Executed August 18, 2009 10:29 a.m. by Lethal Injection in Ohio
36th murderer executed in U.S. in 2009
1172nd murderer executed in U.S. since 1976
4th murderer executed in Ohio in 2009
32nd murderer executed in Ohio since 1976
(Race/Sex/Age at Murder-Execution) |
Birth |
(Race/Sex/Age at Murder) |
Murder |
Murder |
to Murderer |
Sentence |
||||
(36) |
Jason Getsy W / M / 19 - 33 |
Ann R. Serafino W / F / 66 |
Citations:
State v. Getsy, 84 Ohio St.3d 180, 702 N.E.2d 866 (Ohio 1998). (Direct Appeal)
Getsy v. Mitchell, 456 F.3d 575 (6th Cir. 2006). (Habeas)
Getsy v. Mitchell, 495 F.3d 295 (6th Cir. 2007). (Habeas)
Final/Special Meal:
A ribeye steak, cooked medium rare with A-1 sauce on the side, hot barbecued chicken wings and onion rings with ketchup, fried mushrooms with marinara sauce, a chef salad with ranch dressing, pecan pie with vanilla ice cream and two types of soda pop.
Final Words:
“Charles and Nancy Serafino and all your loved ones, for all the pain that I caused, you get my earnest prayer that God grant you peace and healing,” Getsy said, looking at murder victim Ann Serafino’s grown children, who witnessed the execution.
“I’m sorry. I know it’s little words but it’s true.
“God is so good that he gave his only son for my sins. Even lying here today I can say how blessed I am,” Getsy said.
Internet Sources:
Ohio Department of Rehabilitation and Correction(Clemency Report)
Inmate#: OSP #A330-121
Inmate: JASON A. GETSY
DOB: October 3, 1975
County of Conviction: Trumbull County
Date of Offense: July 7, 1995
Case Number: 95-CR-399
Date of Sentencing: September 12, 1996
Presiding Judge: W. Wyatt McKay
Prosecuting Attorney: Dennis Watkins
Gender: Male
Race: White
Institution: Southern Ohio Correctional Facility
Convictions: Count 1: Aggravated Murder (Death), Count 3: (Attempted Aggravated Murder (10-25-years), Count 5: Aggravated Burglary (10-25 years).
Ohio executes convicted murderer (AFP) – 2 hours ago WASHINGTON — Ohio prison authorities confirmed Tuesday the execution of Jason Getsy, 33, who was convicted of the 1995 murder of a 66-year-old woman he shot while trying to carry out a contract killing. Getsy was pronounced dead at 10:29 am (1429 GMT) local time after receiving a lethal injection at Lucasville prison, where Ohio carries out its executions. On Monday evening, the US Supreme Court rejected Getsy's final appeal 5-4, with newly-confirmed Justice Sonia Sotomayor in the minority as she cast her first vote on the court in favor of delaying the execution. In 1995, aged 20, Getsy was paid 5,000 dollars by John Santine to kill Charles Serafino, with whom Santine had a business dispute. Getsy went to Serafino's house to carry out the contract and shot his target seven times before opening fire on his mother, Ann Serafino, who was killed in the attack. Charles Serafino survived the murder attempt and local media reported that he attended Getsy's execution Tuesday. Getsy's lawyers tried multiple times to delay the execution. They argued that Getsy received a disproportionate sentence and noted that Santine was sentenced to life in prison with the possibility of release in 20 years. Ohio's parole board agreed, and recommended Getsy be granted clemency, but Governor Ted Strickland overruled their decision. Getsy is the 32nd person to be put to death in Ohio since 1999, when the state restarted executions. He was the fourth person executed by the state this year. Despite a slowing in the pace of executions during the summer, the United States has executed 39 people this year. Two others are scheduled to be executed this week in Florida and Texas.
Ohio executes triggerman in murder-for-hire scheme Tuesday, August 18, 2009 10:36 AM Updated: Tuesday, August 18, 2009 11:02 AM LUCASVILLE, Ohio (AP) -- Ohio on Tuesday executed the triggerman in a 1995 murder-for-hire scheme that killed a 66-year-old woman and severely injured her son. Jason Getsy, 33, was pronounced dead at 10:29 a.m. in the death chamber at the Southern Ohio Correctional Institution in Lucasville.
Getsy was sentenced to die for fatally shooting Ann Serafino in a crime that targeted her son, Charles Serafino, in a dispute over a lawn care business. Charles Serafino was shot seven times but survived and witnessed Getsy's execution Tuesday.
Getsy briefly addressed Charles Serafino and his sister, Nancy, who also witnessed, telling them it was his earnest prayer that God would grant them peace. "I am sorry," he said. "It is a little word, I know, but it is true." Getsy also said that, even lying where he was, that he was blessed because of God's love.
Nancy and Charles Serafino and a niece of Ann Serafino, Sue Carfangia, sat quietly and watched without speaking. Getsy tilted his head to the left and appeared to smile at his aunt and uncle and spiritual adviser before his eyes closed at about 10:19 a.m. His chest rose and fell three times and then he was still. Warden Phillip Kerns shook Getsy and called his name to see if he was unconscious, as part of prison policy when putting inmates to death. At 10:21 a.m., without explanation, a member of the execution team re-entered the death chamber and checked the shunts on both arms.
Getsy fatally shot Ann Serafino in her home in Hubbard, near Youngstown, on July 7, 1995. Charles Serafino was the intended victim. John Santine, who orchestrated the crime, was in a dispute over ownership of a landscaping business with Charles Serafino and offered Getsy $5,000 to kill him and any witnesses to the crime. Santine was convicted of aggravated murder. Prosecutors said Charles Serafino was lying wounded on the floor when Getsy struck his mother in the head with a revolver, opening a 4-inch gash, and then shot her twice.
Getsy spent Monday night writing letters - he asked for 15 stamped envelopes - making phone calls and reading the Bible. He ate part of his last meal, including rib-eye steak, barbecued buffalo wings and onion rings. He saw visitors on Tuesday morning, including his grandmother and an aunt and uncle, and seemed upbeat and positive, said prisons spokeswoman Julie Walburn.
Getsy, who dropped out of school in the 12th grade, never met his father and was raised by his mother and stepfather. In 1992, he was convicted of negligent homicide in the death of a 14-year-old companion who died playing Russian roulette.
The Ohio Parole Board by a 5-2 vote last month recommended clemency for Getsy because other defendants in the slaying, including Santine, appeared just as guilty but weren't sentenced to die. Gov. Ted Strickland overruled the board last week, saying the sentencing disparity did not by itself justify granting clemency.
Appeals courts previously have questioned Getsy's sentence. A three-judge panel of the 6th U.S. Circuit Court of Appeals overturned his sentence in 2006, saying it was arbitrary. The full 6th Circuit reinstated it in 2007 in an 8-6 ruling. The Ohio Supreme Court also noted the sentencing differences in a 1998 ruling but said that was not enough to spare Getsy.
The U.S. Supreme Court late Monday denied Getsy's request for a stay of execution. His lawyers had said they wanted to challenge Ohio's lethal injection system as unconstitutionally cruel.
"State executes hit man," by Tom Beyerlein. (Updated 12:49 PM Tuesday, August 18, 2009)
LUCASVILLE — Trumball County hit man Jason Getsy apologized to the family of the woman he killed 14 years ago — including the man he was hired to shoot — moments before he died by lethal injection at 10:29 a.m. Tuesday, Aug. 18.
“Charles and Nancy Serafino and all your loved ones, for all the pain that I caused, you get my earnest prayer that God grant you peace and healing,” Getsy said, looking at murder victim Ann Serafino’s grown children, who witnessed the execution. “I’m sorry. I know it’s little words but it’s true. “God is so good that he gave his only son for my sins. Even lying here today I can say how blessed I am,” Getsy said.
After the execution at the Southern Ohio Correctional facility Charles Serafino, Getsy’s intended victim who was wounded in the attack said, “It’s too little too late. All I know is my mother is still in the grave and that’s the bottom line. We all have to pay for what we do in life and he paid today.” Members of Getsy’s family declined to comment. Four of his friends and family members witnessed the execution, occasionally sobbing.
As Getsy began to loose consciousness, a witness murmured, “Sleep. Yes, sleep, sleep my friend.” Getsy’s eyes closed, his chest heaved three times and he appeared to go to sleep. After a few minutes, his shaven head took on a purplish hue.
“It was a lot more humane than what he did to my mother,” Nancy Serafino said. Getsy shot Ann Serafino in the head and chest on July 7, 1995 in her home in Hubbard.
Getsy, 33, became the 32nd Ohio inmate to be executed since 1999. Getsy’s execution was the second in Ohio in less than a month. On July 21, Dayton “Christmas killer” Marvallous Keene was put to death. The state has scheduled one execution per month through February.
The U.S. Supreme Court in a 5-4 vote declined Monday to hear Getsy’s case. The case has been controversial because the man who ordered the hit did not get the death penalty.
Getsy was convicted of murder for hire, a death penalty offense, in the July 7, 1995, killing of Ann Serafino of Hubbard in Trumbull County. The jury at Getsy’s trial found that Getsy was paid by John Santine to kill his business rival, Charles Serafino, and any witnesses. Getsy wounded Charles Serafino, but killed his mother in the home the Serafinos shared.
At his trial, which came after Getsy’s, Santine was convicted of aggravated murder, but not the murder-for-hire specification that would have allowed the death penalty. Two accomplices also avoided capital punishment. Getsy admitted he shot the Serafinos, but said he was motivated not by money but by fear of Santine, who reputedly had mob connections.
The Ohio Parole Board recommended that Gov. Ted Strickland grant clemency to Getsy, in part because Santine did not get the death penalty, but Strickland on Friday announced he would not spare Getsy’s life. “Mr. Getsy and Mr. Santine had different roles in the murder,” Strickland said in a statement. “The fact that Mr. Santine was not sentenced to death is not, by itself, justification to commute Mr. Getsy’s sentence.”
Vindy.Com - The Valleys Homepage
"Jason Getsy to face death by lethal injection at 10 a.m. today." (August 18, 2009)
LUCASVILLE — Jason Getsy was in good spirits Monday, visiting friends and family and eating a final special meal before his scheduled execution. The 33-year-old man, convicted in the murder of a Hubbard woman in 1995, will face death by lethal injection about 10 a.m. today at the Southern Ohio Correctional Facility near here.
The U.S. Supreme Court denied Getsy’s final appeal late Monday. His lawyers had said they wanted to challenge Ohio’s lethal-injection system as unconstitutionally cruel. Lower courts rejected the request, saying it was filed too late.
Getsy was convicted in the aggravated murder of Ann R. Serafino and the attempted murder of her son, Charles Serafino. Getsy and two other men were hired to kill Charles Serafino by another individual over a business disagreement. Serafino, though shot in the face at point-blank range, survived.
The state parole board recommended clemency in the case, because Getsy was the only one of four co-defendants, including ringleader John Santine, to get the death penalty. But Gov. Ted Strickland rejected a sentence commutation late last week. Getsy arrived at the prison death house late Monday morning and was examined by medical and mental-health staff. Julie Walburn, spokeswoman for the Ohio Department of Rehabilitation and Correction, said he was in good humor and respectful to prison personnel during the process.
“He has been writing, reading the Bible, speaking on the phone to one set of friends,” Walburn said during an afternoon press briefing at the prison. Getsy was allowed to take a number of personal items into his cell with him, including a Bible, address book, dictionary, a photo album, a blanket, various toiletries and one package of Rolaids, Walburn said.
He was allowed a special meal Monday afternoon that included a ribeye steak, cooked medium rare with A-1 sauce on the side, hot barbecued chicken wings and onion rings with ketchup. The meal included fried mushrooms with marinara sauce, a chef salad with ranch dressing, pecan pie with vanilla ice cream and two types of soda pop.
For several hours Monday evening, Getsy was allowed contact meetings with friends and family. He has provided a list of 31 potential visitors to staff, and eight had given verbal confirmations as of late afternoon that they planned to visit.
This morning, he will be served the standard prison-issue breakfast of the day and can meet with friends and family, a minister and legal counsel in cell-front visits.
An uncle and an aunt, Ron Manes and Angela Manes, and friends Saundra and Henry Cardillo will serve as witnesses on Getsy’s behalf. Henry Cardillo is Getsy’s spiritual adviser, Walburn said.
Chuck Serafino, his sister, Nancy, and a niece of the murder victim, Sue Cargangaia, will witness on behalf of the victims.
"Ohio executes triggerman in murder-for-hire scheme." (Associated Press August 18, 2009)
LUCASVILLE, Ohio — Ohio on Tuesday executed the triggerman in a 1995 murder-for-hire scheme that killed a 66-year-old woman and severely injured her son. Jason Getsy, 33, was pronounced dead at 10:29 a.m. in the death chamber at the Southern Ohio Correctional Institution in Lucasville.
Getsy was sentenced to die for fatally shooting Ann Serafino in a crime that targeted her son, Charles Serafino, in a dispute over a lawn care business. Charles Serafino was shot seven times but survived and witnessed Getsy’s execution Tuesday.
Getsy briefly addressed Charles Serafino and his sister, Nancy, who also witnessed, telling them it was his earnest prayer that God would grant them peace. “I am sorry,” he said. “It is a little word, I know, but it is true.” Getsy also said that, even lying where he was, that he was blessed because of God’s love.
Nancy and Charles Serafino and a niece of Ann Serafino, Sue Carfangia, sat quietly and watched without speaking. Getsy tilted his head to the left and appeared to smile at his aunt and uncle and spiritual adviser before his eyes closed at about 10:19 a.m. His chest rose and fell three times and then he was still.
Warden Phillip Kerns shook Getsy and called his name to see if he was unconscious, as part of prison policy when putting inmates to death. At 10:21 a.m., without explanation, a member of the execution team re-entered the death chamber and checked the shunts on both arms.
Getsy fatally shot Ann Serafino in her home in Hubbard, near Youngstown, on July 7, 1995. Charles Serafino was the intended victim. John Santine, who orchestrated the crime, was in a dispute over ownership of a landscaping business with Charles Serafino and offered Getsy $5,000 to kill him and any witnesses to the crime. Santine was convicted of aggravated murder.
Prosecutors said Charles Serafino was lying wounded on the floor when Getsy struck his mother in the head with a revolver, opening a 4-inch gash, and then shot her twice.
Getsy spent Monday night writing letters — he asked for 15 stamped envelopes — making phone calls and reading the Bible. He ate part of his last meal, including rib-eye steak, barbecued buffalo wings and onion rings. He saw visitors on Tuesday morning, including his grandmother and an aunt and uncle, and seemed upbeat and positive, said prisons spokeswoman Julie Walburn.
Getsy, who dropped out of school in the 12th grade, never met his father and was raised by his mother and stepfather. In 1992, he was convicted of negligent homicide in the death of a 14-year-old companion who died playing Russian roulette.
The Ohio Parole Board by a 5-2 vote last month recommended clemency for Getsy because other defendants in the slaying, including Santine, appeared just as guilty but weren’t sentenced to die. Gov. Ted Strickland overruled the board last week, saying the sentencing disparity did not by itself justify granting clemency.
Appeals courts previously have questioned Getsy’s sentence. A three-judge panel of the 6th U.S. Circuit Court of Appeals overturned his sentence in 2006, saying it was arbitrary. The full 6th Circuit reinstated it in 2007 in an 8-6 ruling. The Ohio Supreme Court also noted the sentencing differences in a 1998 ruling but said that was not enough to spare Getsy.
The U.S. Supreme Court late Monday denied Getsy’s request for a stay of execution. His lawyers had said they wanted to challenge Ohio’s lethal injection system as unconstitutionally cruel.
Charles ("Chuckie") Serafino lived with his mother, Ann Serafino. On the evening of July 6, 1995, Ann went to bed at approximately 11:00 p.m. Chuckie was on the love seat in the family room when, sometime after 1:00 a.m. on July 7, he heard a loud explosion. Shells from a shotgun blasted out the sliding glass door behind him and wounded him in the arm. As he ran for the bathroom to inspect his injuries, Ann came out of her bedroom. Chuckie remembered hearing his mother say to someone, "What are you doing here? Get out of here." He also remembered hearing someone say, "Shoot the bitch," or "Kill the bitch." Serafino next recalled seeing a gun in his face and being shot again. He fell to the bathroom floor and pretended to be dead. After the intruders left, he called 911. . . .
Earlier in the year, John Santine had attempted to purchase a portion of Chuckie Serafino's lawn-care business and had deposited $2,500 in the business's account. Subsequently, Chuckie violated probation and was incarcerated in the Trumbull County Jail until July 6, 1995. While Chuckie was in jail, Santine attempted to take over Chuckie's business. Santine transferred Chuckie's building lease and equipment into his own name, which caused an altercation between Santine and Ann Serafino and Chuckie's sister. The Serafinos filed a civil action against Santine while Chuckie was still in jail. After the shootings, Officer Forgacs of the city of Hubbard Police Department searched for Santine's car because of a conversation he had had on June 20, 1995 with Richard McNulty. McNulty, who lived at 24½ South Main and who is a codefendant, had previously served as a police informant.
On June 20, Forgacs asked McNulty, who worked for Santine, "What does Johnny have in store for Chuckie when he gets out of jail?" McNulty told Forgacs, "He's dead. He's bought and paid for." McNulty told Forgacs that Santine had lined up a hit man, Tony Antone, to kill Chuckie Serafino. Forgacs gave little credence to McNulty's statements, and didn't inform Chuckie or follow up on the information. Initially, McNulty minimized his involvement and denied that he had told Forgacs about the contract on Chuckie. Based on other information obtained from McNulty,
Begeot obtained an arrest warrant for Getsy and Getsy was arrested. He was given Miranda warnings at the scene and later at the Hubbard Township Police Department. At approximately 1 am, on July 8, 1995, Getsy gave a videotaped interview. Getsy told Begeot that Ben Hudach called him on the evening of July 6, 1995, and told him to come to 24½ South Main Street. When Getsy got there, Hudach, a codefendant, told Getsy that they (Getsy, Hudach, and McNulty) had to "take out some guy." Santine was not present, but Hudach related what Santine had told him earlier. Money had been discussed, but Hudach was not sure of the amount. Getsy later indicated that he participated in the shootings because he was scared of Santine, but did not do it for the money. Sometime on July 6, 1995, Getsy, Hudach, and McNulty drove to the Serafino residence. They could not find a place to park so they returned to 24½ South Main Street. When they returned, Santine was at the apartment and drove them back to the Serafino house.
Getsy described the guns that they took with them, which included a shotgun, a SKS rifle, and a .357 magnum handgun. Getsy explained that after Santine dropped them off, Hudach sprained his ankle and went back to where they were supposed to be picked up. Getsy stated, "That left me and Rick to get it done." He admitted that what they were supposed to do was kill Chuckie Serafino. Getsy explained that he and McNulty fired simultaneously through the sliding glass door on the back of the Serafino house. They entered the house through the shattered door and shot at Chuckie as he was running down the hall. When they saw Ann Serafino, Getsy stated, they "just kept shooting."
During the interview with Begeot, Getsy was reluctant to mention Santine's name. He told Begeot that the same thing that happened last night could happen to him. He asked whether Santine would ever see the interview tape. Begeot assured Getsy that Santine would not be able to get to him. Getsy also asked Begeot if he was going to die, and Begeot told him, "No." Getsy admitted that he had the SKS rifle and the handgun during the shootings. He explained that when he was shooting the SKS, the clip fell out so he had to pull out the handgun. After the shootings, Hudach called Santine to tell him it was finished and to pick them up. Santine told Hudach that there were cops everywhere and that they should run through the woods to get back to the apartment. Santine also told Hudach to ditch the guns in the woods. Getsy, McNulty, and Hudach arrived back at 24½ South Main, where Josh Koch and Santine were waiting for them. Santine ordered them to take off their clothes and take a bath. Getsy was the last to bathe. When he came out of the bathroom, his clothes and boots were gone. He did not know what happened to them.
Koch testified that he was at 24½ South Main Street on July 6 and 7, 1995. He knew that Getsy, McNulty, and Hudach were going out to do something for Santine, but they declined to give him any details. He was to watch TV and write down the shows that were on so the other three could memorize the list for an alibi. After Getsy, McNulty, and Hudach left, Koch waited in the apartment. Santine came to the apartment and, sometime around 1:00 a.m., jumped up and said, "I heard the gunshots." Immediately thereafter, the telephone rang and Koch heard Santine talking to someone in a fast, excited manner. Santine said, "So you killed them, right, you killed them both? Okay. Well, I can't come pick you up. The cops are everywhere, they are pulling over everybody, you got to run through the woods and ditch the guns." Santine hung up and happily screamed, "I fucking love these guys."
According to Koch, Santine was very pleased with the three men. He said, "You guys want $10,000? I'll give you $10,000." McNulty told him he just wanted a wedding ring for his girlfriend. Hudach said that it had been a favor for Santine. Getsy indicated that he needed money for his car. The next day, Koch heard Getsy bragging to Patricia Lawson about shooting Ann Serafino. Getsy grabbed a piece of pizza with no cheese on it and said, "This looks just like this bitch's face after we shot her."
Based on these facts, the Trumbull County Grand Jury returned a five-count indictment against Getsy on July 17, 1995. The indictment charged Getsy with the aggravated murder of Ann Serafino with prior calculation and design. That count included three death penalty specifications: (1) the aggravated murder was committed in conjunction with the purposeful killing of or attempt to kill two or more persons; (2) murder for hire; and (3) felony murder.
On August 5, 1996, Getsy proceeded to a jury trial before the Trumbull County Court of Common Pleas. The jury returned verdicts finding Getsy guilty on all counts and specifications; thereafter, the prosecution dismissed the conspiracy count. Following a mitigation hearing and on September 10, 1996, the jury recommended that the death penalty be imposed on Getsy. Two days later, the trial court accepted the jury's recommendation and imposed a death sentence for the charge of aggravated murder.
UPDATE: Prior to his execution, Jason Getsy briefly addressed Charles Serafino, who was shot seven times when his mother was murdered, and his sister, Nancy, who also witnessed, telling them it was his earnest prayer that God would grant them peace. "I am sorry," he said. "It is a little word, I know, but it is true." Getsy also said that, even lying where he was, that he was blessed because of God's love. Nancy and Charles Serafino and a niece of Ann Serafino, Sue Carfangia, sat quietly and watched without speaking. Afterwards, Nancy Serafino said she believed Getsy's apology was genuine. Her brother had a harsher assessment. "It's too little, too late," Charles Serafino said. "He's never taken responsibility for what he did."
List of individuals executed in Ohio
A total of 32 individuals convicted of murder have been executed by the U.S. state of Ohio since 1976. All were executed by lethal injection.
Wilford Berry, Jr. (19 February 1999) Charles Mitroff
Jay D. Scott (14 June 2001) Vinnie M. Price
John William Byrd, Jr. (19 February 2002) Monte Tewksbury
Alton Coleman (26 April 2002) Tonnie Storey and Marlene Walters
Robert Anthony Buell (24 September 2002) Krista Lea Harrison
Richard Edwin Fox (February 12, 2003) Leslie Renae Keckler
David M. Brewer (April 29, 2003) Sherry Byrne
Ernest Martin (June 18, 2003) Robert Robinson
Lewis Williams, Jr. (14 January 2004) Leoma Chmielewski
John Glenn Roe (3 February 2004) Donette Crawford
William Dean Wickline (30 March 2004) Peggy and Christopher Lerch
William G. Zuern, Jr. (8 June 2004) Phillip Pence
Stephen Allan Vrabel (14 July 2004) Susan Clemente and Lisa Clemente
Scott Andrew Mink (July 20, 2004) William Mink and Sheila Mink
Adremy Dennis (October 13, 2004) Kurt Kyle
William Smith (March 8, 2005) Mary Bradford
Herman Dale Ashworth (27 September 2005) Daniel L. Baker
William James Williams, Jr. (25 October 2005) William Dent, Alfonda R. Madison, Sr., Eric Howard and Theodore Wynn Jr.
John R. Hicks (29 November 2005) Brandy Green
Glenn L. Benner II (7 February 2006) Trina Bowser, Cynthia Sedgwick
Joseph L. Clark (4 May 2006) David Manning
Rocky Barton (12 July 2006)
Darrell Ferguson (8 August 2006) David A. Gowdown, Dennis J. Langer, Jeffrey M. Welbaum
Jeffrey Lundgren (24 October 2006) Dennis Avery, Cheryl Avery, Trina Avery, Rebecca Avery, Karen Avery
James J. Filiaggi (24 April 2007) Lisa Huff Filiaggi
Christopher J. Newton (24 May 2007) Jason Brewer
Richard Cooey (October 14, 2008) Wendy Offredo and Dawn McCreery
Gregory Bryant-Bey (November 19, 2008) Dale Pinkelman
Daniel E. Wilson (June 3, 2009) Carol Lutz
John Fautenberry (July 14, 2009) Joseph Daron Jr.
Marvallous Keene (July 21, 2009) Joseph Wilkerson, Danita Gullette, Sarah Abraham, Marvin Washington, Wendy Cottrill
Jason Getsy (August 18, 2009) Ann R. Serafino
State v. Getsy, 84 Ohio St.3d 180, 702 N.E.2d 866 (Ohio 1998). (Direct Appeal)
Defendant was convicted in the Court of Common Pleas, Trumbull County, of aggravated murder and attempted aggravated murder, and was sentenced to death. Defendant appealed, and the Supreme Court, Pfeifer, J., held that: (1) Supreme Court Chief Justice's denial of affidavit of disqualification of trial judge rendered moot defendant's motion for recusal; (2) defendant's retained counsel did not have actual conflict of interest; (3) defendant's counsel was not ineffective; (4) defendant's confession was voluntarily obtained; (5) denial of request for change of venue was within court's discretion; (6) removal of prospective jurors for cause was proper; (7) evidence of prior acts performed by defendant for individual who hired him to commit charged murder was admissible; (8) convictions were supported by evidence; (9) use of foreseeability instruction was not plain error; (10) duress cannot be asserted as defense to charge of aggravated murder which is based on killing in connection with an enumerated felony; (11) defendant was not entitled to instruction on duress as affirmative defense to capital specifications, or to charge of aggravated burglary; and (12) death penalty was appropriate under circumstances. Affirmed. Lundberg Stratton, J., concurred separately and filed opinion.
Appellant, Jason A. Getsy, was convicted of the aggravated murder of Ann R. Serafino and the attempted aggravated murder of her son, Charles Serafino, and sentenced to death. He appeals his convictions and death sentence.
Charles (“Chuckie”) Serafino lived with his mother, Ann Serafino. On the evening of July 6, 1995, Ann went to bed at approximately 11:00 p.m. Chuckie was on the love seat in the family room when, sometime after 1:00 a.m. on July 7, he heard a loud explosion. Shells from a shotgun blasted out the sliding glass door behind him and wounded him in the arm. As he ran for the bathroom to inspect his injuries, Ann came out of her bedroom. Chuckie remembered hearing his mother say to someone, “What are you doing here? Get out of here.” He also remembered hearing someone say, “Shoot the bitch,” or “Kill the bitch.” Serafino next recalled seeing a gun in his face and being shot again. He fell to the bathroom floor and pretended to be dead. After the intruders left, he called 911.
Frederick Hanley, Jr., Chuckie's neighbor, jumped from his bed upon hearing gunshots. He looked at his digital alarm clock, which read 1:22 a.m. As he was going downstairs, he heard at least one additional gunshot. Once outside, he heard footsteps that appeared to be running away from the Serafino residence. He instructed his wife to call 911 and inform the police that shots were coming from the Serafino residence and that someone was running towards the city of Hubbard.
Officer Thomas Forgacs of the city of Hubbard Police Department was one of the first officers to respond to the call. The officers broke into the Serafino home and found Chuckie lying on the floor with blood all over him. Chuckie asked the officers to check his mother; she was dead.
Forgacs left the scene and began checking the Hubbard area for a white Crown Victoria owned by John Santine. Forgacs went to 24 1/2 South Main Street, where he had seen Santine's car parked on the evening of July 6. He found Santine's car parked in the driveway with another car pulled in behind it.
Earlier in the year, Santine had attempted to purchase a portion of Chuckie Serafino's lawn-care business and had deposited $2,500 in the business's account. Subsequently, Chuckie violated probation and was incarcerated in the Trumbull County Jail until July 6, 1995. While Chuckie was in jail, Santine attempted to take over Chuckie's business. Santine transferred Chuckie's building lease and equipment into his own name, which caused an altercation between Santine and Ann Serafino and Chuckie's sister. The Serafinos filed a civil action against Santine while Chuckie was still in jail.
Forgacs searched for Santine's car because of a conversation he had had on June 20, 1995 with Richard McNulty. McNulty, who lived at 24 1/2 South Main and who is a co-defendant, had previously served as a police informant. On June 20, Forgacs asked McNulty, who worked for Santine, “What does Johnny have in store for Chuckie when he gets out of jail?” McNulty told Forgacs, “He's dead. He's bought and paid for.” McNulty told Forgacs that Santine had lined up a hit man, Tony Antone, to kill Chuckie Serafino. Forgacs gave little credence to McNulty's statements, and didn't inform Chuckie or follow up on the information.
Forgacs returned to the murder scene and told the Hubbard Township Police what McNulty had told him a few weeks earlier. Later that morning, Detective Donald Michael Begeot of the Hubbard Township Police Department and Forgacs went to the McNulty apartment at 24 1/2 South Main to take McNulty in for questioning.
Initially, McNulty minimized his involvement and denied that he had told Forgacs about the contract on Chuckie. Based on other information obtained from McNulty, Begeot obtained an arrest warrant for Getsy. At approximately 10:00 p.m. on July 7, 1995, Getsy was arrested in the driveway of 24 1/2 South Main. He was given Miranda warnings at the scene and later at the Hubbard Township Police Department. At approximately 1:00 a.m., on July 8, 1995, Getsy gave a videotaped interview.
Getsy told Begeot that Ben Hudach called him on the evening of July 6, 1995, and told him to come to 24 1/2 South Main Street. When Getsy got there, Hudach, a co-defendant, told Getsy that they (Getsy, Hudach, and McNulty) had to “take out some guy.” Santine was not present, but Hudach related what Santine had told him earlier. Money had been discussed, but Hudach was not sure of the amount. Getsy later indicated that he participated in the shootings because he was scared of Santine, but did not do it for the money.
Sometime on July 6, 1995, Getsy, Hudach, and McNulty drove to the Serafino residence. They could not find a place to park so they returned to 24 1/2 South Main Street. When they returned, Santine was at the apartment and drove them back to the Serafino house. Getsy described the guns that they took with them, which included a shotgun, a SKS rifle, and a .357 magnum handgun.
Getsy explained that after Santine dropped them off, Hudach sprained his ankle and went back to where they were supposed to be picked up. Getsy stated, “[T]hat left me and Rick to get it done.” He admitted that what they were supposed to do was kill Chuckie Serafino.
Getsy explained that he and McNulty fired simultaneously through the sliding glass door on the back of the Serafino house. They entered the house through the shattered door and shot at Chuckie as he was running down the hall. When they saw Ann Serafino, Getsy stated, they “just kept shooting.”
During the interview with Begeot, Getsy was reluctant to mention Santine's name. He told Begeot that the same thing that happened last night could happen to him. He asked whether Santine would ever see the interview tape. Begeot assured Getsy that Santine would not be able to get to him. Getsy also asked Begeot if he was going to die, and Begeot told him, “No.”
Getsy admitted that he had the SKS rifle and the handgun during the shootings. He explained that when he was shooting the SKS, the clip fell out so he had to pull out the handgun.
Getsy's description of the weapons he and McNulty used was verified by physical evidence recovered at the scene. Michael Roberts, a forensic scientist, identified the projectiles recovered from the murder scene. None of the projectiles found outside the family room area, where the sliding glass door was blown out, was discharged by the shotgun which, according to Getsy, McNulty carried and fired. The projectiles linked to the shotgun were recovered in the family room.
Getsy admitted that they had been instructed to kill any witnesses. When Begeot asked him what they were told about witnesses in the house, Getsy replied, “[I]f we were seen, to do them, too.”
After the shootings, Hudach called Santine to tell him it was finished and to pick them up. Santine told Hudach that there were cops everywhere and that they should run through the woods to get back to the apartment. Santine also told Hudach to ditch the guns in the woods. Getsy, McNulty, and Hudach arrived back at 24 1/2 South Main, where Josh Koch and Santine were waiting for them. Santine ordered them to take off their clothes and take a bath. Getsy was the last to bathe. When he came out of the bathroom, his clothes and boots were gone. He did not know what happened to them.
Koch testified that he was at 24 1/2 South Main Street on July 6 and 7, 1995. He knew that Getsy, McNulty, and Hudach were going out to do something for Santine, but they declined to give him any details. He was to watch TV and write down the shows that were on so the other three could memorize the list for an alibi.
After Getsy, McNulty, and Hudach left, Koch waited in the apartment. Santine came to the apartment and, sometime around 1:00 a.m., jumped up and said, “I heard the gunshots.” Immediately thereafter, the telephone rang and Koch heard Santine talking to someone in a fast, excited manner. Santine said, “So you killed them, right, you killed them both? * * * Okay. Well, I can't come pick you up. The cops are everywhere, they are pulling over everybody, you got to run through the woods and ditch the guns.” Santine hung up and happily screamed, “I fucking love these guys.”
According to Koch, Santine was very pleased with the three men. He said, “You guys want $10,000? I'll give you $10,000.” McNulty told him he just wanted a wedding ring for his girlfriend. Hudach said that it had been a favor for Santine. Getsy indicated that he needed money for his car.
The next day, Koch heard Getsy bragging to Patricia Lawson about shooting Ann Serafino. Getsy grabbed a piece of pizza with no cheese on it and said, “This looks just like this bitch's face after we shot her.”
Michael Dripps, a close friend of Getsy, McNulty, and Hudach, acknowledged that Getsy was happy, secure, and tough when he had a gun in his hand. Dripps was present at the lawn-care business when Gum-out had been used to wipe prints off the weapons before the Serafino shootings. Dripps heard Santine instruct Getsy, McNulty, and Hudach to kill Chuckie Serafino and all witnesses. Dripps also observed McNulty and Hudach in camouflage clothing on the night of the killing.
The Trumbull County Grand Jury indicted Getsy for the attempted murder of Charles Serafino, conspiracy to commit aggravated murder, aggravated burglary, and two counts of aggravated murder, with capital specifications for the death of Ann Serafino.
The jury found Getsy guilty of all charges. After the trial, the state moved to dismiss the conspiracy count, which was granted, and elected to go forward with an aggravated murder charge based on prior calculation and design. After a sentencing hearing, the jury recommended that the death sentence be imposed. The trial court adopted the recommendation and sentenced Getsy to death.
The cause is now before this court upon an appeal as of right.
PFEIFER, Justice.
In this appeal, Getsy raises seventeen propositions of law, many with subparts. For the reasons that follow, we reject all his propositions of law and affirm each conviction and the death sentence.
TRIAL JUDGE'S FAILURE TO RECUSE HIMSELF
Getsy's jury trial began on August 5, 1996, and was presided over by Judge W. Wyatt McKay. On August 22, 1996, the Trumbull County judges held an annual picnic at the home of Judge Ronald Rice's mother. Judge Rice's wife is Cynthia Rice, the assistant prosecuting attorney who was trying Getsy's case. Both Judge McKay and Rice attended the picnic. Following the picnic, Judge McKay was in a single-car accident and was charged with driving under the influence of alcohol.
On August 26, 1996, Getsy filed a Motion for Mistrial and a Motion for Recusal in the trial court. He also filed an Affidavit of Disqualification against Judge McKay in this court. The motions alleged that the judge was socializing with the prosecutor, thereby giving the appearance of impropriety. Getsy also asserted that the judge showed up at the trial on August 23, 1996 with bruises and sunglasses on his face, and that the trial continued on August 23, as normal, without any mention of the picnic or the accident.
On August 27, 1996, the Chief Justice denied the Affidavit of Disqualification. In re Disqualification of McKay (1996), 77 Ohio St.3d 1249, 674 N.E.2d 359. “The mere fact that a judge and an attorney attend the same social event does not mandate the judge's disqualification from pending cases involving that attorney. * * * The record is devoid of any evidence that demonstrates the existence of any bias, prejudice, or disqualifying interest based on the claims of the affiants.” Id. at 1250, 674 N.E.2d at 359.
After the Chief Justice denied the application, Judge McKay brought in a fellow judge from Trumbull County to voir dire the jurors regarding the media coverage of his (Judge McKay's) arrest. Only two jurors had seen the article; both indicated that it would not affect their decision in Getsy's case. All jurors indicated that they could be fair and impartial to both parties. Judge McKay denied the motion for mistrial and the motion for recusal.
In his first proposition of law, Getsy challenges the Chief Justice's ruling on the affidavit as well as the trial court's denial of the recusal and mistrial motions. R.C. 2701.03 allows a party to file an affidavit of disqualification with this court when a common pleas court judge is allegedly biased against a party or counsel. The filing of the affidavit of disqualification precludes the trial judge from conducting any further proceedings until the Chief Justice rules on the affidavit. R.C. 2701.03(D)(1). Accordingly, when counsel for Getsy filed the affidavit of disqualification in this court, all proceedings were stayed, including the motion for recusal and the motion for mistrial.
Once the Chief Justice denied the affidavit, Getsy's motion for recusal became moot. Further, based on the voir dire of the jurors, the trial court was correct in denying the motion for mistrial.
In State v. Rogers (1985), 17 Ohio St.3d 174, 185-186, 17 OBR 414, 424-425, 478 N.E.2d 984, 995, this court found that when the Chief Justice dismisses an affidavit of disqualification as not well taken, “the Chief Justice's ruling is res judicata as to the question.” The first proposition of law is overruled.
INEFFECTIVE ASSISTANCE OF COUNSEL
Conflict of Interest
Getsy argues in his second proposition of law that trial counsel had a conflict of interest and therefore that he was denied his Sixth Amendment right to counsel. Getsy asserts that a conflict existed because Maridee Costanzo, who was hired by Getsy's father to represent Getsy, was also a contract lawyer for the Trumbull County Office of the Ohio Public Defender. Richard McNulty, a co-defendant, was represented by the Director of the Trumbull County Office and another assistant public defender.
After Getsy was arrested, he filed an affidavit of indigency and counsel were appointed. On January 5, 1996, Maridee Costanzo filed an appearance of counsel. A motion to continue the trial was also filed, and the court held a hearing. At the hearing, the trial judge stated that Getsy had hired attorney Costanzo and no longer wished to have attorney Thomas Schubert represent him. Getsy requested that appointed counsel, John Shultz, continue his representation.
Attorney Costanzo stated that she had been hired by Getsy's father, that Getsy retained his indigent status, that she was qualified under former C.P.Sup.R. 65 (now Sup.R. 20), and that she would serve as co-counsel with Shultz and seek no compensation from the county for her services. The court appointed her as second chair, with Shultz retaining lead counsel status; Schubert was removed from the case.
The prosecutor asked whether a possible conflict existed, since Costanzo was a part-time public defender and the public defender's office represented a co-defendant. Costanzo indicated that she had explained the situation to Getsy. The trial court questioned Getsy about the possible conflict. Getsy stated that he fully understood the situation, had no questions, and was satisfied with his counsel. Costanzo stated for the record that she had had no contact of any kind with the McNulty case.
Two months later, the trial court learned that Costanzo was not certified under C.P.Sup.R. 65 to represent indigent persons charged with capital crimes. The court appointed James Wise to serve as co-counsel. From that point, Getsy was represented by three attorneys. Getsy now argues that “Ms. Costanzo was permitted to continue on the case despite the fact that she was not qualified under Rule 65 * * *.” While true, this argument is irrelevant. Costanzo was retained, not appointed, and retained counsel need not be qualified under C.P.Sup.R. 65. State v. Keith (1997), 79 Ohio St.3d 514, 534, 684 N.E.2d 47, 65-66.
Getsy argues that his Sixth Amendment rights were violated because the trial court failed to inquire concerning the fact that James Lewis, McNulty's attorney, was Costanzo's supervisor. Getsy argues that the conflict “became real and insurmountable” during the course of the trial because one of the issues in the case was whether Getsy or McNulty was the “actual killer.” Getsy's arguments do not accurately portray what occurred during the course of the trial.
For example, Getsy argues that McNulty's videotaped statement was improperly played for the jury. Getsy fails to mention that the defense played the statement during the penalty phase, attempting to show that McNulty was untruthful because he made four different statements to the police.
Getsy also argues that a conflict existed because Lewis, McNulty's attorney and Costanzo's supervisor, was a witness in the penalty phase and was questioned by Costanzo. However, the defense called this witness and there is no indication in the record that Costanzo did not adequately question Lewis. The Lewis testimony was of some benefit to Getsy because Lewis discussed the plea bargain that McNulty received. Thus, the jury was aware that McNulty had an interest in placing the blame on Getsy and that Getsy was the only co-defendant who would be subjected to the death penalty.
Getsy argues that an on-the-record hearing would have enabled him to understand the nature of the conflict and to intelligently decide how to proceed. When Costanzo sought to enter an appearance in the case, the risk of a possible conflict was raised and discussed on the record, and Getsy chose to go forward with her representation. Although the fact that Lewis was Costanzo's supervisor was not discussed, that single fact is not so significant that it outweighs the remaining disclosure and waiver.
“In order to establish a violation of the Sixth Amendment, a defendant * * * must demonstrate that an actual conflict of interest adversely affected his lawyer's performance.” (Emphasis added.) Cuyler v. Sullivan (1980), 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333, 346-347. A possible conflict is insufficient. Id. at 350, 100 S.Ct. at 1719, 64 L.Ed.2d at 347. “ ‘The term “conflict of interest” bespeaks a situation in which regard for one duty tends to lead to disregard of another. The obvious example of this is representation of clients with incompatible interests.’ * * * A lawyer represents conflicting interests when, on behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.” State v. Manross (1988), 40 Ohio St.3d 180, 182, 532 N.E.2d 735, 738. A possible conflict exists where the “ ‘interests of the defendants may diverge at some point so as to place the attorney under inconsistent duties.’ ” (Emphasis added.) State v. Dillon (1995), 74 Ohio St.3d 166, 168, 657 N.E.2d 273, 275-276, quoting Cuyler, 446 U.S. at 356, 100 S.Ct. at 1722, 64 L.Ed.2d at 351-352, fn. 3 (concurring and dissenting opinion of Marshall, J.).
In this case, there was no actual conflict. Co-defendant McNulty was not represented by Costanzo but rather by attorneys in an office in which she worked part-time. Costanzo asserted for the record that she had not discussed the case with anyone in the public defender's office and that she had not seen any papers or material concerning the case when in the public defender's office.
Getsy also argues that there was “open and ongoing animosity among counsel” and lists a number of “professional and/or personal disagreements among Getsy's three attorneys that prevented them from working as a team.” The record does not support this argument. The majority of instances cited are situations in which Costanzo and one of Getsy's other two attorneys were both making objections. These examples suggest agreement, not disagreement or contentiousness. The fact that two attorneys objected did not prejudice Getsy's defense. Further, the remarks cited by Getsy as indicia of a conflict did not occur in front of the jury. There were two instances in which counsel may have become sharp with each other. However, over the course of a trial that lasted more than a month, two such instances do not suggest a breakdown of Getsy's defense.
Getsy has failed to show that a conflict of interest existed in the defense of his case. The second proposition of law is rejected.
Performance
In order to prevail on a claim of ineffective assistance of counsel, Getsy must show that counsel's performance fell below an objective standard of reasonableness and, in addition, that he was prejudiced by counsel's performance. Strickland v. Washington (1984), 466 U.S. 668, 687-688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus. The court need not address the performance component if the issue is resolved by addressing the prejudice requirement. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at 699.
Our review of the record does not disclose any conduct that would violate Getsy's Sixth Amendment right to effective assistance of counsel. The merits of the specific instances mentioned by Getsy (failure to object to jury instructions, failure to object to victim-impact information, and failure to conduct an adequate voir dire) were examined in the other propositions of law. As none of them rose to the level of reversible error, counsel's performance did not fall below an objective standard of reasonableness. The third proposition of law is rejected.
DENIAL OF MOTION TO SUPPRESS
An arrest warrant for Getsy was issued on July 7, 1996 as a result of the taped statement of McNulty. Getsy was arrested at around 10:00 p.m., taken to the Hubbard Township Police Station, and apprised of his Miranda rights. At 12:47 a.m. on July 8, 1996, he waived those rights and gave a videotaped statement to the police.
In his sixth proposition of law, Getsy argues that his waiver was not voluntary because he was arrested at 10:00 p.m. and the taped confession did not occur until “long after midnight.” Getsy faults the police officer conducting the inquiry for failing to ask Getsy whether he had slept or eaten during the day.
In deciding whether the defendant's confession in this case was involuntarily induced, we consider the totality of the circumstances, including the age, mentality, and prior criminal experience of the accused; the length, intensity, and frequency of the interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement. State v. Edwards (1976), 49 Ohio St.2d 31, 40-41, 3 O.O.3d 18, 23, 358 N.E.2d 1051, 1059.
In Colorado v. Connelly (1986), 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473, the court held that “police overreaching” is a prerequisite to a finding of involuntariness. Evidence of use of an inherently coercive tactic ( e.g., physical abuse, threats, deprivation of food, medical treatment, or sleep) triggers the totality-of-the-circumstances analysis. State v. Clark (1988), 38 Ohio St.3d 252, 261, 527 N.E.2d 844, 854.
There is no indication in the record that the police overreached in this case. Getsy never asked for food or indicated that he was tired. Although the questioning began at 12:47 a.m., this was not “long after” midnight and cannot be considered mistreatment. The videotape does not reveal any coercive actions on the part of the police officers involved in the questioning. Finally, although Getsy appeared frightened, he was not frightened of the police officers, but rather of Santine. Getsy's will was not overborne. The sixth proposition of law is rejected.
VOIR DIRE ISSUES
A trial court can change venue “when it appears that a fair and impartial trial cannot be held” in that court. Crim.R. 18(B); R.C. 2901.12(K). However, “ ‘[a] change of venue rests largely in the discretion of the trial court, and * * * appellate courts should not disturb the trial court's [venue] ruling * * * unless it is clearly shown that the trial court has abused its discretion.’ ” State v. Maurer (1984), 15 Ohio St.3d 239, 250, 15 OBR 379, 388-389, 473 N.E.2d 768, 780. “ ‘[A] careful and searching voir dire provides the best test of whether prejudicial pretrial publicity has prevented obtaining a fair and impartial jury from the locality.’ ” State v. Landrum (1990), 53 Ohio St.3d 107, 117, 559 N.E.2d 710, 722; State v. Lundgren (1995), 73 Ohio St.3d 474, 479, 653 N.E.2d 304, 313-314. The voir dire in this case uncovered some prospective jurors who were biased; those jurors were excused. The remaining potential jurors indicated that they could try the case fairly.
Getsy's claim concerning pervasive publicity is also belied by the fact that he used only three of the six peremptory challenges available to him. Thus, any challenge has been waived. See State v. Watson (1991), 61 Ohio St.3d 1, 16, 572 N.E.2d 97, 110; State v. Eaton (1969), 19 Ohio St.2d 145, 149, 48 O.O.2d 188, 190, 249 N.E.2d 897, 900.
Limited Voir Dire
Getsy argues that the trial court limited voir dire to such an extent that he was unable to obtain a fair and impartial jury. The voir dire took place between August 5 and August 16, 1996 and is recorded in 1,695 pages of transcript. Although the trial court tried to keep voir dire moving along, counsel were rarely limited in questioning potential jurors. For example, even though the court indicated that individual voir dire would be limited to the death-penalty issues, the court often let counsel address other areas that arose during individual questioning.
Getsy argues that the trial court interrupted voir dire and prevented counsel from thoroughly exploring juror biases on three separate occasions. The record does not support this contention.
Getsy also argues that questioning by the court during individual voir dire on the death penalty deprived him of a thorough and effective voir dire. “The manner in which voir dire is to be conducted lies within the sound discretion of the trial judge.” State v. Lorraine (1993), 66 Ohio St.3d 414, 418, 613 N.E.2d 212, 217. Our review of the transcripts of the voir dire does not reveal that the trial court unreasonably or arbitrarily restricted examination. In State v. Durr (1991), 58 Ohio St.3d 86, 89, 568 N.E.2d 674, 678, we stated that “[a]lthough R.C. 2945.27 affords the prosecution and defense the opportunity to conduct a reasonable examination of prospective jurors, * * * the trial court reserves the right and responsibility to control the proceedings of a criminal trial pursuant to R.C. 2945.03, and must limit the trial to relevant and material matters with a view toward the expeditious and effective ascertainment of truth.”
Excusal of Death-Scrupled Jurors
Getsy argues that the trial court improperly excused for cause four jurors who could set aside their views on the death penalty and follow the law.
The proper standard for determining when a prospective juror may be excluded for cause based on opposition to capital punishment is whether the juror's views would prevent or substantially impair the performance of the juror's duties. Wainwright v. Witt (1985), 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841; Rogers, 17 Ohio St.3d 174, 17 OBR 414, 478 N.E.2d 984, at paragraph three of the syllabus; State v. Beuke (1988), 38 Ohio St.3d 29, 38, 526 N.E.2d 274, 284. The trial court's findings may not be overruled if supported by substantial testimony. State v. Tyler (1990), 50 Ohio St.3d 24, 30-31, 553 N.E.2d 576, 586-587.
When questioned by the court, Juror No. 107 initially indicated that she could not impose the death penalty. Under defense counsel's questioning, the juror began to equivocate. When the court resumed questioning, she again indicated that she could not follow the law and impose the death sentence, even if appropriate.
Juror No. 140, upon inquiry by the court, stated that he could not give the death penalty even if appropriate. During defense questioning, he indicated that he was not morally or philosophically opposed to the death penalty. When again questioned by the court, he stated that he did not “think” he could recommend the death penalty.
Juror No. 216 was not excused for cause as alleged by the defense.
Juror No. 179 conclusively stated that she could not, under any circumstances, vote for the death penalty.
Juror No. 185 was not opposed to the death-penalty, but equivocated in his answers. He initially stated that he could not sign a death penalty verdict, then stated he could, and then stated he could not.
When the voir dires of these prospective jurors are examined under the Witt standard, it cannot be said that the trial court abused its discretion in excusing them for cause.
Failure to Excuse Automatic Death Penalty Jurors
Getsy argues that the trial court erred when it failed to remove for cause three jurors who indicated that they would automatically impose the death sentence if Getsy was convicted. To the contrary, Juror Nos. 15, 27, and 65 all indicated they could consider all available options. None of the jurors was challenged for cause by defense counsel. Juror Nos. 15 and 27 were eventually seated on Getsy's jury; the defense used one of its peremptory challenges to keep Juror No. 65 off the jury.
We have previously held that error in the denial of a challenge of a juror for cause cannot be grounds for reversal when the defendant did not exhaust his peremptory challenges. State v. Poindexter (1988), 36 Ohio St.3d 1, 5, 520 N.E.2d 568, 572. As the defense had three peremptory challenges remaining, any error was waived.
Improper Excusal for Cause
When the judge began his orientation instructions, he asked whether anyone in the group knew of any reason that they could not be a good juror. Juror No. 55 raised his hand. When examined individually, Juror No. 55 indicated that he had been in this country for just six years, had trouble with big words, and had had some difficulty understanding the written orientation instructions provided by the court. The court asked whether he could excuse the juror without objection, and the prosecutor agreed, but the defense wanted an opportunity to question Juror No. 55. The trial court did not allow any questioning and excused the juror over defense objection.
Crim. R. 24(B)(13) provides that a person may be challenged for cause when “English is not his native language, and his knowledge of English is insufficient to permit him to understand the facts and the law in the case.” It was clear from the discussion with this juror that he was having trouble understanding the legal proceedings and in fact had to have another juror explain the written orientation instructions to him. The trial court did not commit error by excusing this juror.
Obtaining Commitments on the Death Penalty
Getsy argues that the trial court and the prosecutor obtained commitments from prospective jurors to impose the death penalty. To the contrary, the trial court explained the weighing process to the jurors and then asked the jurors whether they could impose a death sentence and whether they could impose a life sentence. The prosecutor also asked whether the jurors could impose the death penalty if the conditions requiring it were properly proven, and if these conditions were not properly proven, whether the jurors could impose a life sentence. These questions have previously been found to be proper. State v. Evans (1992), 63 Ohio St.3d 231, 249-250, 586 N.E.2d 1042, 1057.
Each of the arguments in this proposition of law has been rejected. The fourth proposition of law is rejected.
Peremptory Challenges of Death-Scrupled Jurors
Getsy argues in his fifth proposition of law that the state improperly used its peremptory challenges to exclude jurors who were death-scrupled. This proposition of law is summarily overruled. State v. Seiber (1990), 56 Ohio St.3d 4, 13, 564 N.E.2d 408, 418-419.
INTRODUCTION OF OTHER ACTS EVIDENCE
Joshua Koch, a witness for the state, testified concerning conversations he had with, or overheard between, the co-defendants in this case, including Getsy. Getsy alleges in his seventh proposition of law that some of the information elicited during Koch's testimony is inadmissible “other acts” evidence.
Getsy argues that three separate prejudicial statements were elicited: two concerning Getsy being a hitman for Santine and one indicating that Getsy, along with Hudach and McNulty, would burn down houses for Santine. Defense counsel did not object to these statements and cross-examined Koch on the latter statement. Absent an objection by counsel, this error is examined under the plain-error standard. An alleged error “does not constitute a plain error * * * unless, but for the error, the outcome of the trial clearly would have been otherwise.” State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph two of the syllabus. Here there is no error, plain or otherwise.
Getsy was charged with committing the murder for hire. Accordingly, evidence concerning prior acts performed for Santine is admissible to prove motive under Evid.R. 404(B). Evid.R. 404(B) states that “[e]vidence 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.”
Even if the evidence should not have been admitted, it did not affect the outcome of the case. The evidence against Getsy was substantial, including a videotaped confession. Further, it is clear from Koch's testimony that he did not believe the statements concerning Getsy that had been made to him by Hudach. During cross-examination, Koch admitted that he did not know whether they (Getsy, Hudach, and McNulty) had done anything for Santine before, and there was no other evidence to corroborate the statements. The seventh proposition of law is rejected.
SUFFICIENCY AND WEIGHT OF THE EVIDENCE
At the close of the state's case and at the close of all the evidence, the defense moved for acquittal on all counts and on the specification. The trial court denied both motions. In his tenth proposition of law, Getsy argues that the trial court erred.
When a defendant challenges the sufficiency of evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis sic.) Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573; State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. A verdict will not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier of fact. Jenks, 61 Ohio St.3d at 273, 574 N.E.2d at 503.
Since this case is on direct appeal from the trial court, this court has been asked to and will consider whether the convictions are against the manifest weight of the evidence. State v. Smith (1997), 80 Ohio St.3d 89, 102-103, 684 N.E.2d 668, 683-684. This inquiry requires an examination of the entire record and a determination of whether the evidence produced attains the high degree of probative force and certainty required of a criminal conviction. This inquiry is separate from the examination for sufficiency. The question is whether there is substantial evidence upon which a jury could reasonably conclude that all the elements have been proved beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169, 10 O.O.3d 340, 383 N.E.2d 132, at syllabus.
The facts in the record, when viewed in the light most favorable to the prosecution, support a finding of the essential elements of each crime and specification charged, beyond a reasonable doubt. Getsy's own statements are sufficient to support a finding that a conspiracy was planned and carried out by the co-defendants under Santine's supervision, that Getsy and McNulty forcefully entered the Serafino home (burglary) with the intent to kill all those inside, that Ann Serafino was killed and Chuckie Serafino shot (aggravated murder and attempted aggravated murder), and that the crimes were committed with firearms. There was evidence that the murder was done for hire, that it occurred during the course of a burglary, and that it involved the murder or attempted murder of two or more persons.
After reviewing the entire record, weighing the evidence and all reasonable inferences, taking into consideration that Santine generated a certain amount of fear in Getsy, and considering the credibility of the witnesses, we conclude that the jury did not lose its way, that a manifest miscarriage of justice did not occur, and that Getsy's convictions were not against the manifest weight of the evidence. Accordingly, the tenth proposition of law is rejected.
PROSECUTOR MISCONDUCT
In his twelfth proposition of law, Getsy contends that the prosecutor engaged in numerous incidents of misconduct throughout the trial.
Getsy argues that comments made by the prosecutor in closing argument were misconduct. The prosecutor stated that the defense had no defense and when “you have no defense you attack the police, you attack the prosecutor, you attack everybody. * * * You want to look at things that aren't important to this particular case, you want to deflect, you want to look for something that doesn't exist, you want smoke so he can't be seen.” Defense counsel did not object.
We look with disfavor on remarks that denigrate defense counsel for doing their job and thereby denigrate the defendant. State v. Keenan (1993), 66 Ohio St.3d 402, 405-406, 613 N.E.2d 203, 206-207. The comments by the prosecutor here were error. However, unlike Keenan, the prosecutor's remarks in this case were not pervasive. They occurred only during closing argument and did not rise to the level of plain error. State v. DeNicola (1955), 163 Ohio St. 140, 56 O.O. 185, 126 N.E.2d 62, paragraph three of the syllabus.
The remaining instances of possible misconduct cited by Getsy involve comments made by Serafino's neighbor, Fred Hanley, Jr. Getsy characterizes Hanley's comments as “victim impact evidence.” Hanley was called to testify because he was awakened by the gunshots and heard someone running from the Serafino house. During the course of his testimony, the prosecutor asked Hanley what kind of relationship he had with the Serafinos, specifically Ann Serafino. In describing their relationship as that of close neighbors, he related that he had done favors for her and that she had repaid him by making him spaghetti. Hanley also opined that Ann Serafino was a “super woman.” It does not appear that the state solicited this remark. There was no objection. This isolated comment did not rise to the level of plain error. Long, 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph two of the syllabus.
During closing argument in the trial phase, the prosecutor made the following argument: “It is fundamental that the law be upheld, that we recognize the constitutional rights of the accused, Jason Getsy, that the State, if it can, prove his guilt beyond a reasonable doubt. On the other side of the coin it's just as important to all of us that Ann Serafino have a right, did have a right to live and enjoy life in our community. No one has a right to extinguish the lives of others, no one has a right to burglarize one['s] home, no one has a right to attempt to kill other persons.” (Emphasis added.)
Getsy argues that the emphasized portion amounted to an attempt by the prosecutor to create sympathy for the victim by referring to unacceptable victim-impact statements. We disagree. Given the context of the prosecutor's remarks, these statements do not constitute victim-impact evidence. The prosecutor was merely pointing out that persons have a right to live and that the act of murder takes away that right. “Evidence relating to the facts attendant to the offense, however, is clearly admissible during the guilt phase.” State v. Fautenberry (1995), 72 Ohio St.3d 435, 440, 650 N.E.2d 878, 883. Since there was no error, defense counsel's failure to object is irrelevant to the claim of ineffective assistance of counsel.
Because none of Getsy's allegations concerning prosecutorial misconduct rises to the level of plain error, the twelfth proposition of law is rejected.
JURY INSTRUCTION
In his eighth, ninth, and eleventh propositions of law, Getsy challenges the jury instructions given in the trial and penalty phases.
Trial Phase
Getsy argues that the trial court erroneously instructed the jury on causation. The trial court instructed:
“The defendant's responsibility is not limited to the immediate or most obvious result of the defendant's act or failure to act. The defendant is also responsible for the natural and foreseeable consequences or results that follow in the ordinary course of events from the act or the failure to act.”
No objection was made to this instruction; therefore, the error is reviewed under the plain error standard. Long, 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph two of the syllabus. Getsy argues that this instruction permitted the jury to convict him for aggravated murder based on a finding of less than specific intent to cause the death of another in violation of R.C. 2903.01(D). See State v. Jacks (1989), 63 Ohio App.3d 200, 578 N.E.2d 512; State v. Burchfield (1993), 66 Ohio St.3d 261, 262, 611 N.E.2d 819, 820.
In State v. Frazier (1995), 73 Ohio St.3d 323, 331, 652 N.E.2d 1000, 1008, we addressed an instruction of this type and found no harm because the jury was required to find that the defendant acted with specific intent. A “jury instruction ‘ * * * must be viewed in the context of the overall charge, * * *’ rather than in isolation.” State v. Thompson (1987), 33 Ohio St.3d 1, 12-13, 514 N.E.2d 407, 419; State v. Price (1979), 60 Ohio St.2d 136, 14 O.O.3d 379, 398 N.E.2d 772, paragraph four of the syllabus.
In Burchfield, we stated: “The usefulness in murder cases of the foreseeability instruction is questionable, especially given its potential to mislead jurors.” Burchfield, 66 Ohio St.3d at 263, 611 N.E.2d at 821. We reiterate this caution today. In Getsy's case, reversal is not required because, to the extent the instructions amounted to error, they did not rise to the level of plain error. Other instructions in the case limited the prejudicial effect. When viewed in their entirety, the jury instructions given by the trial court in this case did not prejudice appellant.
Getsy next argues that the trial court used a mandatory presumption in violation of the constitution when it instructed the jury:
“If a wound is inflicted upon a person with a deadly weapon in a manner calculated to destroy life the purpose to kill may be inferred from the use of the weapon.”
Getsy failed to object to this instruction at trial and waived all but plain error. State v. Underwood (1983), 3 Ohio St.3d 12, 3 OBR 360, 444 N.E.2d 1332. Moreover, the court used the word “may,” indicating that the presumption was permissive-one the jury could accept, not one the jury was required to accept. State v. Loza (1994), 71 Ohio St.3d 61, 81, 641 N.E.2d 1082, 1104; Edwards, 49 Ohio St.2d at 45, 3 O.O.3d at 26, 358 N.E.2d at 1061. We conclude that there was no error, plain or otherwise.
Getsy next challenges the instruction defining “principal offender.” The trial court instructed that a principal offender is “one who personally performs every act constituting the offense which relative to this specification is aggravated murder.” While there was no objection to this instruction, Getsy now argues that the trial court should have instructed the jury that the principal offender is the “actual killer.”
The Revised Code and Ohio Jury Instructions do not define “principal offender.” We have previously held that the term “principal offender” in R.C. 2929.04(A)(7) means the “actual killer.” State v. Penix (1987), 32 Ohio St.3d 369, 371, 513 N.E.2d 744, 746; State v. Wiles (1991), 59 Ohio St.3d 71, 92, 571 N.E.2d 97, 122; State v. Taylor (1993), 66 Ohio St.3d 295, 308, 612 N.E.2d 316, 325.
In State v. Sneed (1992), 63 Ohio St.3d 3, 11-12, 584 N.E.2d 1160, 1168, jurors signed a verdict form that stated that Sneed had “personally performed every act constituting the offense of aggravated murder.” This court concluded that such a statement was tantamount to a specific finding that Sneed was the principal offender and held that R.C. 2929.04(A)(7) had been complied with.
Getsy argues that the instructions given were improper. We disagree. Both definitions of “principal offender” convey the same meaning with respect to the culpability required by the capital specification. We recently stated, “ * * * we have never held that [principal offender] means ‘the sole offender.’ There can be more than one actual killer-and thus more than one principal offender-in an aggravated murder.” State v. Keene (1998), 81 Ohio St.3d 646, 655, 693 N.E.2d 246, 256. The instruction given by the trial court was not plain error.
Getsy's eighth proposition of law, concerning errors in the trial phase jury instructions, is rejected.
Failure to Instruct on Duress
Prior to the trial phase, the state filed a motion in limine to prohibit Getsy from presenting any evidence or argument on the defense of duress. The court determined that duress could be used as a defense to the underlying felony and to felony murder, and asked the defense whether they intended to present evidence to prove the defense. The defense indicated that it so intended, and the trial went forward.
The defense later requested an instruction on the affirmative defense of duress, which the trial court denied upon finding insufficient evidence to prove the defense. The trial court did instruct on the mitigating factor of duress in the penalty phase. R.C. 2929.04(B)(2). Getsy now argues that the trial court erred in denying his request for an instruction on duress in the trial phase.
The defense of duress has long been recognized as a legitimate defense to all crimes. State v. Sappienza (1911), 84 Ohio St. 63, 95 N.E. 381. At common law, the exception to that principle is the taking of the life of an innocent person. See Annotation (1955), 40 A.L.R.2d 908. This court has never squarely addressed the issue of whether duress is a defense to aggravated murder.
We have held that duress can be used as a defense to certain felonies. Therefore, if duress is a valid defense to the underlying felony in a felony-murder trial, a defendant can be convicted of murder, but not of aggravated murder. State v. Woods (1976), 48 Ohio St.2d 127, 135, 2 O.O.3d 289, 293, 357 N.E.2d 1059, 1065. This situation would necessitate giving a lesser-included-offense instruction on murder in a felony-murder trial. In this case, the state elected to take the prior-calculation-and-design count into the penalty phase; therefore, any argument concerning the felony-murder count is moot. The question remains whether a duress instruction should apply to the remaining count of aggravated murder based on prior calculation and design.
In Woods, 48 Ohio St.2d at 135, 2 O.O.3d at 293, 357 N.E.2d at 1065, fn. 3, this court stated:
“There is strong precedent for holding that duress is not a defense to murder, but that question has not been decided in Ohio. At common law, no person can excuse himself for taking the life of an innocent person on the grounds of duress. Arp v. State (1893), 97 Ala. 5, 12 So. 301; Watson v. State (1951), 212 Miss. 788, 55 So.2d 441; State v. Weston (1923), 109 Or. 19, 219 P. 180; State v. Nargashian (1904), 26 R.I. 299, 58 A. 953; Leach v. State (1897), 99 Tenn. 584, 42 S.W. 195. This rule has been modified by statute in some states. Jones v. State (1950), 207 Ga. 379, 62 S.E.2d 187; Paris v. State (1895), 35 Tex.Cr. 82, 31 S.W. 855.”
It can be inferred from the inclusion of duress as a mitigating factor in R.C. 2929.04(B) that the General Assembly did not intend duress to be an affirmative defense to aggravated murder. There is no legal authority for applying the affirmative defense of duress in a trial for aggravated murder committed with prior calculation and design. We hold that duress cannot be asserted as a defense to aggravated murder under R.C. 2903.01(A).
The question left is whether the trial court abused its discretion in failing to instruct on duress as an affirmative defense to the capital specifications or to aggravated burglary. Getsy had the burden of going forward with evidence of a nature and quality sufficient to raise the defense. R.C. 2901.05; State v. Melchior (1978), 56 Ohio St.2d 15, 20, 10 O.O.3d 8, 11, 381 N.E.2d 195, 199. In construing the phrase “burden of going forward with the evidence,” we stated in State v. Robinson (1976), 47 Ohio St.2d 103, 111-112, 1 O.O.3d 61, 66, 351 N.E.2d 88, 94, that in order for the defendant to successfully raise an affirmative defense, “evidence of a nature and quality sufficient to raise the issue must be introduced.” Evidence is sufficient where a reasonable doubt of guilt has arisen based upon a claim of duress. If the evidence generates only a mere speculation or possible doubt, such evidence is insufficient to raise the affirmative defense, and submission of the issue to the jury will be unwarranted. Melchior at 20, 10 O.O.3d at 11-12, 381 N.E.2d at 199.
One of the essential features of the defense of duress is a sense of immediate, imminent death, or serious bodily injury if the actor does not commit the act as instructed. See State v. Cross (1979), 58 Ohio St.2d 482, 487, 12 O.O.3d 396, 399, 391 N.E.2d 319, 323. The force used to compel the actor's conduct must remain constant, controlling the will of the unwilling actor during the entire time he commits the act, and must be of such a nature that the actor cannot safely withdraw. See State v. Good (1960), 110 Ohio App. 415, 11 O.O.2d 459, 165 N.E.2d 28. Applying this standard, it is apparent that Getsy failed to show that his criminal conduct occurred as a result of a continuous threat from Santine, which, because of his fear of bodily harm or death, controlled his will and compelled him to break into the Serafino home and shoot Ann and Chuckie Serafino.
While evidence was presented to suggest that Santine was known to make threats, such as the threats he made concerning Chuckie Serafino, there was no evidence that Santine ever directly threatened Getsy. Getsy argues that Santine stated that he had the police in his pocket and that he had mob connections and therefore that Getsy did not feel he could go to the police. Getsy also knew that Santine shot his own brother and that Santine carried a gun. This evidence did not rise to the level of “a sense of imminent, immediate and impending death or serious bodily injury.” Cross, 58 Ohio St.2d 482, 487, 12 O.O.3d 396, 399, 391 N.E.2d 319, 323.
While Getsy exhibited fear during his videotaped confession and there were indications that Getsy (as well as the co-defendants) feared Santine, some of his actions belie his claim that he acted under duress or coercion. Woods requires an examination of the individual involved, not the ordinary man. Getsy observed Mike Dripps refuse involvement in the scheme and suffer no consequences. Further, Ben Hudach feigned an ankle injury to avoid further involvement in the crime. Getsy, Hudach, and McNulty could have banded together and refused to carry out Santine's orders. Getsy was not employed by Santine, so there was no threat of loss of employment. In addition, Getsy took his own weapon to the crime scene.
Arguably, the defense of duress could have been asserted for the aggravating circumstance of murder for hire, but the evidence presented by the state, if believed, indicated that Getsy was the only one of the three who wanted the money.
Getsy did not satisfy his burden of presenting evidence of a nature and quality sufficient to raise the defense of duress and merit an instruction. Therefore, the trial court did not err in failing to instruct on the affirmative defense of duress. Getsy's ninth proposition of law is rejected.
Sentencing Phase
Getsy presents six reasons why the jury instructions in the penalty phase were erroneous. He first argues that the trial court erred by failing to give the jury instructions at the start of the penalty phase concerning the nature of the proceedings. Defense counsel did not request such an instruction. Therefore, all but plain error is waived. Underwood, 3 Ohio St.3d 12, 3 OBR 360, 444 N.E.2d 1332.
The jurors were given written instructions prior to voir dire that explained the procedures. On individual voir dire, the trial court explained that there might be two phases and explained the procedure that would be followed in the penalty phase. Further, the idea of mitigation was discussed during voir dire. The jurors were not unaware of penalty-phase procedures. In addition, the trial court correctly instructed the jury at the conclusion of the penalty phase concerning the jury's task in deliberations. The failure to give preliminary instructions was not plain error.
Getsy next argues that the trial court did not properly define the terms “mitigating factor” and “mitigation” for the jury, and therefore that the jury had no guidance as to what a mitigating factor was, or what the purpose of mitigation was. We disagree.
Prior to the trial, Getsy filed a motion to alter the definition of “mitigating factors.” The trial court denied this motion. Subsequently, the trial court instructed:
“Mitigating factors are factors that, while they do not justify or excuse the crimes of aggravated murder, nevertheless may be considered by you as extenuating, lessening, weakening, excusing to some extent or reducing the degree of sentence.”
In State v. Holloway (1988), 38 Ohio St.3d 239, 527 N.E.2d 831, the court explained that “mitigating factors under R.C. 2929.04(B) are not related to a defendant's culpability but, rather, are those factors that are relevant to the issue of whether an offender convicted under R.C. 2903.01 should be sentenced to death.” Id. at 242, 527 N.E.2d at 835. See, also, State v. Lawrence (1989), 44 Ohio St.3d 24, 28-29, 541 N.E.2d 451, 457. Further, the court has frequently stated that a mitigating factor “ ‘lessens the moral culpability of the offender or diminishes the appropriateness of death as the penalty.’ ” State v. DePew (1988), 38 Ohio St.3d 275, 292, 528 N.E.2d 542, 560, quoting State v. Steffen (1987), 31 Ohio St.3d 111, 129, 31 OBR 273, 289, 509 N.E.2d 383, 399.
The inclusion of the words “lessening, weakening, excusing,” which are typically associated with blame or culpability for the crime, resulted in an instruction that strayed from the definition approved in Holloway. However, when reviewed in their entirety, the instructions adequately guided the jury and did not restrict its consideration of mitigating evidence. See State v. Wilson (1996), 74 Ohio St.3d 381, 397, 659 N.E.2d 292, 308; State v. Murphy, 65 Ohio St.3d at 577, 605 N.E.2d at 903; State v. Landrum, 53 Ohio St.3d at 123, 559 N.E.2d at 728.
Getsy also argues that the trial court erred in admitting all the evidence from the trial phase into the penalty phase and instructing the jury to consider “all the evidence, including exhibits presented in the first phase of this trial which you deem to be relevant.” (Emphasis added.) Getsy argues that it was the trial court's responsibility, not the jury's, to determine what evidence was relevant. We agree.
It is the trial court's responsibility to determine the admissibility of evidence. Evid.R. 104(A); State v. Heinish (1990), 50 Ohio St.3d 231, 553 N.E.2d 1026.
The trial court denied the defense request to exclude certain items ( i.e., shotgun, ballistic reports, and blood) from the penalty-phase deliberations. The defense renewed the request after the jury instructions were given and specifically objected to the instruction regarding the exhibits.
In State v. Gumm (1995), 73 Ohio St.3d 413, 653 N.E.2d 253, syllabus, we held: “Subject to applicable Rules of Evidence, and pursuant to R.C. 2929.03(D)(1) and (2), counsel for the state at the penalty stage of a capital trial may introduce and comment upon (1) any evidence raised at trial that is relevant to the aggravating circumstances specified in the indictment of which the defendant was found guilty, (2) any other testimony or evidence relevant to the nature and circumstances of the aggravating circumstances specified on the indictment of which the defendant was found guilty, (3) evidence rebutting the existence of any statutorily defined or other mitigating factors first asserted by the defendant * * *.” This holding appears to require the trial court to determine what evidence is relevant.
Trial counsel articulated some items that they deemed irrelevant. After an examination of the items mentioned by trial counsel, it is clear that some, such as the blood samples, were not relevant. However, the admission of irrelevant evidence into the penalty phase did not prejudice the outcome in this case.
Getsy also claims that the trial court should have instructed on mercy. We have previously held that such an instruction is not required. State v. Allen (1995), 73 Ohio St.3d 626, 638, 653 N.E.2d 675, 687; Lorraine, 66 Ohio St.3d at 417, 613 N.E.2d at 216.
Getsy also argues that the use of the word “recommendation” in the jury instructions was error. The defense filed a motion to prohibit the trial court from referring to the jury's penalty-phase verdict as a recommendation. The trial court denied the motion.
Use of an instruction that the jury verdict is a “recommendation” accurately reflects Ohio law and does not diminish the jury's overall sense of responsibility. State v. Henderson (1988), 39 Ohio St.3d 24, 29-30, 528 N.E.2d 1237, 1243; State v. Woodard (1993), 68 Ohio St.3d 70, 77, 623 N.E.2d 75, 80-81. We have stated that although error is not committed by the mere use of the word “recommendation,” we prefer that courts trying capital cases include in jury instructions a statement similar to that commended in State v. Mills (1992), 62 Ohio St.3d 357, 375, 582 N.E.2d 972, 988. In Mills, this court said, “Simply put, you [the jury] should recommend the appropriate sentence as though your recommendation will, in fact, be carried out.” See State v. Carter (1995), 72 Ohio St.3d 545, 559, 651 N.E.2d 965, 978. The trial court did not include this latter instruction.
The use of the word “recommendation” was not overemphasized in the penalty instructions, nor was it amplified by use of the word “mere” or any other word tending to downplay the significance of the jury's recommendation. While the preferable alternative would have been to include the language approved in Mills and Carter, the instruction given does not constitute prejudicial error.
Getsy also argues that the jury instructions in the penalty phase relieved the state of its burden of proving, beyond a reasonable doubt, that the aggravating circumstances outweighed the mitigating factors. No objection was made at trial; therefore, this instruction will be reviewed under the plain-error standard. See Underwood at syllabus. The jury instruction clearly placed the burden on the state to prove that the aggravating circumstances outweighed the mitigating factors, beyond a reasonable doubt.
Getsy also contends that the “beyond a reasonable doubt” standard instruction given in the trial phase was error and that the standard of proof should be beyond all doubt for both phases. The trial court's reasonable doubt instruction for the trial phase was in accord with R.C. 2901.05(D), which we have held constitutional. See State v. Van Gundy (1992), 64 Ohio St.3d 230, 594 N.E.2d 604. Further, the definition used in the penalty phase of the case comports with this court's suggested instruction. State v. Taylor (1997), 78 Ohio St.3d 15, 29, 676 N.E.2d 82, 96. See, also, State v. Mitts (1998), 81 Ohio St.3d 223, 233, 690 N.E.2d 522, 531. Finally, this court has rejected the “beyond all doubt” standard of proof suggested by the defense. State v. Jenkins (1984), 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264, paragraph eight of the syllabus.
We find no reversible error in the jury instructions in the penalty phase and reject the eleventh proposition of law.
SELECTIVE PROSECUTION
Four co-defendants were involved in the murder of Ann Serafino and the attempted murder of Chuckie Serafino: John Santine, Richard McNulty, Ben Hudach, and Jason Getsy. Getsy filed a motion in the trial court to dismiss the capital specifications due to selective enforcement of the capital statutes. In his fourteenth proposition of law, Getsy challenges the denial of his motion.
The record indicates that Hudach was allowed to plead guilty to an amended indictment in which the death-penalty specifications were dismissed. In exchange, he agreed to cooperate fully with the state, to take a polygraph examination, if requested, and to testify against Santine.
McNulty also entered into a plea arrangement with the state. McNulty pled guilty to aggravated murder with specifications, attempted aggravated murder, and aggravated burglary. He agreed to testify against any of the co-defendants, to take a polygraph examination, if requested, and to waive all appeals. In exchange, the state would recommend life imprisonment with parole eligibility after thirty years on the aggravated murder count, with a maximum of thirty-six years total on all charges.
Santine's trial went forward after Getsy's. At the time of Getsy's trial, Santine faced charges similar to those for which Getsy was tried. Getsy was never offered a plea agreement.
In State v. Flynt (1980), 63 Ohio St.2d 132, 134, 17 O.O.3d 81, 82, 407 N.E.2d 15, 17, we adopted the following test with regard to selective-prosecution claims:
“ ‘To support a defense of selective or discriminatory prosecution, a defendant bears the heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights.’ ” (Quoting United States v. Berrios [C.A.2, 1974], 501 F.2d 1207, 1211.) See, also, State v. Lawson (1992), 64 Ohio St.3d 336, 346, 595 N.E.2d 902, 910.
A selective-prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution. United States v. Armstrong (1996), 517 U.S. 456, 463, 116 S.Ct. 1480, 1486, 134 L.Ed.2d 687, 698. As the court stated in Armstrong, “the standard is a demanding one.” Id.
The trial court found that Getsy failed to establish either prong of the Flynt test. We agree. It appears from the record that the co-defendants in this case were similarly charged. At the time Getsy's case went to trial, the case against Santine, which included capital specifications, was pending. Getsy was not singled out for prosecution, since all of the co-defendants were prosecuted. He therefore fails to meet the first prong of the Flynt test. Further, nothing in the record suggests that the offer of a plea bargain to Hudach and McNulty or the lack of an offer to Getsy was based upon impermissible considerations, such as race, religion, or the desire to prevent Getsy's exercise of constitutional rights, as required by the second prong of the Flynt test.
The trial court did not abuse its discretion in denying Getsy's motion, and, therefore, the fourteenth proposition of law is rejected.
PROPORTIONALITY REVIEW
Getsy argues, in his sixteenth proposition of law, that the death-penalty review procedures are flawed because the court limits itself to death cases when conducting its statutorily mandated proportionality review. This argument is summarily rejected . Steffen, 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d 383, paragraph one of the syllabus.
GENERAL CONSTITUTIONAL CHALLENGE
In his sixteenth proposition of law, Getsy further argues that Ohio's capital sentencing scheme violates the Eighth and Fourteenth Amendments to the United States Constitution and similar provisions. We summarily reject these claims. See Jenkins, 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264; State v. Sowell (1988), 39 Ohio St.3d 322, 336, 530 N.E.2d 1294, 1309; Steffen, 31 Ohio St.3d at 125, 31 OBR at 285-286, 509 N.E.2d at 396; State v. Grant (1993), 67 Ohio St.3d 465, 483, 620 N.E.2d 50, 69; Maurer, 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768, paragraph six of the syllabus; State v. Lewis (1993), 67 Ohio St.3d 200, 206, 616 N.E.2d 921, 926; State v. Buell (1986), 22 Ohio St.3d 124, 22 OBR 203, 489 N.E.2d 795; State v. Phillips (1995), 74 Ohio St.3d 72, 656 N.E.2d 643.
CONSTITUTIONALITY OF NEW DIRECT APPEAL PROCEDURES
Getsy, in his sixteenth proposition of law, also challenges the constitutional change which removed the courts of appeals from the direct review process and limits direct review to review by this court. This argument is summarily rejected. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668.
INDEPENDENT SENTENCE REVIEW
Having rejected Getsy's propositions of law set forth above, and having affirmed his conviction for aggravated murder, we now must independently determine whether the evidence supports the aggravating circumstances, whether the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt, and whether the death sentence is proportionate to those affirmed in similar cases.
Appropriateness and Proportionality
Getsy argues, in his remaining propositions of law, that his death sentence is not appropriate and is disproportionate, and that the aggravating circumstances do not outweigh the mitigating factors beyond a reasonable doubt. These arguments will be taken into account during our independent sentence review.
The state elected to go forward with Count One, that Getsy purposefully and with prior calculation and design caused the death of Ann Serafino. The evidence in the record supports a finding that Getsy committed the aggravated murder of Ann Serafino for hire, that the murder of Ann Serafino was part of a course of conduct involving the purposeful killing of or attempt to kill two or more persons, and that the aggravated murder was committed during an aggravated burglary. Moreover, the evidence establishes that Getsy was the principal offender (actual killer) in the commission of the aggravated murder.
During the penalty phase, Getsy presented evidence on two statutory mitigating factors as well as evidence relating to his history, character, and background. Getsy presented evidence concerning his fear of Santine. A jury can take into account “[w]hether it is unlikely that the offense would have been committed, but for the fact that the offender was under duress, coercion, or strong provocation.” R.C. 2929.04(B)(2). This court has previously held that “duress” and “coercion” are to be construed more broadly when considered as mitigating factors than when considered as an affirmative defense. See Woods, 48 Ohio St.2d at 135, 2 O.O.3d at 293, 357 N.E.2d at 1065. “These constructions appropriately allow consideration of the broad range of information relevant to mitigation set out in R.C. 2929.04.” State v. Osborne (1976), 49 Ohio St.2d 135, 147, 3 O.O.3d 79, 85, 359 N.E.2d 78, 86. Therefore, even when, as here, duress is not an affirmative defense to aggravated murder under R.C. 2903.01(B), it is entitled to some weight as a mitigating factor.
Getsy, unlike Hudach and McNulty, did not work for Santine or know Ann and Chuckie Serafino. It is clear that Getsy would not have committed these crimes if he had never met Santine. At the same time, it is evident that Hudach and McNulty would not have participated in the crime but for the encouragement and participation of Santine.
Santine was approximately thirty-five years old. Getsy was nineteen when the crimes were committed. Santine paid the rent for the apartment where Hudach and McNulty lived and supplied some of the drugs that they and their friends used. Santine bragged that he had connections with the mob and often spoke of his Mafia connections. When anyone in the group needed money, they asked Santine for it.
Santine bragged that he had the police in his pocket and had “fixed” a ticket for Hudach. Santine was known to have shot his own brother and apparently had never served time for the incident. Santine was known to routinely carry a duffel bag containing a gun. One time, Hudach and Robert Stoneburner were sitting with Santine when Santine shot a wall for no apparent reason. Santine commented that he wished it had been Chuckie (Serafino).
Getsy was aware of these incidents and they caused him to be scared of Santine. Getsy had a close friendship with Hudach and considered himself Hudach's protector. He was apparently fearful of Hudach's connection with Santine.
It was clear from the videotape of his statement that Getsy feared Santine and was afraid that Santine would execute him. Getsy apparently was afraid to go to the police because Santine made it appear that he had the police in his pocket. This belief was supported by the fact that McNulty told police what Santine was planning and the police did nothing.
This court has held that “in determining whether a course of conduct results in duress, the question is not what effect such conduct would have upon an ordinary man but rather the effect upon the particular person toward whom such conduct is directed, and in determining such effect the age, sex, health and mental condition of the person affected, the relationship of the parties and all the surrounding circumstances may be considered.” Tallmadge v. Robinson (1952), 158 Ohio St. 333, 49 O.O. 206, 109 N.E.2d 496, paragraph two of the syllabus. Accordingly, we will examine the impact of coercion or duress as it affected Getsy, not as it should have affected a reasonable person.
While what Getsy felt or believed about Santine did not rise to the level of a duress defense, it was clear that it played a part in his behavior on the night of the crime. When the group first went to the Serafino house, they returned to the apartment without completing the act, using the excuse that they could not find a place to park. Santine became furious, eventually driving Getsy, McNulty, and Hudach back to the place himself. Santine did not remain at the Serafino house with the others. Even so, Getsy testified that he had no choice but to carry out the plan.
Dr. James Eisenberg testified that Getsy's psychological profile confirmed the fact that Getsy felt trapped by Santine. McNulty's attempts to contact the police with no response reinforced Getsy's helplessness. According to Dr. Eisenberg, Getsy was under considerable duress or coercion at the time of the killing. Getsy did not feel he could leave, since he felt Santine would take it out on his family. In addition, Dr. Eisenberg stated, Santine had told Getsy and the others that once they were in, there was no way out. Even shooting Santine was not a solution, since Santine had indicated how well he was connected with the mob and that they would come after Getsy and his family.
This court has not found the existence of “duress, coercion, or strong provocation” on many occasions. The court has at times given some weight to the provocation aspect of R.C. 2929.04(B)(2). Lawrence, 44 Ohio St.3d at 32, 541 N.E.2d at 459-460; Taylor, 78 Ohio St.3d at 33, 676 N.E.2d at 98. In examining the specific factor of duress or coercion, this court gave no weight to the factor in State v. D'Ambrosio (1995), 73 Ohio St.3d 141, 145, 652 N.E.2d 710, 714, finding that the defendant committed the crime of his own free will. In Seiber, 56 Ohio St.3d at 8, 564 N.E.2d at 415, the court gave the factor no weight, finding, “No outside force or person pressured appellant to act as he did.” In this case, the record supports a finding that Getsy was influenced by Santine. However, Getsy was not compelled or forced to act as he did. See Woods, 48 Ohio St.2d at 136-137, 2 O.O.3d at 294, 357 N.E.2d at 1065-1066. It is clear from the record that Santine did not threaten Getsy and that Santine was not present during the actual shootings. No weight will be given to duress as a mitigating factor.
Getsy was nineteen years old at the time this crime was committed. Therefore, youth of the offender (R.C. 2929.04[B][4] ) is entitled to some weight as a mitigating factor.
Getsy's history and background provide few mitigating features. Getsy's parents married when his mother became pregnant, but his father abandoned the family shortly after Getsy's birth. His mother was subsequently involved in a number of violent relationships, once being beaten so badly she nearly lost an eye. Getsy was often present during these beatings, and on at least one occasion was subjected to a beating. Getsy's maternal grandfather testified that Getsy's mother was not a good parent. Getsy's grandparents considered seeking custody, but never followed through.
When Getsy was ten, his mother married Bill Getsy, who later adopted Getsy. Bill Getsy shared his interest in firearms with Getsy, taking him to a quarry where they would shoot guns. This experience gave Getsy a sense of the power of weapons and, according to Dr. Eisenberg, helped him bond with his stepfather.
Getsy was employed at the time the crimes were committed. His employment is entitled to some weight. State v. Simko (1994), 71 Ohio St.3d 483, 644 N.E.2d 345.
Several witnesses testified on Getsy's behalf during the penalty phase. His employer testified that Getsy was a good worker. His former girlfriend, Ann Porter, and her father testified that Getsy was a nice kid. Getsy's wrestling coach described him as quiet and respectable and stated that Getsy would be welcomed in his family. The coach testified that Getsy had quit the wrestling team to work and help the family. McNulty's aunts and Hudach's father also testified during the penalty phase.
Getsy's pastor testified that he had known Getsy's family for twenty-five years and had counseled the family. He also indicated that he had visited Getsy every week for the past fourteen months and that Getsy was sorrowful for the murder and very remorseful. The pastor indicated that Getsy now realized that it would have been better to give his own life than to have followed through with Santine's plan. Getsy's remorse is entitled to little weight. State v. Rojas (1992), 64 Ohio St.3d 131, 592 N.E.2d 1376.
According to Dr. Eisenberg, Dripps, McNulty, Hudach, and Getsy were bonded together and “saw each other as kind of the odd man out in their relationships and clung to each other for various reasons.” Dr. Eisenberg stated that while Santine had made threats to all four of the boys, Getsy was the most afraid of him. Getsy's role in life seemed to be one of protector. He had watched people get abused, like his mother, and stepped in, psychologically, if in no other way, to protect them. He felt particularly protective towards Hudach, since Santine had once fired a gun over Hudach's head. Dr. Eisenberg also testified that Getsy had seen a lot of violence in his life and had seen threats, that others might discount, actually carried out. For example, his house had been shot at by drug dealers when he was growing up. Dr. Eisenberg also indicated that there was some “group dynamic effect” among Hudach, McNulty, and Getsy. Dr. Eisenberg believed that none of them individually would have carried out the crime, but only all three together.
Hudach's attorney testified that his client had been charged with the same crimes as Getsy, but had been allowed to plead guilty in a plea bargain that allowed him to be eligible for parole in thirteen and a half years. McNulty's attorney testified that his client had been charged with the same crimes as Getsy but had been allowed to plead guilty in a plea bargain that allowed him to be eligible for parole in thirty-six and a half years.
Santine was tried after Getsy. A copy of Santine's sentencing entry, which is in the record, indicates that he was found guilty of aggravated murder, attempted aggravated murder, conspiracy to commit aggravated murder, and aggravated burglary. He was not convicted of the capital specifications and therefore could not be sentenced to death.
In Parker v. Dugger (1991), 498 U.S. 308, 111 S.Ct. 731, 112 L.Ed.2d 812, the United States Supreme Court implicitly recognized that a co-defendant's sentence could be considered a nonstatutory mitigating factor. That Hudach received a lesser penalty than Getsy is not surprising-Hudach did not enter the Serafino home. McNulty did, and he shot one of the victims; nevertheless, he was offered a plea bargain, Getsy was not. Furthermore, McNulty did not testify against Getsy; therefore McNulty's case was not a case of the state's needing to secure testimony to obtain a conviction on a more culpable person.
It is also troubling that Santine did not receive the death sentence even though he initiated the crime. If not for John Santine, it is unlikely the Serafinos would have been shot. In sum, we give some weight to the fact that none of the co-defendants was sentenced to death.
Getsy, once arrested, was cooperative with the police. He indicated his involvement and expressed remorse during the course of his unsworn statement. Both cooperation with authorities and remorse have been recognized as mitigating factors, but we accord them little weight. Rojas, 64 Ohio St.3d at 143, 592 N.E.2d at 1387.
In determining whether the sentence of death is appropriate, this court must consider whether the sentence is disproportionate to the penalty imposed in similar cases. No previous case has the same three aggravating circumstances. The predominant specification in this case is the murder-for-hire specification. Only two reported cases have presented that specification: State v. Davis (1991), 62 Ohio St.3d 326, 581 N.E.2d 1362, and State v. Williams (1988), 38 Ohio St.3d 346, 528 N.E.2d 910.
In Williams, the defendant hired a man to kill the victim, after failing to kill the victim himself. He paid off the contract with drugs and money. His mitigating evidence consisted of the fact that he had a wife and child.
In Davis, the defendant was hired by another to kill the victim, Piazza. The situation was somewhat similar to the case at bar in that an innocent person (whose death was unrelated to the reason for the killing) was killed in the course of the murder for hire. Piazza, the person who put out the contract, and Davis were all involved in illegal activities involving stolen auto parts and trafficking in controlled substances. Davis presented mitigating evidence that he was a good father, was honorably discharged from the army, and was a good prisoner.
In reviewing the facts of these cases, it is clear that imposing the death sentence on Getsy is not disproportionate. Although Getsy presented more mitigating evidence, none of it is entitled to significant weight. The factors entitled to some weight are his age, his remorse, his cooperation during the police investigation, his employment status, his family background, and the sentences received by his co-defendants. None of these factors is entitled to significant weight in mitigation.
In weighing the aggravating circumstances against the mitigating factors, we conclude that the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt.
The judgment of the court of common pleas, including Getsy's convictions and sentence of death, is affirmed. MOYER, C.J., and DOUGLAS, RESNICK, FRANCIS E. SWEENEY, Sr., COOK and LUNDBERG STRATTON, JJ., concur.
LUNDBERG STRATTON, J., concurs separately.
Getsy v. Mitchell, 456 F.3d 575 (6th Cir. 2006). (Habeas)
Background: Following affirmance of aggravated murder conviction and death sentence, 702 N.E.2d 866, petitioner sought habeas corpus relief. The United States District Court for the Northern District of Ohio, Dan A. Polster, J., dismissed the petition, and petitioner appealed.
Holding: The Court of Appeals, Merritt, Circuit Judge, held that Death sentence received by petitioner, who was hired to commit the murder, was imposed in an arbitrary and capricious manner in violation of the Eighth Amendment where codefendant, who initiated, contracted for, and paid for the murder, was acquitted of murder for hire and sentenced to life imprisonment; inconsistent and disproportionate sentences in the same case violated the clearly established Furman arbitrariness principle. Reversed and remanded. Ronald Lee Gilman, Circuit Judge, filed dissenting opinion.
Getsy v. Mitchell, 495 F.3d 295 (6th Cir. 2007). (Habeas)
Background: Following affirmance of aggravated murder conviction and death sentence, 84 Ohio St.3d 180, 702 N.E.2d 866, defendant sought habeas corpus relief. The United States District Court for the Northern District of Ohio, Dan A. Polster, J., dismissed the petition, and defendant appealed. The Court of Appeals, 456 F.3d 575, reversed as to defendant's death sentence and remanded as to his claim of judicial bias. Thereafter, the Court of Appeals granted state's petition for en banc review and vacated previous panel decision. Defendant appealed.
Holdings: The Court of Appeals, Ronald Lee Gilman, Circuit Judge, held that:
(1) Eighth Amendment did not require proportionality or consistency between defendant's death sentence and his codefendant's life sentence;
(2) there was no evidence of corruption or actual bias on party of trial judge in defendant's murder conviction;
(3) defense counsel was not ineffective; and
(4) sufficient evidence supported murder-for-hire aggravating circumstance.
Merritt, Circuit Judge, filed dissenting opinion. Boyce F. Martin, Jr., Circuit Judge, filed dissenting opinion which was joined by Merritt, Circuit Judge. Karen Nelson Moore, Circuit Judge, filed dissenting opinion.
RONALD LEE GILMAN, Circuit Judge.
In September of 1996, an Ohio jury convicted Jason Getsy of murder-for-hire in connection with the killing of Ann Serafino and recommended that he be sentenced to death. The state trial court concurred, and Getsy received no relief either on direct appeal or in state postconviction proceedings. He thereafter filed a petition for federal habeas corpus relief. Getsy's petition was denied by the district court, but a panel of this court reversed the district court's judgment with regard to his death sentence. The panel majority held that Getsy's death sentence was unconstitutionally disproportionate to the life sentence that the separately tried instigator of the plot received for procuring the murder. It also remanded the case for an evidentiary hearing regarding Getsy's claim of judicial bias against the state trial-court judge. Thereafter, this court granted the Warden's petition for en banc review and vacated the panel decision. For the reasons set forth below, we AFFIRM the district court's denial of Getsy's habeas corpus petition.
I. BACKGROUND
The Ohio Supreme Court set forth the relevant facts as follows:
Charles (“Chuckie”) Serafino lived with his mother, Ann Serafino. On the evening of July 6, 1995, Ann went to bed at approximately 11:00 p.m. Chuckie was on the love seat in the family room when, sometime after 1:00 a.m. on July 7, he heard a loud explosion. Shells from a shotgun blasted out the sliding glass door behind him and wounded him in the arm. As he ran for the bathroom to inspect his injuries, Ann came out of her bedroom. Chuckie remembered hearing his mother say to someone, “What are you doing here? Get out of here.” He also remembered hearing someone say, “Shoot the bitch,” or “Kill the bitch.” Serafino next recalled seeing a gun in his face and being shot again. He fell to the bathroom floor and pretended to be dead. After the intruders left, he called 911.
Frederick Hanley, Jr., Chuckie's neighbor, jumped from his bed upon hearing gunshots. He looked at his digital alarm clock, which read 1:22 a.m. As he was going downstairs, he heard at least one additional gunshot. Once outside, he heard footsteps that appeared to be running away from the Serafino residence. He instructed his wife to call 911 and inform the police that shots were coming from the Serafino residence and that someone was running towards the city of Hubbard.
Officer Thomas Forgacs of the city of Hubbard Police Department was one of the first officers to respond to the call. The officers broke into the Serafino home and found Chuckie lying on the floor with blood all over him. Chuckie asked the officers to check his mother; she was dead.
Forgacs left the scene and began checking the Hubbard area for a white Crown Victoria owned by John Santine. Forgacs went to 24 1/2 South Main Street, where he had seen Santine's car parked on the evening of July 6. He found Santine's car parked in the driveway with another car pulled in behind it.
Earlier in the year, Santine had attempted to purchase a portion of Chuckie Serafino's lawn-care business and had deposited $2,500 in the business's account. Subsequently, Chuckie violated probation and was incarcerated in the Trumbull County Jail until July 6, 1995. While Chuckie was in jail, Santine attempted to take over Chuckie's business. Santine transferred Chuckie's building lease and equipment into his own name, which caused an altercation between Santine and Ann Serafino and Chuckie's sister. The Serafinos filed a civil action against Santine while Chuckie was still in jail.
Forgacs searched for Santine's car because of a conversation he had had on June 20, 1995 with Richard McNulty. McNulty, who lived at 24 1 /2 South Main and who is a co-defendant, had previously served as a police informant. On June 20, Forgacs asked McNulty, who worked for Santine, “What does Johnny have in store for Chuckie when he gets out of jail?” McNulty told Forgacs, “He's dead. He's bought and paid for.” McNulty told Forgacs that Santine had lined up a hit man, Tony Antone, to kill Chuckie Serafino. Forgacs gave little credence to McNulty's statements, and didn't inform Chuckie or follow up on the information.
Forgacs returned to the murder scene and told the Hubbard Township Police what McNulty had told him a few weeks earlier. Later that morning, Detective Donald Michael Begeot of the Hubbard Township Police Department and Forgacs went to the McNulty apartment at 24 1/2 South Main to take McNulty in for questioning.
Initially, McNulty minimized his involvement and denied that he had told Forgacs about the contract on Chuckie. Based on other information obtained from McNulty, Begeot obtained an arrest warrant for Getsy. At approximately 10:00 p.m. on July 7, 1995, Getsy was arrested in the driveway of 24 1/2 South Main. He was given Miranda warnings at the scene and later at the Hubbard Township Police Department. At approximately 1:00 a.m., on July 8, 1995, Getsy gave a videotaped interview.
Getsy told Begeot that Ben Hudach called him on the evening of July 6, 1995, and told him to come to 24 1/2 South Main Street. When Getsy got there, Hudach, a co-defendant, told Getsy that they (Getsy, Hudach, and McNulty) had to “take out some guy.” Santine was not present, but Hudach related what Santine had told him earlier. Money had been discussed, but Hudach was not sure of the amount. Getsy later indicated that he participated in the shootings because he was scared of Santine, but did not do it for the money.
Sometime on July 6, 1995, Getsy, Hudach, and McNulty drove to the Serafino residence. They could not find a place to park so they returned to 24 1/2 South Main Street. When they returned, Santine was at the apartment and drove them back to the Serafino house. Getsy described the guns that they took with them, which included a shotgun, a SKS rifle, and a .357 magnum handgun.
Getsy explained that after Santine dropped them off, Hudach sprained his ankle and went back to where they were supposed to be picked up. Getsy stated, “[T]hat left me and Rick to get it done.” He admitted that what they were supposed to do was kill Chuckie Serafino.
Getsy explained that he and McNulty fired simultaneously through the sliding glass door on the back of the Serafino house. They entered the house through the shattered door and shot at Chuckie as he was running down the hall. When they saw Ann Serafino, Getsy stated, they “just kept shooting.”
During the interview with Begeot, Getsy was reluctant to mention Santine's name. He told Begeot that the same thing that happened last night could happen to him. He asked whether Santine would ever see the interview tape. Begeot assured Getsy that Santine would not be able to get to him. Getsy also asked Begeot if he was going to die, and Begeot told him, “No.”
Getsy admitted that he had the SKS rifle and the handgun during the shootings. He explained that when he was shooting the SKS, the clip fell out so he had to pull out the handgun.
Getsy's description of the weapons he and McNulty used was verified by physical evidence recovered at the scene. Michael Roberts, a forensic scientist, identified the projectiles recovered from the murder scene. None of the projectiles found outside the family room area, where the sliding glass door was blown out, was discharged by the shotgun which, according to Getsy, McNulty carried and fired. The projectiles linked to the shotgun were recovered in the family room.
Getsy admitted that they had been instructed to kill any witnesses. When Begeot asked him what they were told about witnesses in the house, Getsy replied, “[I]f we were seen, to do them, too.”
After the shootings, Hudach called Santine to tell him it was finished and to pick them up. Santine told Hudach that there were cops everywhere and that they should run through the woods to get back to the apartment. Santine also told Hudach to ditch the guns in the woods.
Getsy, McNulty, and Hudach arrived back at 24 1/2 South Main, where Josh Koch and Santine were waiting for them. Santine ordered them to take off their clothes and take a bath. Getsy was the last to bathe. When he came out of the bathroom, his clothes and boots were gone. He did not know what happened to them.
Koch testified that he was at 24 1/2 South Main Street on July 6 and 7, 1995. He knew that Getsy, McNulty, and Hudach were going out to do something for Santine, but they declined to give him any details. He was to watch TV and write down the shows that were on so the other three could memorize the list for an alibi.
After Getsy, McNulty, and Hudach left, Koch waited in the apartment. Santine came to the apartment and, sometime around 1:00 a.m., jumped up and said, “I heard the gunshots.” Immediately thereafter, the telephone rang and Koch heard Santine talking to someone in a fast, excited manner. Santine said, “So you killed them, right, you killed them both? * * * Okay. Well, I can't come pick you up. The cops are everywhere, they are pulling over everybody, you got to run through the woods and ditch the guns.” Santine hung up and happily screamed, “I fucking love these guys.”
According to Koch, Santine was very pleased with the three men. He said, “You guys want $10,000? I'll give you $10,000.” McNulty told him he just wanted a wedding ring for his girlfriend. Hudach said that it had been a favor for Santine. Getsy indicated that he needed money for his car.
The next day, Koch heard Getsy bragging to Patricia Lawson about shooting Ann Serafino. Getsy grabbed a piece of pizza with no cheese on it and said, “This looks just like this bitch's face after we shot her.”
Michael Dripps, a close friend of Getsy, McNulty, and Hudach, acknowledged that Getsy was happy, secure, and tough when he had a gun in his hand. Dripps was present at the lawn-care business when Gum-out had been used to wipe prints off the weapons before the Serafino shootings. Dripps heard Santine instruct Getsy, McNulty, and Hudach to kill Chuckie Serafino and all witnesses. Dripps also observed McNulty and Hudach in camouflage clothing on the night of the killing.
State v. Getsy, 84 Ohio St.3d 180, 702 N.E.2d 866, 873-75 (1998).
B. Procedural background
In July of 1995, an Ohio grand jury indicted Getsy for the aggravated murder of Ann Serafino, the attempted murder of Charles Serafino, and related charges that included aggravated burglary. The indictment also charged Getsy with three capital specifications that rendered him eligible for the death penalty, including: (1) murder or attempted murder of two or more people, (2) murder for hire, and (3) felony murder. Getsy proceeded to trial in July of 1996 and was ultimately found guilty of all charges and specifications. Following a penalty-phase hearing, the jury recommended that Getsy be sentenced to death. The trial judge accepted the jury's recommendation and imposed a sentence of death for the aggravated murder charge.
Getsy appealed to the Ohio Supreme Court, raising 17 claims of error. The Court affirmed Getsy's sentence and conviction as to all grounds raised. Getsy, 702 N.E.2d at 893. Simultaneously with his direct appeal, Getsy also filed a petition for state postconviction relief. The Ohio trial court denied his petition for relief, and the Ohio Supreme Court declined to hear his postconviction appeal. Subsequently, the Ohio Supreme Court summarily denied Getsy's application to reopen his direct appeal.
Having exhausted all of his state-court remedies, Getsy filed a petition in federal district court for habeas corpus relief pursuant to 28 U.S.C. § 2254. Getsy's habeas petition raised 21 separate claims of error, 2 of which the district court dismissed as defaulted and the remainder of which the court denied on the merits. The only issue that the district court certified for appeal was whether Getsy's sentence was unconstitutionally arbitrary and disproportionate in relation to that imposed on Santine. On appeal, this court expanded Getsy's Certificate of Appealability (COA) to include seven additional claims: (1) whether Getsy's due process rights were violated by the failure of the trial judge to recuse himself, (2) whether Getsy's confession was obtained knowingly and voluntarily, (3) whether Getsy was denied the right to a fair and impartial jury, (4) whether Getsy was denied his right to the effective assistance of counsel in the penalty phase of his trial, (5) whether sufficient evidence supported Getsy's conviction regarding the murder-for-hire aggravating circumstance, (6) whether the Ohio prosecutor improperly engaged in selective prosecution by seeking the death penalty against Getsy, and (7) whether the errors asserted had the cumulative effect of denying Getsy the due process of law.
A panel of this court reversed the judgment of the district court regarding Getsy's death sentence, holding that it was unconstitutionally arbitrary and disproportionate in relation to the life sentence received by Santine in a separate trial. Getsy v. Mitchell, 456 F.3d 575, 598 (6th Cir.2006), reh'g en banc granted, opinion vacated. The panel majority also remanded Getsy's claim of judicial bias for an evidentiary hearing. Id. at 595. Subsequently, the Warden petitioned this court to rehear Getsy's appeal en banc. We granted the petition for rehearing and vacated the panel decision in November of 2006.
II. ANALYSIS
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal court
may not grant a writ of habeas [corpus] to a petitioner in state custody with respect to any claim adjudicated on the merits in state court unless (1) the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court” ... or (2) the state court's decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.” Taylor v. Withrow, 288 F.3d 846, 850 (6th Cir.2002) (quoting 28 U.S.C. § 2254(d)). “A state court's legal decision is ‘contrary to’ clearly established federal law ... if the state court arrived at the conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decided a case differently than a Supreme Court decision on a set of materially indistinguishable facts.” Lopez v. Wilson, 426 F.3d 339, 342 (6th Cir.2005) (en banc). Alternatively, a state court decision will not be held to be an “unreasonable application” of clearly established federal law unless the decision is “objectively unreasonable,” not simply erroneous or incorrect. Williams v. Taylor, 529 U.S. 362, 409-11, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
B. Proportionality
The primary issue raised by Getsy, and the only issue certified for appeal by the district court, is whether Getsy's sentence was unconstitutionally arbitrary or disproportionate in relation to that received by Santine. Getsy's argument ultimately rests on the fact that Santine, the mastermind who directed codefendants Getsy, Hudach, and McNulty to kill Charles Serafino, did not receive the death penalty. Santine's indictment mirrored Getsy's. In a separate trial that took place after Getsy's, Santine was convicted of aggravated murder and aggravated burglary, but was acquitted of all the capital specifications charged and thus ineligible for the death penalty. Getsy claims that this disparity renders his death sentence arbitrary and disproportionate.
On direct review, the Ohio Supreme Court first addressed Getsy's related contention that Ohio's death penalty procedures are flawed because the court “limits itself to death cases when conducting its statutorily mandated proportionality review.” Getsy, 702 N.E.2d at 889. Relying on its decision in State v. Steffen, 31 Ohio St.3d 111, 509 N.E.2d 383, 386 (1987), which held that “[t]he proportionality review required by R.C. 2929.05(A) is satisfied by a review of those cases already decided by the reviewing court in which the death penalty has been imposed,” the Court summarily rejected Getsy's argument. The Court next independently reviewed Getsy's death sentence for appropriateness and proportionality pursuant to Ohio Rev.Code Ann. § 2929.05. Getsy, 702 N.E.2d at 889. Comparing Getsy's case to other similar murder-for-hire death penalty cases in Ohio, the Court concluded that “it is clear that imposing the death sentence on Getsy is not disproportionate.” Id. at 892.
Getsy renews his claim of arbitrariness and disproportionality before us en banc. At oral argument, Getsy's counsel conceded that Getsy's death sentence was not arbitrary or disproportionate at the time that it was imposed. Instead, Getsy contends that his sentence became unconstitutional only later when a different jury sentenced Santine to life imprisonment for his role in the same offenses. According to Getsy, Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), and their progeny establish a duty on the part of the Ohio Supreme Court to “correct this arbitrary and capricious sentence.” This argument, in our opinion, advocates a novel constitutional rule that Supreme Court precedent simply does not support, let alone dictate.
Getsy accurately asserts that the fractured majority holding in Furman has come to stand for the general principle that the arbitrary and disproportionate imposition of the death penalty violates the Eighth Amendment. See, e.g., Walton v. Arizona, 497 U.S. 639, 657, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990) (noting that Furman “has come to stand for the principle that a sentencer's discretion to return a death sentence must be constrained by specific standards, so that the death penalty is not inflicted in a random and capricious fashion”), overruled on other grounds by Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Proceeding from this abstract principle to the specific conclusion urged by Getsy-that his sentence was unconstitutionally arbitrary or disproportionate in relation to that of Santine-necessarily entails at least one of two additional premises: (1) that the Eighth Amendment requires comparative proportionality, or (2) that a rule of consistency applies regarding death-specification verdicts among separately tried coconspirators. These premises, however, have been disclaimed both by this court and by the Supreme Court.
Eighth Amendment proportionality, as defined by the Supreme Court, refers “to an abstract evaluation of the appropriateness of a sentence for a particular crime.” Pulley v. Harris, 465 U.S. 37, 42-43, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984) (holding that the petitioner was not constitutionally entitled to a proportionality review that would “compare Harris's sentence with the sentences imposed in similar capital cases”). Proportionality as defined by the Supreme Court evaluates a particular defendant's culpability for his crime in relation to the punishment that he has received. See, e.g., Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (reversing the death sentence of a mentally retarded defendant); Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) (reversing the death sentence of a defendant who did not himself take life, attempt to take life, or intend to take life); Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (reversing the death sentence of a defendant for the rape of an adult woman that did not result in her death). In each of these cases, the Supreme Court struck down a death sentence not because it was disproportionate in comparison to sentences received by other, similarly situated defendants, but because of what the Court deemed to be the inappropriateness of the sentence in relation to the particular characteristics of the crime and the criminal at issue. These cases are of no help to Getsy, a competent adult who personally and intentionally committed aggravated murder.
Unlike this absolute or individualized proportionality, Getsy's proportionality argument rests on a claim that his death sentence is disproportionate only by comparison to Santine's life sentence. In Pulley, the Supreme Court considered the precise argument asserted by Getsy-that the Constitution demands a comparative proportionality review that “purports to inquire ... whether the penalty is ... unacceptable in a particular case because [it is] disproportionate to the punishment imposed on others convicted of the same crime.” Pulley, 465 U.S. at 44, 104 S.Ct. 871. The Court squarely rejected this argument as contrary to its holdings in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), and Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). Pulley, 465 U.S. at 50-51, 104 S.Ct. 871. Three years later, the Court reaffirmed Pulley's holding in McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). In that case, the Court expressly held that a defendant could not “prove a constitutional violation by demonstrating that other defendants who may be similarly situated did not receive the death penalty.” McCleskey, 481 U.S. at 306-07, 107 S.Ct. 1756 (emphasis in original).
Our sister circuits have also recognized this well-established principle. See, e.g., Beardslee v. Woodford, 358 F.3d 560, 579-81 (9th Cir.2004) (rejecting the argument that “different sentences for equally culpable co-defendants violate the prohibition against arbitrary imposition of the death penalty in Furman,” and concluding that no constitutional error arose from the trial court's refusal to allow the codefendants' sentences into evidence); Bush v. Singletary, 99 F.3d 373, 375 (11th Cir.1996) (per curiam) (holding that no federal constitutional claim arose by reason of the fact that the defendant's death sentence was disproportionate to that of his codefendant, whose death sentence had been vacated on appeal); Hatch v. Oklahoma, 58 F.3d 1447, 1466 (10th Cir.1995) (rejecting the defendant's claim that the Constitution required “a proportionality review of his sentence relative only to his codefendant”), overruled in part on other grounds by Daniels v. United States, 254 F.3d 1180, 1188 n. 1 (10th Cir.2001); Russell v. Collins, 998 F.2d 1287, 1294 (5th Cir.1993) (denying relief to a habeas petitioner who argued that his death sentence was disproportionate to that of a codefendant who had pled guilty and been sentenced to 60 years in prison).
By statutorily incorporating a form of comparative proportionality review that compares a defendant's death sentence to others who have also received a sentence of death, Ohio's death penalty regime actually adds an additional safeguard beyond the requirements of the Eighth Amendment. See Steffen, 509 N.E.2d at 386. This additional form of review excludes from the precedents used for comparison all cases, like Santine's, where the sentence received was other than death. Id.
In an unbroken line of precedent, this court has upheld challenges to Ohio's limited comparative-proportionality review. “Since proportionality review is not required by the Constitution, states have great latitude in defining the pool of cases used for comparison”; therefore “limiting proportionality review to other cases already decided by the reviewing court in which the death penalty has been imposed” falls within this wide latitude. Williams v. Bagley, 380 F.3d 932, 962-63 (6th Cir.2004) (citing seven prior Sixth Circuit cases that have upheld Ohio's limited proportionality review against constitutional challenges).
Getsy attempts to distinguish this longstanding proposition that Ohio need not have even considered the very ground upon which his constitutional claim is based-that a similarly situated defendant received a life sentence-by narrowing his argument. He contends that, although Ohio need not systematically engage in comparative proportionality review as a general matter, its failure to do so in this case, where the mastermind of the plot was acquitted of all capital specifications, gives rise to a constitutional violation. This amounts to a thinly veiled argument that consistent capital-specification verdicts among separately tried coconspirators (in this case, participants in a murder-for-hire scheme) are required.
In the absence of case law for this specific proposition, Getsy asserts that Furman's broad prohibition against arbitrary and capricious death sentences somehow dictates the further leap to a consistency principle in capital cases. Getsy's counsel properly conceded at oral argument that the Supreme Court has never held that the Eighth Amendment requires such a rule of consistency. To the contrary, the Supreme Court has explicitly rejected the common-law rule of consistency in other contexts. See, e.g., United States v. Powell, 469 U.S. 57, 58, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984) (reaffirming the holding in Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932), that “a criminal defendant convicted by a jury on one count could not attack that conviction because it was inconsistent with the jury's verdict of acquittal on another count”). Nearly all courts to have addressed the issue since Powell-including our own-have concluded that the rule of consistency regarding verdicts even in a single trial is no longer good law. See United States v. Crayton, 357 F.3d 560, 565-66 (6th Cir.2004) (explaining that “the acquittal of all but one co-conspirator during the same trial does not necessarily indicate that the jury found no agreement to act,” and collecting cases from eight other circuits).
Moreover, we have long held that the common-law rule of consistency has no application to conflicting verdicts returned by different juries in separate trials. See United States v. Newton, 389 F.3d 631, 636 (6th Cir.2004) (noting that the rule of consistency “was not applied if coconspirators were separately tried”), vacated in part on other grounds, 546 U.S. 803, 126 S.Ct. 280, 163 L.Ed.2d 35 (2005); United States v. Sachs, 801 F.2d 839, 845 (6th Cir.1986) (“[I]f coconspirators are tried separately, the acquittal of all other coconspirators does not mandate acquittal as to the remaining conspirator.... In other words, it is not necessarily inconsistent for two juries to reach differing results.”); see also Cortis v. Kenney, 995 F.2d 838, 840 (8th Cir.1993) (same); United States v. Lewis, 716 F.2d 16, 22 (D.C.Cir.1983) (same); United States v. Sangmeister, 685 F.2d 1124, 1126-27 (9th Cir.1982) (same); United States v. Espinosa-Cerpa, 630 F.2d 328, 333 (5th Cir.1980) (same). This well-established precedent squarely precludes the old common-law rule from applying under the circumstances of this case.
Getsy simply had no constitutional guarantee that his jury would reach the same results as prior or future juries dealing with similar facts, irrespective of the offense with which he was charged. Criminal defendants are instead protected from irrational convictions by the due process requirement that a conviction must be supported by sufficient evidence. Powell, 469 U.S. at 67, 105 S.Ct. 471 (“[A] criminal defendant already is afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts. We do not believe that further safeguards against jury irrationality are necessary.”); see also Espinosa-Cerpa, 630 F.2d. at 332 n. 5 (explaining the ancient origin of the English common-law rule of consistency and “its inappropriateness to a modern American criminal system in which all verdicts obviously are, and always have been, subject to independent review for evidentiary support”). Thus, the constitutionality of Getsy's murder-for-hire conviction turns not on any fortuity regarding when he was tried or with whom, nor on the caprice permissible in another jury's decision to acquit on similar facts, but rather on the sufficiency of the evidence presented at his own trial.
Only where a court declares that the evidence is legally insufficient to support the conspiracy conviction of one defendant must the conviction of the sole coconspirator also be voided. Morrison v. California, 291 U.S. 82, 93, 54 S.Ct. 281, 78 L.Ed. 664 (1934) (reversing two defendants' joint conspiracy convictions where due process precluded the state's reliance on a legal presumption to establish an element of the conspiracy). We pause to emphasize that, contrary to the view of the dissent, “[a] court's determination that there is insufficient evidence to convict cannot be equated with a jury's determination that a defendant, for whatever reason, should be acquitted.” Crayton, 357 F.3d at 566. Apparently recognizing this fundamental distinction, Getsy himself has never argued that Morrison applies to his case, even in the wake of the original-panel majority's unwarranted reliance on that decision. Nevertheless, the dissent presses on with this argument, overlooking the critical distinction between a determination made by a court as a matter of law-with which Morrison dealt-and a jury verdict. (All discussion in this opinion of the dissent or the dissenting opinion refers to the lead dissent authored by Judge Merritt.)
Santine's case was allowed to go to a jury, and that jury ultimately acquitted him of the murder-for-hire specification. But the very fact that the issue was submitted to a jury indicates that the evidence against him was not so deficient that the trial court could decide the question as a matter of law. Furthermore, jury verdicts differ intrinsically from decisions made by a court. See Crayton, 357 F.3d at 566; see also Powell, 469 U.S. at 66, 105 S.Ct. 471 (noting, in the context of inconsistent verdicts in a single trial, that “[t]he fact that the inconsistency may be the result of lenity, coupled with the Government's inability to invoke review, suggests that inconsistent verdicts should not be reviewable”). Although the dissent points out that the Supreme Court has “never retracted or narrowed” the holding in Morrison, neither has the Court ever expanded it to require the reversal of one conspirator's conviction or sentence in light of a coconspirator's acquittal by a separate jury. Certainly Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), in which the Supreme Court reversed the death sentence of a defendant on the ground that he did not personally kill or intend to kill anyone, was not such a case.
We also disagree with the dissent's view that considerations of consistency, even if relevant, would require “Getsy's death verdict [to] be set aside.” Dissenting Op. at 325. Apart from the murder-for-hire capital specification, Getsy was also convicted of two other capital specifications-felony murder and attempted multiple murders-that do not necessarily conflict with the verdicts from Santine's trial. Getsy would therefore be entitled, at most, to a new penalty-phase hearing, not an outright voiding of his death sentence.
Ultimately, the question before us is whether the determination of the Ohio Supreme Court that Getsy's death sentence was not arbitrary or disproportionate was contrary to, or an unreasonable application of, clearly established federal law. As the above analysis demonstrates, clearly established federal law lends no support to Getsy's claim, with the relevant precedent actually pointing the other way. To grant habeas relief despite such an obvious void of clearly established authority contravening the state court's decision would both violate AEDPA and amount to the retroactive application of a new constitutional rule of criminal procedure in violation of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (barring, with exceptions inapplicable here, the retroactive application of a new rule of constitutional law in a collateral proceeding). We therefore decline to adopt Getsy's proportionality argument.
The dissent's references to Aristotle, Sir Francis Bacon, Sir Edward Coke, and English cases beginning in the year 1599 strike us as quite scholarly, even if only marginally relevant. Obviously the controlling law is that of the United States Supreme Court, not the King's Bench. What the dissent's historical exposition fails to cite is even a single instance in which the Supreme Court or any federal court has ever reversed one defendant's sentence or conviction based on another defendant's later acquittal by a separate jury. The dissent does not, because it cannot, explain how such a supposedly well-established rule has remained hidden within this country's federal jurisprudence for so long a time.
This is not to say that the incongruous results from the separate trials of Getsy and Santine are not a matter of concern. We share that concern, recognizing at the same time that reasonable people can disagree over the relative moral turpitude of the instigator of an assassination on the one hand and the killer hired to carry out the violent act on the other. Nevertheless, we are not empowered to answer this philosophical question by bypassing the limitations that both Congress and the Supreme Court have placed upon our power to grant relief under the circumstances of this case.
Perhaps some day the Supreme Court will hold that a comparison between the culpability of a hired killer and that of his instigator is constitutionally required, and that inconsistent verdicts arising from their separate trials are unconstitutional. But this is not the law of the land today, and was obviously not the “clearly established law” at the time that the Ohio Supreme Court affirmed Getsy's conviction and sentence in 1999. For this reason, as well as the others set forth above, we do not believe that the judgment of the Ohio Supreme Court on the issue of proportionality is contrary to or an unreasonable application of clearly established federal law as determined by the United States Supreme Court.
C. Judicial bias
As a second ground for habeas relief, Getsy asserts that his right to a fair trial was violated because Judge W. Wyatt McKay, the Ohio judge who presided over Getsy's trial, exhibited bias. Getsy's claim arises from events surrounding a picnic that took place in August of 1996, just after Getsy's trial had begun. The picnic was an annual event hosted by the Trumbull County judges. That year it was held at a home belonging to the mother of Trumbull County Court Judge Ronald Rice. Judge Rice's wife, Cynthia Rice, was one of the two prosecuting attorneys trying Getsy's case. Both Judge Rice and Cynthia Rice attended the party, as did Judge McKay and many other guests. While driving home from the picnic, Judge McKay was involved in a single-car accident and was ultimately charged with driving under the influence of alcohol (DUI). Judge McKay arrived late to court the next day wearing sunglasses and appearing to have bruises on his face, but Getsy's trial proceeded.
Upon learning of the incident through the media, Getsy filed a motion for a mistrial and for the disqualification of Judge McKay to try his case. He also filed an Affidavit of Disqualification against Judge McKay in the Ohio Supreme Court pursuant to Ohio Rev.Code Ann. § 2701.03. Chief Justice Moyer of the Ohio Supreme Court denied Getsy's motion on the ground that the “mere fact that a judge and an attorney attend the same social event does not mandate the judge's disqualification from pending cases involving that attorney.” In re Disqualification of McKay, 77 Ohio St.3d 1249, 674 N.E.2d 359 (1996). Citing an affidavit submitted by Judge McKay, Chief Justice Moyer also noted that any contact between the judge and the assistant prosecutor consisted of nothing more than the “passing of simple social amenities.” Id.
Following the denial of Getsy's Affidavit of Disqualification by the Ohio Supreme Court, Judge McKay brought in Judge John M. Stuard, a fellow Trumbull County judge with no connection to the case, to voir dire the jury regarding the DUI incident. This process revealed that only two jurors were aware of the incident, and both averred that it would not affect their ability to be fair and impartial. Judge McKay subsequently denied Getsy's motion for a mistrial and for disqualification, and denied Getsy's request for an evidentiary hearing on the matter. On direct review, the Ohio Supreme Court relied on Chief Justice Moyer's denial of Getsy's Affidavit of Disqualification in ruling against his judicial-bias argument. Getsy, 702 N.E.2d at 876.
Judge McKay's DUI prosecution overlapped with Getsy's trial. In order to avoid the appearance of impropriety, the Trumbull County Prosecutor's Office trying Getsy's case brought in a special prosecutor from neighboring Geauga County to prosecute Judge McKay. Ultimately, Judge McKay pled guilty to the DUI charge and was sentenced on September 5, 1996. Judge McKay's plea and sentencing thus followed the September 3, 1996 guilty verdict in Getsy's jury trial, but preceded the jury's death-sentence recommendation handed down on September 10, 1996 and Judge McKay's imposition of the death sentence on September 12, 1996.
Getsy's primary argument is that he is entitled to an evidentiary hearing to develop facts relevant to his judicial-bias claim. The district court denied Getsy's request for such a hearing. We will reverse a district court's denial of an evidentiary hearing only if the court abused its discretion. Abdus-Samad v. Bell, 420 F.3d 614, 626 (6th Cir.2005) (reciting that standard of review in affirming the denial of an evidentiary hearing). A district court abuses its discretion where it “applies the incorrect legal standard, misapplies the correct legal standard, or relies upon clearly erroneous findings of fact.” United States v. Martinez, 430 F.3d 317, 326 (6th Cir.2005) (quotation marks omitted).
Section 2254(e)(2) sets forth certain preconditions to obtaining an evidentiary hearing in a habeas proceeding where a petitioner has “failed to develop the factual basis of a claim in State court proceedings.” The Supreme Court has held that “failed” within the meaning of § 2254(e)(2) refers to “a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel.” Williams v. Taylor, 529 U.S. 420, 432, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). Here, Getsy sought to develop evidence regarding his judicial-bias claim both at trial and in his postconviction proceedings in state court. He has thus demonstrated diligence in accordance with § 2254(e)(2). See id. at 437, 120 S.Ct. 1479 (“Diligence will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law.”).
Although Getsy thus overcomes the initial statutory hurdle to obtaining a hearing, “the fact that [a petitioner] is not disqualified from receiving an evidentiary hearing under § 2254(e)(2) does not entitle him to one.” Bowling v. Parker, 344 F.3d 487, 512 (6th Cir.2003). The Supreme Court recently explained that, “[i]n deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief.” Schriro v. Landrigan, 550U.S. 465, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (2007); see also Bowling, 344 F.3d at 512 (determining that the district court's denial of an evidentiary hearing did not amount to an abuse of discretion after examining the following factors: whether the petitioner “alleges sufficient grounds for release,” whether “relevant facts are in dispute,” and whether the “state courts ... h[e]ld a full and fair evidentiary hearing”). Furthermore, “[b]ecause the deferential standards prescribed by § 2254 control whether to grant habeas relief, a federal court must take into account those standards in deciding whether an evidentiary hearing is appropriate.” Schriro, 127 S.Ct. at 1940.
We must therefore determine, as a threshold matter, whether Getsy alleges sufficient grounds for relief under AEDPA's deferential standard. Id. Getsy's judicial-bias argument focuses on two different elements: (1) the allegedly improper ex parte contact between Judge McKay and assistant prosecutor Rice at the picnic, and (2) the potential conflict of interest arising from Judge McKay's own pending prosecution. Upon examination, we conclude that neither of these arguments demonstrates that the district court abused its discretion in denying Getsy's request for a hearing.
“[T]he floor established by the Due Process Clause clearly requires a fair trial in a fair tribunal, before a judge with no actual bias against the defendant or interest in the outcome of his particular case.” Bracy v. Gramley, 520 U.S. 899, 904-05, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997) (emphasis added) (citation and quotation marks omitted). Under this standard, “[o]nly in the most extreme of cases would disqualification on the basis of bias and prejudice be constitutionally required.” Williams v. Anderson, 460 F.3d 789, 814 (6th Cir.2006) (brackets omitted) (quoting Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 821, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986)). Our judicial-bias inquiry is also informed by the Supreme Court's analysis of the federal statutory-recusal standard in Liteky v. United States, 510 U.S. 540, 552, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994), in which the Court explained that “the pejorative connotation of the terms ‘bias' and ‘prejudice’ demands that they be applied only to judicial predispositions that go beyond what is normal and acceptable.”
Getsy's first claim essentially amounts to an observation that Judge McKay attended the same annual judicial picnic that assistant prosecutor Rice and many others attended. Based on this, Getsy speculates that Judge McKay and Rice might have interacted to an unknown extent. As this court has previously observed, however, “ex parte contact does not, in itself, evidence any kind of bias.” Alley v. Bell, 307 F.3d 380, 388 (6th Cir.2002) (noting that the petitioner had not even “come close” to stating a judicial-bias claim where he alleged that the trial judge answered jurors' questions in the jury room during deliberations and later stopped by a picnic that the jurors were having on a weekend to say hello).
The Supreme Court reaffirmed in Bracy that courts ordinarily “presume that public officials have properly discharged their duties.” 520 U.S. at 909, 117 S.Ct. 1793 (quotation marks omitted). Nonetheless, the Court granted an evidentiary hearing in that case in part because the petitioner had successfully rebutted the presumption by showing that the trial judge was “thoroughly steeped in corruption.” Id. This corruption was evidenced by the judge's criminal conviction for accepting bribes in return for fixing cases. Id.
Getsy, by contrast, points to no events, either intrinsic or extrinsic to the proceedings, that evidence corruption or actual bias on the part of Judge McKay. Although Getsy suggests that Judge McKay might have been lying in his affidavit when he averred that he exchanged no more than social pleasantries with Rice at the picnic, Getsy offers nothing beyond such conjecture. We conclude that the district court did not abuse its discretion in denying Getsy a forum to question attendees of a picnic that occurred over 10 years ago in order to explore his unsupported speculation of improper communications between Judge McKay and Rice. See Bracy, 520 U.S. at 909, 117 S.Ct. 1793 (noting that, had the petitioner not overcome the presumption of propriety, the Court “might well [have] agree[d]” that his theory of bias was “too speculative to warrant discovery”); Murphy v. Johnson, 205 F.3d 809, 816 (5th Cir.2000) (affirming the district court's denial of an evidentiary hearing regarding the petitioner's allegations of a secret deal between the prosecutor and a trial witness where such a hearing would have been “tantamount to an impermissible fishing expedition”).
Getsy's contention that the pending criminal charges against Judge McKay might have impermissibly biased the judge similarly fails to assert a valid ground for relief. His primary argument is that Judge McKay's prosecution was conducted by “the same prosecuting authority” that prosecuted Getsy. In fact, however, a special prosecutor from neighboring Geauga County was brought in to conduct Judge McKay's criminal proceedings. This distinguishes the cases cited by Getsy for the proposition that an attorney who is himself prosecuted by the same office that is prosecuting his client might be laboring under a conflict of interest. See, e.g., Thompkins v. Cohen, 965 F.2d 330, 332-33 (7th Cir.1992) (noting that the prosecution of an attorney by the same office that is prosecuting his client might give rise to a conflict, but finding that no constitutional violation had occurred in relation to the lawyer's representation in that case).
Again, Getsy points to nothing that suggests actual bias on the part of Judge McKay. The remote possibility that currying favor with Getsy's prosecutor would somehow help the judge in dealing with the special prosecutor in his own case does not present a ground that a reasonable observer would believe improperly influenced Judge McKay's decisions in Getsy's trial. Williams, 460 F.3d at 813 (noting that due process “prohibits a defendant from being tried before a judge whose ‘substantial’ and ‘direct’ interests may be furthered by the outcome of the trial”). The only specific example Getsy cites of a trial decision allegedly influenced by bias is Judge McKay's decision to accept the jury's recommendation and impose the death sentence. But the jury convicted Getsy of three capital specifications, any one of which could legally have supported the sentence imposed. Moreover, the record reflects that Judge McKay accepted the jury's recommendation and imposed the death sentence after his own plea and sentencing for the DUI charges were completed. Even under Getsy's conflict-of-interest theory, therefore, this decision would have been untainted.
We recognize that Judge McKay's conduct in becoming intoxicated at a picnic attended by assistant prosecutor Rice and then driving while impaired exhibited poor decisionmaking. These actions, however, are distinct in character from misdeeds such as accepting bribes to fix cases that warranted an evidentiary hearing in Bracy. Because Getsy's allegations of judicial bias are insufficient to support a claim for habeas relief, we conclude that the district court did not abuse its discretion in denying his request for an evidentiary hearing. For the same reasons, we conclude that the Ohio Supreme Court's denial on the merits of Getsy's judicial-bias claim was neither contrary to nor an unreasonable application of clearly established federal law.
D. Ineffective assistance of counsel during the penalty phase
Getsy's third claim asserts that he received the ineffective assistance of counsel during the penalty phase of his trial. On direct review, the Ohio Court of Appeals and the Ohio Supreme Court determined that this claim lacked merit. The district court on habeas review agreed, and denied Getsy's petition regarding this claim. This issue was not reached by the original panel of this court in light of its grant of habeas relief on the proportionality issue.
We note at the outset that the extensive presentation of mitigating evidence put on by Getsy's counsel during the penalty phase demonstrated substantial investigation and preparation. Fourteen witnesses were called to testify on Getsy's behalf, including his grandfather, aunt, uncle, pastor, former wrestling coach, ex-girlfriend, and ex-girlfriend's father. Various family members and legal representatives of Getsy's codefendants also testified on Getsy's behalf. In addition to these lay witnesses, Getsy's counsel procured the services of Dr. James Eisenberg, a forensic psychologist, and called him to testify regarding Getsy's mental health.
Getsy must show, in order to demonstrate ineffective assistance, both that (1) his counsel's performance was deficient, and (2) the deficient performance prejudiced him. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish prejudice, a “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.” Id. at 694, 104 S.Ct. 2052. Despite his counsel's extensive mitigation presentation, Getsy points to two alleged deficiencies that he claims gave rise to constitutional violations. He first argues that counsel did not properly investigate his background or help prepare him to give his unsworn statement before the jury. The gist of this argument is that a more thorough investigation and better legal guidance in relation to his unsworn statement to the jury would have permitted Getsy to “corroborate[ ]” the testimony presented by other witnesses regarding his fear of Santine and his troubled childhood. He asserts that, with better preparation, he would have been able to present these considerations in a “more sympathetic and compelling manner” than the other witnesses.
The problem with this argument is that nearly all of the mitigating evidence that Getsy now asserts that he would have addressed in his unsworn statement would have been simply cumulative to the evidence actually presented to the jury through numerous other sources. As this court has explained, “the failure to present additional mitigating evidence that is ‘merely cumulative’ of that already presented does not rise to the level of a constitutional violation.” Broom v. Mitchell, 441 F.3d 392, 410 (6th Cir.2006). Instead, “in order to establish prejudice, the new evidence that a habeas petitioner presents must differ in a substantial way-in strength and subject matter-from the evidence actually presented at sentencing.” Hill v. Mitchell, 400 F.3d 308, 318-19 (6th Cir.2005) (collecting cases and holding that counsel's hiring of a mitigation psychologist the day before the penalty phase began did not result in prejudice, in part because the petitioner could not show how additional time would have resulted in materially different testimony).
Several witnesses, including Getsy's grandfather, aunt, and uncle, attested to Getsy's difficult upbringing and abusive family circumstances. In addition, attorneys and relatives of Getsy's codefendants testified regarding the friendships that existed among the codefendants, their relationship with Santine, and the lesser sentences that they received. Moreover, Getsy himself explained in his unsworn statement to the jury how he believed that his group of friends had come under Santine's influence, how his own fear of Santine developed, and how he had allegedly committed his crimes under duress.
Getsy relies in particular on an affidavit that he submitted during his postconviction proceedings in which he asserted that, with effective assistance, he would have been able to expand upon certain specific topics in his unsworn statement. Close examination reveals, however, that the topics asserted were either already thoroughly addressed by Getsy and the other mitigation witnesses, or simply would have been immaterial. For example, Getsy argues that three “critical events” in his life were never brought to the jury's attention: (1) at the age of five, Getsy saw a window blown out by gunfire in the home of his stepfather, Jim Thrasher, and that Getsy was handed a shotgun during the incident, (2) Getsy had been around guns his entire life and “became obsessed with guns,” and (3) he “spent a great deal of time in the woods.” But Getsy's aunt in fact testified to the shooting incident at Thrasher's home and to the fact that Getsy's adoptive father, Bill Getsy, was himself “obsessed with guns” and introduced Getsy to guns at a young age.
Moreover, in comparison to other cases granting habeas relief for ineffective assistance of counsel during the penalty phase, the supposed revelations cited by Getsy concerning his background fail to meet the high bar for demonstrating a constitutional violation. See, e.g., Wiggins v. Smith, 539 U.S. 510, 515-17, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (holding that ineffective assistance occurred where counsel introduced “no evidence of [the defendant's] life history” despite existing evidence of brutal childhood abuse); Dickerson v. Bagley, 453 F.3d 690, 698-99 (6th Cir.2006) (holding that counsel's failure to present mitigation evidence regarding the defendant's borderline mental retardation constituted prejudice).
Getsy's second ineffective-assistance argument addresses his counsel's alleged failure to adequately prepare and present Dr. Eisenberg's expert testimony. Prior to trial, Dr. Eisenberg met with Getsy on five different occasions for a total of 12 to 13 hours. In addition, he reviewed Getsy's school records, the various pieces of evidence used at trial, and conducted interviews with many of Getsy's friends and family members.
In support of his ineffective-assistance argument regarding Dr. Eisenberg's expert testimony, Getsy relies on an affidavit submitted by Dr. Eisenberg in which the latter explained that “I do not believe that I was able to communicate the [mitigatory] information that I possessed to the jury due to the lack of time defense counsel spent with me regarding my testimony.” Dr. Eisenberg in particular claims that he “was not able to discuss the issue of obedience to authority” which “helped to explain why the defendants were unable to resist [Santine's] authoritative pronouncement to kill Chuckie Serafino.”
A review of Dr. Eisenberg's testimony, however, demonstrates that he extensively discussed the influence that Santine exerted over Getsy and the other codefendants, as well as the duress which he opined drove Getsy to kill. When asked to explain why he believed Getsy committed the crimes at issue, Dr. Eisenberg responded as follows:
A. ... I think the inexperience on Jason's part is another factor and something I alluded to in my report is his obedience to authority. I think Jason believed that John Santine had the authority to order this.
Q. It is your opinion that he was intimidated by Mr. Santine?
A. Yes.
...
Q. In what ways is Jason's case different from other death penalty defendants that you have interviewed, sir?
A. ... The dynamics of these three boys, all relatively young, certainly not much life experience amongst these three boys, and four if you include Mike Dripps. I think the intimidation factor from John Santine, I don't think I've ever done a death penalty case quite as remarkably intimidating as this, with the exception of some cults that I've worked with.
The relationships among Getsy, Hudach, and McNulty, as well as their relationship with Santine, were, in fact, central themes of Dr. Eisenberg's testimony. Dr. Eisenberg also discussed in detail Getsy's troubled childhood and its effect on his mental state. Moreover, Getsy's counsel introduced Dr. Eisenberg's written report into evidence, which contained an entire section titled “Obedience to Authority” that explained the psychological basis for Getsy's obedience to Santine's authority.
Getsy's conclusory assertions that his trial counsel failed to conduct a reasonable investigation and failed to assist Getsy or Dr. Eisenberg with their testimonial presentations ultimately amount to very little. He cites nothing outside of what the jury already heard in various forms through the 14 mitigation witnesses presented. See Hill, 400 F.3d at 318-19. We therefore conclude that the Ohio Supreme Court's denial of Getsy's ineffective-assistance-of-counsel claim was not contrary to or an unreasonable application of clearly established federal law.
E. Other issues
Both the district court and the original panel of this court denied Getsy relief based on his claims that (1) the introduction of his videotaped confession at trial was improper, (2) his jury was not fair and impartial, and (3) he was selectively prosecuted. We agree with the original panel's disposition of these issues and therefore reinstate the portions of the original decision addressing them. Getsy, 456 F.3d at 596-98 (addressing those claims in Parts V.A., B., and C.), vacated; see Rubin v. Schottenstein, Zox & Dunn, 143 F.3d 263, 270 (6th Cir.1998) (reinstating, en banc, a portion of the original panel's decision).
This leaves two remaining issues raised by Getsy before the original panel that it did not reach: (1) his claim that insufficient evidence supported his conviction on the murder-for-hire aggravating circumstance, and (2) his claim that the cumulative effect of all of the grounds he asserts collectively violated his constitutional rights. We will now address both of those claims. See Wilson v. Beebe, 770 F.2d 578, 590 (6th Cir.1985) (addressing en banc an issue that the parties had raised before the original panel but that the panel had not addressed).
1. Sufficiency of the evidence supporting murder for hire
The Ohio Supreme Court concluded that sufficient evidence supported Getsy's conviction on the murder-for-hire aggravating circumstance. Getsy's habeas petition regarding this claim was denied by the district court. Whether Getsy is entitled to habeas relief ultimately depends on whether the Ohio Supreme Court's denial was based on an unreasonable application of clearly established federal law regarding the sufficiency of the evidence. The applicable standard inquires “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original).
As the Ohio Supreme Court noted, the most compelling evidence that Getsy committed the murder in exchange for compensation comes from Getsy's own confession:
Q. OK. What was discussed there at the house when you come over between you and Ben Hudach?
A. He said that we had something to do, we had to do.
...
Q What did he tell you you had to do?
A. Said we had to take out some guy.
...
Q. Was it Ben that was telling you this, or was it John Santine that was telling you this? Be honest now.
A. It was Ben but it came from John.
Q. He said you guys had to take this guy out?
A. Yes.
Q. So basically John was directing this through Ben?
A. Yes, sir.
Q. Were you guys to receive something for doing this?
A. He mentioned money.
Q. Talk up.
A. Mentioned money.
Q. How much money?
A. I really can't remember; it was four (4) digits.
Q. Ten Thousand?
A. No.
Q. Five Thousand?
A. Ten, five, somewhere like that.
...
Q. ... So, you get to the house; Ben starts telling you you guys are going to get paid about $5,000-each, or $5,000 total?
A. I don't know.
Q. OK. To do this guy?
A. Yes
....
Q. Did you get your money?
A. No.
Q. Why not?
A. ‘Cause we were going to get it later. It wasn't for the money, I was doing it because I was scared.
In addition to Getsy's confession, Joshua Koch testified that Santine himself specifically discussed compensation with Getsy and his codefendants after the attack was over:
Q. Did [Santine] say anything else?
A. He said how much he was pleased with them and he asked them in the room, “You guys want $10,000, I'll give you $10,000.” Rick said he just wanted a wedding ring for his girlfriend. John said he would get his girlfriend the biggest f* * *ing diamond ring in the world.
Q. Did Ben indicate what he wanted?
A. Ben jumped forward and said that this was a favor for John Santine, he took care of him.
Q. Did Jason ever say anything?
A. He interrupted and made it clear that he was doing it for money.
Q. And what did he need the money for?
A. Something about his car, he had something that he had to pay for, maybe payments, maybe insurance.
Q. So he told John that night that he needed the money to help pay for his car?
A. Right.
Koch's testimony, combined with Getsy's confession, supports a finding that Santine procured the commission of Serafino's murder in exchange for money, and that Getsy acceded to the arrangement. Getsy's confession establishes that the offer of money was made prior to and specifically in exchange for the “take out.” Although Getsy asserts that the money played only a small role in the killing, Koch testified to the contrary that Getsy was, in fact, motivated to commit the murder by the offer of money. Compare State v. Yarbrough, 95 Ohio St.3d 227, 767 N.E.2d 216, 240 (2002) (holding that sufficient evidence supported the murder-for-hire conviction of the appellant where a witness both “heard the conversation in which Calvin Davis hired appellant to kill Arnett” and “actually saw McGhee pay his portion in cash”) with State v. Lindsey, 87 Ohio St.3d 479, 721 N.E.2d 995, 1001 (2000) (noting that the trial court had dismissed the murder-for-hire specification where the state had “failed to present any evidence of compensation”).
In response, Getsy contends that “there was substantial evidence demonstrating that Santine threatened and coerced [Getsy and his codefendants] into the shooting of Chuckie Serafino.” But even if true, this observation simply establishes that Getsy may have been motivated by additional concerns beyond remuneration. A reasonable juror could have decided to credit Koch's testimony that Getsy “made it clear he was doing it for the money.” “Circumstantial evidence alone is sufficient to sustain a conviction and such evidence need not remove every reasonable hypothesis except that of guilt.” United States v. Barnett, 398 F.3d 516, 522 (6th Cir.2005). Similarly, as addressed in Part II.B. above, the fact that a different jury acquitted Santine of the murder-for-hire specification is of no consequence to the question of whether a reasonable juror at Getsy's trial could have determined otherwise beyond a reasonable doubt. We find no basis to conclude that the Ohio Supreme Court's denial of Getsy's sufficiency-of-the-evidence claim was unreasonable.
2. Cumulative error
Getsy's final claim asserts that, even if none of the trial errors he alleges warrants habeas relief individually, their collective effect violated his constitutional rights. Getsy failed to raise this claim before the state court, but the Warden has not raised the issue of procedural default and has thereby waived it. See Slagle v. Bagley, 457 F.3d 501, 514 (6th Cir.2006) (noting that the defense of procedural default may be waived by failing to assert it). Assuming without deciding that cumulative error can form the basis for § 2254 habeas relief, Getsy is not entitled to such relief in this case. The above analysis demonstrates that Getsy has not shown the existence of any constitutional error at trial. His cumulative-error claim therefore fails because there are simply no errors to cumulate. See Baze v. Parker, 371 F.3d 310, 330 (6th Cir.2004) (“Because Baze cannot establish any errors to cumulate and because his theory that errors can be considered in the aggregate depends on non-Supreme Court precedent, this claim is also without merit.”).
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.
A. Factual background
A. Standard of review