuations and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.” State v. Keenan (1993), 66 Ohio St.3d 402, 406, quoting Berger v. United States (1935), 295 U.S. 78, 88.
However, it is apparent from the record that appellant only objected to the prosecutor's statements that “ * * * the Defense has been classical. It's the wait and see defense.” The trial court sustained this objection but only as to the phrase “classical defense” and stated that it found nothing else objectionable because the objection was based on what appellant's counsel assumed the prosecutor was going to say. When this statement is viewed in the context of the entire argument, we conclude that the trial court's limitation of appellant's objection was reasonable and the prosecutor's characterization permissible because it was based on the evidence.
As to the remaining statements of the prosecutor alleged to be denigrating to both appellant and his counsel, we apply the plain error standard of review. Standing alone, many of these remarks give the appearance of impropriety. However, when read in context, we must conclude that they fall within the wide latitude afforded counsel for both parties in closing arguments and were based on the evidence.
In the fourth category of comments, appellant argues that the prosecutor improperly imposed his personal opinion in his closing argument to the jury in the penalty phase and cites to the following statements: “To me that's not mitigating. * * * I think that is not mitigating. I think there's very little weight to that. “We think we're right this time.”
It is well settled that prosecutors “may not express their personal beliefs or opinions regarding the guilt of the accused, and they may not allude to matters not supported by admissible evidence.” State v. Lott (1990), 51 Ohio St.3d 160, 166. However, it also recognized that due to the moral nature of the penalty phase, it is difficult for prosecutors to argue vigorously for the death penalty without making what might arguably be statements of personal opinion. State v. Tyler (1990), 50 Ohio St.3d 24, 41. Where the prosecutor's opinion is based on the evidence presented at trial, such opinion is not improper. Id.; State v. Stephens (1970), 24 Ohio St.2d 76, 83.
It is apparent from the prosecutor's remarks that he was interjecting his personal opinion as to one of the mitigating factors alleged by appellant. However, upon review of these remarks in context of the argument, it is also apparent that his remarks were based on the evidence presented at trial. Moreover, since appellant did not object to these remarks, we apply a plain error standard of review and conclude that such remarks did not deny appellant a fair trial.
In the last category of statements, appellant argues that the prosecutor argued the law improperly to the jury with the following comments: “In short, this Defendant is eligible for the death penalty eight times over.* * * “ * * * “ * * *The first count, John Coleman, committed with prior calculation and design, and a specification of mass murder and multiple murders.* * * “ * * *But what does he do? And this takes a considerable period of time. This course of conduct to take human life, and also after repeatedly beating this poor woman to death. Then attempts two other times to kill John Everett. That is aggravating circumstances. “ * * * “ * * * kidnaped these people, and by gunpoint, terrorized them. That is aggravating circumstance.”
Appellant argues that the prosecutor improperly implied that certain factors were aggravating circumstances including mass murders and multiple murders, the beating of Jefferys, the two attempts to kill Everett, and the use of a gun.
A review of the record indicates that appellant objected to the prosecutor's comments regarding the beating and two attempted murders, and the trial court specifically overruled this objection. The record also indicates that appellant's counsel objected to the statement regarding the mass murders and multiple murders but later stated to the court that there was no formal objection. However, since the record reflects an objection, we will treat the matter as if it had been preserved for review by this court. As to the remaining statements, appellant did not object and, thus, will be reviewed for plain error.
R.C. 2929.04(A) provides in pertinent part: “Imposition of the death penalty for aggravated murder is precluded, unless one or more of the following is specified in the indictment or count in the indictment * * * and proved beyond a reasonable doubt: “ * * * “(5) * * * the offense at bar was part of a course of conduct involving the purposeful killing of or attempt to kill two or more persons by the offender. “ * * * “(7) The offense was committed while the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit kidnapping, * * * aggravated robbery, or aggravated burglary, and either the offender was the principal offender in the commission of the aggravated murder * * *.”
Thus, “[t]he manner of killing is not a statutory aggravating circumstance [,]” and the introduction of nonstatutory circumstances is error. Landrum, 53 Ohio St.3d at 112.
As to the prosecutor's statement that “[t]he first count, John Coleman, committed with prior calculation and design, and a specification of mass murder and multiple murders,” it is clear from the entire argument that the prosecutor was using the terms synonymously, and the use of a conjunctive rather than a disjunctive was an isolated misstatement. However, to the extent that this misstatement implied that these were two different aggravating circumstances, the trial court's instruction to the jury to consider the law as given to them by the court remedied any detriment to appellant.
In response to appellant's objection to the prosecutor's statement referring to appellant's course of conduct which involved repeated beatings of Jefferys and two attempts to kill John Everett, we agree that it is hardly a model of clarity as to what was being referenced as aggravating circumstances. Any implication that the two attempts to kill John Everett were aggravating circumstance was proper pursuant to R.C. 2929.04(A)(5) as being part of appellant's alleged course of conduct. However, the manner in which Jefferys was murdered was not a statutory aggravating circumstance, and any implication derived from the prosecutor's statement in that regard was improper. Yet, any prejudice to appellant that may have come from such improper implication was remedied by the trial court's instructions regarding the aggravating circumstances as to each count of aggravated murder and the application of law to it as given by the court.
As to the two remaining statements to which appellant did not object at trial, we find that these statements did not rise to the level of plain error. Reviewing the prosecutor's statement regarding appellant's eligibility for the death penalty eight times over in context of the entire argument, it is apparent that the statement was made to argue that the strength of any one of the four separate aggravating circumstances relating to each of the two counts of aggravated murder was sufficient enough to overcome the mitigating factors and, thus, was not improper. When the prosecutor's statement regarding the kidnapping is similarly reviewed in context, it is apparent that the kidnappings were the aggravating circumstances that the prosecutor was referring to in the statement.
Accordingly, appellant's fourth assignment of error is without merit.
FIFTH ASSIGNMENT OF ERROR
“The trial court erred in repeatedly allowing the prosecutor to comment that the appellant had an expert witness which the appellant did not have testify.”
In his fifth assignment of error, appellant asserts that the trial court erred in permitting the state to repeatedly comment on the fact that his expert witness did not testify and thereby denied him of his rights to a fair trial under both the United States and Ohio Constitutions. More specifically, appellant argues that the prosecutor made three comments about the failure of his expert to testify in violation of Crim.R. 16(C)(3). The first comment occurred during the direct examination of the state's witness, Dale Laux, who is a Bureau of Criminal Identification (“BCI”) forensic scientist and is contained in the following exchange: “Q. And I take it all of this evidence was returned to the Warren Police Department? “A. That's correct. “Q. And was there a time that the Defendant and his expert or experts were given some of the evidence for evaluation? “A. Yes.” The second and third comments occurred during the prosecutor's closing arguments in the guilt phase and are as follows: “Sergeant Carahan. What a job. What a job. He introduced well over 100 Exhibits in this case, and what does the Defense want to talk to him about? Shadows, which way the sun came up. ‘Detective, did you tell BCI to print or examine the coffee pot handle?’ They had their own expert. They had their expert, and he was at BCI, but he wasn't here. “ * * * “Mr. Lewis throughout all BCI's testimony wants to make a point of what BCI didn't do. What didn't they do. What didn't they do. He had an expert, and he wasn't here.”
Appellant objected to the latter comment, and the trial court instructed the jury that “[y]ou, of course, are to consider the evidence in this case, and not to speculate on anything that was not presented to you, so in that regard, I'll allow you to proceed[.]” After reviewing the record, we conclude that the trial court's discretion in allowing the prosecutor's comments was sound.
Crim.R. 16(C)(3) provides in part: “The fact that a witness' name is on a list furnished under subsection (C)(1)(c), and that the witness is not called shall not be commented upon at the trial.”
In State v. Hannah (1978), 54 Ohio St.2d 84, a majority of the Supreme Court of Ohio held that any comment upon the absence of testimony from a witness named on the witness list is a clear violation of Crim.R. 16(C)(3). “Subsequent decisions interpreting Hannah have held that Crim.R. 16(C)(3) is applicable only where the ‘uncalled witness' had been supplied to the opposing side during the discovery process. * * * Where the witness mentioned is not on the list or there was no discovery list, counsel may comment on any absent witnesses.” (Citations omitted.) Jackson v. Howell (1993), 86 Ohio App.3d 497, 500.
A review of the record in the instant case indicates that appellant had filed a motion seeking appointment of a forensic expert to review, inspect and re-analyze the physical evidence previously analyzed by the BCI or in the BCI's possession and that the motion was granted by the trial court. However, there is no evidence in the record that appellant provided the state with a witness list bearing the appointed expert's name or that the state requested such a list in the course of discovery. Appellant's motion is not the equivalent of a witness list as contemplated by Crim.R. 16(C)(1). Thus, Crim.R. 16(C)(3) does not apply, and the prosecutor's comments were not improper.
In any case, appellant did not object to the prosecutor's first two comments and, thus, waived the issue absent plain error. In light of the entire record, we are not convinced that the alleged errors were so prejudicial that the outcome of the trial or sentencing would have been otherwise had they not occurred. Similarly, there is no abuse of discretion in permitting the prosecutor's third comment. See Adams, 62 Ohio St.2d at 157-158.
Accordingly, appellant's fifth assignment of error is without merit.
SIXTH ASSIGNMENT OF ERROR
“The trial court erred in admitting into evidence statements of the appellant.”
In his sixth assignment of error, appellant asserts that the trial court erred in admitting three of his statements that he made to the police. Appellant argues that he did not voluntarily, intelligently and knowingly waive his rights against self-incrimination as provided under both the United States Constitution and the Ohio Constitution. More specifically, appellant argues that he repeatedly stated that he did not wish to sign the “Waiver of Rights” line on the form and that he did not wish to make a statement during the first interview, but the police continued in their inquiry in the two subsequent interrogations and, thus, failed to scrupulously honor his requests.
The record before this court indicates that when appellant was brought into the police station, he was placed in an interview room along with Lieutenant Carl Blevins and Detective Morris Hill, read his Miranda rights, and given a form containing three sections. The first section requested an initial or signature after each statement expressing his constitutional rights against self-incrimination, and appellant initialed each statement. The second section requested an initial or signature to expressly waive the constitutional rights listed in the first section, but appellant neither signed nor initialed the waiver line. The third section contained an area for two witnesses' signatures and appellant's signature, and both were completed. An atomic absorption test was performed on appellant by Lt. Blevin and Det. Hill, and then appellant was left alone in the interview room.
At 9:59 a.m., Lt. Blevin and Det. Hill reentered the interview room and again advised appellant of his Miranda rights. Appellant was told that he was being questioned regarding a shooting that occurred that morning on South Main Street. After several questions, Lt. Blevin asked appellant about his refusal to sign the waiver section on the form and whether he wanted to make a statement. Appellant responded that it did not matter to him and stated, “I didn't refuse you said I didn't have to if I didn't want to.” Lt. Blevin then asked him if he wanted to make a statement and if not, the interview would be over. Appellant responded, “No statement,” and the interview was terminated. According to Lt. Blevin, appellant did not ask to see counsel.
Thereafter, Lt. Blevin notified Det. Charles Sines of appellant's refusal to sign the waiver of rights line. About two hours later, Det. Sines and Det. Sergeant Gary Vingle initiated contact with appellant to determine if he was willing to talk with them again, and appellant agreed. At 12:15 p.m., appellant was read his Miranda rights and given another form in which he again acknowledged his understanding of his rights and signed the form but did not sign the waiver of rights line. When asked by Det. Sines whether he wanted to answer some questions despite his failure to sign the waiver of rights line, appellant said, “Yes.” The interview was tape recorded by Det. Sines and concluded at 12:35 p.m. At no time during the interview did appellant request to see a lawyer.
At around 2:00 p.m., Det. Vingle learned that appellant wanted to talk with him again. Appellant was brought to the interview room and readvised of his Miranda rights. Appellant was given another form to sign and again initialed his understanding of his constitutional rights and signed his name at the end of the form but did not sign or initial the waiver of rights line. When questioned about whether he wanted to initial the waiver line, appellant said, “It don't matter, do it.” Appellant was also asked if he was willing to talk to Det. Sines and Det. Vingle, and he responded, “Right.” In the tape recorded interview, appellant confessed to the shootings at the VCA.
The trial court granted appellant's motion to suppress his statement made in the first interview stating that the state had failed to show by a preponderance of the evidence that appellant had knowingly, intelligently and voluntarily waived his constitutional rights. The trial court denied appellant's motion to suppress his statements made during the second and third interviews determining that despite his failure to sign the waiver of rights line, appellant had knowingly, voluntarily, and intelligently answered questions during the second and third interviews and that he had initiated the third interview which indicated his desire to talk.
In Miranda v. Arizona (1966), 384 U.S. 436, the United States Supreme Court recognized that custodial interrogations by their very nature produce “compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely.” Id. at 467. Thus, the Court set forth certain specific warnings and procedures to protect a person's constitutional right against compulsory self-incrimination when he is subject to custodial police interrogation. A person can waive these constitutional rights, but “a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Id. at 475.
“An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver. The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case. As was unequivocally said in Miranda, mere silence is not enough. That does not mean that the defendant's silence, coupled with an understanding of his rights and a course of conduct indicating waiver, may never support a conclusion that a defendant has waived his rights. The courts must presume that a defendant did not waive his rights; the prosecution's burden is great; but in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.” ( Emphasis added.) North Carolina v. Butler (1979), 441 U.S. 369, 373. See, also, State v. Scott (1980), 61 Ohio St.2d 155.
The inquiry as to whether a waiver is made voluntarily, knowingly and intelligently is two-fold. “First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the ‘totality of the circumstances surrounding the interrogation’ reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.” Moran v. Burbine (1986), 475 U.S. 412, 421.
When a person exercises his right to remain silent by requesting that the questioning be cut off, the police must respect that person's exercise of that option and cease the interrogation. However, the police are not indefinitely prohibited from further interrogation. Michigan v. Mosley (1975), 423 U.S. 96, 102-103. Rather, the police may again seek to interview the person and “the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’ ” Id. at 104.
After applying the above law to the facts in the instant case, we have no doubt that appellant waived his right to remain silent during the second and third interviews and that his right to cut off questioning in the first interview was fully respected. There is no evidence in the record that the police resorted to any physical pressure, coercion or deception to elicit appellant's statements. In fact, appellant initiated the third interview which led to his confession. There is also no doubt that appellant was effectively and adequately apprised of his Miranda rights. Moreover, his initials and signature on the forms, his tape recorded statements, and his cooperation during the interviews are evidence that he understood his rights and the consequences of relinquishing them. Based on the totality of these circumstances, it can be clearly inferred from appellant's actions and words that he voluntarily, knowingly, and intelligently waived his right to remain silent during both the second and third interviews.
Furthermore, appellant's statements made during the second and third interviews were not rendered inadmissible by his exercise of his right to remain silent during the first interview. When appellant stated that he did not want to make a statement during the first interview, Lt. Blevin and Det. Hill honored appellant's request and immediately ceased the interview. After more than two hours, appellant was questioned by two other officers and he was again read his Miranda rights at the outset of the second interview. Appellant was reminded of his right to remain silent and to consult a lawyer but instead agreed to answer questions. Similarly at the outset of the third interview, appellant was read his Miranda rights and given the opportunity to cut off the questioning. Thus, the dictate of Miranda and the goals of the constitutional protection against the use of compelled testimony were fully satisfied in the circumstances of this case.
Appellant also argues that the police officers failed to advise him of the cause of his arrest as required under R.C. 2935.07 and failed to immediately charge him as required under R.C. 2935.05. The trial court determined that there was no violation of either section. We agree.
R.C. 2935.07 provides that “[w]hen an arrest is made without a warrant by an officer, he shall inform the person arrested of such officer's authority to make the arrest and the cause of the arrest.” “Where probable cause exists for an arrest by a police officer, the failure to notify the accused of the cause of his arrest does not render the arrest illegal if he is notified of the offense with which he is charged soon after he is taken into custody.” State v. Fairbanks (1972), 32 Ohio St.2d 34, paragraph four of the syllabus.
In the instant case, Capt. Downs arrived at White Court and placed appellant under arrest sometime after 8:30 a.m. on June 27, 1991. Although appellant was not told why he was arrested at that time, he was informed during the first interview at 9:05 a.m. when Lt. Blevins told him that he was being investigated as a suspect in the shootings that occurred that morning on South Main Street. Thus, pursuant to Fairbanks, appellant was advised of the cause of his arrest, and there was no violation of R.C. 2935.07.
Additionally, R.C. 2935.05 provides, in part, that “[w]hen a person * * * has arrested a person without a warrant, he shall, without unnecessary delay, take the person arrested before a court or magistrate having jurisdiction of the offense, and shall file or cause to be filed an affidavit describing the offense for which the person was arrested. * * * ”
In the instant case, an affidavit charging appellant with various crimes was prepared and appellant was taken before the trial court on June 28, 1991, one day after his arrest. Based on this evidence, we cannot conclude that there was any unnecessary delay. Accordingly, appellant's sixth assignment of error is without merit.
SEVENTH ASSIGNMENT OF ERROR
“The trial court erred in not suppressing the identification testimony of Donna Smith.”
In his seventh assignment of error, appellant asserts that the police used suggestive identification procedures and created an identification by Donna Smith that was not sufficiently reliable to prevent a substantial likelihood of misidentification. Appellant argues that this use violated his due process rights under both the United States Constitution and the Ohio Constitution.
The record before this court indicates that shortly after Donna Smith saw Everett stumbling across the VCA's parking lot, she saw a black man coming out of the building and running around the front of a truck parked near the docks. As she attempted to reach Everett, who had made his way to the sidewalk, she saw a truck pulling out of VCA's parking lot driving towards Everett and then crash into the bridge. After the driver got out of the car, he turned around and stared for about fifteen seconds at Smith who was standing about forty yards away.
After the police arrived, Smith conveyed what she had observed and was taken to the police station to give a statement. Smith described the driver as a thin, young, black man of medium height and wearing a short sleeve, light colored shirt, dark pants, and dark shoes. She was asked to view an array of six photographs of black males, including appellant's photo taken in January 1990, to determine the identity of the truck driver, and within less than a minute, she positively identified appellant.
On July 3, 1991, Smith was again asked to come to the police station and was shown another array of six photographs of black males, including appellant's photograph which had been taken on June 27, 1991. Again within less than a minute, Smith positively identified appellant as the driver of the truck and initialed the back side of the photograph. At that time, Smith informed Det. Sines that she had previously been shown an array of photographs on June 27, 1991 and had similarly identified appellant as the truck driver. Thereafter, Det. Sines presented Smith with the first array of photographs, and she again positively identified appellant as the driver and initialed the back of the photo.
At the suppression hearing, appellant argued that the first array of photographs were impermissibly suggestive because the men depicted in three of the photographs did not have a mustache or other facial hair and that two photographs with a mustache looked noticeably older in age than he. Appellant argued that the second array of photographs were also impermissibly suggestive because the number on appellant's picture was written in black ink while the numbers on the other photographs were written in blue ink. The trial court denied appellant's motion to suppress Smith's pre-trial identifications and held that there was no evidence that the manner in which either photographic arrays were conducted or the results obtained was unduly suggestive.
In Simmons v. United States (1968), 390 U.S. 377, the Supreme Court of the United States held that despite the hazards of initial identification by photograph, “each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Id. at 384. To determine whether a pretrial identification of an accused was so unnecessarily suggestive and conducive to irreparable mistaken identification so as deny the accused of due process, the totality of the circumstances must be considered. Neil v. Biggers ( 1972), 409 U.S. 188, 196. Reliability is the linchpin in determining the admissibility of an identification made under suggestive and unnecessary police identification procedures, and the factors to be considered include the following:
“the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.” Manson v. Brathwaite (1977), 432 U.S. 98, 114.
“Whether a pretrial identification procedure is unduly suggestive and whether a witness's subsequent identification is nonetheless reliable under the totality of the circumstances are two separate inquires that should be approached sequentially[.]” United States v. Johnson (C.A.7, 1988), 859 F.2d 1289, 1294.
After reviewing the record, we are convinced that neither the two photographic arrays nor the manner in which they were conducted were so impermissibly suggestive as to create a substantial likelihood of misidentification. Both arrays of photographs depicted the front, facial view of six black men with the same hair color. In the first array, three of the men have mustaches, one of which is appellant. However, Smith never described appellant as having a mustache nor did she rely on the existence of a mustache to make her identification. Thus, the existence of a mustache was not impermissibly suggestive. Additionally, contrary to appellant's claim, the two other men with mustaches do not appear noticeably older so as to be suggestive.
In the second array of photographs, we note that different colored ink was used to number the photographs. However, we do not find this use of these two colors which are commonly interchanged to be impermissibly suggestive. Furthermore, the manner in which the photographic arrays were shown was not unnecessarily suggestive. Smith positively identified appellant in the first array and again in the second array. Exhibiting the first group again to Smith was not suggestive, but served to double check her first identification.
Even if we determined that the photographic pretrial identification was unnecessarily suggestive, the totality of the circumstances indicate a high degree of reliability in the identification. Smith had the opportunity to view appellant on a clear, sunny day from approximately forty yards. She examined him for about fifteen seconds as he stared at her from the bridge. Within one hour after she viewed appellant, she gave an accurate description of appellant and the clothes he was wearing, and she positively identified appellant from the photographic array within less than one minute. In less than one week after the incident, she again positively identified him from a second photographic array.
Accordingly, appellant's seventh assignment of error is without merit.
EIGHTH ASSIGNMENT OF ERROR
“The trial court erred in not allowing the use of a questionnaire to prospective jurors.”
In his eighth assignment of error, appellant asserts that the trial court's refusal to submit his questionnaire to prospective jurors infringed upon his due process rights and denied him a fair trial as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 9 and 16, Article I, of the Ohio Constitution. More specifically, appellant argues that the trial court's denial of his proposed juror questionnaire constituted an abuse of discretion because it restricted his counsel's ability to conduct an adequate voir dire examination of prospective jurors and, thus, deprived him of a fair and impartial jury.
In State v. Jenkins (1984), 15 Ohio St.3d 164, the Supreme Court of Ohio stated that “[t]he general rule is that the scope of the examination of prospective jurors is within the discretion of the trial court and the judgment will only be reversed upon a showing that the trial court abused its discretion in restricting the scope of voir dire.” Id. at 186. See, also, State v. Mills (1992), 62 Ohio St.3d 357, 365; State v. Bedford (1988), 39 Ohio St.3d 122, 129. As stated supra, the term abuse of discretion “connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable.” Adams, 62 Ohio St.2d at 157-158.
The record in the instant case is devoid of a copy of the actual jury questionnaire given to prospective jurors which is necessary to conduct a meaningful review. Notwithstanding this absence, a review of appellant's proposed questionnaire shows that appellant sought general information from each prospective juror concerning himself/herself and his/her family. On its face, it is unclear how this questionnaire served to more effectively disclose biases and to enable his counsel to make intelligent exercises of either peremptory challenges or challenges for cause. Appellant fails to point to any specific provision in the proposed questionnaire to support this broad assertion. In fact, appellant admits that his proposed questionnaire was only slightly different from the actual questionnaire used. Furthermore, there is no evidence that appellant's counsel was precluded from asking any of the proposed questions during the voir dire proper. Thus, we cannot say that the trial court was unreasonable, arbitrary, or unconscionable in its refusal to submit appellant's proposed questionnaire.
Accordingly, appellant's eighth assignment of error is without merit.
NINTH ASSIGNMENT OF ERROR
“The trial court erred in repeatedly instructing the jury that its verdict was only a recommendation.”
In his ninth assignment of error, appellant asserts that the trial court erred when it instructed the jury in voir dire and in the penalty phase of the trial that its sentence was only a recommendation. Appellant argues that the trial court's instructions misled the jury about the importance of its role in the sentencing scheme and allowed the jury to delegate its responsibility to the trial judge and, thus, violated his rights guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution and Sections 9 and 16, Article I, of the Ohio Constitution. Appellant relies on Caldwell v. Mississippi (1985), 472 U.S. 320, wherein the United States Supreme Court held that “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere.” Id. at 328-329. *27 However, in State v. Durr (1991), 58 Ohio St.3d 86, the Supreme Court of Ohio stated that: “ ‘ Caldwell * * * is inapplicable where the statements made to the jury during the mitigation phase of a capital trial were accurate statements of the law and were not made to induce reliance on the appellate process.’ ” (Citations omitted.) Id. at 93. See, also, State v. Lorraine (1993), 66 Ohio St.3d 414, 426. R.C. 2929.03(D)(2) provides that: “Upon consideration of the relevant evidence * * * the trial jury * * * shall determine whether the aggravating circumstances the offender was found guilty of committing are sufficient to outweigh the mitigating factors present in the case. If the trial jury unanimously finds, by proof beyond a reasonable doubt, that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors, the trial jury shall recommend to the court that the sentence of death be imposed on the offender. * * * “If the trial jury recommends that the sentence of death be imposed upon the offender, the court shall proceed to impose sentence pursuant to division (D)(3) of this section. * * * ” ( Emphasis added.)
After reviewing the jury instructions given during both the voir dire and the penalty phase, we conclude that these instructions were within the constitutional limits and fostered the jurors' responsibility to act with due regard for the consequences of their decision to impose the sentence of death. The jury was given accurate information concerning the roles of the jury and the trial court in determining appellant's sentence and, thus, were in conformity with R.C. 2929.03. Furthermore, the jury instructions neither mentioned the appellate process nor induced the jurors to minimize their role by depending on the such process. Accordingly, appellant's ninth assignment of error is without merit.
TENTH ASSIGNMENT OF ERROR
“The trial court erred in allowing the appellee to use peremptory challenges to exclude any prospective juror who expressed reservation about the death penalty.”
In his tenth assignment of error, appellant asserts that the trial court erred in allowing the prosecutor to use peremptory challenges to exclude prospective jurors with some reservations about the death penalty. Appellant argues that this use violated his rights to equal protection and a fair and impartial jury as guaranteed under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 2, 5, 10, and 16, Article I, of the Ohio Constitution.
More specifically, appellant argues that the prosecutor's use of peremptory challenges to exclude jurors Ann C. Davis and George Bonner who expressed reservations about the death penalty during voir dire but stated that they could follow the judge's instruction and the law caused the jury to be composed of jurors “organized to return a verdict of death.” Appellant argues that since jurors who express reservations cannot be excused for cause under Witherspoon v. Illinois (1968), 391 U.S. 510, unless his or her views on the death penalty would prevent or substantially impair his or her ability to perform his or her duties as a juror, the prosecutor should not be able to circumvent Witherspoon by using his peremptory challenges.
A review of the record in the instant case indicates that appellant failed to object to this at trial and preserve this error for review. Consequently, we will review for plain error. Slagle, 65 Ohio St.3d at 604.
In State v. Esparza (1988), 39 Ohio St.3d 8, the Supreme Court of Ohio stated that: “It is well-established that the Equal Protection Clause forbids the state's use of peremptory challenges to purposefully exclude ‘any identifiable group in the community which may be the subject of prejudice.’ Swain v. Alabama (1965), 380 U.S. 202, 205; * * * Batson v. Kentucky (1986), 476 U.S. 79. However, the prosecutor is entitled in any given case to a presumption that he ‘is using the State's challenges to obtain a fair and impartial jury to try the case before the court,’ * * * which may be rebutted by establishing the prosecutor's peremptory challenges resulted in systematic exclusion of such identifiable group from jury panels. * * * In Lockhart v. McCree (1986), 476 U.S. 162, 176-177, the United States Supreme Court held that prospective jurors whose opposition to the death penalty is so strong that it would prevent or substantially impair the performance of their duties as jurors in a capital case, i.e., ‘Witherspoon-excludables,’ are not distinctive, identifiable groups for the requirement that a jury represent a fair cross-section of the community.* * * ‘The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court's control.’ * * * ‘ “[I]t must be exercised with full freedom, or it fails at its full purpose.” ’ * * * ” (Citations omitted.) Id. at 13-14.
The Esparza Court concluded that peremptory challenges against prospective jurors based on death penalty views was proper. See, also, State v. Murphy (1992), 65 Ohio St.3d 554, 578; State v. Cook (1992), 65 Ohio St.3d 516, 518-519; State v. Evans (1992), 63 Ohio St.3d 231, 249; State v. Watson (1991), 61 Ohio St.3d 1, 10; State v. Seiber (1990), 56 Ohio St.3d 4, 13; State v. Lundgren (Sept. 1, 1993), Lake App. Nos. 90-L-15-140 and 91-L-036, unreported at 70-71.
Based on the foregoing, we cannot conclude that the prosecutor's use of peremptory challenges constituted a denial of his right to equal protection or a fair and impartial jury.
Accordingly, appellant's tenth assignment of error is without merit.
ELEVENTH ASSIGNMENT OF ERROR
“The trial court erred in the admission of ‘other acts' testimony.”
In the eleventh assignment of error, appellant asserts that the trial court erred in admitting “irrelevant and highly inflammatory” evidence of other acts at the guilt phase of his trial. More specifically, appellant argues that during his cross-examination, the trial court allowed the prosecution to question him about other unrelated acts for the sole purpose of portraying him as having a bad character in violation of Evid.R. 404(B) and R.C. 2945.59.
R.C. 2945.59 provides: “In any criminal case in which the defendant's motive or intent, * * * or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, * * * or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant.”
Evid.R. 404(B) provides: “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
Although R.C. 2945.59 and Evid.R. 404(B) must be strictly construed against admissibility, State v. Broom (1988), 40 Ohio St.3d 277, 282, a review of the record demonstrates that there is no merit to appellant's claimed error. Three of the alleged instances where the prosecutor questioned appellant about other acts were not for the purpose of portraying his bad character. Rather, the questions were asked to elicit information on a specific area that had been raised on direct examination. More specifically, appellant had been questioned on direct examination about problems he had at school including his expulsion from school, his relocation to California while his pregnant girlfriend remained in Ohio, and his termination from the VCA. On cross-examination, the prosecutor properly inquired into these areas as being within the scope of direct examination. Thus, neither Evid.R. 404(B) nor R.C. 2945.59 were applicable to prohibit such questioning.
In any case, appellant only objected to the prosecutor's questioning as to his problems at school and, thus, waived all but plain error as to the two other instances. In light of the entire record, we are not convinced that this alleged inflammatory questioning was so prejudicial that the outcome of the trial or sentencing would have been otherwise had it not occurred. Similarly, there is no abuse of discretion in allowing the questioning about his problems at school.
In the fourth instance, appellant was asked whether he stalked the VCA employees or had broken into their houses. Appellant's counsel objected to this question but did not ask the trial court to instruct the jury to disregard all inferences that could be drawn from it. The trial court properly sustained the objection apparently on the basis of Evid.R. 404(B). Thus, there was no error.
In the fifth instance, the prosecutor questioned appellant regarding his failure to support his daughter. This questioning, however, followed appellant's claim that he sold drugs for Styx to support his family. This claim was contrary to the prosecutor's claim that Barnes, his girlfriend and mother of his child, had to collect welfare to support the child. From the context of the questioning, it is apparent that the prosecutor was attempting to attack appellant's character for truthfulness which was placed in issue when he took the stand. Evid.R. 608. Furthermore, since appellant failed to object to this questioning, the issue was waived absent plain error. In light of the entire record, we conclude that this questioning did not contribute to either appellant's conviction or sentence.
Accordingly, appellant's eleventh assignment of error is without merit.
TWELFTH ASSIGNMENT OF ERROR
“It is a violation of Evid.R. 607 to allow the prosecutor to impeach his own witness.”
In his twelfth assignment of error, appellant asserts that the trial court erred by allowing the prosecutor to impeach his own witness with a prior statement and thereby denied him of his rights to due process and a fair trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Section 10, Article I, of the Ohio Constitution.
At trial, the state called Barnes, appellant's girlfriend, to testify as a witness for the prosecution. Barnes testified that appellant told her to tell people that he did shoot Coleman and Jefferys. Barnes also testified that when appellant returned to the house after taking out the plastic bag containing his clothes, Styx came over carrying a checkbook in his hand and asked him if he wanted to take some money out of it. When appellant declined, Styx asked appellant if he had any money and pulled a .38 revolver on him.
The prosecutor claimed that these statements were inconsistent because none of these events were mentioned by Barnes in either her grand jury testimony or her statement given to police. The trial court allowed the prosecutor to use these prior statements in an attempt to impeach Barnes. Appellant argues that the statement was not inconsistent and that the state failed to show surprise and affirmative damage as required by Evid.R. 607 to allow it to impeach this witness.
This Court has held that: “ ‘not every omission during testimony of details contained in a witness's statement to police constitutes an inconsistency within the meaning of Crim.R. 16(B)(1)(g).’ State v. Armington (Dec. 30, 1988), Lake App. No 12-015, unreported at 12, citing State v. Hartford (1984), 21 Ohio App.3d 29, 31. ‘Certain details related to the police may naturally not be brought up on direct examination and some details omitted from a witness statement may naturally crop up for the first time at trial, and it is not appropriate to consider the omission of such details to be “inconsistencies.” ’ Hartford at 31.” State v. Morris (Dec. 30, 1994), Lake App. No. 93-L-157, unreported at 17-18.
However, in certain circumstances, more material omissions may constitute inconsistencies. Hartford at 31. The trial court is given broad discretion in determining whether an inconsistency exists, State v. Clay (1972), 29 Ohio App.2d 206, 212, and absent an abuse of discretion, an appellate court will not disturb the trial court's decision. Adomeit v. Baltimore (1974), 39 Ohio App.2d 97.
In the instant case, it is clear that Barnes' testified at trial to events that were omitted from her statement to the police and her grand jury testimony. It is equally clear that these events were material omissions. The implication of her statement to police and her grand jury testimony was that appellant had confessed to the murders and that Styx's involvement was limited to his efforts to convince appellant to turn himself into the police. In contrast, the implication of her testimony at trial was that appellant only confessed out of fear of Styx and that Styx was intricately involved in the murders. Thus, the omissions were properly determined to be material.
Additionally, Evid.R. 607 provides, in part, that: “The credibility of a witness may be attacked by any party except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage.”
Under this rule, a party wishing to impeach his own witness with a prior inconsistent statement must first demonstrate that he was surprised by the witness' testimony and that the testimony affirmatively damaged that party's case. “Surprise can be shown if the testimony is materially inconsistent with the prior written or oral statements and counsel did not have reason to believe the witness would recant when called to testify.” State v. Stearns (1982), 7 Ohio App.3d 11, 15. The question of surprise is one within the broad discretion of the trial court. Ferguson Realtors v. Butts (1987), 37 Ohio App.3d 30, 33. Affirmative damage can be shown if the party's own witness' testimony contradicts, denies, or is harmful to that party's trial position. Stearns at 15.
As stated supra, Barnes' testimony at trial was inconsistent with her testimony before the grand jury and her statement to the police. Clearly, this inconsistency was material because it was adverse to the state's trial position. The state did not have any reason to believe that Barnes would recant or change her testimony at trial since she had given the same statement at grand jury as she did to the police on the day of the incident. Furthermore, Barnes' testimony was directly contrary to the state's trial position that appellant was solely responsible for the murders because it implied that Styx had been involved and had threatened appellant into taking the blame. Thus, the trial court's determination that the state has shown both surprise and affirmative damages was within its broad discretion, and the use of Barnes' prior inconsistent statements to impeach her at trial was proper pursuant to Evid.R. 607.
Accordingly, appellant's twelfth assignment of error is without merit.
THIRTEENTH ASSIGNMENT OF ERROR
“The trial court's instructions during the trial phase were erroneous.”
In his thirteenth assignment of error, appellant asserts that the trial court erred in instructing the jury that he could be convicted on less than an unanimous verdict and that its verdicts must be consistent. Appellant argues that these instructions denied him of his right to a fair and reliable determination of his guilt as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution, Section 9, 10, 16, Article I, of the Ohio Constitution, and R.C. 2901.05(D).
As to the first alleged error in instructing the jury, the trial court instructed the jury as follows: “Aggravated murder as charged in the third Count of the indictment consists of purposely causing the death of another while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit kidnapping, aggravated robbery, and/or aggravated burglary. Before you can find the Defendant guilty of aggravated murder in Count 3, you must find beyond a reasonable doubt, one, that the Defendant purposely caused the death of John Ira Coleman, on or about June 27, 1991, in Trumbull County, Ohio. Two, you must find beyond a reasonable doubt, that the Defendant specifically intended to purposely cause the death of John Ira Coleman while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit kidnapping, aggravated robbery, and/or aggravated burglary.”
The trial court gave a similar instruction as to the aggravated murder of Jefferys charged in Count 4.
Appellant argues that these jury instructions did not specifically require the jurors to unanimously find that he had committed kidnapping, aggravated robbery, or aggravated burglary. Appellant cites to Schad v. Arizona (1991), 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555, wherein the Supreme Court of the United States held that it is for the state courts to determine whether statutory alternatives are means of committing a single offense or constitute independent elements of the crime and, thus, argues that if the statutory alternatives constituted independent elements, their existence must be separately determined by the jury.
The state argues that R.C. 2903.01(B) provides alternative means of satisfying the actus reus element of felony murder and does not require the jury to determine which particular act underlies their finding of guilt. We disagree.
In Schad, the defendant challenged the constitutionality of an Arizona state statute which treated premeditation and commission of a felony as mere means of satisfying a mens rea element of high culpability rather than independent elements of first-degree murder. The Supreme Court of the United States held that the defendant's first-degree murder conviction was not rendered invalid under the due process clause by the trial court's failure to require the jury to agree whether the defendant was guilty of premeditated murder or felony-murder. Id. at 632, 111 S.Ct. at 2491, 115 L.Ed.2d at 574. In reaching its decision the Court stated that “there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict.” Id. at 631, 111 S.Ct. at 2497, 115 L.Ed.2d at 563, quoting McKoy v. North Carolina (1990), 494 U.S. 433, 449. The Court opined that: “ * * *If a State's courts have determined that certain statutory alternatives are mere means of committing a single offense, rather than independent elements of the crime, we simply are not at liberty to ignore that determination and conclude that the alternatives are, in fact, independent elements under state law. “ * * * “Decisions about what facts are material and what are immaterial, or, * * * what ‘fact[s][are] necessary to constitute the crime,’ and therefore must be proved individually, and what facts are mere means, represent value choices more appropriately made in the first instance by a legislature than by a court. Respect for this legislative competence counsels restraint against judicial second-guessing * * * which is particularly appropriate in cases * * * that call state definitions into question.* * * ” (Citations omitted.) Id. at 636-638, 111 S.Ct. at 2499-2500, 115 L.Ed.2d at 568-569.
R.C. 2903.01(B) provides that: “No person shall purposely cause the death of another while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit kidnapping, rape, aggravated arson or arson, aggravated robbery or robbery, aggravated burglary or burglary, or escape.”
Under this subsection, the legislature has determined that aggravated murder requires that: (1) The accused acted purposely; (2) to cause the death of another; (3) while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit; and (4) kidnapping, rape, aggravated arson or arson, aggravated robbery or robbery, aggravated burglary or burglary, or escape. Thus, the underlying felony offense is an independent element of aggravated murder under R.C. 2903.01(B). The commission of each one of these felony offenses along with proof beyond a reasonable doubt as to the other three elements could sustain a separate conviction for aggravated murder. As such, the jury must find that appellant committed one or more felony offenses by proof beyond a reasonable doubt as to each to sustain a verdict of guilty on the charge of aggravated murder.
A review of the jury instructions given in the instant case indicates that the trial court failed to instruct the jury that they must determine beyond a reasonable doubt the felony offense which appellant had committed and, thus, failed to require them to find that the state had independently proven every element of the crime.
Notwithstanding this failure, appellant failed to object to these jury instructions as required under Crim.R. 30(A) and, thus, has waived this issue on appeal absent plain error. Slagle, 65 Ohio St.3d at 604. Under a plain error analysis, we are convinced by the overwhelming evidence of appellant's guilt that the outcome would not have been different had the jury not been instructed in this manner. The jury found appellant guilty of kidnapping, aggravated burglary, and aggravated robbery under Counts 6, 7, 8 and 9, 10 and 11, respectively, and we have determined under his twenty-fourth assignment of error, infra, that his convictions for aggravated robbery and aggravated burglary were supported by competent, credible evidence.
As to the second alleged error in instructing the jury, the trial court instructed the jury as follows: “Now, the verdicts returned by you should be complete and consistent. * * * “Let me call to your attention again, if you find the Defendant not guilty of the first count of aggravated murder, just as an example, further verdicts on the specifications are not necessary. You only go to the specification, if you make a finding of guilty on any of the five counts. If you have any doubt as to the consistency or completeness of your verdicts, after you have had an opportunity to arrive at one, and you wish to return to the courtroom, you should feel free to inquire of the Court as to the completeness or consistency of such verdicts.”
Appellant argues that this jury instruction required the jury to return verdicts that are consistent. We disagree. We read the instruction as charging the jury to be consistent within each verdict. Specifically, the jury was instructed that it should not go to the specification portion of the verdict form unless it finds that appellant was guilty on that particular count. We find no requirement in this instruction that the jury must return verdicts consistent with the other alleged counts. In any case, appellant failed to object to the instruction as given, and we are convinced that giving this instruction did not rise to the level of plain error.
Accordingly, appellant's thirteenth assignment of error is without merit.
FOURTEENTH ASSIGNMENT OF ERROR
“The trial court erroneously instructed the jury during the trial phase.”
In his fourteenth assignment of error, appellant asserts that the trial court erred in giving an “acquittal first” instruction to the jury during the guilt phase. Appellant argues that this instruction denied him of his rights to due process, a fair trial, and equal protection as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Section 9, 10, and 16, Article I, of the Ohio Constitution. The jury was instructed as follows: “Also, with regard to the third and fourth Counts, I'll now instruct you as to the lesser included offense of involuntary manslaughter. As I have previously stated, if you find that the State has proven beyond a reasonable doubt each and every essential element of the crimes charged in those Counts, then your verdict must be guilty as to that particular count. “If on the other hand, you find that the State has not proven beyond a reasonable doubt, each and every element of either or both of those Counts, then your verdict must be not guilty as to that particular Count; in that event, and only in that event, you will continue your deliberations to decide whether the State has proved beyond a reasonable doubt all of the essential elements of the lesser included offense of involuntary manslaughter as to that particular count.”
Appellant specifically argues that this instruction was biased in favor of conviction of the greatest charge and required the jury to unanimously find appellant not guilty of aggravated murder before it could consider the lesser included offense. We disagree.
In State v. Thomas (1988), 40 Ohio St.3d 213, the Supreme Court of Ohio held: “A jury must unanimously agree that the defendant is guilty of a particular criminal offense before returning a verdict of guilty on that offense. If a jury is unable to agree unanimously that a defendant is guilty of a particular offense, it may proceed to consider a lesser included offense upon which evidence has been presented. The jury is not required to determine unanimously that the defendant is not guilty of the crime charged before it may consider a lesser included offense.” Id. at paragraph three of the syllabus.
The instruction given in that case was as follows: “If you find that The State has proven beyond a reasonable doubt all of the essential elements of the crime of aggravated murder, then your verdict must be that the Defendant is guilty of aggravated murder; and you will not consider the lesser offense. “However, if you find that The State has failed to prove beyond a reasonable doubt the element of prior calculation and design, then your verdict must be that the Defendant is not guilty of aggravated murder. “You will then proceed with your deliberations and decide whether The State has proven beyond a reasonable doubt all of the essential elements of the lesser crime of murder.” Id. at 220.
The Thomas Court concluded that the jury instruction was not prejudicial because it did “not expressly require unanimous acquittal on the charged crime, but rather [addressed] possible disagreement by the jury on the element of prior calculation and design and a corresponding inability to reach a verdict of guilty of aggravated murder.” Id.
The instruction in the instant case, although ambiguous, did not constitute an acquittal first instruction. Under the Thomas analysis, the instructions did not expressly require the jury to unanimously find appellant not guilty of aggravated murder before it considered the lesser charge of involuntary manslaughter. Rather, the instruction emphasized the sequence of deliberation that the jury was to follow in considering the charges. More specifically, the jury was instructed to determine if the state had proven each element of aggravated murder beyond a reasonable doubt and if it was unable to reach a verdict of guilty, either unanimously or not, it could then proceed with its deliberation and consider the lesser offense. While the better practice would have been to include the inability of the jury to agree on the greater offense, we cannot conclude that appellant was prejudiced by the jury instruction as given.
In any case, appellant failed to object to the jury instruction as required by Crim.R. 30 and, thus, waived this issue on appeal absent plain error. Slagle, 65 Ohio St.3d at 604. In light of the overwhelming evidence of appellant's guilt, we are convinced that the jury would have convicted appellant even if the instruction had not been given.
Accordingly, appellant's fourteen assignment of error is without merit.
FIFTEENTH ASSIGNMENT OF ERROR
“R.C. 2901.05 violates the due process clause of the fourteenth amendment.”
In his fifteenth assignment of error, appellant asserts that R.C. 2901.05 violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Specifically, appellant argues that the statutory definition of reasonable doubt reflects a clear and convincing standard which allows jurors to return a conviction and death sentence based upon a degree of proof below that required by the Due Process Clause. Appellant admits that during the guilt and penalty phases of the trial, the judge read the standard definition of “reasonable doubt” found in R.C. 2901.05(D) which provides: “ ‘Reasonable doubt’ is present when the jurors, after they have carefully considered and compared all the evidence, cannot say they are firmly convinced of the truth of the charge. It is a doubt based on reason and common sense. Reasonable doubt is not mere possible doubt, because everything relating to human affairs or depending on moral evidence is open to some possible or imaginary doubt. ‘Proof beyond a reasonable doubt’ is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of his own affairs.”
Appellant argues, however, that the “willing to act” language in the fourth sentence of R.C. 2901.05 provided the jury with no guidance because it is too lenient. Additionally, appellant submits that the “firmly convinced” language found in the first sentence of R.C. 2901.05 is not reasonable doubt language but, instead represents only a clear and convincing standard.
A review of the transcript reveals, however, that appellant failed to object to the reasonable doubt instruction either at trial or during the mitigation phase. Appellant did, however, submit a proposed reasonable doubt instruction for the mitigation phase. Pursuant to Crim.R. 30(A), a party may not assign as error the giving or the failure to give any instruction unless the party objected at trial. Accordingly, to the extent that appellant failed to object to the aforementioned instructions, appellant has waived any potential error.
Notwithstanding this determination, the Supreme Court of Ohio has repeatedly upheld the validity of the statutory definition of reasonable doubt against constitutional challenge. State v. Nabozny ( 1978), 54 Ohio St.2d 195, 201-202; State v. Cooey (1989), 46 Ohio St.3d 20, 37; Murphy, 65 Ohio St.3d at 582. See, also, Lundgren, Lake App. Nos. 90-L-15-140 ad 91-L-036, unreported at 73.
Based upon the foregoing authority, R.C. 2901.05 does not violate the Due Process Clause of the Fourteenth Amendment. Accordingly, appellant's fifteenth assignment of error is without merit.
SIXTEENTH ASSIGNMENT OF ERROR
“The trial court erred in not granting a Crim.R. 29 motion to dismiss.”
In his sixteenth assignment of error, appellant asserts that the trial court erred by not granting his Crim.R. 29 motion for acquittal made at the close of the state's case, and renewed at the close of all the evidence. Specifically, appellant argues that the evidence presented by appellee was insufficient to sustain his conviction on the charge of aggravated burglary.
Appellant had been indicted on, inter alia, one count of aggravated burglary in violation of R.C. 2911.11(A)(2). The indictment provided that appellant did “ by stealth, trespass in an occupied structure, as defined in Section 2909.01 of the Revised Code, with the purpose to commit therein felonies, and said Roderick Derwin Davie, did have a deadly weapon * * * on or about his person or under his control.” (Emphasis added.)
R.C. 2911.11(A)(2) provides: “(A) No person, by force, stealth, or deception, shall trespass in an occupied structure, as defined in section 2909.01 of the Revised Code, or in a separately secured or separately occupied portion thereof, with purpose to commit therein any theft offense, as defined in section 2913.01 of the Revised Code, or any felony, when any of the following apply: “(1) * * * “(2) The offender has a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code, on or about his person or under his control; * * * ”
Appellant argues that the state failed to demonstrate that he used stealth to gain entrance to VCA. We disagree. In reviewing a ruling on a Crim.R. 29 motion for judgment of acquittal, the reviewing court must construe the evidence most strongly in favor of the state. State v. Fyffe (1990), 67 Ohio App.3d 608, 613. The denial of the motion is proper if the evidence is “such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt.” State v. Wolfe (1988), 51 Ohio App.3d 215, 216, citing State v. Bridgeman ( 1978), 55 Ohio St.2d 261.
In the instant action, the state presented evidence that there was a half-opened garage door at VCA on the morning of the incident, after John Everett arrived at work, and there was also a broken window on the premises that was discovered by a police officer after the incident. The officer testified that the window may have been broken to gain entrance to the facility. Thus, there was circumstantial evidence to support a finding that appellant may have gained entrance to VCA through the half-opened garage door or by breaking a window. Either of these means of access would certainly fit the definition of entering the building by “stealth.” Construing this evidence in a light most favorable to the prosecution, therefore, reasonable minds could conclude that appellant entered VCA by stealth as was indicated on the indictment against appellant. Thus, there was sufficient evidence justifying the trial court's denial of appellant's motion for acquittal as to the charge of aggravated burglary.
Accordingly, appellant's sixteenth assignment of error is without merit.
SEVENTEENTH ASSIGNMENT OF ERROR
“The admission of exhibit 2 and 3 (photographs of Tracey Jefferys and John Coleman), as well as character and background of Everett, Coleman and Jefferys, was error.”
In his seventeenth assignment of error, appellant asserts that the trial court erred in admitting predeath photographs of Tracey Jefferys and John Coleman, as well as character and background evidence of the three victims. Appellant relies on Evid.R. 404, the Fifth and Fourteenth Amendments to the United States Constitution, and Sections 10 and 16, Article I of the Ohio Constitution.
Regarding the predeath photographs of Jefferys and Coleman, appellant argues that they were not relevant, and they were introduced “solely to inflame and prejudice the court.” Appellant relies exclusively on a 1983 case from an Oklahoma appellate court for his proposition that the introduction of such photographs is unfair. White v. State (1983), 674 P.2d 31, 36.
Pursuant to Evid.R. 403, relevant evidence is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice. In balancing the probative value against the unfair prejudice, the trial court is vested with broad discretion and its decision should not be reversed absent a clear abuse of discretion. State v. Harcourt ( 1988), 46 Ohio App.3d 52, 55.
In the present case, the photographs were relevant and probative for the purpose of identification. Additionally, appellant has failed to show that the photographs were unfairly prejudicial in any way. Thus, they were properly admitted by the trial court. Furthermore, the Supreme Court of Ohio has upheld the admission of predeath photographs in capital murder cases. State v. Roe (1989), 41 Ohio St.3d 18, 22-23; State v. Hill ( 1992), 64 Ohio St.3d 313, 326-327.
Next, appellant claims that it was error for the trial court to allow John Everett to testify about Jefferys and about his own background and character. However, since no objection was made to this testimony at the time of trial, its admission will be reviewed under the plain error standard.
Appellant has failed to inform this court by reference to the transcript of exactly what testimony he objects to. The only testimony that we can find that would appear to fit appellant's description is John Everett's statements that he is thirty years old, attended Warren G. Harding High School, and lives with his mother. Apparently, appellant also objects to Everett's statements regarding Jefferys' age and height.
Appellant has failed to point out to this court how the aforementioned information could have inflamed the passion of the jury or how he was prejudiced by its admission. It is incomprehensible how these innocuous statements could have such an effect. Thus, we conclude that the admission of these statements did not constitute error.
Finally, appellant argues that the state improperly referred to the deceased's good character and his right to live, during closing arguments of both the guilt and the penalty phases of the trial. Appellant refers this court, however, to just one statement made by the state during closing arguments of the penalty phase, and we are unable to find any similar statements made during closing arguments of the guilt phase of the trial.
It is apparent that the prosecution's statement that appellant objects to was the following: “And this Defendant doesn't have the right to shoot down John Everett, and go in his pocket and take his billfold or take Tracey's keys or her purse or her money or cause serious physical harm in the commission of the aggravated robbery. They have [ sic] a right to be where they were. How about them?
“Are we going to forget about them and blame it on conduct disorder?” As previously stated in our analysis of appellant's fourth assignment of error, an examination of a prosecutorial misconduct claim requires a two-step determination. First, it must be determined whether the remark was improper and, second whether the remark prejudiced substantial rights of the defendant. Brown, 38 Ohio St.3d at 316.
In the present case, the prosecution's statement that the victims had a right to be where they were is simply not an improper remark. Contrary to what appellant claims, the statement did not reference the decedents' good character or their right to live. Thus, the remark did not constitute prosecutorial misconduct, and the trial court did not err in permitting the state to make the aforementioned statement.
Accordingly, appellant's seventeenth assignment of error is without merit.
EIGHTEENTH ASSIGNMENT OF ERROR
“The trial court erred in changing the verdict form after the jury rendered its verdict.”
In his eighteenth assignment of error, appellant asserts that the trial court erred in changing the verdict form after the jury rendered its verdict. The jury in this case was given verdict forms during its deliberations. It is apparent that one of the verdict forms contained an error. In the form titled “COUNT NUMBER 9-INDICTMENT FOR AGGRAVATED ROBBERY,” the body of the verdict form read as follows:
“We, the Jury in this case, duly impaneled and sworn or affirmed, find the Defendant, Roderick Davie, *_______________of Kidnapping in that he did, in attempting or committing a theft offense, have a deadly weapon, to wit: a .38 caliber handgun, on or about his person and did inflict serious physical harm on Tracy [sic] Jefferys, in the manner and form as he stands charged in the ninth count of the indictment.”
The jury filled in the blank with the word “Guilty.” Apparently, nobody caught the discrepancy between the “aggravated robbery” language used in the caption and the “kidnapping” language used in the body of the verdict form until after the jury had filled in and signed the verdict form.
After the verdict was announced in court, the trial judge took all counsel into chambers to discuss the error. The judge noted the error, referring to it as “typographical.” At that point, appellee argued that it was clear from the caption in bold print, and from the language in the body of the verdict form which set forth the elements of aggravated robbery, that the jury's guilty verdict was for the charge of aggravated robbery. The state then moved to amend the verdict form in question.
In response, appellant's counsel asked that the verdict set forth on this verdict form be declared null and void and set aside. Over defense counsel's objections, the trial court amended the verdict form by crossing out the word “kidnapping” and writing in the words “aggravated robbery.”
Appellant argues that the trial court's decision to amend the already signed form, without first consulting with the jury or allowing further deliberation, constituted prejudicial error. Appellant relies on State v. English (1985), 21 Ohio App.3d 130 to support his position.
In English, the defendant was charged with aggravated burglary and the jury was properly instructed on aggravated burglary. The jury, however, returned a verdict of guilty of burglary because they were given the wrong verdict form. The appellate court determined that under these circumstances, the trial court erred in amending the verdict to a finding of guilty of aggravated burglary after the jury had been discharged. The appellate court stated that the trial court, instead, should have proceeded to sentence the defendant on the burglary verdict, and the case was remanded for that purpose.
The facts in English are distinguishable from the present cause. While the verdict form in English was the wrong form entirely as the only crime and the only statute mentioned on the form was burglary in violation of R.C. 2911.12, the burglary statute, the verdict form in the present case had internal inconsistencies. The caption indicated in bold print that the count was aggravated robbery, and the elements set forth in the body of the form were those necessary for a conviction on an aggravated robbery charge, but the word “kidnapping” appeared in the body as the crime that the elements constituted.
The trial court determined that an examination of the verdict form would lead one to believe that the word “kidnapping” was “noticeably incorrect.” We agree. Whereas the verdict form in English gave no clue that the crime listed was incorrect; here, a reasonable person would be able to determine that the word “kidnapping” had been accidently inserted in place of the words “aggravated robbery.”
We are compelled to point out that the better practice would have been for the trial court to question the jurors as to their intentions in filling out the verdict form in question, or even to allow further deliberation on the aggravated robbery charge. However, we are convinced that the verdict form was sufficiently clear, and that the trial court's decision to amend the jury form to reflect the jury's verdict in substance did not amount to prejudicial error.
Accordingly, appellant's eighteenth assignment of error is without merit.
NINETEENTH ASSIGNMENT OF ERROR
“The trial court erred in limiting the admission of mitigation evidence.”
In his nineteenth assignment of error, appellant asserts that the trial court erred in limiting the admission of certain mitigation evidence. Appellant argues that by excluding relevant mitigating evidence from the penalty phase of his trial, the trial court denied him his constitutional right to an “individualized determination” of the appropriate sentence. Appellant asserts that this violated the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Sections 9, 10, and 16, Article I of the Ohio Constitution. Specifically, during the penalty phase of the trial, Dr. John Kenny was precluded from answering defense counsel's question whether or not appellant was aware of his post-concussion syndrome and whether he could control its effects.
Dr. Kenny had testified that based upon his examination of appellant, it was his opinion that appellant had cognitive problems in assimilating certain types of information. This led to an aggravation of preexisting personality traits. Dr. Kenny opined that these problems stemmed from appellant being hit on the head with a baseball bat when he was eighteen years old. Dr. Kenny concluded that appellant suffered from post-concussion syndrome.
After stating this conclusion, counsel for appellant attempted to further question Dr. Kenny as follows: “Q. In other words, what you're saying basically is that any of the emotions that are felt by anybody, anger, irritability, depression, whatever it is, it's going to be accentuated by this particular- “A. Yes. In more severe head injuries, you can get a change in personality because it's so severe. But in these mild cases, it's usually an aggravation of preexisting personality. “Q. In other words, the preexisting personality would be personified by virtue of the injury? “A. It could be accentuated. “Q. Do you have any cognitive ability to understand that? In other words, does a person know that, if he's not aware of it or nobody ever told him, I mean is he actually aware of it in the sense he can control it or is it an automatic thing? “Mr. Watkins: I'm going to object. I don't know if he can answer that thing. “The Court: I'll sustain the objection for the lack of a foundation. I think to ask that, that takes him to kind of to I think a background of information. I'm sustaining the objection at this point. “Q. Doctor, what I'm asking is this. That the person, because they exhibited, are they conscious of the injury itself or what it causes, or are they just reacting that way because of the damage to the brain? “A. Could you repeat that again? “Q. What I'm saying is, is the individual who is injured, in other words is Rod, is he aware in the sense, from a control standpoint, is he aware of what the damage is or have the ability to control what the injury is? “Mr. Watkins: I'm going to object, he can't answer that question. “The Court: Gentleman, approach the bench. (Side bar discussion, off the record and out of hearing)”
When the proceedings on the record returned, defense counsel had moved to a different topic. There is nothing in the record to indicate that the trial court stopped defense counsel from proceeding with his prior line of questioning. Appellant contends that whether one is able to control a response arising from a physical injury is appropriate mitigating evidence pursuant to R.C. 2929.04(B)(3) or (B)(7). Therefore, appellant argues that the trial court excluded relevant mitigating evidence which should have been considered by the jury.
It is clear, however, that appellant made no proffer of evidence as to what Dr. Kenny's response would have been to defense counsel's questions. Evid.R. 103 provides, in pertinent part: “(A) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and “ * * * “(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. Offer of proof is not necessary if evidence is excluded during cross-examination.”
In State v. Gilmore (1986), 28 Ohio St.3d 190, the Supreme Court of Ohio stated: “Pursuant to the explicit provisions of this rule, a party may not predicate error on the exclusion of evidence during the examination in chief unless two conditions are met: (1) the exclusion of such evidence must affect a substantial right of the party and (2) the substance of the excluded evidence was made known to the court by proffer or was apparent from the context within which questions were asked.” (Emphasis added.) Id. at 191.
In the case sub judice, not only was there no proffer made by defense counsel but, further, it was not apparent from the context within which the questions were asked what answers would have been given. Accordingly, the exclusion of this evidence cannot be assigned as error. However, even if a proffer had been made of the excluded evidence, the trial court properly sustained the state's objection based upon a lack of foundation.
Dr. Kenny testified that his field of expertise was in studying the impact of injury on brain functions. Further, he performed tests on appellant to test both brain functioning and emotional responses following the head injury. He then offered the results of the test that he had performed. However, there had been no foundation laid for the proposition that Dr. Kenny could or could not determine from his background and experience whether a head trauma victim would have knowledge of, or be able to control the results of, such head trauma. In other words, there was no foundation laid for the proposition that Dr. Kenny studied the cognitive thought process of head trauma victims. Thus, the trial court properly sustained the state's objection to appellant's line of questioning.
Finally, during redirect examination of Dr. Kenny, the following exchange occurred: “Q. And you indicated that it's entirely possible that Rod was not aware of any problem at all, from the standpoint- “Mr. Watkins: I'm going to object. “The Court: Overruled. “Q. You indicated it's quite possible that Rod had no awareness of what problems could be developing? “A. At the time of discharge, no, he may not have.”
It is apparent from this exchange that defense counsel was eventually able to obtain a response to the question that he seemed to be asking earlier, but was not permitted by the trial court. Therefore, even if the trial court's ruling had constituted error it would have been harmless at best as appellant cannot show prejudice. Accordingly, appellant's nineteenth assignment of error is without merit.
TWENTIETH ASSIGNMENT OF ERROR
“The trial court erred in admitting evidence of non-statutory aggravating circumstances.”
In his twentieth assignment of error, appellant asserts that the trial court gave an improper instruction to the jury which allowed the jury to consider non-statutory aggravating circumstances in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, as well as Sections 9, 10 and 16, Article I of the Ohio constitution. Specifically, appellant objects to the trial court's instruction during the mitigation phase on the basis that it allowed the jury to consider the nature and circumstances of the crime itself as an aggravating circumstance and allowed the jury to afford this evidence weight during the balancing process.
From a review of the transcript from the mitigation phase, however, it is clear that no objection was made to the trial court's instruction and, therefore, appellant has waived this argument and may not raise it on appeal. Crim.R. 30(A).
Even if appellant had objected at trial, this assignment of error would be overruled. A review of the instruction given reveals that the jury was given proper guidance and was not misled by the trial court's instruction.
Appellant objects to the following portions of the jury charge: “The nature and circumstances of the aggravated murder are relevant only insofar as they may relate to any mitigating factors alleged by the Defendant, or any of the aggravating circumstances pertaining to the first count regarding the death of John Ira Coleman for which the Defendant was found guilty. “ * * * “ * * * The nature and circumstances of the aggravated murder are relevant only insofar as they may relate to any mitigating factors alleged by the Defendant, or any of the aggravating circumstances pertaining to the second count regarding the death of Tracey Jefferys, for which the Defendant was found guilty.”
Appellant takes these quotations out of context, however, and it is well established that “[a] single instruction to a jury may not be judged in artificial isolation but must be viewed in the context of the overall charge.” State v. Price ( 1979), 60 Ohio St.2d 136, paragraph four of the syllabus. See, also, State v. Slagle (1992), 65 Ohio St.3d 597, 609; and State v. Warner (1990), 55 Ohio St.3d 31, 56.
The instruction objected to by appellant occurred during the trial court's explanation of what constitutes “aggravating circumstances.” First, the court explained that aggravating circumstances “are precisely as set out in the specifications contained in the verdict form on these specifications.” The court then stated that “[t]here are four aggravating circumstances for the first count regarding the death of John Ira Coleman.” One by one, those four aggravating circumstances as set forth in the indictment were explained to the jury. Then, just prior to giving the instruction that appellant objects to, the trial court specifically stated, “[a] homicide itself is not to be considered aggravated circumstance-an aggravating circumstance.”
The court then repeated these instructions for the second count regarding the death of Tracey Jefferys.
It is clear that the trial court's instruction was not misleading as it did not allow the jury to consider non-statutory aggravating circumstances. The court stated that the aggravating circumstances were the same as those set forth in the indictment. Additionally, the court instructed the jury not to consider the murder itself as an aggravating circumstance. Finally, the court's instruction that the nature and circumstances of the crime are relevant only insofar as they may relate to any of the aggravating circumstances simply is not the equivalent of instructing the jury that they can consider the crime itself as an aggravating circumstance. In short, the trial court explained in detail what could and could not be considered aggravating circumstances.
Appellant failed to object to this instruction at trial and has failed to show that this instruction was plain error. Accordingly, appellant's twentieth assignment of error is without merit.
TWENTY-FIRST ASSIGNMENT OF ERROR
“The trial court erred by not complying with R.C. 2929.03.”
In his twenty-first assignment of error, appellant asserts that the trial court erred by failing to comply with the dictates set forth in R.C. 2929.03. Additionally, appellant alleges that the trial court improperly considered nonstatutory aggravating factors in its opinion imposing the death sentence. Appellant claims that these errors violated his due process rights.
Pursuant to R.C. 2929.03(F), when a trial court imposes a death sentence, it must state in a separate opinion: (1) the existence of any of the mitigating factors set forth in R.C. 2929.04(B); (2) the existence of any other mitigating factors; (3) the aggravating circumstances the offender was found guilty of committing; and (4) the reason why the aggravating circumstances were sufficient to outweigh the mitigating factors.
The trial court's opinion first set forth the four statutory aggravating circumstances pursuant to R.C. 2929.04(A)(5) and (A)(7) that pertained to the death of John Coleman. The court then listed the mitigating factors that it considered and weighed. These include the history, character and background of appellant, the youth of appellant, and appellant's lack of a significant history of criminal convictions. The court also listed seven other mitigating factors that it considered pursuant to R.C. 2929.04(B)(7).
The trial court expressly found that the aggravating circumstances outweighed the mitigating factors by proof beyond a reasonable doubt. The trial court then proceeded to repeat the process in addressing the aggravated murder of Tracey Jefferys. The court again concluded that the aggravating circumstances outweighed the mitigating factors by proof beyond a reasonable doubt.
Appellant argues that within those portions of the trial court's opinion that addressed the four statutory aggravating circumstances, the court referred to the nature and circumstances of the offense. It is appellant's contention that the nature and circumstances of the offense are not proper aggravating circumstances and, therefore, should not have been considered by the court in its balancing process.
Appellant's argument is without merit. In State v. Stumpf (1987), 32 Ohio St.3d 95, the trial court, in stating its reasons why the aggravating circumstances outweighed the mitigating factors, relied heavily upon the nature and circumstances of the defendant's offense. The Supreme Court of Ohio held that this did not constitute error. The court explained: “ * * * R.C. 2929.04(B) requires the jury, trial court, or three-judge panel to ‘ consider, and weigh against the aggravating circumstances proved beyond a reasonable doubt, the nature and circumstances of the offense * * *.’ (Emphasis added.) In a particular case, the nature and circumstances of the offense may have a mitigating impact, or they may not. See State v. Steffen ( 1987), 31 Ohio St.3d 111, 117, 31 OBR 273, 278, 509 N.E.2d 383, 390. Either way, they must be considered.
“Reading R.C. 2929.03(F) and 2929.04(B) in pari materia, it would be illogical to require a three-judge panel to consider the nature and circumstances of the offense in making its decisions whether the aggravating circumstances were sufficient to outweigh the mitigating factors, yet to forbid that panel from relying upon and citing such nature and circumstances as reasons for its decision. “We therefore hold that under R.C. 2929.03(F), a trial court or three-judge panel may rely upon and cite the nature and circumstances of the offense as reasons supporting its finding that the aggravating circumstances were sufficient to outweigh the mitigating factors.” (Emphasis sic.) Id. at 99-100.
Similarly, in Steffen, supra, the Supreme Court of Ohio held that the trial court is required to review the nature and circumstances of the offense pursuant to R.C. 2929.04(B). Regarding the trial court's opinion, the Supreme Court stated: “ * * * By its statement on the gruesome and vicious nature of the murder, the trial court herein was merely justifying its conclusion that no mitigating factors can be gleaned from the nature and circumstances of this particular offense. We find nothing improper in the court's remarks.” Id. at 117.
Additionally, in a case where a similar argument was made, the Supreme Court of Ohio held that even if the trial court improperly considered nonstatutory aggravating circumstances, the reviewing court's independent balancing cures any possible error. Lorraine, 66 Ohio St.3d at 422. Based upon this line of cases, appellant's twenty-first assignment of error is without merit.
TWENTY-SECOND ASSIGNMENT OF ERROR
“The trial court violated R.C. 2929.41 in its sentencing of the appellant.”
In his twenty-second assignment of error, appellant asserts that the trial court erred in imposing a life term and a three-year term of imprisonment and ordering that they be served consecutively to his death sentence. In State v. Campbell ( 1994), 69 Ohio St.3d 38, the Supreme Court of Ohio addressed this identical argument in a case similar to the present one. The defendant was convicted of aggravated murder and aggravated burglary. The trial court ordered his sentence for aggravated burglary to be served consecutively to his death sentence. The Supreme Court stated that “[w]hile the prison sentence is rendered moot by the imposition of the death sentence, we find no error.” Id. at 52. We agree. Appellant is simply not prejudiced by the consecutive sentences.
Appellant's twenty-second assignment of error is without merit.
TWENTY-THIRD ASSIGNMENT OF ERROR
“The appellant was denied the effective assistance of counsel.”
In his twenty-third assignment of error, appellant asserts that he was denied effective assistance of trial counsel in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution and Sections 9, 10 and 16, Article I of the Ohio Constitution.
The Supreme Court of the United States has set forth a two-prong test for determining whether a defendant has been denied effective assistance of counsel. In Strickland v. Washington, ( 1984), 466 U.S. 668, the court stated: “First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.* * * ” Id. at 687.
Additionally, the Strickland court held: “Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to secondguess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v Isaac, 456 U.S. 107, 133-134, 71 L.Ed.2d 783, 102 S Ct 1558 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ See Michel v Louisiana [ (1955), 350 U.S. 91, 101].* * * ” Id. at 689.
Accordingly, the Supreme Court of Ohio has stated that “[t]o warrant reversal, ‘[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ ” Watson, 61 Ohio St.3d at 12-13, quoting Strickland, at 694.
In the case sub judice, appellant has presented a list of twenty-three claimed instances of ineffective assistance by his trial counsel. They are: “1. Failed to object to all of the gruesome photographs, autopsy slides, crime scene videotape, and diagrams. See Third Assignment of Error. “2. Failed to object to the trial court's comments requesting the jury remain seated while the defendant was removed by the deputies. See Second Assignment of Error. “3. Failed to object to all irrelevant and unproven other criminal acts admitted against appellant. See Eleventh Assignment of Error. “4. Failed to give an opening statement in the penalty phase. “5. Failed to object to the prosecutorial misconduct at both phases of the capital trial. See Fourth Assignment of Error. “6. Failed to object to hearsay, inadmissible character evidence and other speculative and emotional testimony and erroneous evidentiary ruling as well as failing to request an instruction to the jury to strike testimony that was successfully challenged. See, e.g. Tr. 65-67, 68, 69, 72, 122, 174, 194, 195-196, 204, 206, 218, 226, 240, 299, 350, 394, 407, 737, 821. “7. Failed to move for a separation of witnesses until the second day of trial. “8. Failed to object to comments regarding the motion to suppress Donna Smith's identification and the appellant's statements. See e.g. Tr. 187, 257, 311. “9. Failed to seek fees for an eyewitness identification expert although identification was the most significant issue in the case. “10. Failed to insist on the presence of appellant in off-the-record-discussions and in-chambers hearings. “11. Failed to request the grand jury testimony although clearly could have shown a particularized need. “12. Failed to object to the prosecution's use of 8” x 10” photographs during the trial although 3” x 5” submitted as exhibits. “13. Failed to make complete appellate record. “14. Failed to object to the state breaking up his closing argument in the guilt phase. “15. Failed to object and move for mistrial when state repeatedly commented on fact the defense had their own expert. See Fifth Assignment of Error. “16. Failed to object or even test qualifications of person testifying regarding the blood spatters. Tr. 825. “17. Failed to object to the denigration of the defendant and the defense and failed to object to the comments regarding defendant's silence. “18. Failed to object to court's instructions regarding consistent verdicts, and alternative theories of establishing aggravated felony-murder. See Thirteenth Assignment of Error. “19. Failed to develop any theme in the mitigating phase and failed to adequately investigate the defendant's background and history. “20. Failed to object to trial court's erroneous instruction in the mitigation hearing. See Twentieth Assignment of Error. “21. Failed to object to the prejudicial errors occurring in voir dire. See First, Ninth and Tenth Assignments of Error. “22. Failed to object to the trial court excluding relevant evidence in mitigation. See Nineteenth Assignment of Error. “23. Failed to provide discovery to state, thereby permitting comment on Defendant's missing expert.”
Of the twenty-three claimed mistakes, nine have previously been considered under other assignments of error. Hence, we incorporate our treatment of those arguments under those assignments and decline to readdress each one separately.
Regarding the fourteen other claimed mistakes, only three reference portions of the transcript. Of these fourteen, however, appellant's brief includes no discussion whatsoever concerning how he was prejudiced by the alleged errors. Thus, it is very difficult if not impossible to determine precisely what aspect of trial counsel's performance was objectionable.
Accordingly, appellant has violated App.R. 16(A)(7) with respect to this entire assignment of error, in addition to violating App.R. 16(A)(3) with respect to all but three of his claims of ineffective assistance of counsel. Thus, pursuant to App.R. 12(A)(2), we may disregard these claims because they are not individually argued. See, also, Loc.App.R. 12(C)(4)(a).
For the foregoing reasons, appellant has failed to establish that he was denied effective assistance of counsel. Accordingly, appellant's twenty-third assignment of error is without merit.
TWENTY-FOURTH ASSIGNMENT OF ERROR
“The conviction and sentence herein are against the manifest weight of the evidence.”
In his twenty-fourth assignment of error, appellant asserts that his conviction and sentence are against the manifest weight of the evidence. Specifically, appellant argues that his convictions for aggravated burglary and aggravated robbery were against the manifest weight of the evidence, and, since they were used as the underlying basis for his aggravated murder convictions, all four of these convictions must be reversed.
The Supreme Court of Ohio has stated: “In reviewing a claim that a jury verdict was against the weight of the evidence, or that the evidence was insufficient, a reviewing court's duty is to review the record to determine whether there was sufficient evidence for the jury to find defendant guilty beyond a reasonable doubt.” Brown, 38 Ohio St.3d 305, at paragraph four of the syllabus.
With respect to appellant's conviction for aggravated burglary, he reasserts his argument made in the sixteenth assignment of error that the element of stealth was not proven. For the same reasons we set forth in addressing appellant's sixteenth assignment of error, we disagree.
Appellant was convicted of violating R.C. 2911.11(A)(2) which provides: “(A) No person, by force, stealth, or deception, shall trespass in an occupied structure, as defined in section 2909.01 of the Revised Code, or in a separately secured or separately occupied portion thereof, with purpose to commit therein any theft offense, as defined in section 2913.01 of the Revised Code, or any felony, when any of the following apply: “(1) * * * “(2) The offender has a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code, on or about his person or under his control; * * * ”
The state specified that appellant entered the occupied structure, the VCA warehouse, by stealth. The state proceeded to introduce evidence that there was a half-opened garage door in the loading dock area at VCA on the morning of the incident after John Everett arrived at work. John Everett was loading one of the trucks and it was standard practice to leave a garage door partially open when a truck was being loaded inside the loading dock area. Thus, appellant could have entered upon the premises through the open door.
Alternately, the state introduced evidence that after the incident occurred, a police officer discovered a broken window on the premises that could have been used to gain entry to the building. Furthermore, John Everett testified that he did not notice any broken windows when he arrived to work that day. Thus, one could conclude that appellant gained entry to the warehouse by breaking the window.
In contrast, appellant testified that Tracey Jefferys opened the door and allowed him to enter. Thus, he contends, he did not enter by stealth.
The Supreme Court of Ohio has held: “On the trial of a case, either civil or criminal, the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts.” State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus.
In the case sub judice, it is apparent that the jury simply found appellant's testimony to be less than credible. The state's evidence, while circumstantial, perhaps offered the jury a more believable alternative to the testimony of appellant.
Additionally, John Everett testified that the VCA warehouse had an extensive security system whereby a person on the inside would have to “buzz” in a visitor for the outside door to unlock. Further, he testified that he heard the buzzer when Tracey Jefferys let John Coleman into the warehouse. Everett did not testify that he heard the buzzer at any other time that morning which could lead one to conclude that, contrary to appellant's testimony, Tracey Jeffery's had not opened the door for appellant that day.
In conclusion, from a review of the testimony, it is clear that there was sufficient evidence for the jury to find appellant guilty of aggravated burglary beyond a reasonable doubt.
Appellant also claims that his conviction for aggravated robbery was against the manifest weight of the evidence. It is appellant's contention that there was insufficient evidence that he took Tracey Jefferys' black pouch.
Appellant's contention is without merit. The state presented evidence that on the afternoon that appellant was arrested, two detectives went to 436 White Court to talk to appellant's girlfriend, Sonya Barnes. There, they found Tracey Jefferys' black pouch in plain view on the kitchen table. They also found John Everett's wallet on top of the refrigerator. They had earlier found Tracey Jefferys' checkbook inside the pocket of the blue jeans they had discovered in a wooded area behind Styx's house.
Thus, there was undisputed evidence that property taken from the victims was found in locations that were directly connected with appellant. The implication being that appellant had stolen the property while at the VCA warehouse and taken it with him to the residences of both Styx and Sonya Barnes. Clearly, this was sufficient evidence for the jury to find appellant guilty of aggravated robbery beyond a reasonable doubt. Accordingly, appellant's twenty-fourth assignment of error is without merit.
TWENTY-FIFTH ASSIGNMENT OF ERROR
“The multiplicative indictment and the repetitive use of the felony allegations violated the appellant's constitutional rights.”
In his twenty-fifth assignment of error, appellant asserts that the multiplicative indictment and the repetitive use of the felony allegations violated his constitutional rights. Specifically, appellant submits that the two felony murder counts against him should have been dismissed prior to trial as either violative of the Double Jeopardy Clause, or of the Supreme Court of the United State's decision in Lowenfield v. Phelps (1988), 484 U.S. 231.
Appellant contends that the failure of the trial court to dismiss the multiplicative indictment violated his rights as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, as well as Sections 9, 10, and 16, Article I of the Ohio Constitution. Additionally, appellant argues that the trial court erred by failing to merge the second, third, and fourth specifications to each of the murder counts on the basis that they were illegally cumulative.
In appellant's double jeopardy argument, he claims that he “suffered repeated jeopardy, conviction and multiple sentences based upon a single act of criminal conduct.” A similar argument was considered and rejected in State v. Grant ( 1993), 67 Ohio St.3d 465, wherein the defendant claimed that she was punished three times for a single act. In rejecting the defendant's argument, the Supreme Court of Ohio stated: “[The defendant] contends that separate punishments for aggravated arson and aggravated murder, as well as the death specification for felony murder, violate her rights against double jeopardy and multiple punishments. Additionally, she assumes she did not separately commit the offense of aggravated arson. As previously discussed, the law and facts do not bear out her contentions. “Ohio's statutory scheme of punishment under R.C. 2903.01(B) of both aggravated murder and aggravated arson does not violate constitutional guarantees against double jeopardy. The General Assembly intended that both offenses be separately punished. See State v. Moss (1982), 69 Ohio St.2d 515, 521-522, 23 O.O.3d 447, 451, 433 N.E.2d 181, 186-187; State v. Guyton (1984) 18 Ohio App.3d 101, 18 OBR 464, 481 N.E.2d 650.” (Emphasis sic.) Id. at 474.
In Guyton, supra, the court stated: “The Ohio Legislature has manifested a clear intent to provide an enhanced penalty to one found guilty of both aggravated murder and one of the several felony specifications. As such, there is no double jeopardy violation.* * * ” Id. at 104.
The present case is similar and the logic equally applicable. Hence, the Double Jeopardy Clause was not violated in this case. Appellant also argues that pursuant to the United States Supreme Court's decision in Lowenfield, supra, Ohio's statutory scheme for capital murder is unconstitutional. Appellant argues that there is no narrowing of the class eligible for the death sentence as required by the United States Constitution. This argument was expressly rejected by the Supreme Court of Ohio in State v, Henderson (1988), 39 Ohio St.3d 24. See, also, this Court's recent decision in State v. Williams (Mar. 24, 1995), Trumbull App. No. 89-T-4210, unreported at 75. Thus, appellant's assertion is without merit.
Finally, appellant submits that the trial court erred in not merging the three R.C. 2929.04(A)(7) specifications to each of the murder counts prior to the penalty phase. Appellant relies on State v. Jenkins (1984), 15 Ohio St.3d 164, wherein the court held: “ * * *where two or more aggravating circumstances arise from the same act or indivisible course of conduct and are thus duplicative, the duplicative aggravating circumstances will be merged for purposes of sentencing.* * * ” Id. at 200.
However, the Supreme Court of Ohio has since held that when the aggravating circumstances are that the murder occurred during an aggravated robbery and an aggravated burglary, and when the facts supporting those acts arose from different courses of conduct, the specifications are not duplicative. Murphy, 65 Ohio St.3d at 577-578.
In the case sub judice, it is clear that the aggravated burglary and aggravated robbery were not part of the same course of conduct and did not arise from the same act. The burglary was complete once appellant entered the VCA warehouse without permission, with the intent to commit felonies therein, and with a deadly weapon on or about his person. The aggravated robbery did not occur until appellant took the personal belongings of Tracey Jefferys and John Everett. Accordingly, these specifications were not duplicative and, thus, the trial court properly refused to merge them.
We also disagree with appellant that the submission of two aggravating circumstances under R.C. 2929.04(A)(7), for the commission of aggravated murder in the course of a kidnapping and in the course of an aggravated robbery, was unnecessarily cumulative. In addressing the identical argument, the court in Jenkins, supra, cited to an earlier decision, stating: “In State v. Logan ( 1979), 60 Ohio St.2d 126 [14 O.O.3d 373], this court was confronted with the question of when a defendant may be convicted of kidnapping and another offense of the same or similar kind in conjunction with Ohio's multiple-count statute. The guidelines set forth in the syllabus are as follows: “(a) Where the restraint or movement of the victim is merely incidental to a separate underlying crime, there exists no separate animus sufficient to sustain separate convictions; however, where the restraint is prolonged, the confinement is secretive, or the movement is substantial so as to demonstrate a significance independent of the other offense, there exists a separate animus as to each offense sufficient to support separate convictions; “(b) Where the asportation or restraint of the victim subjects the victim to a substantial increase in risk of harm separate and apart from that involved in the underlying crime, there exists a separate animus as to each offense sufficient to support separate convictions.” “As the Logan court recognized, the critical consideration ‘is whether the restraint or movement of the victim is merely incidental to a separate underlying crime or, instead, whether it has a significance independent of the other offense.’ Id. at 135. Cf. State v. Price ( 1979), 60 Ohio St.2d 136, at 143 [14 O.O.3d 379].” Id. at 197-198.
In the present action, the kidnapping occurred when appellant gathered the victims in one room and had them lie down on the floor, as they were being restrained by threat. This was a distinct and separate act from the aggravated burglary which had occurred earlier when appellant entered the VCA warehouse, or the aggravated robbery which occurred later when appellant took Everett's wallet and Jefferys' black pouch. It is clear that the restraint of the victims was not merely incidental to the aggravated burglary or the aggravated robbery. Hence, the trial court properly refused to merge these specifications as they were not duplicative.
Accordingly, appellant's twenty-fifth assignment of error is without merit.
TWENTY-SIXTH ASSIGNMENT OF ERROR
“The trial court was improperly prevented from deciding whether death was the appropriate punishment.”
In his twenty-sixth assignment of error, appellant asserts that the statutorily mandated proportionality review process in Ohio does not comport with the requirements of both the Ohio and United States Constitutions and is, thus, fatally flawed.
Pursuant to State v. Poindexter (1988), 36 Ohio St.3d 1, issues of law in capital cases which have been considered and decided by the Supreme Court of Ohio and raised anew in a subsequent capital case may be summarily disposed of in the subsequent case. Id. at syllabus. Ohio's death penalty proportionality review has repeatedly been held to be constitutional. State v. Loza ( 1994), 71 Ohio St.3d 61, 84; Murphy, 65 Ohio St.3d at 583; Steffen, 31 Ohio St.3d 111, at paragraph one of the syllabus. Accordingly, appellant's twenty-sixth assignment of error is without merit.
TWENTY-SEVENTH ASSIGNMENT OF ERROR
“The Ohio Statutory scheme concerning the imposition of the death penalty is unconstitutional.”
In his twenty-seventh assignment of error, appellant asserts that Ohio's death penalty statute is unconstitutional. Pursuant to Poindexter, 36 Ohio St.3d 1, issues of law in capital cases which have been considered and decided by the Supreme Court of Ohio and raised anew in a subsequent capital case may be summarily disposed of in the subsequent case. Id. at syllabus. The constitutionality of Ohio's death penalty statute has repeatedly been upheld. Loza, 71 Ohio St.3d at 84; Jenkins, 15 Ohio St.3d at 179.
Accordingly, appellant's twenty-seventh assignment of error is without merit.
TWENTY-EIGHTH ASSIGNMENT OF ERROR
“This court cannot find that after reviewing all of the factors of R.C. 2929.05(A) that death was the appropriate sentence for Roderick Davie.”
In his twenty-eighth assignment of error, appellant asserts that this Court cannot find that, after reviewing all of the factors set forth in R.C. 2929.05(A), the death penalty was the appropriate sentence in this case. Appellant's argument simply corresponds to the independent review that this court is required to make in all cases where the sentence of death has been given. Accordingly, since these issues will be addressed by this court in the next portion of this opinion, we will not repeat the analysis at this point.
Accordingly, appellant's twenty-eighth assignment of error is without merit.
TWENTY-NINTH ASSIGNMENT OF ERROR
“The trial court erred in not allowing the appellant to be present for the hearing before a trial court to correct a record.”
On March 3, 1994, appellant filed a motion to remand this matter to the trial court to correct the record. Appellant stated that the procedure for supplementing the record was set forth in App.R. 9(C), and that: “Appellant emphasizes that this is not a complicated or lengthy procedure which will cause undue delay. The missing portions have been identified and should be able to be reconstructed with a joint meeting between trial counsel, the trial judge and perhaps the court reporter.”
On March 30, 1994, this court granted appellant's motion and remanded this case to the trial court for sixty days for the purpose of reviewing, settling and/or approving an App.R. 9(C) statement.
On May 18, 1994, appellant filed with the trial court a motion for hearing so that the court could determine the portions of the record that were not set forth in the transcript because they were not recorded. In his supporting memorandum, appellant stated that “[s]ince the defendant was not present for any of the sidebar conversations or conferences, he cannot assist counsel in preparing any type of statement.” He also asserted that “the only fair way to resolve what these off-the-record conferences were about is to have trial counsel and the court, who were present, supplement the record by stating what transpired during those conferences.”
Appellee filed a memorandum opposing appellant's motion of June 2, 1994. Appellee argued that App.R. 9(C) did not provide for a hearing of the type requested by appellant. Appellee requested the trial court return the case to this Court because appellant had failed to offer a proposed statement pursuant to App.R. 9(C).
On June 8, 1994, the trial court overruled appellant's motion for hearing because there was no legal authority for such a hearing. Additionally, because the time on remand had expired without appellant following the procedure set forth in App.R. 9(C), the trial court returned the case to this Court with a notification that there was no statement to be added to the record on appeal.
On July 20, 1994, appellant filed a second motion to remand to correct the record. He asked this Court to return the case to the trial court “in order to determine what occurred in the off the record conversations and to supplement the record with a transcript of those conversations.” Appellee filed a memorandum opposing this motion claiming that appellant had no right to have the record supplemented with off-the-record matters.
On December 14, 1994, this Court granted appellant's motion for a second remand. We returned the case to the trial court, stating that it was remanded “for the sole purpose of reviewing, settling and/or approving appellant's submission in regard to the proposed App.R. 9(C) statement and any objections or amendments to that statement submitted by the parties.”
Subsequently, appellant filed a proposed App.R. 9(C) statement and appellee filed its response thereto. A hearing was scheduled for January 12, 1995. On January 9, 1995, appellant filed a motion for the trial court to issue a warrant to convey appellant to the hearing. Appellant argued that he had a right under the United States and Ohio Constitutions and Crim.R. 43(A) to be present at the hearing, and that his presence was necessary to assist counsel at the hearing. Appellee filed a memorandum opposing this motion on January 11, 1995.
On January 12, 1995, the trial court overruled appellant's motion to attend the hearing. Thereafter, the parties ultimately reached an agreement as to the submission of a proposed App.R. 9(C) statement. No witnesses were called and no evidence was received at the hearing.
On January 19, 1995, the trial court filed a judgment entry stating that the parties had reached an agreement that counsel for appellant had used the best means available to develop a proposed App.R. 9(C) statement concerning matters contained outside the record, that counsel for appellee had no independent recollection regarding such matters, and that the state did not oppose the proposed App.R. 9(C) statement prepared by appellant's counsel. Attached to the entry was the proposed App.R. 9(C) statement consisting of seventy-three entries which either set forth brief narratives of what was believed to have occurred during the particular off-the-record sidebar conferences, or stated that no statement was being offered as to the particular conference.
In the twenty-ninth assignment of error, appellant contends that the trial court erred in not allowing him to be present for the hearing to correct the record. Appellant relies on the United States and Ohio Constitutions, R.C. 2945.12, and Crim.R. 43(A). Each give a defendant the right to be present at all stages of the trial.
However, in United States v. Gagnon (1985), 470 U.S. 522, the United States Supreme Court discussed the scope of a defendant's right to be present as follows: “The constitutional right to presence is rooted to a large extent in the Confrontation Clause of the Sixth Amendment, e.g., Illinois v. Allen, 397 U.S. 337, 25 L.Ed.2d 353, 90 S Ct 1057, 51 Ohio Ops 2d 163 (1970), but we have recognized that this right is protected by the Due Process Clause in some situations where the defendant is not actually confronting witnesses or evidence against him. In Snyder v. Massachusetts, 291 U.S. 97, 78 L Ed 674, 54 S Ct 330, 90 ALR 575 (1934), the Court explained that a defendant has a due process right to be present at a proceeding ‘whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.... [T]he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.’ Id., at 105-106, 108, 78 L Ed 674, 54 S Ct 330, 90 ALR 575; see also Faretta v. California, 422 U.S. 806, 819, n 15, 45 L.Ed.2d 562, 95 S Ct 2525 (1975). The Court also cautioned in Snyder that the exclusion of a defendant from a trial proceeding should be considered in light of the whole record, 291 US, at 115, 78 L Ed 674, 54 S Ct 330, 90 ALR 575.” Id. at 526-527.
It is clear that, in the case sub judice, appellant cannot claim that his right to be present under the Confrontation Clause was violated since no witnesses testified and no evidence was offered against him at the hearing in question.
Additionally, it is evident that appellant's due process rights were not violated as his presence at the hearing did not have a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge. In appellant's motions to remand the matter to the trial court to correct the record, appellant readily admitted that he was not present for any of the sidebar conferences and, thus, would not be able to assist counsel in preparing an App.R. 9(C) statement. Accordingly, a fair and just hearing could be held in appellant's absence.
Other cases have similarly held that the defendant need not be present at every conceivable event that occurs. Snyder v. Massachusetts, supra, (defendant need not be present at the jury view of the crime scene); Fielden v. Illinois (1892) 143 U.S. 452 (defendant had no due process right to be present when appellate court affirmed death sentence and set forth date of execution); and United States v. Sanchez ( C.A.1, 1990), 917 F.2d 607, certiorari denied (1991), 499 U.S. 977 (defendant has no right to be present at hearing on motion for new trial.)
Moreover, it is clear that appellant was not prejudiced by his absence from the trial court proceeding as the App.R. 9(C) statement which was agreed upon and presented to this court was prepared solely by his counsel and not objected to by the state. Thus, he received the supplementation that he was seeking, and the trial court did not err in denying appellant's motion to convey. Accordingly, appellant's twenty-ninth assignment of error is without merit.
III. INDEPENDENT REVIEW
Pursuant to R.C. 2929.05(A), when reviewing a judgment imposing the death penalty, an appellate court must conduct a separate and independent review of the case. As this Court has noted previously: “First, the court of appeals shall determine if the evidence supports the finding of the aggravated circumstances of which the offender was found guilty. Second, the court must independently weigh all the evidence disclosed in the record to determine whether the aggravating circumstances outweigh the mitigating factors. And third, the court must consider whether the sentence was excessive or disproportionate to the penalty imposed in similar cases.” State v. Glenn (Feb. 15, 1985), Portage App. No. 1286, unreported at 42.
Our independent review of the evidence presented at trial supports the conclusion that the death penalty specifications were proven beyond a reasonable doubt. Each of the four aggravated murder counts contained four specifications or aggravating circumstances.
Specifically, this Court finds that the following aggravating circumstances were established: (1) the aggravated murders of Tracey Jefferys and John Coleman were part of a course of conduct involving the purposeful killing of, or attempt to kill, two or more persons; (2) the aggravated murders of Tracey Jefferys and John Coleman occurred while appellant was committing the offense of kidnapping; (3) the aggravated murders of Tracey Jefferys and John Coleman occurred while appellant was committing the offense of aggravated robbery; and (4) the aggravated murders of Tracey Jefferys and John Coleman occurred while appellant committing the offense of aggravated burglary.
The evidence clearly established, through the testimony of eyewitness John Everett, that appellant's course of conduct involved the purposeful killing of two more persons. Additionally, as we expressly found in appellant's twenty-fourth assignment of error, the evidence demonstrated that appellant murdered the victims while committing the offenses of aggravated burglary and aggravated robbery.
With respect to kidnapping, there was evidence presented that appellant removed each of his victims from separate locations by use of force and threat. Everett testified that appellant was threatening everyone with a loaded firearm. Appellant gathered the three victims together and forced them to lie face down on the floor. Thus, it is clear that the aggravated murders occurred while appellant was committing the offense of kidnapping.
Hence, the evidence supports the finding of these four aggravating circumstances of which appellant was found guilty.
Next, within our independent review, we must determine whether the foregoing aggravating circumstances, as set forth in the specifications, outweigh any mitigating factors raised by appellant during the penalty phase of the trial. Pursuant to R.C. 2929.04(B), the aggravating circumstances must be weighed against all mitigating factors including the nature and circumstances of the offense; the history, character, and background of the offender; and any of the following factors which may be relevant: “(1) Whether the victim of the offense induced or facilitated it; “(2) Whether it is unlikely that the offense would have been committed, but for the fact that the offender was under duress, coercion, or strong provocation; “(3) Whether, at the time of committing the offense, the offender, because of a mental disease or defect, lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law; “(4) The youth of the offender; “(5) The offender's lack of a significant history of prior criminal convictions and delinquency adjudications; “(6) If the offender was a participant in the offense but not the principal offender, the degree of the offender's participation in the offense and the degree of the offender's participation in the acts that led to the death of the victim; “(7) Any other factors that are relevant to the issue of whether the offender should be sentenced to death.”
From a review of the evidence presented at trial, it is apparent that factors (1), (2), and (6) are inapplicable in the instant cause. There was no evidence presented that the victims induced or facilitated their own murders. Similarly, there was no evidence that appellant was acting under duress, coercion, or strong provocation at the time he committed the murders. As to the sixth mitigating factor, we find after weighing and reviewing the evidence that appellant was the sole and principal offender in the commission of the murders.
Pursuant to the third factor under R.C. 2929.04(B), this Court can consider whether appellant, because of a mental disease or defect, lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Regarding this factor, there was evidence presented that appellant's I.Q. was eighty-two which is below the average person's I.Q. of one hundred. There was also evidence that appellant suffered from post-concussion syndrome due to a blow to the head he received while in high school.
Although appellant's mental capabilities may have been below average, there was no evidence presented that appellant suffered from a mental disease or defect which would prevent him from appreciating the criminality of the murders or from conforming his conduct to the requirements of the law. Accordingly, the impact of appellant's evidence relative to the third mitigating factor was minimal.
Under the fourth factor of R.C. 2929.04(B), we can consider the youth of the offender. In this case, appellant was nineteen years old at the time of the murders. Thus, we accord appellant some weight on this factor; however, it is apparent that appellant exhibited sufficient maturity to appreciate the gravity of his actions.
Pursuant to the fifth factor under R.C. 2929.04(B), this Court can consider appellant's lack of a significant history of prior criminal convictions and delinquency adjudications as a mitigating factor. It is apparent that appellant's only prior conviction was of a theft offense. There was evidence that appellant had been expelled from high school for possessing marijuana twice but apparently no delinquency adjudication resulted. Thus, some mitigating weight in appellant's favor is given on this factor.
The seventh factor under R.C. 2929.04(B) is a catch-all provision which includes any other relevant mitigating factors. Within this provision, appellant introduced evidence of his family background and history. Specifically, appellant was raised in a relatively stable home environment with three older siblings. His parents, married for thirty years, worked outside of the home. His two brothers graduated from high school and his sister from college. All had been good students who managed to avoid trouble. There was some evidence that appellant had a difficult time trying to live up to the standards set by his siblings.
Appellant began getting into trouble at the age of thirteen, which coincided with a five-year period of discord between his parents. Between 1984 and 1989, it is apparent that appellant's father moved out of the home occasionally as he and appellant's mother experienced some marital difficulty. At approximately the same time, appellant embarked upon a pattern of behavior involving delinquency, fighting, and the possession of marijuana that resulted in numerous suspensions and, eventually, expulsion from school.
Evidence further indicated that following expulsion, appellant made an unsuccessful attempt at suicide by overdosing on his mother's pills. Then at the age of seventeen, appellant left for California to live with friends. He returned to Warren approximately eight months later. Shortly thereafter, his girlfriend gave birth to appellant's daughter, Paris. From all accounts, appellant was a good father and enjoyed spending time with his daughter.
While this evidence suggests that appellant had a difficult childhood, especially once his parents began having marital problems, there is nothing remarkable about the circumstances of appellant's childhood that differentiate it from millions of other children. In many respects, appellant was fortunate in that he had two caring parents who were able to provide for him and his three siblings. Appellant was not deprived or abused in any manner. He was raised in an environment that allowed all three siblings to thrive. In short, appellant's problems were apparently self-created.
The strongest mitigating factor in appellant's favor is that of his relationship with his daughter. However, it is our conclusion that adding this mitigating factor to those already considered, including appellant's age and his lack of a significant history of criminal convictions and delinquency adjudications, simply does not overcome the great weight on the side of the aggravating circumstances. Accordingly, we conclude that the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt.
Our final task within our independent review is to determine whether the imposition of the death penalty in this case was excessive or disproportionate in comparison with other death penalty cases from this district.
Since the enactment of the present statutory scheme for imposing the death penalty in 1981, this Court has reviewed six death penalty cases. These cases are: State v. Glenn (Feb. 15, 1985), Portage App. No. 1286, unreported; State v. Wiles (June 3, 1988), Portage App. No. 1675, unreported; State v. Hill (Nov. 27, 1989), Trumbull App. Nos. 3720/3745, unreported; State v. Lorraine (Aug. 10, 1990), Trumbull App. No. 3838, unreported; State v. Lundgren (Sep. 1, 1993), Lake App. Nos. 90-L-15-140/91-L-036, unreported; and State v. Williams (Mar. 24.1995), Trumbull App. No. 89-T-4210, unreported. In Lorraine, at 61-63, we gave the following synopsis of the first three cases: “In Glenn, supra, the defendant had plotted the escape of his half brother from the Mahoning County Jail. While his half brother was being transported to a doctor's office by a sheriff's deputy, defendant struck the police car with his own car. When the deputy exited the patrol car, the defendant shot and killed him. During the mitigation phase of the trial, it was established that the defendant was only twenty years old, that he had a low intelligence level and had special educational needs, and that he came from a poor background and environment. Nevertheless, this court, by a two to one vote, held that the death penalty was appropriate. “In Wiles, supra, the defendant was burglarizing the home of his former employers. He waited until he thought the house was unoccupied and then entered through an unlocked door. Once inside, the defendant was surprised by the fifteen year old son of his former employers. The defendant stabbed the smaller, weaker boy with a butcher knife at least eleven times and escaped with $260 cash.
“The mitigating factors that the court considered included the fact that the defendant was twenty-two years old at the time of the murder, and that the defendant eventually turned himself over to the police. However, he denied any involvement in the murder and had turned himself in only after fleeing to Georgia and running out of food and money. Upon review, this court affirmed the trial court's decision holding that the death penalty was neither excessive nor disproportionate. “In Hill, supra, the defendant tackled a twelve year old boy who was riding his bicycle through a wooded area behind a grocery store. The defendant, and an accomplice, beat the boy violently, sexually assaulted him, impaled him with a long wooden instrument, strangled him with his own underwear, and burned his face and body by pouring lighter fluid on him and igniting it. The boy was left for dead but managed to live for two more days. “The court considered a number of mitigating factors. The defendant was eighteen years old at the time of the incident and had diminished mental capacity. He was mildly to moderately retarded, although he understood the difference between right and wrong. It was also established that the defendant was essentially illiterate. This court held that the death sentence was appropriate.”
Subsequently, in Williams, at 115-116, we gave the following synopsis of Lorraine and Lundgren: “In Lorraine, the defendant murdered a helpless elderly couple for whom he had previously performed odd jobs. Upon being invited into the couple's residence, the defendant lured the husband upstairs and stabbed him five times. The defendant then went back downstairs and stabbed the wife, a bedridden invalid, nine times. Upon completing the murders, the defendant burglarized the residence. “As part of its independent review, the Lorraine court considered various factors such as the defendant's age, his low intelligence, his poor family environment, and the fact that he had an antisocial personality disorder. Nevertheless, we found that the aggravating circumstances outweighed the mitigating factors and upheld the death penalty. “In Lundgren, the defendant was the self-proclaimed leader of a religious cult. As part of his teachings, the defendant convinced certain members of the cult to assist him in executing a plan to “sacrifice” a family of two adults and three children. Pursuant to this plan, each member of the family was separately lured to a barn and shot by appellant. The five bodies were then placed in a huge pit which had been dug in a corner of the barn. “In reviewing the evidence presented at the penalty phase, we found that the existence of only two mitigating factors had been established: (1) the lack of a significant criminal history; and (2) a poor family environment as a child. Concluding that these factors should be accorded very little weight, we found that the imposition of the death penalty had been appropriate.”
In Williams, the defendant and an accomplice broke into the home of an elderly couple and beat the couple with a cement block, a brick, an axe handle, and a lamp. The man died as a result of the beating. The woman was severely injured and was left for dead. She was discovered two days later. She lost her vision as a result of the attack.
The mitigating factors considered by this Court included the fact that the defendant had a low I.Q. of between sixty-seven and seventy-eight, that he was nineteen years old at the time of the murder, that he lacked a significant criminal history, and that he was raised without a father and his family was financially deprived. Upon review, this Court affirmed appellant's death sentence finding it to be neither excessive nor disproportionate.
In comparing the facts and circumstances of the present case to the previous death penalty cases considered by this Court, we find that appellant's death sentence is not excessive or disproportionate. Accordingly, the judgment of the trial court is affirmed. FORD, P.J., NADER, J., concur.
Davie v. Mitchell, 547 F.3d 297 (6th Cir. 2008). (Habeas)
Background: Petitioner, convicted in state court of aggravated murder and sentenced to death, having exhausted state-court appeals, 80 Ohio St.3d 311, 686 N.E.2d 245, and postconviction remedies, sought federal habeas relief. The United States District Court for the Northern District of Ohio, James G. Carr, Chief Judge, denied petition, 291 F.Supp.2d 573, and subsequently issued a certificate of appealability (COA) as to some of the claims raised by petitioner, 324 F.Supp.2d 862.
Holdings: The Court of Appeals, Rogers, Circuit Judge, held that: (1) the Ohio Supreme Court's rejection of petitioner's claim that the state trial court unconstitutionally admitted his confession into evidence was a reasonable application of United States Supreme Court precedent; (2) even under a nondeferential analysis, the actions of police in questioning petitioner, who reinitiated contact with authorities after having earlier cut off questioning, and knowingly and intelligently waived his rights, did not violate petitioner's Miranda rights; (3) petitioner procedurally defaulted his substantive “acquittal-first” claim; (4) the state court's rejection of petitioner's claim that appellate counsel was ineffective for failing to raise the “acquittal-first” argument was not an unreasonable application of clearly established federal law; and (5) petitioner's prosecutorial misconduct claims did not warrant habeas relief. Affirmed. R. Guy Cole, Jr., Circuit Judge, filed concurring opinion. Merritt, Circuit Judge, filed dissenting opinion.
ROGERS, Circuit Judge.
The Ohio courts have upheld the sentence of defendant Roderick Davie to death for the brutal and gruesome murder of two victims. He was also convicted on an attempt to kill a third. On a subsequent petition for a federal writ of habeas corpus, the district court below rejected contentions that defendant's Miranda rights had been violated, that his penalty-phase jury instructions had been constitutionally deficient, and that prosecutorial conduct had denied him due process. These determinations were correct, notwithstanding Davie's arguments on appeal.
With respect to the Miranda claim in particular, the substantial deference that the law requires us to give to the state court's application of United States constitutional law in habeas cases compels us to uphold the Ohio courts' denial of Davie's Miranda claim. Indeed, even fresh application of Supreme Court precedent shows that Davie's Miranda rights were not violated by the police actions in this case, which included four instances of questioning-each following a Miranda warning-over a six-hour period.
I.
On June 27, 1991, Davie killed John Coleman and Tracey Jefferys, and tried to kill John Everett. In a taped confession, Davie admitted that he “flipped out” the morning of the crime and “went down to VCA and shot ‘em up.” He described how he entered the building, made his three victims lie on the floor, and shot them. He described how he beat one victim with a chair when he ran out of bullets, and attempted to run down one victim with a truck. He also described his activities after he committed the shootings.
At trial, Donna Smith, an eye witness, testified that, as she approached the Veterinary Companies of America (“VCA”) warehouse on the morning of the shootings, she noticed a bleeding man stumble across the parking lot and collapse on a sidewalk. JA 901-05. Smith then noticed another man come out of the building and run around to the driver's side of a truck in the dock area. Thereafter, Smith testified that the truck came “flying out” of the parking lot across both lanes of the street in an attempt to hit the injured man. The injured man was able to shield himself from the truck by falling underneath a bridge, and the truck rammed into the bridge. Smith testified that the man in the truck left the truck and jumped over the side of the bridge.
John Everett, one of Davie's victims and the man that Smith witnessed stumble across the parking lot, testified to the following events. JA 906-47. On the morning of the shootings, Everett was in the VCA lunch room. Davie, accompanied by a crying Tracey Jefferys (another VCA employee), came up from behind Everett holding a gun. Davie ordered Everett out of the lunch room and, once in the warehouse area, ordered Everett and Jefferys to “lay face down.” Davie then ordered John Coleman, who was loading his truck at the loading dock, to join Everett and Jefferys. After Everett, Jefferys, and Coleman had complied with Davie's commands, Davie began shooting. Everett testified that after numerous shots were fired, Jefferys got up and ran away. Davie brought Jefferys back, and Everett heard Davie remark to Coleman “You ain't dead yet, huh, brother?” and fire another shot. Everett testified that Davie then took Everett's wallet and told Jefferys that she was lucky that he was out of bullets. At that point, Jefferys again attempted to flee, and Davie followed. Everett heard Jefferys scream for three or four minutes and, eventually, the screaming stopped.
Everett escaped the warehouse and made his way out of the building and to the street. Thereafter, Everett noticed Davie revving the engine of a truck in the parking lot. Davie attempted to use the truck to run Everett down, but Everett escaped by jumping under a bridge. Everett heard the truck crash into the bridge and, shortly thereafter, Davie arrived under the bridge. At that time, Davie began beating Everett with a stick on the left side of Everett's head, and attempted to gouge Everett's eyes out with the stick. Everett testified that Davie had the look of “a man on a mission and he was definitely going to kill me.” At some point, Davie stopped beating Everett, looked up over the bridge, and left the area. Everett was treated at the hospital for, among other things, three gunshot wounds-one to the head, one to the shoulder, and one to the arm.
There is no need to summarize the remainder of the trial testimony. It is sufficient to say that the testimony established overwhelmingly that Davie committed a bloody and gruesome series of crimes on the morning of June 27, 1991. Testimony established that Tracey Jefferys died in VCA's lunch room due to blunt force trauma. A metal folding chair was found next to her body. Coleman died in the warehouse as a result of five bullet wounds-two of which were located in the back of his head.
The circumstances of Davie's confession, detailed more fully in the concurrence, are as follows. At approximately 8:30 a.m., Davie was arrested, read his Miranda rights, and transported to the police station. At approximately 9:05 a.m. at the police station, Detective Hill read Davie his Miranda rights with Lieutenant Carl Blevins present. Davie initialed the rights form but refused to sign the waiver. At that point, the officers made no attempt to interrogate Davie. At approximately 9:59 a.m., Captain Downs and Blevins entered the interrogation room and again advised Davie of his Miranda rights. Davie initially made some comments, he ultimately declined to speak further with the officers, and the interview ceased. At approximately 12:15 p.m., authorities again questioned Davie. Davie provided some information to police, including the fact that he had his gun with him that morning, but he did not confess to the crime. At 12:35 p.m., Davie indicated that he had nothing more to say and the interview ceased. At approximately 2:00 p.m., Davie indicated that he wanted to speak with Detective Vingle. After Vingle advised him of his Miranda rights, Davie confessed. See 80 Ohio St.3d 311, 686 N.E.2d 245, 256 (Ohio 1997). At no time during the relevant events did Davie ask for a lawyer.FN1
FN1. It overstates things to say that Davie was “confronted” “ six times within a 5-1/2 hour period between his arrest at 8:30 A.M. that morning and his confession around 2:00 P.M. that afternoon.” Dissent at 24. Such a count includes the interaction between Davie and Sergeant Massucci when Massucci went to Davie's cell only to take photographs, and also the interaction (hardly a confrontation) between Davie and Detective Vingle after Davie himself requested Vingle's presence. All told, Davie was read his Miranda rights four times in the almost six hour period between his arrest and his request to speak with Vingle, and officers interacted with Davie at the police station three times in almost five hours before Davie initiated contact with Vingle and confessed.
II. A.
Davie claims that the state trial court unconstitutionally admitted his confession into evidence. The deference that we owe to state court determinations regarding constitutional law on federal habeas requires that we uphold the Ohio Supreme Court's rejection of Davie's Miranda claim. The law by now is clear that under AEDPA, “an unreasonable application of federal law is different from an incorrect application of federal law.” See Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (emphasis in original). Instead of asking whether the state court's application was erroneous, “a federal habeas court making the ‘unreasonable application’ inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable.” Id. at 409, 120 S.Ct. 1495. Our task in this case is to evaluate the Ohio Supreme Court's application of U.S. Supreme Court precedents for reasonableness, not to undertake an independent evaluation.
After detailing the events leading to Davie's statements, the Ohio Supreme Court reasoned: Contrary to Davie's arguments, he did not unequivocally assert his constitutional rights. Instead, he waived his right to remain silent during both interviews with Vingle and Sines, despite his failure to initial the waiver-of-rights portion of the form. This situation is similar to that in State v. Scott (1980), 61 Ohio St.2d 155, 15 O.O.3d 182, 400 N.E.2d 375, which followed the decision in North Carolina v. Butler (1979), 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286. In Butler, the Supreme Court noted that “in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.” Id. at 373, 99 S.Ct. 1755. In Scott, the accused acknowledged that he understood his Miranda rights, but refused to sign a waiver form. Nevertheless, he agreed to answer questions and never requested counsel. The Scott court upheld the admissibility of the accused's statements and held, “[T]he question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in Miranda * * *.” Scott at paragraph one of the syllabus. The similar facts of this case demonstrate that Davie waived his Miranda rights even though he failed to initial the waiver part of the form.
When Davie indicated in his interview with Blevins and Hill that he no longer wished to talk, his requests were scrupulously honored by the officers. However, in cutting off the earlier interviews, Davie did not preclude a later interrogation by other officers. See Michigan v. Mosley (1975), 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313. Moreover, Davie never asserted his right to have counsel present.
Finally, it is clear that Davie's 2:00 p.m. conversation with police, in which he implicated himself in the murders, was properly admitted, since he initiated that conversation himself. See Edwards v. Arizona (1981), 451 U.S. 477, 485, 101 S.Ct. 1880, 68 L.Ed.2d 378. 686 N.E.2d at 256-57(citations omitted).
Even if we might find a way to disagree with the unanimous opinion of the Ohio Supreme Court in this regard, that court's analysis amounts to a thoughtful and certainly reasonable application of United States Supreme Court law, as explained in detail by Judge Carr in the district court below. See 291 F.Supp.2d 573, 595-600 (N.D.Ohio 2003). The district court accordingly properly denied habeas relief on this ground.
B.
Indeed, the reasonableness of the state court's analysis is supported by a fresh application of Supreme Court precedents to the record in this case. Even under a nondeferential analysis, the police did not violate Davie's constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
1.
The Ohio Supreme Court's determination that Davie initiated the 2 p.m. conversation is directly supported by the Supreme Court's decision in Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983). In Bradshaw, a plurality of the Supreme Court concluded that authorities could speak to a defendant, without depriving him of his rights, when the defendant asked “Well, what is going to happen to me now?” even though the defendant had previously invoked his right to counsel. See id. at 1041-42, 103 S.Ct. 2830. Because, in asking this question, the defendant had “evinced a willingness and a desire for a generalized discussion about the investigation,” id. at 1045-46, 103 S.Ct. 2830, the plurality concluded that the admission of evidence was proper so long as the defendant had knowingly and intelligently waived his rights to counsel and silence. Id. at 1046, 103 S.Ct. 2830.
Here, like the defendant in Bradshaw, Davie evinced a willingness to discuss the investigation without influence by authorities. Indeed, the question that Davie asked of Vingle was related to the very subject matter of the criminal investigation for which Davie had been detained. See id. at 1053-54, 103 S.Ct. 2830 (Marshall, J., dissenting). This court, in United States v. Whaley, 13 F.3d 963 (6th Cir.1994), has reconciled the plurality and dissent in Bradshaw as stating a general rule that “an Edwards initiation occurs when, without influence by the authorities, the suspect shows a willingness and a desire to talk generally about his case.” Id. at 967. In this case, Davie was placed in a jail cell at approximately 12:35 p.m. About an hour and a half later, Sergeant Massucci went to Davie's cell for the purpose of obtaining Davie's photograph. When Massucci arrived, Davie asked him for permission to make a phone call. After returning from the phone call, Davie told Massucci that he wished to speak to Detective Vingle. When Vingle arrived, Davie asked Vingle how the news media had obtained information about Davie and his girlfriend, and inquired of Vingle, “What did Styx tell you?” Styx, of course, was Dwayne Thomas, the informant who originally contacted the police and who was with Davie before Davie was arrested. It was after this interaction between Vingle and Davie-initiated by Davie-that Davie confessed to the shooting. Vingle brought Davie to an interview room, re-advised Davie of his Miranda rights, and Davie confessed on tape.
Under the analytical framework of the Bradshaw plurality, Davie's confession was properly admitted at trial. First, Davie initiated contact with the police after he invoked his right to silence. The record indicates that one and a half hours after Davie was placed in a jail cell, Davie requested to see Vingle and questioned Vingle in a manner directly pertaining to the investigation. There is no evidence in the record that either Davie's request to see Vingle or Davie's questioning of Vingle was the product of improper influence on the part of the police. Davie was in his cell for an hour and a half before requesting Vingle's presence, and the record establishes that Massucci merely took photographs of Davie and granted Davie's request to make a phone call. Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), in no way supports a contrary conclusion that the 2:00 p.m. encounter was not a sufficient initiation of contact under Bradshaw. See Dissent at 334. The issue in Innis was what police statements amount to interrogation so as to violate Miranda once a suspect has invoked his Miranda rights. The Court concluded that “the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent.” 446 U.S. at 300-01, 100 S.Ct. 1682. In that case, the defendant invoked his right to counsel but later revealed the location of a gun used in a robbery after one of the officers, in the defendant's presence, remarked to another officer that there were “a lot of handicapped children running around in this area” and “God forbid one of them might find a weapon with shells.” Id. at 294-95, 100 S.Ct. 1682. The Court held that this was not the functional equivalent of express questioning, id. at 302, 100 S.Ct. 1682, and, in any event, the police made no such comments to Davie in this case. After making a phone call, Davie initiated the contact with Vingle on his own, and in the absence of any police influence. Davie's questioning of Vingle clearly evinced a willingness to talk about the subject matter of the investigation, thereby satisfying the first requirement of Bradshaw.
Second, the totality of the circumstances indicates that Davie knowingly and intelligently waived his rights to counsel and silence. This determination depends upon “the particular facts and circumstances surrounding [the] case, including the background, experience, and conduct of the accused.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). In examining whether Davie's waiver was knowing and intelligent, the state appellate court concluded that [t]here is no evidence in the record that the police resorted to any physical pressure, coercion or deception to elicit [Davie's] statements. In fact, [Davie] initiated the third interview which led to his confession. There is also no doubt that [Davie] was effectively and adequately apprised of his Miranda rights. Moreover, his initials and signature on the forms, his tape recorded statements, and his cooperation during the interviews are evidence that he understood his rights and the consequences of relinquishing them. State v. Davie, No. 92-T-4693, 1995 WL 870019, at *22 (Ohio Ct.App. Dec. 27, 1995). There is no reason to dispute the Ohio appellate court's conclusions here. After Davie initiated contact with Vingle, Vingle brought Davie to an interview room, Vingle re-advised Davie of his Miranda rights, and Davie confessed to the crime. Prior to confessing, Davie initialed a constitutional rights form indicating that he understood his rights, and signed the form. During the interview, officers orally read Davie his rights, and Davie remarked that he understood those rights, including the waiver provision. Although Davie did not initial the waiver section on the form, Davie explicitly stated that he agreed to speak with the officers, and therefore effectively waived his Miranda rights.FN2
FN2. After officers re-advised Davie of his Miranda rights and Davie acknowledged that he understood those rights, the relevant exchange progressed as follows: Det. Vingle: Okay, about 5 minutes to 2 [o'clock], Sgt. Massucci came up from the jail and advised me that you wanted to see me. Davie: Right Det. Vingle: And I came down and you said you wanted to talk to us while we brought you back upstairs, right? Davie: Yea. Det. Vingle: Do you want to acknowledge this that you have been given your rights again? Do you understand this one too [the waiver provision], do you want to initial that one? Davie: It don't matter, do it. Det. Sines: Any particular reason why, you just don't want to initial that part? Davie: Right. Det. Sines: Are you still willing to talk to us? Davie: Right. JA 2053.
In United States v. Kaufman, 92 Fed.Appx. 253 (6th Cir.2004), we held, albeit in an unpublished decision, that there was no Miranda violation in a case, like this one, where the defendant had refused to sign a waiver form but freely spoke to police after being advised of his Miranda rights. Id. at 256. We relied in Kaufman on the Supreme Court's holding in North Carolina v. Butler, 441 U.S. 369, 374-76, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979), that the Constitution did not require an explicit waiver of Miranda rights. Indeed, the defendant in Butler had said to the police, in words that closely prefigure the instant case, “I will talk to you but I am not signing any form.” Id. at 371, 99 S.Ct. 1755; see also United States v. Miggins, 302 F.3d 384, 397 (6th Cir.2002) (written waiver not necessary to establish knowing, intelligent, and voluntary waiver of Miranda rights).
It is no answer to the above analysis to assert that, because Davie repeatedly refused to initial the waiver, he did not think that his statements could be used against him. Not only did the Miranda rights form that officers read to Davie include the obligatory provision that “[a]nything you say can be used against you in court,” but Davie repeatedly acknowledged that he understood this provision throughout the morning and afternoon in question, and Davie manifested no objective signs that indicated a misunderstanding.
Further, the law does not require that, where a defendant refuses to sign a waiver but nonetheless agrees to speak with officers, “[i]nvestigating officers should clearly inform the accused that his failure to sign the waiver does not prevent statements he makes from being used against him.” Dissent at 334. No Supreme Court decision so requires, and lower court cases like United States v. Van Dusen, 431 F.2d 1278 (1 st Cir.1970), do not support such a rule. In that case, the First Circuit, after explaining that a refusal to sign a written waiver followed by a willingness to talk is a “signal of some quirk of reasoning,” suggested that a further explanation on the part of the police would have been “prudent.” Id. at 1280. The First Circuit declined, however, to formulate a specific rule to govern police practices, explaining:
It would, we think, be folly to try to cast this principle in the form of a specific required practice. Indeed, were we so to rule, a suspect could, by refusing to sign and subsequently talking freely, enjoy the luxury of an immunity bath at no price at all. Id. Thus, rather than adopting a “specific required practice,” the Van Dusen court chose instead to hold the government to a “measurably increas[ed]” burden of persuasion regarding whether the waiver was knowing and intelligent. Id. Indeed, the First Circuit upheld the Miranda waiver in that case, even though the police had not even read the Miranda warnings, but rather had let the suspect read them to himself. Id. Thus, despite the officers' failure to seek clarification from the defendant regarding the refusal to sign the written waiver, the Van Dusen court held that the waiver was effective.FN3
FN3. The Ninth Circuit's holding in United States v. Heldt, 745 F.2d 1275 (9th Cir.1984), is also readily distinguishable from Davie's case. The police in Heldt “exhorted” the defendant to “answer questions anyway” despite the defendant's desire to remain silent. Id. at 1278.
In any event, the police officers here cannot be faulted for failing to comply with such a legally unsupportable rule. The officers did twice attempt to seek clarification from Davie regarding his refusal to initial the waiver. During the 12:15 p.m. interview, the officers questioned Davie as follows: Det. Sines: Roderick on this rights sheet that you signed, you acknowledged that you understand your rights there, but you didn't want to uh initial the waiver of rights, okay, is that correct? Davie: Right. Det. Sines: Okay being as though you did that do you have any objections to talking to us anyhow? Davie: No I don't. JA 2025. Later, at the 2:00 p.m. interview, officers again attempted to seek clarification from Davie: Det. Vingle: Do you want to acknowledge this that you have been given your rights again? Do you understand this one too [the waiver provision], do you want to initial that one? Davie: It don't matter, do it. Det. Sines: Any particular reason why, you just don't want to initial that part? Davie: Right. Det. Sines: Are you still willing to talk to us? Davie: Right. JA 2053.
Hence, the record establishes that the officers did seek clarification from Davie regarding the apparent incongruity between his refusal to sign the waiver and his willingness to speak. And each time the officers sought clarification, Davie responded unequivocally that he was willing to speak. Accordingly, because Davie reinitiated contact with authorities, and because Davie knowingly and intelligently waived his rights, the confession was admissible.FN4
FN4. While federal lower court cases like McGraw v. Holland, 257 F.3d 513, 518-19 (6th Cir.2001), indicate that “post-request responses after invocation of [the] right to silence may not be used by the State as a waiver of rights,” Dissent at 31, that is not what happened here. In this case, there is no need to infer a waiver from post-request responses because Davie clearly waived his Miranda rights before confessing. See supra note 2 and accompanying text. Moreover, this case is easily distinguishable from McGraw and similar lower court cases. For example, in McGraw, although the defendant repeatedly indicated a desire to postpone questioning, the police insisted that the defendant discuss the crime, urging that the defendant “need[ed] to tell [the detective] what was happening at the house,” and further pressing that “we need to talk about it now,” and “[w]e have to talk about it.” McGraw, 257 F.3d at 515. After police “[r]efus[ed] to take no for an answer,” the defendant succumbed and gave a detailed confession. Id. at 515-16. The record shows no such pressure here. See also United States v. Tyler, 164 F.3d 150, 154-55 (3d Cir.1998) (police “command[ed]” defendant to “tell the truth” after invocation of right to silence).
Application of the analysis of the plurality in Bradshaw to the facts of this case thus compels the conclusion that Davie's Miranda rights were not violated. Justice Powell's concurrence in Bradshaw, moreover, which focused on deference to the trial court and on an evaluation of the totality of the circumstances, would a fortiori support the same conclusion. It is true that Bradshaw dealt with initiation of questioning after invocation of the right to counsel, and that there was no invocation of the right to counsel in Davie's case. But this distinction if anything cuts against Davie, as asking for counsel requires “additional safeguards” to those where a suspect has, for instance, simply refused to sign a waiver. See Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (distinguishing North Carolina v. Butler, 441 U.S. at 371-76, 99 S.Ct. 1755).
2.
Moreover, Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), does not undermine the conclusion that Davie effectively waived his Miranda rights. The Mosley Court upheld a confession that followed a cutoff of questioning, and thus it is only by negative inference (i.e., dictum) that Mosley can be read to support defendant at all. Although police must respect a suspect's exercise of his right to remain silent, police are not indefinitely prohibited from further interrogation so long as the suspect's right to cut off questioning was “scrupulously honored.” Id. at 104, 96 S.Ct. 321. The purpose of Mosley's “scrupulously honored” requirement is to safeguard against “repeated rounds of questioning” that can serve to “undermine the will of the person being questioned.” Id. at 102, 96 S.Ct. 321. As the Mosley Court noted, “[t]he requirement that law enforcement authorities must respect a person's exercise of [the option to terminate questioning] counteracts the coercive pressures of the custodial setting.” Id. at 104, 96 S.Ct. 321. By exercising that option, a person is able to “control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation.” Id. at 103-04, 96 S.Ct. 321. A review of the record indicates that Davie's right to cut off questioning was fully respected in this case.
In both Mosley and this case, the defendant cut off questioning after authorities informed the defendant of his Miranda rights and, in both cases, authorities contacted the defendant after an interval of time. Id. at 104, 96 S.Ct. 321. In balancing the rights of the defendant and the needs of the authorities, the Mosley Court concluded that the authorities did not engage in repeated efforts to wear down the defendant's resistance. Id. at 105-06, 96 S.Ct. 321. The same conclusion is mandated here. The record indicates that, while at the police station, authorities attempted to procure a Miranda waiver from Davie three times before Davie initiated contact with Vingle and confessed-at 9:05 a.m., 9:59 a.m., and 12:15 p.m. Each time, Davie was properly advised of his Miranda rights at the outset of the interview, and each time Davie indicated that he understood those rights. At the 9:05 a.m. interview, Davie indicated that he did not want to make a statement, and the officers made no attempt to question Davie. At the 9:59 a.m. interview, officers entered the room, asked Davie if he knew why he had been arrested, and explained to him that they were investigating a shooting. Davie initially made some comments, but ultimately declined to speak further with the officers. The officers then immediately ceased the interview. At the 12:15 p.m. interview, Davie initially agreed to speak with officers, but refused to sign the waiver of rights. Davie made some statements indicating that he did not remember what happened that morning, and the interview concluded at 12:35 p.m. after Davie stated that he had nothing more to say. One and a half hours later, Davie initiated contact with Vingle and, after again being advised of his rights, confessed to the crime.
In Mosley, the defendant confessed during the second interaction with police while at the police station. Here, authorities interacted with Davie three times at the police station before Davie initiated contact with Vingle and confessed. The inquiry under Mosley, however, is not restricted to the number of times that the authorities interacted with the defendant. Rather, Mosley requires an examination of whether the officers' conduct demonstrates a failure to respect fully the defendant's right to cut off questioning, thereby indicating an “effort[ ] to wear down [the defendant's] resistance and make him change his mind.” Id. at 105-06, 96 S.Ct. 321. Although repeated contacts are suggestive of an attempt to undermine a defendant's will, the record does not support a conclusion that the authorities in this case engaged in such an attempt.
First, the interval of time between the interviews was not insubstantial or a short “time out.” Officers waited almost one hour between the first and second interaction at the police station, over two hours between the second and third, and one and a half hours had elapsed before Davie requested to speak with Vingle. In total, approximately five and a half hours elapsed between the time that Davie was arrested and the time that Davie contacted Vingle to confess, and authorities read Davie his Miranda rights four times during that period. Cf. Jackson v. Dugger, 837 F.2d 1469, 1471-72 (11th Cir.1988) (no constitutional violation where authorities advised defendant of Miranda rights six times in a six-hour period between arrest and confession because officers immediately ceased questioning when defendant invoked his right to silence). Further, during each interaction, officers fully informed Davie of his Miranda rights at the outset, immediately ceased questioning after Davie expressed his desire to remain silent, cf. id., and there is no evidence in the record that the officers engaged in any other conduct to persuade Davie to change his mind.FN5 Cf. United States v. Olof, 527 F.2d 752, 753 (9th Cir.1975) (holding that the object of a successive interrogation was to wear down defendant's resistance when officers reinitiated contact with defendant after three hours by confronting him with the description of the unpleasantness of prison for the obvious purpose of getting him to abandon his self-imposed silence); United States v. Hernandez, 574 F.2d 1362, 1368 (5th Cir.1978) (finding constitutional violation where defendant was held incommunicado for five hours in the “close quarters of a police wagon” before being subjected to repeated and immediate interrogations in a span of 45 minutes). And, making this an even more compelling case than Mosley, it was Davie-and not the authorities-who initiated the final contact that led to the confession. In so doing, Davie was unquestionably able to “control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation,” Mosley, 423 U.S. at 103-04, 96 S.Ct. 321, regardless of whether Vingle questioned Davie after Davie initiated the contact. For these reasons, it cannot be said that the authorities in this case “undercut” Davie's previous decisions not to answer the officers' inquiries. See id. at 105, 96 S.Ct. 321.
FN5. The officer's statement that “If you have nothing to tell us, we'll go from there okay,” does not necessarily convey the idea that if Davie did not waive his rights, he would be questioned anyway. See Dissent at 32. The statement “we'll go from there” is susceptible of numerous interpretations, and the actual conduct of the officers in this case does not support such a connotation. At each instance that Davie refused to speak further, officers immediately ceased questioning.
Second, Mosley does not require that the repeated questioning involve a wholly different crime. As the Eighth Circuit held in United States v. House, 939 F.2d 659 (8th Cir.1991), “a second interrogation is not rendered unconstitutional simply because it involves the same subject matter discussed during the first interview.” Id. at 662. That was one of several factors that the Court considered in its analysis, and there is no indication in Mosley that this factor was more central to the Court's analysis than other factors. A leading treatise has indeed noted that, “[i]n Mosley the Court observed that the defendant was later questioned about a different crime, but it is unclear how significant this factor was intended to be.” See 1 Charles Alan Wright & Andrew D. Leipold, Federal Practice & Procedure: Criminal § 76, at 226-27 (4th ed.2008). The other factors the Court considered-which, for the reasons discussed above, indicate that no constitutional violation occurred in this case-include (1) whether police advised the defendant of his Miranda rights at the first interrogation, (2) whether police immediately ceased the interrogation upon defendant's request, (3) whether police resumed questioning after a significant period of time, and (4) whether police provided new Miranda warnings at the successive interviews. As the Fourth Circuit reasoned in Weeks v. Angelone, 176 F.3d 249 (4th Cir.1999), “[w]here other factors indicate that a defendant's right to cut off questioning was ‘scrupulously honored,’ however, the mere fact that a second interrogation involves the same crime as the first interrogation does not necessarily render a confession derived from the second interrogation unconstitutionally invalid under Mosley.” Id. at 269. Indeed, the “wholly different crime” factor has very limited applicability in cases where, as here, the defendant confessed after reinitiating contact with the officers. To satisfy the first prong of the Bradshaw inquiry, the suspect's initiation of contact must pertain to the instant investigation. It naturally follows from this that any subsequent interrogation by police will pertain to the same crime. Mosley thus cannot be categorically distinguished on the ground that the questioning in Mosley involved a different crime.
For the foregoing reasons, the admission of Davie's confession does not warrant habeas relief.
III. A.
Nor do the penalty-phase jury instructions in this case warrant habeas relief. Defendant argues that the “jury was instructed that it must unanimously ‘acquit’ Roderick Davie of the death penalty before it could consider any of the potential life sentences,” and that such an instruction violated Davie's constitutional rights. The Ohio courts largely did not consider this claim, because Davie did not timely raise the claim in state court. The district court likewise held that because Davie first raised the claim in post-conviction proceedings, it was procedurally barred. 291 F.Supp.2d at 620.
As an initial matter, we agree with the district court that we cannot reach the merits of Davie's substantive “acquittal-first” claim because that claim has been procedurally defaulted. Davie first raised the substantive “acquittal-first” claim in his second petition for post-conviction relief on March 1, 2000. But Davie defaulted on all claims raised in that petition because he did not comply with an adequate and independent state procedural rule. Under Ohio Rev.Code § 2953.23, a second, successive, or untimely petition is permitted under limited circumstances. In Davie's case, the Ohio courts determined that Davie's second petition failed to meet the criteria set out in the statute. See State v. Davie, 2001 WL 1647193, at *1-*6 (Ohio Ct.App. Dec. 21, 2001). This court has previously held that where an Ohio defendant is unable to satisfy the statutory requirements to bring a second post-conviction petition, procedural default analysis applies. See Broom v. Mitchell, 441 F.3d 392, 399-401 (6th Cir.2006). Because the claims raised in Davie's second post-conviction petition could have been raised in his first post-conviction petition, those claims are procedurally defaulted absent a showing of cause and prejudice, or a miscarriage of justice. See id. at 401.
In his brief to this court, Davie does not attempt to show cause and prejudice for the procedural default with respect to his second petition for post-conviction relief, or otherwise argue that a miscarriage of justice will result from enforcing the procedural bar. Indeed, the record is devoid of any evidence that Davie had cause for failing to raise the claim in his first post-conviction petition. Instead, Davie argues that the “acquittal-first” claim was properly raised in his Ohio Appellate Rule 26(B) application. It is true that the substantive “acquittal-first” claim was included as part of Davie's Rule 26(B) application filed on March 31, 2000. But that application cannot be construed as raising the substantive “acquittal-first” claim.
Rule 26(B) provides that “a defendant in a criminal case may apply for reopening of the appeal from the judgment of conviction and sentence, based on a claim of ineffective assistance of appellate counsel.” The court must grant an application for reopening if the applicant demonstrates that “there is a genuine issue as to whether the applicant was deprived of the effective assistance of counsel on appeal.” Ohio App. R. 26(B)(5). To determine whether the applicant has raised a genuine issue of ineffective assistance, Ohio courts employ the two-pronged analysis of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See State v. Reed, 74 Ohio St.3d 534, 660 N.E.2d 456, 458 (Ohio 1996). If the application to reopen is granted, the case proceeds as on initial appeal. Ohio App. R. 26(B)(7).
By its very nature then, a Rule 26(B) application is a claim of ineffective assistance of appellate counsel. Consistent with this view of the Rule, Davie claimed in his Rule 26(B) application that his direct appeal should be reopened because his appellate counsel was ineffective for, among other things, failing to raise the “acquittal-first” jury instruction argument. JA 2768. As this court has previously noted, however, bringing an ineffective assistance claim in state court based on counsel's failure to raise an underlying claim does not preserve the underlying claim for federal habeas review because “the two claims are analytically distinct.” White v. Mitchell, 431 F.3d 517, 526 (6th Cir.2005). Thus, a Rule 26(B) application “based on ineffective assistance cannot function to preserve” the underlying substantive claim. Id.; see also Roberts v. Carter, 337 F.3d 609, 615 (6th Cir.2003) (noting that, “[i]n light of the requirements of Rule 26(B), the court's holding must be read as pertaining to the merits of” the ineffective assistance claim, not the underlying state procedural rule claim).
From this, it follows that Davie's Rule 26(B) application cannot be construed as raising the substantive “acquittal-first” claim. And because the Ohio courts determined that Davie failed to demonstrate a “genuine issue” that his appellate counsel was ineffective for failing to raise that claim, the courts refused to open Davie's direct appeal, thereby imposing a procedural bar to consideration of the claim. As a consequence, Davie's substantive “acquittal-first” claim is procedurally defaulted-Davie failed to bring the claim on direct and collateral review in state court, and the state courts determined that Davie did not make the requisite showing in his Rule 26(B) application to justify reopening his direct appeal. Accordingly, our review in this case is limited to Davie's claim that his counsel was ineffective for failing to raise the “acquittal-first” argument, a claim that was adjudicated in the state courts. It is true that if this court were to find that Davie's ineffective assistance claim has merit, that could serve as cause to excuse the procedural default of the substantive “acquittal-first” claim. See Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000). But it is necessary to make that determination prior to excusing the procedural default, and, for the reasons stated in Part III.B. below, Davie cannot establish cause based on the performance of his appellate counsel.
It is true that the analysis above is somewhat complicated by the fact that any review of an ineffective assistance claim will likely include some sort of determination that the substantive claims underlying the ineffective assistance claim lack merit. Indeed, if the underlying substantive claims have no merit, the applicant cannot demonstrate that counsel was ineffective for failing to raise those claims on appeal. Here, the Ohio Court of Appeals dealt with Davie's ineffective assistance claim in just that manner. After remarking that Davie's substantive “acquittal-first” claim would ordinarily be barred by res judicata because Davie challenged the jury instruction on multiple grounds on direct appeal, the Ohio Court of Appeals made clear that Davie's Rule 26(B) application did not assert the underlying substantive claims, but rather asserted a claim that appellate counsel was ineffective for failing to raise those substantive claims. JA 2343. In analyzing whether Davie had raised a “genuine issue” of ineffective assistance, however, the court held that Davie failed to meet his burden because the underlying substantive claims, including the “acquittal-first” claim, had no merit. JA 2348. The Ohio Supreme Court affirmed the judgment of the appellate court on the basis that Davie had failed to raise a “genuine issue” that he was deprived of effective assistance on direct appeal, and did not address the merits of the “acquittal-first” claim. See State v. Davie, 96 Ohio St.3d 133, 772 N.E.2d 119, 121 (Ohio 2002).
These state court decisions justify review only of Davie's claim that his counsel was ineffective for failing to raise the “acquittal-first” argument on direct appeal. The mere fact that Davie's substantive “acquittal-first” claim was included as an underlying assignment of error in the Rule 26(B) application does not, given the comity and federalism concerns implicated in habeas cases, justify reaching the merits of that claim. Although the determination of whether appellate counsel was ineffective for failing to raise a substantive claim may, in some cases, involve an inquiry into the merits of the underlying substantive claim, the fact remains that the two claims are “analytically distinct” for purposes of the exhaustion and procedural default analysis in habeas review. Reaching the merits of the substantive “acquittal-first” claim in this case disregards the operation of two independent and adequate state procedural rules that barred consideration of that claim in state court. Davie procedurally defaulted the claim in the second post-conviction petition because the requirements of Ohio Rev.Code § 2953.23 were not met. Moreover, he failed to raise the claim properly on direct review, and the Ohio courts refused to excuse this failure when they determined that Davie had not established a “genuine issue” of ineffective assistance of appellate counsel. Because, for the reasons stated below, that ineffective assistance determination was correct, it is not proper for this court to reach the merits of Davie's substantive “acquittal-first” claim.
B.
A brief examination of the state of law at the time of Davie's direct appeal indicates that Davie's appellate counsel was not ineffective for failing to raise the “acquittal-first” argument. Because Davie's ineffective assistance claim was adjudicated on the merits in state court, AEDPA's deferential standard of review applies to that claim. As with Davie's Miranda claim, the proper inquiry here is whether the state court's disposition of the ineffective assistance claim was an unreasonable application of clearly established federal law, as determined by the Supreme Court. See 28 U.S.C. § 2254(d)(1). The record indicates that it was not.
By way of background, the trial judge in this case instructed the jury as follows: If ... you're firmly convinced that the aggravating circumstances ... are sufficient to outweigh the factors in mitigation, then the State has met its burden of proof and the Jury shall recommend to the Court that the sentence of death shall be imposed on the Defendant.... If, on the other hand, you're not firmly convinced that the aggravating circumstances ... are sufficient to outweigh the factors in mitigation, then the State has not met its burden. JA 1445-46.
The trial judge later instructed the jury: All 12 jurors must agree on the verdict. If all 12 jurors find by proof beyond a reasonable doubt that the aggravating circumstances ... outweigh the mitigating factors, then ... you have no choice but to make a recommendation that the sentence of death be ordered. On the other hand, if ... you find that the State has failed to prove by proof beyond a reasonable doubt, that the aggravating circumstances ... outweigh the mitigating factors, then you will return a verdict reflecting that decision. JA 1456-57 (emphasis added).
To understand why Davie's appellate counsel was not ineffective for failing to raise the “acquittal-first” claim, one need only look to the state of the law as it existed at the time of Davie's direct appeal. In Mills v. Maryland, 486 U.S. 367, 373-74, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), the Supreme Court had held unconstitutional procedures that required a jury to agree unanimously as to each mitigating factor, reasoning that any such requirement “impermissibly limits jurors' consideration of mitigating evidence.” See McKoy v. North Carolina, 494 U.S. 433, 444, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990). Though Mills was decided prior to Davie's direct appeal (which took place between 1992 and 1997), it was not until more recently that the Mills analysis was applied to jury instructions such as those given in this case.
The “acquittal-first” doctrine derived from Mills has been extended to “[a]ny instruction requiring that a jury must first unanimously reject the death penalty before it can consider a life sentence,” see Davis v. Mitchell, 318 F.3d 682, 689 (6th Cir.2003), but the Davis case in 2003 was the first case in this circuit to apply the doctrine to cases like the instant one, where the instructions did not explicitly so instruct the jury. Id. at 684-85.FN6 In fact, the first case in this circuit to address “acquittal-first” instructions was Mapes v. Coyle, 171 F.3d 408 (6th Cir.1999), a case decided two years after the Ohio Supreme Court decided Davie's direct appeal. Unlike the instructions at issue here, Mapes featured instructions that explicitly commanded the jury that “you must unanimously find that the State has failed to prove beyond a reasonable doubt that the aggravating circumstances of which the defendant was found guilty of committing outweigh the mitigating factors.” Id. at 416 (emphasis added).
FN6. And, as discussed in Part III.C., infra, even in Davis, the jury instructions were more explicit than those at issue in this case. See 318 F.3d at 685 (“[Y]ou must find that the State has failed to prove beyond a reasonable doubt that the aggravating circumstances which the defendant was found guilty of committing outweigh the mitigating factors.”).
It is true that Mapes relied on State v. Brooks, 75 Ohio St.3d 148, 661 N.E.2d 1030 (Ohio 1996), an Ohio Supreme Court case decided during the time period between Davie's direct appeal to the state appellate court and his direct appeal to the state supreme court. But Brooks also involved an explicit unanimity instruction like the one in Mapes, as did other cases discussing “acquittal-first” instructions prior to February 18, 1997, the date on which Davie's direct appeal to the Ohio Supreme Court was submitted. See id. at 1040 (“You are now required to determine unanimously that the death penalty is inappropriate before you can consider a life sentence.”) (emphasis added); see also Kubat v. Thieret, 867 F.2d 351, 369 (7th Cir.1989) (“If, after your deliberations, you unanimously conclude that there is a sufficiently mitigating factor or factors to preclude the imposition of the death sentence, you should sign the form which so indicates.”). Thus, even if could be argued that, at the time of Davie's direct appeal, a reasonable counsel should have raised the “acquittal-first” issue based on the Mapes, Brooks, and Kubat cases, the jury instructions in those cases differed significantly from the jury instructions present in this case. See Davis, 318 F.3d at 693-97 (Boggs, J., dissenting) (distinguishing the instructions in that case from the instructions in Brooks and other cases). Notably, shortly after the Brooks decision, the Ohio Supreme Court rejected the contention that the doctrine applied to the non-explicit instructions given in Davis. See State v. Davis, 76 Ohio St.3d 107, 666 N.E.2d 1099, 1109 (Ohio 1996) (distinguishing Brooks); see also Henderson v. Collins, 262 F.3d 615, 622 (6th Cir.2001) (noting that the Ohio Supreme Court's decision in Davis required the challenged instruction to be similar to the acquittal-first instruction struck down in Brooks before reversal of a capital sentence is warranted); cf. Williams v. Coyle, 260 F.3d 684, 702 (6th Cir.2001) (rejecting Mills challenge to jury instructions similar to those in the instant case). It was not until 2003 that this court, on habeas, found that determination to be error. See Davis, 318 F.3d at 684-85.
Thus, given the state of the law existing at the time of Davie's direct appeal, Davie's appellate counsel was not ineffective when he failed to argue that the penalty-phase jury instructions in this case were unconstitutional under the “acquittal-first” doctrine. At the time of Davie's appeal, it simply was not clear that such non-explicit instructions could be considered constitutionally infirm. Accordingly, the performance of Davie's appellate counsel did not fall below an objective standard of reasonableness when counsel failed to raise the claim on direct appeal. Therefore, the state courts' determination of this issue was not an unreasonable application of Strickland.
C.
Even if this court could properly ignore the procedural default in this case of Davie's underlying “acquittal-first” claim, that claim still would not warrant habeas relief. The only possible justification for reaching the substantive “acquittal-first” claim would be the fact that the Ohio appellate court actually determined-in the context of adjudicating Davie's ineffective assistance claim-that the underlying substantive claim lacked merit. This necessary reliance on the fact that the state court decided the issue requires inexorably that AEDPA's deferential standard of review be applied to the state appellate court's determination of that claim, which constitutes the last reasoned determination on the issue. See Payne v. Bell, 418 F.3d 644, 660-61 (6th Cir.2005); Joseph v. Coyle, 469 F.3d 441, 450 (6th Cir.2006). And where, as here, the state court “adjudicated the claim but with little analysis on the substantive constitutional issue,” Vasquez v. Jones, 496 F.3d 564, 569 (6th Cir.2007), we apply modified AEDPA deference. Under that standard, we conduct “a ‘careful’ and ‘independent’ review of the record and applicable law, but cannot reverse ‘unless the state court's decision is contrary to or an unreasonable application of federal law.’ ” Id. at 570 (quoting Maldonado v. Wilson, 416 F.3d 470, 476 (6th Cir.2005)). The proper inquiry here is again whether the state court's disposition of the claim was an unreasonable application of clearly established federal law, as determined by the Supreme Court. See 28 U.S.C. § 2254(d)(1).
Though the Mapes and Brooks decisions had been decided by 2001, those cases, as explained, involved explicit unanimity instructions. Reliance on the later extension of those cases in Davis is unwarranted, considering that under AEDPA, we must look only to the Supreme Court holdings “as of the time of the relevant state-court decision.” See Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). See also Mason v. Mitchell, 320 F.3d 604, 614 (6th Cir.2003). At the time of the relevant state court decision in this case (2001), the most that can be said is that it was clearly established federal law, under Mills, that instructions like the ones featured in Brooks and Mapes violated the Constitution. For a state court not to anticipate the holdings of subsequent circuit cases dealing with less explicit instructions can hardly amount to an unreasonable application of clearly established Supreme Court law. This is especially so in light of the contemporaneous cases in this very circuit that approved instructions similar to those in this case. See Henderson v. Collins, 262 F.3d 615, 622 (6th Cir.2001). In an extensive advisory discussion of the case law in this circuit regarding acquittal-first instructions, this court noted that the Mapes doctrine was “expanded” in Davis, and recognized that certain cases in this circuit questioned the validity of Mapes and Davis. See Williams v. Anderson, 460 F.3d 789, 810, 811 (6th Cir.2006). Due to the lack of clarity in the law, and due to this court's not yet having expanded the Mapes doctrine, the state court's decision in Davie's case appears not to have been an unreasonable one.
Because Davis itself was an AEDPA case, however, it is arguably inconsistent with the law of the circuit to hold that a state court reasonably applied Supreme Court law by upholding an instruction identical to the one in Davis. But in fact the instruction in Davie's case was considerably less objectionable than the instruction in Davis. The pertinent instruction in Davis told the jury that “you must find that the State” failed to prove that aggravating factors outweigh mitigating factors. Davis, 318 F.3d at 685. No such instruction is present in this case. Rather than employing the “you must” language, the trial court in this case stated “[i]f, on the other hand, you're not firmly convinced” that aggravating factors outweigh mitigating factors, “then the State has not met its burden of proof.” JA 1445-46. The trial court also later explained that “[o]n the other hand, if after considering all of the evidence ... you find that the State has failed to prove” that aggravating factors outweigh mitigating factors “then you will return a verdict reflecting that decision.” JA 1456-57.
Although Davis did not include a Mapes-like command that the jury “must unanimously find” that the state failed to prove that the aggravating factors outweighed the mitigating factors, the court found it problematic that the jury was instructed that it “must” find that the government failed to prove that the aggravating factors outweighed the mitigating factors “immediately” prior to a unanimity instruction that “all 12 of you must be in agreement.” Davis, 318 F.3d at 689. At Davie's sentencing, the court never instructed the jury that it “must find” that the government failed to prove that the aggravating factors did not outweigh the mitigating factors. Rather, it stated that if “you're not firmly convinced ... then the State has not met its burden of proof” and “if ... you find that the State has failed to prove by proof beyond a reasonable doubt, that the aggravating circumstances which the Defendant, Roderick Davie, was found guilty of committing ... outweigh the mitigating factors, then you will return a verdict reflecting that decision.” JA 1445-46, 1456-57.
And while it is true that the trial court had explained that “[a]ll 12 jurors must agree on a verdict” prior to the last of three times this language was used, JA 1456, that explanation took place immediately before the court instructed that the jury must recommend death if it found that the aggravating factors outweighed the mitigating factors. Approximately 70 words separated the unanimity instruction and the acquittal instruction at issue in this case, and these words related to finding that the aggravating factors outweighed the mitigating factors. Thus, if anything, the “12 jurors must agree” language affected the death sentence determination, and not the later instruction regarding mitigating factors outweighing aggravating factors. Therefore, unlike Davis, the unanimity instruction here did not take place “immediately” before or after the acquittal instruction or the “in this event” instruction. Consequently, the instruction here did not “improperly imply that only ‘in [the] event’ of acquittal, which had to be unanimous, could the jurors consider life,” Williams, 460 F.3d at 812, in the way the instruction was held to do in Davis.
Davis is therefore not controlling. Under the law of the circuit as it then existed, as well as under subsequent developments, the Ohio courts' disposition of Davie's objection to the jury instructions was not an unreasonable application of Supreme Court law. Thus, even were the substantive “acquittal-first” claim properly before this court, habeas relief would not be warranted.
IV.
Davie's prosecutorial misconduct arguments are also without merit. The district court properly analyzed these claims, see 291 F.Supp.2d at 606-607, 617-20, and we adopt its reasoning in that regard.
Davie alleges that during its closing arguments in the guilt phase of the trial, the prosecution improperly denigrated him and his counsel. Setting aside the issue of the procedural default of this claim and of Davie's failure to object at trial to most of the allegedly improper comments, we cannot grant habeas relief on this claim. Not only is the Ohio Supreme Court's rejection of this claim neither an unreasonable application of nor contrary to federal law, see 686 N.E.2d at 263, but we agree with the district court that, even were we to review this claim independently, we would not find that the comments in question rendered Davie's trial fundamentally unfair. See 291 F.Supp.2d at 607.
Likewise, Davie's contention that the prosecution improperly commented on the failure of a defense expert to testify does not merit relief. Without even considering procedural default, Davie still makes no showing that the Ohio Supreme Court's rejection of this claim was an unreasonable application of federal law, see 686 N.E.2d at 264, and the comments did not render the trial fundamentally unfair. See 291 F.Supp.2d at 607.
Finally, Davie argues that certain statements in the prosecution's penalty-phase closing argument were improper. We again agree with the district court that, even if this claim is not defaulted, the Ohio Supreme Court did not unreasonably apply federal law in rejecting this claim, see 686 N.E.2d at 263, and we would independently conclude that “[e]ven if all the statements were improper, they did not so infect the trial” with unfairness as “to make the resulting conviction a denial of due process.” 291 F.Supp.2d at 619-20.
Davie's prosecutorial misconduct claims do not warrant habeas relief.
V.
For the foregoing reasons, we affirm the judgment of the district court. R. GUY COLE, JR., Circuit Judge, concurring.