Executed November 13, 2012 10:34 a.m. by Lethal Injection in Ohio
38th murderer executed in U.S. in 2012
1315th murderer executed in U.S. since 1976
2nd murderer executed in Ohio in 2012
49th murderer executed in Ohio since 1976
(Race/Sex/Age at Murder-Execution) |
Birth |
(Race/Sex/Age at Murder) |
Murder |
Murder |
to Murderer |
Sentence |
||||
(38) |
Brett Xavier Hartman W / M / 23 - 38 |
Winda Snipes W / F / 46 |
Knife x138 |
Citations:
State v. Hartman, 93 Ohio St.3d 274, 754 N.E.2d 1150 (Ohio 1991). (Direct Appeal)
Hartman v. Bagley, 492 F.3d 347 (6th Cir. 2007). (Habeas)
Final/Special Meal:
Steak with sauteed mushrooms, fried shrimp, baked potato with butter and sour cream, macaroni and cheese, vanilla ice cream with walnuts, Pepsi, Dr Pepper and Honeycomb cereal with milk.
Final Words:
“I’m good, let’s roll.”
Internet Sources:
Ohio Department of Rehabilitation and Correction
BRETT XAVIER HARTMAN
Number: CCI#: A357869
Date of Birth: 06/29/1974
Gender: Male Race: White
Date of Offense:
County of Conviction: Summit
Institution: Chillicothe Correctional Institution
Executed: 11/13/2012
On November 13, 2012, Brett Xavier Hartman was executed for the 1997 aggravated murder of Winda Snipes.
Ohio Department of Rehabilitation and Correction (Clemency Report)
IN RE: BRETT XAVIER HARTMAN, CCI #A357-869
STATE OF OHIO ADULT PAROLE AUTHORITY
Date of Meeting: October 10, 2012
CRIME, CONVICTION: Aggravated Murder, Kidnapping, Tampering With evidence
DATE, PLACE OF CRIME: September 9, 1997 in Akron, Ohio
COUNTY: Summit
CASE NUMBER: CR97-09-1987
VICTIM: Winda Snipes (age 46)
INDICTMENT: September 17, 1997 Aggravated Murder, Tampering With Evidence
VERDICT: April 30, 1998, Guilty as charged.
DATE OF SENTENCE: May 22, 1998
SENTENCE: DEATH; 10 Years
ADMITTED TO INSTITUTION: June 2, 1998
JAIL TIME CREDIT: 11 days
TIME SERVED: 172 Months
AGE AT ADMISSION: 23 years old
CURRENT AGE: 38 years old
DATE OF BIRTH: June 29, 1974
JUDGES: Honorable Michael T. Callahan
PROSECUTING ATTORNEY: Sherri Bevan-Walsh
"Ohio executes killer who stabbed woman 138 times," by Andrew Welsh-Huggins. (Associated Press Tuesday November 13, 2012 1:10 PM)
LUCASVILLE, Ohio — Ohio today executed a condemned killer who claimed he was innocent of stabbing a woman 138 times, slitting her throat and cutting off her hands. The time of death for Brett Hartman was 10:34, said warden Donald Morgan of the Southern Ohio Correctional Facility in Lucasville. “I’m good, let’s roll,” Hartman said in his final words.
Hartman acknowledged that he had sex with Winda Snipes early on the morning of Sept. 9, 1997, at her Akron apartment. He also says he went back to Snipes’ apartment later that day, found her mutilated body and panicked, trying to clean up the mess before calling 911. But Hartman said he didn’t kill her, a claim rejected by numerous courts over the years.
Hartman came within about a week of execution in 2009 before federal courts allowed him to pursue an innocence claim. When that claim failed, Hartman had a new date set last year, but that was postponed because of a federal lawsuit over Ohio’s execution policy. The Ohio Parole Board unanimously denied Hartman’s requests for clemency three times, citing the brutality of the Snipes’ slaying and the “overwhelming evidence” of Hartman’s guilt.
Hartman’s attorneys have long said that crucial evidence from the crime scene and Snipes’ body had never been tested, raising questions about Hartman’s innocence. The evidence included fingerprints allegedly found on a clock and a mop handle. Hartman also argued that the evidence could implicate an alternate suspect. The attorneys argued that in any case, Hartman should still have been spared because of the effects of a “remarkably chaotic and nomadic early childhood,” including being abandoned by his mother and left with an aunt on an isolated Indian reservation.
"Ohio executes Brett Hartman for 1997 murder of Akron woman." (Associated Press November 13, 2012 at 11:39 AM)
LUCASVILLE, Ohio -- Ohio on Tuesday executed a condemned killer who claimed he was innocent of stabbing a woman 138 times, slitting her throat and cutting off her hands. “I’m good, let’s roll,” Brett Hartman said in his final words. He then smiled in the direction of his sister and repeatedly gave her, a friend and his attorney a “thumbs up” with his left hand. He then said something inaudible to warden Donald Morgan, who didn’t respond.
The effect of the single dose of pentobarbital did not seem as immediate as in other executions at the state prison in Lucasville, in southern Ohio. Four minutes after Hartman first appeared to be reacting to it as his abdomen began to rise and fall, his abdomen rose and fell again, he coughed and his head shifted rhythmically for a few moments. His sister, Diane Morretti, dabbed at her eyes during the process. The warden declared Hartman’s time of death as 10:34. Hartman was the 49th inmate put to death since Ohio resumed executions in 1999.
Hartman acknowledged that he had sex with Winda Snipes early on the morning of Sept. 9, 1997 at her Akron apartment. He also says he went back to Snipes’ apartment later that day, found her mutilated body and panicked, trying to clean up the mess before calling 911. But Hartman said he didn’t kill her, a claim rejected by numerous courts over the years.
Hartman came within about a week of execution in 2009 before federal courts allowed him to pursue an innocence claim. When that claim failed, Hartman had a new date set last year, but that was postponed because of a federal lawsuit over Ohio’s execution policy. The Ohio Parole Board had unanimously denied Hartman’s requests for clemency three times, citing the brutality of the Snipes’ slaying and the “overwhelming evidence” of Hartman’s guilt.
Hartman’s attorneys have long said that crucial evidence from the crime scene and Snipes’ body had never been tested, raising questions about Hartman’s innocence. The evidence included fingerprints allegedly found on a clock and a mop handle. Hartman also argued the evidence could implicate an alternate suspect. The attorneys had argued that if Hartman’s innocence claim wasn’t accepted, he should still be spared because of the effects of a “remarkably chaotic and nomadic early childhood,” including being abandoned by his mother and left with an aunt on an isolated Indian reservation. His lawyers also said Hartman’s behavior in prison was exemplary and showed he was a changed man. They cited his devotion to religious studies, his development as an artist and community service projects in prison. The state opposed those arguments, citing the strength of the evidence and the fact that courts have repeatedly upheld Hartman’s conviction and death sentence. The state also said Hartman refused to take responsibility and show remorse.
"Ohio executes man who stabbed woman 138 times," by Kim Palmer. (Tue Nov 13, 2012 12:29pm EST)
(Reuters) - An Ohio man who stabbed a woman 138 times and cut off her hands was put to death on Tuesday in the state's third execution since the lifting of a six-month moratorium imposed by a judge last year. Brett Xavier Hartman, 38, was convicted of the murder 15 years ago of Winda Snipes in Akron, Ohio. The time of his death by lethal injection was 10:34 a.m. (1534 GMT). Before his execution, he said, "I'm good, let's roll," according to JoEllen Smith, spokeswoman for the Ohio Department of Rehabilitation and Correction.
Hartman met Snipes, 46, at a bar in Akron and admitted they had sex several times before she was found murdered in her apartment on September 9, 1997. Hartman was convicted in April 1998 of tying Snipes to her bed and stabbing her 138 times, slitting her throat and cutting off her hands. They were never found. At trial prosecutors introduced statements Hartman made to police, a co-worker and a fellow inmate mentioning cutting off Snipes' hands to eliminate evidence. Hartman also admitted he made two anonymous 911 calls to police and afterward hid behind a tree as police searched Snipes' apartment.
While in prison, Hartman became an ordained minister for the Christ Assembly of Churches and continued to maintain his innocence. Summit County Prosecutor Sherri Bevan Walsh said the evidence was "overwhelming that he brutally stabbed and mutilated Winda Snipes." "Hopefully Winda's friends and family can now start the healing process," said Walsh.
For his last meal, Hartman chose steak with sauteed mushrooms, fried shrimp, baked potato with butter and sour cream, macaroni and cheese, vanilla ice cream with walnuts, Pepsi, Dr Pepper and Honeycomb cereal with milk, Smith said. Hartman ate most of the food with the exception of the macaroni and cheese.
The Ohio Parole Board unanimously recommended against clemency in October, and Ohio Republican Governor John Kasich denied clemency November 5. Hartman was denied clemency three times and his execution was twice delayed. In 2009 federal courts allowed him to pursue an innocence claim, and in 2011 he was spared because of a federal lawsuit over Ohio's death penalty. He was the 38th person put to death in the United States this year and the third in Ohio.
Brett Hartmann, An Innocent Man on Ohio's Death Row
Brett Hartmann, An Innocent Man on Ohio's Death Row Brett was a single man of 23 at the time of his arrest. He shared an apartment and living expenses with his mother, who had just had hip replacement surgery, while working as a chef for a well recognized restaurant.
Brett has always been a compassionate person, never confrontational, facing life with great inner strength, a tremendous sense of humor, and a thirst for learning. He is a man with a ready smile, well liked by all who know him.
On September 10th, 1997, Brett was arrested for the murder of Winda Snipes. This was after Brett had made anonymous calls to 911 to report finding the victim There can be no doubt that the brutal nature of her death made this a high profile case with an urgency to be solved. Brett's trial started on April 14th, 1998. He was found guilty on April 30th, 1998. Brett was sentenced to death on May 22nd, 1998. This is a very short period of time for a death penalty case.
Brett's family and supporters have always known that Brett is innocent. Much of his case has not been able to be looked at on appeal because post conviction attorneys missed crucial filing dates. His case contains many of the components typically found in wrongful convictions. We welcome the opportunity to share with you some of that information.
FAST FACTS
There is new evidence in Brett's case that was hidden by the state of Ohio and his attorneys at his trial. Bits of it are mentioned here, or you can follow it by starting on the case synopsis page.
Other Suspect / Suspects
A friend of the victim testified that he had witnessed another person threaten the victim. The threats that he was a witness to are exactly what happened, Two other neighbors reported and testified, that they witnessed these types of exchanges between the victim and this other person. That person also had access to the buildings master keys. The man was questioned by detectives and his home was searched. He provided an alibi for his whereabouts on September 9, but only for the hours after 9 p.m., not the hours prior, when it appears Snipes was killed. Also of note; another person was picked up for disposing of a knife similar to what was believed to have been used in Winda's murder. This person was given a polygraph test, but the results may have been affected by the medications the person was prescribed for mental health reasons. (See Linda Skidmore Statement.)
Brett's alibi;
At the time of the crime, Brett was at home. There are phone records showing that he was there,making and receiving calls from his home during the time of the crime. The person who he had been talking to on the phone testified in court to that effect. A family member was able to testify that they witnessed him home at the time in question. Both of these testimonies were discredited at trial when the coroner tailored his testimony about the time of death, which we now have the documents to show.
Jail House Snitch / Informant Testimony
A "jail house snitch" was allowed to testify at Brett's trial. This person "received reduced, or dropped charges for his cooperation in a further matter of the state" after his testimony. His testimony at trial did not match the crime. The state also sites this jail house snitch testimony as one of the key factors in Brett's conviction. Testimony that was known to be perjured, yet difficult to show, until recently. (See Jail House Snitch / Informant Testimony.)
"The Tee Shirt"
This shirt has been mentioned in many reports and news articles, In fact, the United States District Court Northern District of Ohio considered it the "crux" of the states case against Brett. We now have documents to show this was bad science at trial. More about this shirt can be found on the Blood Spatter page and the Events page.
The Watch
This has also been mentioned in many reports and news articles. This watch, a common brand, was found sitting in plain view on Brett's dresser and was never tested for DNA. It has since been cleaned and released from evidence.
Brett's cooperation
Brett voluntarily cooperated with the investigation. This included having his entire body photographed, which only showed as the police described, a well healed scuff on his elbow. Nothing consistent with an attack as brutal as the one Winda had suffered. This also included taking a lie detector test. When inquiries were made about the results of that test, the police" claimed" that the machine had not been working properly.
Brett's fingerprints were found at the victims home.
They did know each other, and had a casual friendship. Brett was the person who discovered the victim, called 911, and cooperated voluntarily in all aspects thereafter. Yet there are new documents showing fingerprints were found on numerous items, items that in all likely hood were touched by the person who killed Winda. This information and these documents were hidden at Brett's trial, along with perjured testimony from Detectives saying in court that this evidence was not collected. There would have been no reason to hide this information if they had belonged to Brett or Winda. Some evidence was not collected until a month later and much of what had been collected has not been tested or made available to Brett's defense.
The jury.
One jury member had a daughter in law who had served on a jury that had acquitted a defendant of a murder charge. The victims family then harassed several jury members following the not guilty verdict. Defense counsel did not challenge the fact that this juror remained, or the effect on the rest of the jury. Nor was the jury ever informed that a single juror's negative vote could prevent a death sentence.
Justice Pfeiffer stated, "The record does not contain proof beyond a reasonable doubt that a kidnapping occurred." "I would reverse the kidnapping conviction and felony murder conviction and vacate the sentence of death". Please note; if the death sentence were to be vacated, an innocent man would still be imprisoned,and would no longer have access to legal assistance. Nor does a death sentence being vacated always remove the person from an execution status.
While the court may agree that Brett's defense council made mistakes, they do not consider this "Gross Negligence". Yet Brett may be executed due to these mistakes, many issues were not brought up on appeal because of missed filing dates.
CASE SYNOPSIS
Brett was arrested on September 10th, 1997 for the murder of Winda D. Snipes. Brett was the person who discovered Winda, and placed a series of 911 calls to report it. Initially Brett was not the key suspect in this murder. It was only his actions after finding her and how he reported it that placed a shadow over his innocence, making him a convenient and instant suspect. There was a jump to arrest and convict Brett which is shown by the way the investigation was conducted, evidence was handled, and the press releases made by the police department.
In fact, after Brett's arrest, but prior to Brett's indictment, deputy Police Chief Michael Matulavich admitted during a press conference that they did not have enough evidence to charge Brett. That was until they thought they had found new evidence that would break the case. They indicted Brett and then went to collect this evidence. Even though this "big break" turned out to be nothing, they had already indicted Brett and released it to the media, they then went ahead with his trial.
When Brett went to trial he faced a prosecutor who was well known to be overzealous, and would try to win at all costs. She was also known to over indict, violate disclosure rules, withhold evidence, and then target defense attorney's who opposed her. Brett faced this with a defense team that did little to nothing to defend him. Never asking or accepting Brett's side of events, saying that they preferred to let the evidence tell them what happened, and then relied on the "State's evidence" for trial.
The crux of the state's case relied on erroneous blood spatter evidence in regard to Brett's tee shirt, and the testimony of a man who has misrepresented his credentials, manipulated data, is facing ethics charges, and under suspicion due to evidence that had been altered while in his chain of custody. In addition to this, the state also sites the jail house snitch testimony as one of the key factors in Brett's conviction. Testimony that was known to be perjured, yet difficult to show, until recently.
The state has also sited that Brett's DNA that was recovered from the body, as was the second DNA test that was obtained post conviction, as an indication of guilt, What they have avoided was the fact that Brett did have consensual sex with the victim prior to her death, she had been seen alive afterwards, and that the second test showed that the time of death was tailored to negate Brett's alibi and obtain a conviction. What should also be of note is a watch and a knife found sitting in plain view upon Brett's dresser. A watch that was entered into evidence at trial as belonging to the victim, yet had never been tested for DNA and was a common brand. A watch that has since been, cleaned and released from evidence. The knife, a pocket knife that was never connected to the murder.
The state's case not only contains circumstantial evidence, but also includes, hidden exculpatory evidence, testimony that shows deliberate misleading statements, perjured testimony, sloppy investigation and processing of evidence.
Brett was sentenced to death May 22nd, 1998. He has been given an execution date of November 13, 2012.
Brett Hartman Execution: Convict To Be Killed For Murdering Winda Snipes," by AndrewWalsh-Huggins. (11/13/12 07:56 PM ET EST)
LUCASVILLE, Ohio — Ohio on Tuesday executed a condemned killer who calmly went to his death still claiming he was innocent of stabbing a "woman 138 times, slitting her throat and cutting off her hands. "I'm good, let's roll," Brett Hartman said in his final words. He then smiled in the direction of his sister and repeatedly gave her, a friend and his attorney a "thumbs up" with his left hand. "This is not going to defeat me," Hartman then said to warden Donald Morgan, who didn't respond.
The effect of the single dose of pentobarbital did not seem as immediate as in other executions at the state prison in Lucasville, in southern Ohio. Four minutes after Hartman first appeared to be reacting to it as his abdomen began to rise and fall, his abdomen rose and fell again, he coughed and his head shifted rhythmically for a few moments. His sister, Diane Morretti, dabbed at her eyes during the process. The warden declared Hartman's time of death as 10:34. Both Hartman's attorney, David Stebbins, and prisons system spokeswoman JoEllen Smith said the gap between Hartman's movements was not out of the ordinary.
Hartman was the 49th inmate put to death since Ohio resumed executions in 1999.
Hartman acknowledged that he had sex with Winda Snipes early on the morning of Sept. 9, 1997 at her Akron apartment. He also says he went back to Snipes' apartment later that day, found her mutilated body and panicked, trying to clean up the mess before calling 911. But Hartman said he didn't kill her, a claim rejected by numerous courts over the years. A former co-worker and friend of Snipes who witnessed the execution said afterward that the family was relieved the case was over and that the continuous rounds of appeals and media reports about the case were at an end. Jacqueline Brown of Doylestown in northeast Ohio also flatly dismissed Hartman's innocence claim.
"He's very, very, very guilty," she said afterward. "Now Winda can be at peace, and that's what it's all about." Stebbins read a statement from Hartman's family in which they professed his innocence and asked for additional testing of scene evidence. "We hope that the taking of Brett's innocent life might serve as a wake-up call to the flaws in our legal system," the statement said.
Hartman came within about a week of execution in 2009 before federal courts allowed him to pursue an innocence claim. When that claim failed, Hartman had a new date set last year, but that was postponed because of a federal lawsuit over Ohio's execution policy. The Ohio Parole Board had unanimously denied Hartman's requests for clemency three times, citing the brutality of the Snipes' slaying and the "overwhelming evidence" of Hartman's guilt.
Hartman's attorneys long said that crucial evidence from the crime scene and Snipes' body had never been tested, raising questions about Hartman's innocence. The evidence included fingerprints allegedly found on a clock and a mop handle. Hartman also argued the evidence could implicate an alternate suspect. The attorneys argued that if Hartman's innocence claim wasn't accepted, he should still have been be spared because of the effects of a "remarkably chaotic and nomadic early childhood," including being abandoned by his mother and left with an aunt on an isolated Indian reservation. His lawyers also said Hartman's behavior in prison was exemplary and showed he was a changed man. They cited his devotion to religious studies, his development as an artist and community service projects in prison. The state opposed those arguments, citing the strength of the evidence and the fact that courts have repeatedly upheld Hartman's conviction and death sentence. The state also said Hartman refused to take responsibility and show remorse.
Brett Hartmann met Winda Snipes at a bar in Akron, Ohio, sometime during 1997. Subsequently, they engaged in sexual intercourse on several occasions. During the late afternoon of September 9, 1997, Hartmann went to Wanda's apartment and brutally murdered her by tying her to the bed, stabbing her one hundred thirty-eight times, slitting her throat, and cutting off her hands. Around 2:20 a.m. on September 9, 1997,
Hartmann met Wanda at the Bucket Shop, an Akron bar. Hartmann kissed Wanda on the cheek and they talked. Thereafter, Hartmann and Wanda left the bar and they went to her apartment across the street. Around 3:00 a.m., David Morris, an acquaintance of Hartmann and Wanda, left the Inn Between, another Akron bar. While walking past Wanda's apartment on his way home, Morris observed Wanda and Hartmann through the upstairs window of her apartment. Morris testified that Wanda was yelling at Hartmann about touching stuff that was not his. Hartmann closed the window blinds and “obviously she wasn't very happy about it” because she “scolded” him and reopened the blinds. That afternoon, at around 4:30 p.m., Wanda was observed crossing a street in a nearby business district. She was never seen alive again.
Hartmann had the day off from work on September 9. According to Richard Russell, a bartender at the Inn Between, Hartmann entered the bar at around 8:00 p.m. and appeared nervous and hyper, and talked excessively. Thereafter, Hartmann was in and out of the bar five to six times between 9:00 and 10:30 p.m. Hartmann first contacted the police on September 9 with a series of anonymous 911 calls, which he later admitted to. His first 911 call at 9:59 p.m. reported the location of a mutilated body. The police officers dispatched to Wanda's address entered Wanda's apartment building and checked around, but left after finding nothing unusual. Meanwhile, Hartmann viewed the police unit's arrival and departure while hiding behind a tree across the street. Hartmann then made another 911 call telling the police to return to the apartment building and provided further instructions on the body's location.
Akron police officers responding to this call entered Wanda's unlocked apartment and found her naked, mutilated body lying on the bedroom floor. Wanda's leg was draped across the bed, a pair of pantyhose tied her ankle to the bed leg, and a white plastic chair was on top of her body. Wanda's hands were cut off and have never been found. Around 10:45 p.m., Hartmann was at the Inn Between with Morris, while police units were across the street investigating Wanda's murder. Morris, having learned that Wanda had been murdered, suggested to Hartmann that he should talk to the police, since Morris had observed Hartmann at Wanda's apartment the previous evening. Shortly before midnight, Hartmann approached Detective Gregory Harrison while he was at a mobile crime lab parked outside Wanda's apartment. Hartmann walked up to Harrison and said, “I hear it's pretty bad in there,” and asked if Harrison had “ever seen anything so gruesome.” Later that evening, Hartmann approached Harrison a second time and spontaneously mentioned that Wanda was a whore, “that she slept around a lot,” and that “he had slept with her * * * and he had even slept with her the night before at 3:00.” In their final contact at around 3:00 a.m., Hartmann was “kind of mumbling to himself” and Harrison heard Hartmann say that “she was a whore, she was a big whore, she got what she deserved.”
Between 11:30 p.m. and 12:15 a.m., Hartmann also approached Akron Police Lt. John A. Lawson near the murder scene and, “rather abruptly said, ‘You're going to find my semen in her and my prints over there.’?” When Lawson asked why, Hartmann said he “had been with her earlier that morning, the morning of the 9th,” and that he had had sex with her. At 12:15 a.m. on September 10, Hartmann spoke to Detective Joseph Urbank in front of the apartment building. Hartmann began their conversation by announcing that “he had sex with the victim the night before.” Moreover, Hartmann said he did not know her name but “only knew her as psycho bitch and that everybody knew that if you got drunk and were horny you went to go see her, you went to go see psycho bitch.” Hartmann also told Urbank that he went to Wanda's apartment at 2:30 a.m. on September 9, and “she started dancing a little bit.” He “lifted her onto the bed, undressed her,” and “they started having vaginal intercourse.” Hartmann said that he was disappointed because Wanda refused to have anal intercourse, and he left her apartment around 3:30 a.m. However, Hartmann claimed that he did not know anything about the murder until the bartender at the Inn Between told him about it on the evening of September 9. Around 6:00 a.m. on September 10, police took Hartmann to the Akron police station, where he was interviewed by Lawson and Urbank.
During his interview, Hartmann denied making the 911 calls, and denied hiding behind a tree across from Wanda's apartment. Then, Hartmann changed a part of his story and admitted hiding behind a tree near the murder scene. Following the September 10 police interview, the police searched Hartmann's apartment with his consent. The police seized Hartmann's bloody tee-shirt from underneath the headboard of his bed, a pair of his jeans, and his boots. Police found a knife on his dresser and Wanda's wristwatch on Hartmann's bed stand. Police took Hartmann to the police station after the search of his apartment. While awaiting transfer to the Summit County Jail, Hartmann approached Detective John R. Gilbride and blurted out, “I was the one that called the police” and “I'm the one that found the body.”?Hartmann told Gilbride he had been sexually involved with Wanda since February 1997, and had sexual intercourse with Wanda during the early morning hours of September 9. Hartmann stated that “after having sex the psycho bitch threw him out of the apartment stating that her boyfriend was coming over.” He left around 3:30 a.m. and returned to his own apartment.
According to Gilbride, Hartmann said that he slept until 6:00 p.m. on September 9, and then took the bus to the Inn Between bar around 7:30 p.m. Gilbride testified that while going into the Inn Between bar, Hartmann noticed a light on in Wanda's apartment and decided to visit her. According to Gilbride, Hartmann gained entry to the apartment through an unlocked door and claimed that he found her dead body in her bedroom. Hartmann said that he unsuccessfully tried to pick her body off the floor, noticed that her hands had been cut off, and “freaked out.” Thinking “I'm going to get busted for this,” Hartmann washed her blood off his hands and clothes, tried wiping down everything he touched, removed evidence linking him to her apartment, and went home. Wanda was stabbed one hundred thirty-eight times. Bruising on her ankles indicated that she was alive when she was tied to the bed. Additionally, sperm was found in her vagina and anus. The medical examiner concluded that Wanda had died from strangulation and a slit throat either in the late afternoon or early evening of September 9.
Police found Hartmann's bloody fingerprint on the leg of the white chair draped over Wanda's body, and police found another of Hartmann's fingerprints on Wanda's bedspread. An expert witness testified that the long linear blood patterns found on Hartmann's tee-shirt and Wanda's bedspread were applied by a long-bladed knife. Further, the blood patterns found on Hartmann's tee-shirt were applied while the tee-shirt was lying flat, and not while Hartmann was wearing it. At trial, the prosecution introduced a set of Hartmann's knives, including a meat cleaver, a knife, and a knife sharpener that Hartmann kept at the Quaker Square Hilton, where he worked as a chef. Christopher Hoffman, a Hilton co-worker, testified that he talked to Hartmann in August 1997 about the O.J. Simpson trial. According to Hoffman, Hartmann said that Simpson could have disposed of evidence against him by cutting off the victim's hands and eliminating “fibers and hair and skin that might be found on the fingernails.” Bryan Tyson, a fellow inmate at the Summit County Jail, testified that during a jailhouse conversation, Hartmann admitted that he had killed Wanda. According to Tyson, Hartmann said that “he pushed himself on her, something in his mind snapped, she was hitting him, he lost his temper, did things he regretted, killed her.” Then, Hartmann said that he had “tried to make it look like a burglary,” admitted cutting off Wanda's hands, and mentioned a hacksaw, and jokingly said “?‘Don't leave home without it,’ like the credit card commercial.”
Ohio Death Row: Brett Hartman News & Blog
Contact: Governor Kasich
Riffe Center, 30th Floor 77
South High Street
Columbus, OH 43215-6108
Phone: (614) 466-3555
Fax: (614) 466-9354
Ohio Attorney General - 2011 Capital Crimes Annual Report
List of individuals executed in Ohio
A list of individuals convicted of murder that have been executed by the U.S. State of Ohio since 1976. All were executed by lethal injection.
1. Wilford Berry, Jr. (19 February 1999) Charles Mitroff
2. Jay D. Scott (14 June 2001) Vinnie M. Price
3. John William Byrd, Jr. (19 February 2002) Monte Tewksbury
4. Alton Coleman (26 April 2002) Tonnie Storey and Marlene Walters
5. Robert Anthony Buell (24 September 2002) Krista Lea Harrison
6. Richard Edwin Fox (February 12, 2003) Leslie Renae Keckler
7. David M. Brewer (April 29, 2003) Sherry Byrne
8. Ernest Martin (June 18, 2003) Robert Robinson
9. Lewis Williams, Jr. (14 January 2004) Leoma Chmielewski
10. John Glenn Roe (3 February 2004) Donette Crawford
11. William Dean Wickline (30 March 2004) Peggy and Christopher Lerch
12. William G. Zuern, Jr. (8 June 2004) Phillip Pence
13. Stephen Allan Vrabel (14 July 2004) Susan Clemente and Lisa Clemente
14. Scott Andrew Mink (July 20, 2004) William Mink and Sheila Mink
15. Adremy Dennis (October 13, 2004) Kurt Kyle
16. William Smith (March 8, 2005) Mary Bradford
17. Herman Dale Ashworth (27 September 2005) Daniel L. Baker
18. William James Williams, Jr. (25 October 2005) William Dent, Alfonda R. Madison, Sr., Eric Howard and Theodore Wynn Jr.
19. John R. Hicks (29 November 2005) Brandy Green
20. Glenn L. Benner II (7 February 2006) Trina Bowser, Cynthia Sedgwick
21. Joseph L. Clark (4 May 2006) David Manning
22. Rocky Barton (12 July 2006) Kimbirli Jo Barton
23. Darrell Ferguson (8 August 2006) David A. Gowdown, Dennis J. Langer, Jeffrey M. Welbaum
24. Jeffrey Lundgren (24 October 2006) Dennis Avery, Cheryl Avery, Trina Avery, Rebecca Avery, Karen Avery
25. James J. Filiaggi (24 April 2007) Lisa Huff Filiaggi
26. Christopher J. Newton (24 May 2007) Jason Brewer
27. Richard Cooey (October 14, 2008) Wendy Offredo and Dawn McCreery
28. Gregory Bryant-Bey (November 19, 2008) Dale Pinkelman
29. Daniel E. Wilson (June 3, 2009) Carol Lutz
30. John Fautenberry (July 14, 2009) Joseph Daron Jr.
31. Marvallous Keene (July 21, 2009) Joseph Wilkerson, Danita Gullette, Sarah Abraham, Marvin Washington, Wendy Cottrill
32. Jason Getsy (August 18, 2009) Ann R. Serafino
33. Kenneth Biros (December 8, 2009) Tami Engstrom
34. Vernon Lamont Smith (January 7, 2010) Sohail Darwish
35. Mark Aaron Brown (February 4, 2010) Isam Salman, Hayder Al Tuyrk
36. Lawrence Reynolds Jr. (March 16, 2010) Loretta Mae Foster
37. Darryl Durr (April 20, 2010) Angel Vincent
38. Michael Francis Beuke (May 14, 2010) Michael Craig
39. William Garner (July 13, 2010) Deondra Freeman, Richard Gaines, Markeca Mason, Mykkila Mason, and Denitra Satterwhite
40. Roderick Davie (August 10, 2010 John Ira Colema Tracey Jeffries
41. Michael Benge (October 6, 2010) Judith Gabbard
42. Frank G. Spisak Jr. (February 17, 2011) Rev. Horace Rickerson, Timothy Sheehan, Brian Warford
43. Johnnie R. Baston (March 10, 2011) Chong Mah
44. Clarence Carter (April 12, 2011) Johnny Allen
45. Daniel Lee Bedford (May 17, 2011) Gwen Toepfert, John Smith
46. Reginald Brooks (November 15, 2011 Reginald Brooks Jr., Vaughn Brooks, Niarchos Brooks.
47. Mark Wayne Wiles (April 18, 2012) Mark Klima
48. Donald Palmer (September 20, 2012) Charles Sponhaltz and Steven Vargo
49. Brett Xavier Hartman (November 13, 2012) Winda Snipes
State v. Hartman, 93 Ohio St.3d 274, 754 N.E.2d 1150 (Ohio 1991). (Direct Appeal)
Defendant was convicted following jury trial in the Court of Common Pleas, Summit County, of aggravated felony murder, kidnapping, and capital specification of murder during kidnapping and was sentenced to death. Defendant appealed. The Supreme Court, Lundberg Stratton, J., held that: (1) conviction for kidnapping, as capital specification and as an offense separate from aggravated murder, was supported by evidence that defendant tied victim to bed while she was still alive, stabbed her 138 times, slit her throat, and strangled her to death; (2) evidence concerning cutlery set owned by defendant was admissible; (3) digitally enhanced fingerprint evidence was admissible; (4) crime scene and autopsy photographs were admissible; (5) defense counsel's concession of blame at penalty phase was not ineffective assistance; (6) testimony by co-worker, that celebrity charged in high-profile murder case could have eliminated evidence by cutting off victim's hands, was admissible to establish identity; and (7) aggravating circumstance of murder during a kidnapping outweighed mitigating evidence, and death sentence was appropriate when compared to other kidnapping-murder cases. Cook, J., concurred in judgment. Pfeifer, J., filed a dissenting opinion.
Lundberg Stratton, J. In this appeal, defendant-appellant, Brett X. Hartman, raises thirteen propositions of law. Finding none meritorious, we affirm his convictions. We have also independently weighed the aggravating circumstance against the mitigating factors and compared his sentence to those imposed in similar cases, as R.C. 2929.05(A) requires. As a result, we affirm defendant's convictions and sentence of death.
Defendant met Winda Snipes at a bar in Akron, Ohio, sometime during 1997. Subsequently, they engaged in sexual intercourse on several occasions. During the late afternoon of September 9, 1997, defendant went to Snipes's apartment and brutally murdered her by tying her to the bed, stabbing her one hundred thirty-eight times, slitting her throat, and cutting off her hands. Defendant was convicted of aggravated murder, kidnapping, and tampering with evidence, and sentenced to death. In order to establish defendant's guilt, the state introduced statements defendant had made to the police and to a fellow inmate in jail, and the testimony of a co-worker that defendant mentioned cutting off a victim's hands as a way to eliminate evidence in the O.J. Simpson case. The state also introduced as evidence defendant's bloody tee-shirt and Snipes's watch recovered from defendant's apartment, and forensic testimony linking defendant to the murder.
State's case
Around 2:20 a.m. on September 9, 1997, defendant met Snipes at the Bucket Shop, an Akron bar. Defendant kissed Snipes on the cheek and they talked. Thereafter, defendant and Snipes left the bar and they went to her apartment across the street. Around 3:00 a.m., David Morris, an acquaintance of defendant and Snipes, left the Inn Between, another Akron bar. While walking past Snipes's apartment on his way home, Morris observed Snipes and defendant through the upstairs window of her apartment. Morris testified that Snipes was yelling at defendant about touching stuff that was not his. Defendant closed the window blinds and “obviously she wasn't very happy about it” because she “scolded” him and reopened the blinds. That afternoon, at around 4:30 p.m., Snipes was observed crossing a street in a nearby business district. She was never seen alive again.
Defendant had the day off from work on September 9. According to Richard Russell, a bartender at the Inn Between, defendant entered the bar at around 8:00 p.m. and appeared nervous and hyper, and talked excessively. Thereafter, defendant was in and out of the bar five to six times between 9:00 and 10:30 p.m. Defendant first contacted the police on September 9 with a series of anonymous 911 calls, which he later admitted to. His first 911 call at 9:59 p.m. reported the location of a mutilated body. The police officers dispatched to Snipes's address entered Snipes's apartment building and checked around, but left after finding nothing unusual. Meanwhile, defendant viewed the police unit's arrival and departure while hiding behind a tree across the street. Defendant then made another 911 call telling the police to return to the apartment building and provided further instructions on the body's location.
Akron police officers responding to this call entered Snipes's unlocked apartment and found her naked, mutilated body lying on the bedroom floor. Snipes's leg was draped across the bed, a pair of pantyhose tied her ankle to the bed leg, and a white plastic chair was on top of her body. Snipes's hands were cut off and have never been found. Around 10:45 p.m., defendant was at the Inn Between with Morris, while police units were across the street investigating Snipes's murder. Morris, having learned that Snipes had been murdered, suggested to defendant that he should talk to the police, since Morris had observed defendant at Snipes's apartment the previous evening. Shortly before midnight, defendant approached Detective Gregory Harrison while he was at a mobile crime lab parked outside Snipes's apartment. Defendant walked up to Harrison and said, “I hear it's pretty bad in there,” and asked if Harrison had “ever seen anything so gruesome.” Later that evening, defendant approached Harrison a second time and spontaneously mentioned that Snipes was a whore, “that she slept around a lot,” and that “he had slept with her * * * and he had even slept with her the night before at 3:00.” In their final contact at around 3:00 a.m., defendant was “kind of mumbling to himself” and Harrison heard defendant say that “she was a whore, she was a big whore, she got what she deserved.” Between 11:30 p.m. and 12:15 a.m., defendant also approached Akron Police Lt. John A. Lawson near the murder scene and, “rather abruptly said, ‘You're going to find my semen in her and my prints over there.’ ” When Lawson asked why, defendant said he “had been with her earlier that morning, the morning of the 9th,” and that he had had sex with her.
At 12:15 a.m. on September 10, defendant spoke to Detective Joseph Urbank in front of the apartment building. Defendant began their conversation by announcing that “he had sex with the victim the night before.” Moreover, defendant said he did not know her name but “only knew her as psycho bitch and that everybody knew that if you got drunk and were horny you went to go see her, you went to go see psycho bitch.” Defendant also told Urbank that he went to Snipes's apartment at 2:30 a.m. on September 9, and “she started dancing a little bit.” He “lifted her onto the bed, undressed her,” and “they started having vaginal intercourse.” Defendant said that he was disappointed because Snipes refused to have anal intercourse, and he left her apartment around 3:30 a.m. However, defendant claimed that he did not know anything about the murder until the bartender at the Inn Between told him about it on the evening of September 9.
Around 6:00 a.m. on September 10, police took defendant to the Akron police station, where he was interviewed by Lawson and Urbank. During his interview, defendant denied making the 911 calls, and denied hiding behind a tree across from Snipes's apartment. Then, defendant changed a part of his story and admitted hiding behind a tree near the murder scene. Following the September 10 police interview, the police searched defendant's apartment with his consent. The police seized defendant's bloody tee-shirt from underneath the headboard of his bed, a pair of his jeans, and his boots. Police found a knife on his dresser and Snipes's wristwatch on defendant's bed stand. Police took defendant to the police station after the search of his apartment. While awaiting transfer to the Summit County Jail, defendant approached Detective John R. Gilbride and blurted out, “I was the one that called the police” and “I'm the one that found the body.”
Defendant told Gilbride he had been sexually involved with Snipes since February 1997, and had sexual intercourse with Snipes during the early morning hours of September 9. Defendant stated that “after having sex the psycho bitch threw him out of the apartment stating that her boyfriend was coming over.” He left around 3:30 a.m. and returned to his own apartment. According to Gilbride, defendant said that he slept until 6:00 p.m. on September 9, and then took the bus to the Inn Between bar around 7:30 p.m. Gilbride testified that while going into the Inn Between bar, defendant noticed a light on in Snipes's apartment and decided to visit her. According to Gilbride, defendant gained entry to the apartment through an unlocked door and claimed that he found her dead body in her bedroom. Defendant said that he unsuccessfully tried to pick her body off the floor, noticed that her hands had been cut off, and “freaked out.” Thinking “I'm going to get busted for this,” defendant washed her blood off his hands and clothes, tried wiping down everything he touched, removed evidence linking him to her apartment, and went home.
Snipes was stabbed one hundred thirty-eight times. Bruising on her ankles indicated that she was alive when she was tied to the bed. Additionally, sperm was found in her vagina and anus. The medical examiner concluded that Snipes had died from strangulation and a slit throat either in the late afternoon or early evening of September 9. Police found defendant's bloody fingerprint on the leg of the white chair draped over Snipes's body, and police found another of defendant's fingerprints on Snipes's bedspread. An expert witness testified that the long linear blood patterns found on defendant's tee-shirt and Snipes's bedspread were applied by a long-bladed knife. Further, the blood patterns found on defendant's tee-shirt were applied while the tee-shirt was lying flat, and not while defendant was wearing it. At trial, the prosecution introduced a set of defendant's knives, including a meat cleaver, a knife, and a knife sharpener that defendant kept at the Quaker Square Hilton, where he worked as a chef.
Christopher Hoffman, a Hilton co-worker, testified that he talked to defendant in August 1997 about the O.J. Simpson trial. According to Hoffman, defendant said that Simpson could have disposed of evidence against him by cutting off the victim's hands and eliminating “fibers and hair and skin that might be found on the fingernails.” Bryan Tyson, a fellow inmate at the Summit County Jail, testified that during a jailhouse conversation, defendant admitted that he had killed Snipes. According to Tyson, defendant said that “he pushed himself on her, something in his mind snapped, she was hitting him, he lost his temper, did things he regretted, killed her.” Then, defendant said that he had “tried to make it look like a burglary,” admitted cutting off Snipes's hands, and mentioned a hacksaw, and jokingly said “ ‘Don't leave home without it,’ like the credit card commercial.”
Defense case
Jessica O'Neill, an acquaintance of defendant, talked on the phone with defendant on September 9. Phone records showed that O'Neill called defendant's apartment and spoke with him at 3:12 p.m. and 4:50 p.m. She also claimed that she talked with defendant on the phone around 6:30 or 7:00 p.m. The defense also introduced evidence suggesting an alternative suspect, Jeff Nichols. Nichols lived across the hallway from Snipes's apartment until he moved out of his apartment around September 1, 1997. Nichols worked as a handyman for the apartment building and had access to the landlord's keys to other apartments.
In January 1997, Jeffrey Barnes, a friend of Snipes, was visiting Snipes's apartment when Nichols came to her door. According to Barnes, Nichols “got up right to her door and then he said, ‘Slit the bitch's throat, cut her up,’ and called her a slut and all other kind of vulgar names.” Barnes reported this incident to the police upon hearing about Snipes's murder. On an evening prior to September 1, 1997, Linda Zarski, a neighbor in Snipes's apartment building, heard Snipes pounding on Nichols's door and screaming that she wanted her shirt. On another occasion prior to the murder, Linda Kinebrew, a neighbor living at the apartment, “heard [Nichols] arguing, telling [Snipes] to let him in and she wouldn't.” Carol Parcell, defendant's mother, provided an alibi. Defendant lived at his mother's apartment, and Parcell claimed that when she came home on September 9 at 6:15 p.m., her son was sleeping in his bedroom. According to Parcell, defendant woke up at 7:00 p.m., got ready, left the apartment at 7:30 p.m., and returned to the apartment around 8:15 p.m.
Defendant testified on his own behalf. He admitted having sex with Snipes several times over the past year and during the early morning hours of September 9 when he was at Snipes's apartment. After having sex, defendant returned to his apartment at about 3:30 a.m., slept until 6:15 p.m., left his apartment at 7:35 p.m., and returned to the Inn Between bar. Before reaching the Inn Between, defendant noticed that Snipes's bathroom light was on at her apartment, and he decided to visit her to see if he could “get laid.” Defendant entered Snipes's apartment through an unlocked door and found her mutilated body in the bedroom. Defendant tried to “get her up and put her on the bed * * * to see if there was anything else I could help with.” Defendant “freaked out” after noticing Snipes had no hands and realized he “could get in a lot of trouble” if he was placed at the scene. Thus, he washed her blood off his hands, wiped down the cupboards, chair handles, and anything else he might have touched, gathered whatever items he could find that belonged to him, and left Snipes's apartment. Defendant “ran home” and threw the items taken from Snipes's apartment into a nearby dumpster. Upon arriving home, defendant changed his shoes and hid the bloody tee-shirt so that his mother would not find it. Thereafter, defendant hurried back to the Inn Between bar and started drinking. When he was “semi-intoxicated,” defendant made the anonymous 911 calls reporting the location of Snipes's body, admitted standing behind a tree watching the police arrive at Snipes's apartment, and later approached the police to report that he had been at the apartment the previous evening.
Defendant introduced photographs taken of his naked body following his arrest to show the absence of bruises and injuries. Defendant explained that a cut on his elbow had occurred at work while he was moving crates. Defendant acknowledged talking with Chris Hoffman about the O.J. Simpson case but did not recall discussing anything about cutting off a victim's hands. Defendant knew Tyson as a fellow inmate but denied making any jailhouse admissions that he murdered Snipes.
Trial result
The grand jury indicted defendant on two counts of aggravated murder, including one count of murder with prior calculation and design and one count of felony murder. A capital specification relating to murder during a kidnapping was included in the felony murder count. He was also charged with kidnapping and tampering with evidence. The jury found defendant guilty of all offenses and recommended death for Snipes's murder. The trial court sentenced defendant to ten years for kidnapping, five years for tampering with evidence, and death for the aggravated murder of Snipes. Defendant now directly appeals to this court as a matter of right.
Sufficiency of the evidence
In proposition of law I, defendant challenges the sufficiency of the evidence for the aggravated felony murder, the capital specification, and the separately charged kidnapping offense, all on the basis that the state had failed to prove kidnapping.
In reviewing a record for sufficiency, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. “[T]he weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts.” State v. DeHass (1967), 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212, paragraph one of the syllabus. The capital specification that defendant was convicted of was kidnapping: “committing, attempting to commit, or fleeing immediately after committing or attempting to commit kidnapping.” R.C. 2929.04(A)(7). Defendant was also convicted of the separate offense of kidnapping Snipes. R.C. 2905.01, as charged in this case, prohibits using force, threat, or deception to remove a person from the place where she is found or restrain her liberty for purpose of facilitating the commission of a felony or flight thereafter, to terrorize or inflict serious physical harm, or to engage in sexual activity against her will. R.C. 2905.01(A)(2), (3) and (4).
Defendant argues that in view of State v. Logan (1979), 60 Ohio St.2d 126, 14 O.O.3d 373, 397 N.E.2d 1345, the state failed to present sufficient evidence of either the elements of kidnapping or an animus separate from the aggravated murder to sustain his convictions on these charges. In Logan, we held that where murder is the underlying crime, “a kidnapping in facilitation thereof would generally constitute a separately cognizable offense.” Id. at 135, 14 O.O.3d at 379, 397 N.E.2d at 1352. However, the test to determine whether the kidnapping was committed with a separate animus so as to support a separate conviction is whether “the restraint or movement of the victim is merely incidental to a separate underlying crime” or, instead, whether it has a “significance independent of the other offense.” Id. at syllabus; see, also, State v. Simko (1994), 71 Ohio St.3d 483, 488, 644 N.E.2d 345, 351. In State v. Seiber (1990), 56 Ohio St.3d 4, 564 N.E.2d 408, we found kidnapping where the defendant and his accomplice entered a bar with guns drawn, blocked the exit, and repeatedly ordered bar patrons to lie on the floor. The defendant then spent several minutes roaming the bar, threatening to kill several people. When one of the patrons refused to comply with the demands, the defendant shot and killed him. Under these facts, we held in Seiber that a jury could reasonably conclude that the defendant had restrained the murder victim of his liberty and that this evidence was sufficient to support the kidnapping charge.
Here, the facts present more compelling evidence of kidnapping than in Seiber. Defendant tied Snipes to the bed, gagged her, stabbed her one hundred thirty-eight times, slit her throat, and strangled her to death. Moreover, bruising on Snipes's ankles established that she was alive when she was tied to the bed. The evidence therefore shows that Snipes's kidnapping, i.e., the restraint, was completed prior to her murder and that the restraint was not merely incidental to her murder. Therefore, the prosecution presented sufficient evidence to prove not only kidnapping, but also an animus for kidnapping separate from Snipes's aggravated murder. Accordingly, we reject proposition I.
Trial issues
Other acts evidence. In proposition of law III, defendant argues that the trial court erred in admitting “other acts” evidence in three instances.
First, defendant claims that the trial court erred by permitting testimony about knives and the introduction of knives that were never connected to the murder. However, defendant's failure to object to this evidence at trial waived all but plain error. State v. Childs (1968), 14 Ohio St.2d 56, 62, 43 O.O.2d 119, 123, 236 N.E.2d 545, 549. See, also, State v. Greer (1988), 39 Ohio St.3d 236, 244, 530 N.E.2d 382, 394, applying the waiver rule to capital cases. The admission of defendant's knives rested upon a question of relevancy. Evid.R. 401 provides: “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” The admission or exclusion of relevant evidence rests within the sound discretion of the trial court. See State v. Sage (1987), 31 Ohio St.3d 173, 31 OBR 375, 510 N.E.2d 343, paragraph two of the syllabus. The police went to the Quaker Square Hilton where defendant worked as a chef and seized a set of knives belonging to him. At trial, the prosecutor introduced into evidence defendant's cutlery set consisting of a knife sharpener, a high carbon knife, and a meat cleaver. The admission of defendant's knives showed defendant's easy access to a possible murder weapon and his familiarity with using knives. Such evidence was particularly relevant, since Snipes was stabbed one hundred thirty-eight times, her throat was slit, and her hands were cut off. Moreover, the medical examiner's testimony suggested that the assailant probably knew what he was doing when he cut off the victim's hands. He pointed out that this “disarticulation is such that there is a cut right at the end of the bone, radius bone, * * * and the cut is such that bone itself was not sawed or cut. There are ligaments in this area so that one can cut across the ligaments and the hand can be removed with just [a] few incisions.” Thus, defendant's ownership of a set of knives and his familiarity and use of knives at work were relevant considering the surgical precision of the removal of Snipes's hands. Therefore, we reject any claim that this evidence constituted plain error.
Defendant next claims that the trial court erred by allowing testimony about his prior DUI convictions. Detective John Gilbride was present when defendant was being held at the police station on September 10 awaiting transport to the county jail. Defendant and Gilbride began to talk. The prosecutor asked Gilbride the following question on direct examination: “Q. Okay. So, then, what did he tell you about the morning of September 8th? “A. He stated on the morning of September 8th he left his home to go to work at the Quaker Square Hilton. He states that he's a cook at that establishment and on this day he was working from nine to five. “He states he rides the bus to and from work due to a previous DUI.”
However, the defense counsel failed to object to this evidence at trial, and waived all but plain error. State v. Childs, 14 Ohio St.2d at 62, 43 O.O.2d at 123, 236 N.E.2d at 549. Moreover, we find that this evidence supported the defense theory of the case and that any error was harmless. In his testimony, defendant emphasized that he was a heavy drinker and consumed large amounts of alcohol on September 8 and 9. Further, defendant testified that he had several DUIs and had actually lost his driver's license as a result. Defendant testified that his intoxication explains his behavior. For example, his intoxication explained why he approached police at the murder scene. According to defendant, “I started thinking that I was drunk when I was there [in Snipes's apartment] and I was drunk that morning before, there's places that I touched all over the place that I don't remember; so I figured eventually they would find my fingerprints there.” Here, defendant's admitted history of alcohol abuse, including his admission of having previous DUIs, was presented as an important part of his defense. Thus, Gilbride's testimony about defendant's DUI was not plain error.
Finally, defendant claims that the trial court erred by allowing testimony that he had blood on his boots because he “face stomped” a black man six months before. The police found boot marks in Snipes's kitchen and bathroom and seized defendant's boots at the police station. When they took his boots, defendant asked, “What are they looking for, DNA?” Urbank said yes, and asked, “Would there be any reason that there would be any blood or hair on your boots?” Defendant said no, “except that he faced stomped a black guy six months ago.” Since defendant did not object to this testimony, the defense waived all but plain error. Id. We find no plain error because of the compelling evidence of guilt. Moreover, this evidence was properly admitted because it demonstrated that defendant was concerned that the police would find blood on his shoes and he was trying to provide an alternate explanation. Under Evid.R. 404(B), “[e]vidence of other crimes, wrongs, or acts is not admissible to prove” a defendant's character as to criminal propensity. “It may, however, be admissible [to show] motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id.
Defendant changed his stories to police concerning his whereabouts and activities as the evidence mounted pointing to him as the murderer. For example, defendant initially denied hiding behind the tree across from Snipes's apartment and denied making the 911 calls to the police. But as evidence of his guilt mounted, he admitted doing both. In a similar vein, defendant's claim that he “face stomped” a black man appears as a farfetched explanation to further deflect police suspicion that he killed Snipes. Such evidence helped to establish defendant's consciousness of guilt and was properly admitted. See State v. Richey (1992), 64 Ohio St.3d 353, 357, 595 N.E.2d 915, 921; State v. Tibbetts (2001), 92 Ohio St.3d 146, 161, 749 N.E.2d 226, 249.
In conclusion, we find that the trial court did not commit plain error, and reject this proposition.
Fingerprint evidence. In proposition of law IV, defendant challenges the admission of digitally enhanced fingerprint evidence. First, defendant claims that Patrick Warrick, the state's fingerprint expert, lacked the necessary expert qualifications to testify regarding such evidence. Second, defendant attacks the reliability of digitally enhanced fingerprint evidence. Patrick Warrick, a fingerprint examiner from the King County Sheriff's Office in Seattle, Washington, testified that by using digitally enhanced imaging, he concluded that a fingerprint found on Snipes's bedspread was defendant's fingerprint. However, Warrick also compared the fingerprints without using digitally enhanced imaging and reached the same conclusion. Defendant does not challenge Warrick's expert credentials as a general latent fingerprint examiner or Warrick's identification of defendant's print on the bedspread by traditional comparison of the prints. Moreover, the trial court properly admitted Warrick's expert opinion on digitally enhanced fingerprint evidence.
In addition to the requirement of relevancy, expert testimony must meet the criteria of Evid.R. 702, which provides that a witness may testify as an expert if: “(A) The witness' testimony either relates to matters beyond the knowledge or experience possessed by lay persons * * *; “(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony; “(C) The witness' testimony is based on reliable scientific, technical, or other specialized information.”
We find that the first prong of the rule was satisfied, since expert testimony was necessary to make fingerprint comparisons. We find that the second prong of the test also satisfied, since defendant never challenged or objected to Warrick's expert qualifications at trial. However, defense counsel did point out to the judge that Warrick's testimony was “blazing new ground” and that the scientific reliability of the digital enhancement method had not been established. The trial court accepted the reliability of digitally enhanced fingerprint evidence, finding that “the use of the computer in this instance is no different than * * * would be the use of an overhead projector, microscope, a magnifying glass or anything else like that that would enhance an expert's ability to make his determination and therefore I find that there's nothing—no new trails being blazed here and I'm overruling the objection for that reason.” We have designated four factors to be considered in evaluating reliability of scientific evidence: “(1) whether the theory or technique has been tested, (2) whether it has been subjected to peer review, (3) whether there is a known or potential rate of error, and (4) whether the methodology has gained general acceptance.” State v. Nemeth (1998), 82 Ohio St.3d 202, 211, 694 N.E.2d 1332, 1338–1339, citing Miller v. Bike Athletic Co. (1998), 80 Ohio St.3d 607, 611, 687 N.E.2d 735, 740. However, it is important “to emphasize that none of these factors is a determinative prerequisite to admissibility.” Nemeth at 211, 694 N.E.2d at 1339, citing Miller at 612–613, 687 N.E.2d at 741. See, also, Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469.
In this case, the third prong of the rule was satisfied, since digitally enhanced imaging meets Evid.R. 702(C)'s reliability standard. Warrick testified that the King County Sheriff's Office has used digitally enhanced fingerprint analysis for “approximately a year and a half.” Other potential testimony establishing the reliability of digitally enhanced fingerprint evidence was not introduced because of the trial court's ruling that the method was in fact reliable. Moreover, in State v. Hayden (1998), 90 Wash.App. 100, 950 P.2d 1024, the court approved the admissibility of digitally enhanced fingerprint evidence utilizing the Frye standard.FN1 See Frye v. United States (C.A.D.C.1923), 293 F. 1013. The Hayden court considered expert testimony, articles from forensic journals, and other matter in concluding that evidence obtained through digital imaging enhancement of latent fingerprints is “generally accepted in the relevant scientific community.” Id. at 109, 950 P.2d at 1028. Hayden's conclusion that digitally enhanced fingerprint evidence was admissible under the more stringent Frye standard supports our conclusion that digitally enhanced fingerprint evidence meets Evid.R. 702(C)'s reliability standard. FN1. This court has consistently rejected the Frye “general acceptance” standard. Miller v. Bike Athletic Co. (1998), 80 Ohio St.3d 607, 613, 687 N.E.2d 735, 741, fn. 1. But we consider Hayden to be relevant to the issue of reliability. We find that Warrick's testimony that defendant's fingerprint was found on Snipes's bedspread was properly admitted. Once properly before the court, the expert's conclusions became a matter for the trier of fact. State v. Nemeth, 82 Ohio St.3d at 211, 694 N.E.2d at 1339. Thus, we reject proposition IV.
Expert qualifications. In proposition of law V, defendant claims that the trial court should not have allowed four of the state's expert witnesses to testify because the court failed to make a threshold determination concerning their qualifications.
Evid.R. 702(B) provides that a witness may qualify as an expert by reason of his or her specialized knowledge, skill, experience, training, or education. Neither special education nor certification is necessary to confer expert status upon a witness. The individual offered as an expert need not have complete knowledge of the field in question, as long as the knowledge he or she possesses will aid the trier of fact in performing its fact-finding function. State v. Baston (1999), 85 Ohio St.3d 418, 423, 709 N.E.2d 128, 133; State v. D'Ambrosio (1993), 67 Ohio St.3d 185, 191, 616 N.E.2d 909, 915. Pursuant to Evid.R. 104(A), the trial court determines whether an individual qualifies as an expert, and that determination will be overturned only for an abuse of discretion. State v. Williams (1983), 4 Ohio St.3d 53, 58, 4 OBR 144, 148, 446 N.E.2d 444, 448. The issue arises from the following four expert witnesses.
James Wurster. Wurster, a forensic scientist, had worked at the Ohio Bureau of Criminal Identification and Investigation (“BCI”) since 1978. Wurster's educational qualifications included a master of science degree and course work at the Bloodstain Institute, the Serological Research Institute, and various FBI courses. He testified as to the presence of bloodstains on defendant's boot, his tee-shirt, and a chair leg from Snipes's apartment. While the state never formally tendered Wurster as an expert, defendant's counsel never objected or challenged his qualifications to testify. Thus, defendant waived all but plain error. Crim.R. 52(B); State v. Baston, 85 Ohio St.3d at 423, 709 N.E.2d at 133. We find no plain error and find that Wurster's experience as a forensic scientist qualified him to testify at trial about the presence of blood on various items.
Cynthia Mayle. Mayle, a fingerprint examiner, worked for BCI since 1995. Her prior experience included work as a fingerprint examiner for the Cleveland and Philadelphia police departments. Mayle's educational background included a bachelor's degree from Cleveland State University and attendance at the advanced latent fingerprint course at the FBI Academy in Quantico. Mayle had also lectured on fingerprint techniques at the FBI Academy. Mayle identified defendant's bloody palm print on a chair leg from Snipes's apartment. Although Mayle was not formally tendered as an expert, defendant did not object to her qualifications, and waived all but plain error. Id. We find no plain error and find that Mayle was fully qualified to expertly testify that defendant's palm print was found on Snipes's chair leg.
Patrick Warrick. As discussed earlier, Warrick, a latent fingerprint examiner, identified defendant's fingerprint on Snipes's bedspread. Warrick has a bachelor's degree in criminology along with “numerous courses in crime scene investigation, latent print development, latent print processing, latent print comparisons, crime scene photography, [and] evidence photography.” Warrick's experience as a latent fingerprint examiner included employment with the Long Beach and Santa Monica, California police departments (over eight years' total), and his current employment with the King County, Washington Sheriff's Department (five and a half years). Although Warrick was not formally tendered as an expert witness, defendant's objections to Warrick's expert testimony did not challenge Warrick's qualifications. On that point, he waived all but plain error. Id. We find no plain error and also find that Warrick was qualified to identify defendant's fingerprint on Snipes's bedspread.
Rod Englert. Englert, a forensic consultant, testified that long linear blood patterns found on defendant's tee-shirt and Snipes's bedspread were applied by a long–bladed knife. Moreover, the blood transfers were applied while the tee-shirt was lying flat, and not while defendant was wearing it. Englert's educational qualifications included a bachelor of science degree, graduation from the FBI Academy, and completion of postgraduate work at two universities. Englert's experience included more than twenty-five years as a police homicide investigator. Following his retirement from law enforcement, Englert became a consultant in crime scene reconstruction and blood pattern evidence. Englert has lectured on these topics “around the world over 530 times for the last 25 years in this subject,” he has published articles on crime scene reconstruction, and he has “testified in the United States about 230 times as an expert.” As with other experts in this case, the state did not formally tender Englert as an expert. However, the trial judge found that Englert was “certainly qualified as an expert” when he overruled a defense objection to a blood spatter demonstration in the courtroom. Defendant's counsel entered general objections to Englert's opinion that a long-bladed knife likely caused the blood transfer stains found on defendant's tee-shirt and Snipes's bedspread and Englert's opinion that the tee-shirt was not being worn when the blood transfer stains were applied. The court overruled the first two objections and sustained the third. The prosecutor rephrased the question, and the testimony proceeded without question. Defendant's counsel also objected to Englert's opinion “regarding the freshness of blood,” since “[h]e hasn't acquired a pathology or doctor's degree” and such testimony is not “within his expertise.” The trial court overruled this objection “because it's not for the purpose of medical diagnosis.” Under Evid.R. 702(B), an expert may be qualified by specialized knowledge, skill, experience, training, or education to give an opinion that will assist the jury to understand the evidence and determine a fact at issue. See State v. Biros (1997), 78 Ohio St.3d 426, 452, 678 N.E.2d 891, 912–913 (eleven years' experience as a forensic scientist in bloodstain analysis was sufficient qualifications for blood spatter testimony).
Although Englert was not a medical doctor, the trial court did not abuse its discretion in allowing him to testify as an expert because of his extensive background and experience in bloodstain analysis. See State v. Wogenstahl (1996), 75 Ohio St.3d 344, 362, 662 N.E.2d 311, 326 (forensic serologist's testimony on blood stain analysis permitted although witness was neither a college graduate nor a medical doctor). Cf. Scott v. Yates (1994), 71 Ohio St.3d 219, 221, 643 N.E.2d 105, 107 (error to allow expert opinion where witness “frankly admitted that he was not an accident reconstructionist; that he never had the opportunity to work with an accident reconstructionist; and further, that he had never conducted an accident reconstruction”). Moreover, “ ‘[i]t is a general rule that the expert witness is not required to be the best witness on the subject. * * * The test is whether a particular witness offered as an expert will aid the trier of fact in the search for the truth.’ ” State v. Tomlin (1992), 63 Ohio St.3d 724, 728, 590 N.E.2d 1253, 1257, quoting Alexander v. Mt. Carmel Med. Ctr. (1978), 56 Ohio St.2d 155, 159, 10 O.O.3d 332, 334, 383 N.E.2d 564, 566. We find that although Englert was not formally tendered as an expert in crime scene reconstruction bloodstain and blood spatter analysis, Englert's education and experience qualified him to provide expert testimony on blood transfers and the freshness of blood. Even though Englert was not a medical doctor, the trial court did not err in permitting Englert's expert testimony. Thus, we reject proposition V.
Gruesome photographs. In proposition of law VIII, defendant argues that the trial court erred in admitting gruesome photographs of the victim, since the prejudicial effect outweighed their probative value. However, defendant fails to specify which photographs were objectionable or exactly why they were inadmissible. The record shows that the trial court admitted several graphic crime scene photos of Snipes's body and various autopsy photos. The defense counsel objected to the gruesome photographs in a motion before trial and renewed the objections at trial. The trial court overruled these objections. In capital cases, nonrepetitive photographs, even if gruesome, are admissible if relevant and of probative value as long as the probative value of each photograph outweighs the danger of material prejudice to the accused. State v. Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768, paragraph seven of the syllabus; State v. Morales (1987), 32 Ohio St.3d 252, 257–258, 513 N.E.2d 267, 273–274. Decisions on the admissibility of photographs are “left to the sound discretion of the trial court.” State v. Slagle (1992), 65 Ohio St.3d 597, 601, 605 N.E.2d 916, 923.
Crime scene photographs. State's exhibits 28, 29, 30, and 35 were photographs taken at different angles showing the chair draped over Snipes's body. State's exhibit 34 was a distance shot taken across Snipes's bed showing her body on the opposite floor. State's exhibit 33 shows Snipes's body with her left hand cut off. State's exhibits 32 and 37, which were decidedly gruesome, show Snipes's body with a gag in her mouth and both hands cut off. These photos illustrated the testimony of the detective at the scene, portrayed Snipes's body in relation to her surroundings, and helped to prove the killer's intent and lack of accident or mistake. See State v. Goodwin (1999), 84 Ohio St.3d 331, 342, 703 N.E.2d 1251, 1262; State v. Mason (1998), 82 Ohio St.3d 144, 158, 694 N.E.2d 932, 949. Moreover, the photos at the crime scene supported the prosecution theory that Hartman brutally murdered Snipes in a fit of rage. The photos also corroborated Hoffman's testimony that defendant discussed cutting off a victim's hands to eliminate evidence that might be found under the victim's fingernails. We find that no error was committed in admitting these photos, since the probative value of each photograph outweighed any prejudice to the accused.
Medical examiner's photographs. State's exhibits 82–84 and 96 present closeups and different angles of Snipes's head, throat, and chest showing her slit throat, stab wounds, and other injuries. They supported the medical examiner's testimony as to cause of death. State's exhibit 85 shows the numerous stab wounds on Snipes's torso, State's exhibit 87 portrays bruising and wounds on her lower extremities, and State's exhibit 88 presents an “X” mark carved into Snipes's back, which the prosecution suggested represented defendant's middle initial. State's exhibit 89 presents a full-body view of wounds on Snipes's back and lower extremities and State's exhibit 90 shows stab wounds on the side of her back. State's exhibits 91–93 show cuts on Snipes's legs and bruising on her ankle indicating that she was alive when defendant tied her to the bed. Finally, State's exhibits 94 and 95 portray the stumps of her wrists and show how her hands were cleanly cut off. Photos of Snipes's wrist stumps supported testimony showing that defendant was familiar with using knives as a chef and accounted for his near-surgical removal of Snipes's hands. The trial court did not err in admitting these photos. The fourteen autopsy photos illustrated the medical examiner's testimony and demonstrated defendant's specific intent to kill. State v. Goodwin, 84 Ohio St.3d at 342, 703 N.E.2d at 1262; State v. Mason, 82 Ohio St.3d at 159, 694 N.E.2d at 949. Snipes was stabbed one hundred thirty-eight times all over her body, her throat was slit, her hands were cut off, and her ankles and other areas of her body were bruised. In this case, multiple injuries required multiple photographs. Thus, we find that the trial judge did not abuse his discretion in admitting these photographs. See, e.g., State v. Smith (1997), 80 Ohio St.3d 89, 108–109, 684 N.E.2d 668, 687–688; State v. Biros, 78 Ohio St.3d at 443, 678 N.E.2d at 907; State v. Joseph (1995), 73 Ohio St.3d 450, 460, 653 N.E.2d 285, 294. Thus, we reject proposition VIII.
Guilt phase instructions. In proposition of law XII, defendant challenges the trial phase instructions on the kidnapping specification. Defendant argues that the trial court erred in failing to instruct the jury that they must find that he purposely removed or restrained Snipes. Defendant, however, failed to object at trial or request specific instructions and thus waived all but plain error. Crim.R. 30(A); State v. Underwood (1983), 3 Ohio St.3d 12, 3 OBR 360, 444 N.E.2d 1332, syllabus; State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364. The alleged deficiency did not cause a different trial result or create a manifest miscarriage of justice. State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804. We find no plain error. Additionally, we find that defendant suffered no prejudice from the court's instructions.
R.C. 2905.01(A) requires the state to show that the kidnapping involved a purposeful removal or restraint. State v. Avery (1998), 126 Ohio App.3d 36, 48, 709 N.E.2d 875, 883; see, also, State v. Maurer, 15 Ohio St.3d at 270, 15 OBR at 406, 473 N.E.2d 768 at 796. R.C. 2905.01 provides: “(A) No person, by force, threat, or deception, * * * shall remove another from the place where the other person is found or restrain the liberty of the other person, for any of the following purposes: “* * * “(2) To facilitate the commission of any felony or flight thereafter; “(3) To terrorize, or to inflict serious physical harm on the victim or another; “(4) To engage in sexual activity * * * with the victim against the victim's will.” (Emphasis added.)
In the case sub judice, the trial court's kidnapping instructions omitted any explicit reference to “purpose.” But the trial court's instructions on kidnapping in the capital specification used the words “to facilitate” as follows: “Kidnapping is the use of force, threat, or deception to remove a victim from the place where he or she is found and/or restraining the liberty of such person to facilitate the commission of any felony or flight thereafter, and/or to terrorize or inflict the commission of any felony or to inflict serious physical harm on the victim and/or to engage in sexual activity with the victim against her will.” The trial court's instructions on the separately charged offense of kidnapping included the same type of wording. While the trial court's instruction deviated from the purposeful language in the kidnapping statute, the instruction was not misleading and defendant was not prejudiced. “Facilitate” is defined as “to make easier or less difficult: free from difficulty or impediment [as in] to facilitate the execution of a task[;] * * * to lessen the labor of (as a person): assist, aid.” Webster's Third New International Dictionary (1986), at 812. A commonsense understanding tells us that the terms “for any of the following purposes” and “to facilitate” essentially have the same meaning. Further, there was compelling evidence of defendant's guilt in the kidnapping ( i.e., that defendant forcefully tied Snipes to her bed to facilitate, or for the purpose of, brutally terrorizing and murdering her). Moreover, the defense did not object to these instructions, and any deficiency did not amount to outcome-determinative plain error. Thus, we reject proposition XII.
Penalty phase issues
Penalty phase instructions. In proposition of law II, defendant objects to three of the trial court's penalty phase instructions.
First, defendant argues that the trial court erred in instructing the jury to “weigh against the aggravating circumstances the nature and circumstances of the offense * * *.” Indeed, defendant submitted a pretrial motion requesting the trial court not to give this instruction, since there was nothing mitigating about the nature and circumstances of the offense. R.C. 2929.04(B) states that the jury “shall consider, and weigh against the aggravating circumstances proved beyond a reasonable doubt, the nature and circumstances of the offense * * *.” We find that the trial court's instruction was proper.
Second, defendant argues that the trial court's instructions did not comport with this court's decision in State v. Brooks (1996), 75 Ohio St.3d 148, 661 N.E.2d 1030, in two ways. First, he objects to the following instruction: “Should the jury's recommendation be that the death sentence be imposed, the Court must review and evaluate such recommendation and if the Court finds beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors, the Court shall then impose the sentence of death. “On the other hand, if after considering all of the evidence raised at trial which is relevant to the issues before you, * * * you cannot unanimously agree that the State of Ohio proved beyond a reasonable doubt that the aggravating circumstances, as I have defined them, outweigh the mitigating factors, then you'll return your recommendation reflecting that decision. “In this event, you will then proceed to determine which of the three possible life imprisonment sentences to impose.”
Defendant asserts that the instruction given by the trial court required the jury to unanimously rule out the death penalty before considering a life sentence in violation of State v. Brooks, supra. In Brooks, the trial court charged the jury that “ ‘[y]ou are now required to determine unanimously that the death penalty is inappropriate before you can consider a life sentence.’ ” (Emphasis added.) Id., 75 Ohio St.3d at 159, 661 N.E.2d at 1040. Brooks found error because the trial court's instructions conflicted with R.C. 2929.03(D)(2). Id. In a pretrial motion, defendant objected to any “acquittal first” type of penalty phase instructions and requested a clarifying instruction stating that “[y]ou are not required to determine unanimously that the death sentence is inappropriate before [you] consider the life sentences.” Contrary to defendant's contention, the trial court never instructed the jury that it had to unanimously reject the death penalty before it could consider a life sentence. The instructions explicitly advised the jurors that if they were unable to unanimously agree to recommend death, they shall consider life sentences. The jury was thus implicitly advised that a single juror could prevent the death penalty. See State v. Stallings (2000), 89 Ohio St.3d 280, 294, 731 N.E.2d 159, 174–175. We find that this instruction was proper.
Defendant also argues that the trial court erred by failing to give the “lone–juror instruction” mandated in the Brooks case. In State v. Brooks, 75 Ohio St.3d at 162, 661 N.E.2d at 1042, trial courts were told to explicitly instruct juries that a single juror “may prevent a death penalty recommendation by finding that the aggravating circumstances in the case do not outweigh the mitigating factors.” Here, the trial court erred by not explicitly giving the jury this instruction. However, the trial court's instructions were consistent with R.C. 2929.03(D)(2), and we find no prejudicial error. See State v. Stallings, 89 Ohio St.3d at 294, 731 N.E.2d at 174–175. Moreover, defendant failed to object to the lack of a lone–juror instruction at trial and waived all but plain error. State v. Underwood, 3 Ohio St.3d 12, 3 OBR 360, 444 N.E.2d 1332, syllabus; see, also, State v. Williams, 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364, paragraph one of the syllabus. We find that no plain error resulted from the trial court's failure to give this instruction and, thus, reject this argument.
As the third instructional error, defendant argues that the trial court erred by not instructing the jury as to the limited purpose of victim-impact testimony. Defendant's counsel objected very generally to the state's victim-impact testimony, but he did not request limiting instructions. Thus, defendant waived all but plain error. See State v. Reynolds (1998), 80 Ohio St.3d 670, 679, 687 N.E.2d 1358, 1369. Ella Snipes, the victim's mother, provided victim-impact testimony. Mrs. Snipes briefly discussed the victim's early life in North Carolina, the victim's schooling, her close-knit family, and the victim's contact with family after moving to Akron. Mrs. Snipes summed up the family impact of the victim's death by saying, “[I]t's been around nine months now since our daughter Winda was brutally murdered. It has been an extremely bad time for us and will be from now on. She'll never leave our heart.” Mrs. Snipes expressed no opinion about the penalty.
Victim-impact testimony does not violate constitutional guarantees. See, generally, Payne v. Tennessee (1991), 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720. This court has permitted victim-impact testimony in capital cases when the testimony, as it was here, was not overly emotional or directed to the penalty to be imposed. See State v. Reynolds, 80 Ohio St.3d at 679, 687 N.E.2d at 1369; State v. Fautenberry (1995), 72 Ohio St.3d 435, 650 N.E.2d 878. Here, it cannot be said that the sentence clearly would have been otherwise but for the lack of instructions regarding victim-impact evidence. See State v. Reynolds at 679, 687 N.E.2d at 1369. Thus, we reject proposition II.
Prosecutorial misconduct
In proposition of law VI, defendant complains about several instances of prosecutorial misconduct.
First, defendant argues that prosecutorial misconduct occurred when the state called Kathryn Snipes–Gaskey, the victim's sister, and she improperly presented victim-impact testimony as the first prosecution witness during the guilt phase. However, the defense counsel did not object to Snipes–Gaskey's testimony at trial, and thus waived all but plain error. State v. Tibbetts, 92 Ohio St.3d at 160–161, 749 N.E.2d at 248. Snipes–Gaskey identified the victim's wristwatch seized from defendant's apartment. As a preliminary matter, Snipes–Gaskey described her close personal relationship with the victim, discussed her familiarity with the victim's jewelry, and remembered the wristwatch because their mother purchased the watch for the victim “around Christmas of 1995.” Snipes–Gaskey provided additional testimony describing Snipes's upbringing, schooling, employment history, her move to Akron in May 1996, and her last trip home in July 1997. Snipes–Gaskey also mentioned the victim's close family ties, discussed their last phone conversation two days before Snipes's murder, and mentioned that their parents and grandmother received a final letter from the victim in the mail following Snipes's murder. Snipes–Gaskey also presented a collage showing photographs of the victim and the victim with her family.
Snipes–Gaskey's identification of the victim's wristwatch was crucial in identifying defendant as the murderer, since the wristwatch was likely stolen by the person who cut off Snipes's hands. Preliminary testimony depicting Snipes–Gaskey's relationship with the victim and her familiarity with Snipes's jewelry laid the foundation for her identification of the victim's wristwatch, and this testimony was admissible. Snipes–Gaskey's testimony about the victim's employment history, their final phone call, the victim's final letter to her grandmother, and the introduction of the collage was victim-impact evidence of questionable relevance. Cf. State v. Fautenberry, 72 Ohio St.3d at 440, 650 N.E.2d at 882–883. Given the fact that Snipes–Gaskey's testimony was “not overly emotional or directed to the penalty to be imposed, it cannot be said that the sentence would clearly have been otherwise but for the victim-impact evidence.” See State v. Reynolds, 80 Ohio St.3d at 679, 687 N.E.2d at 1369. Thus, we find that the admission of Snipes–Gaskey's testimony was not plain error.
Second, defendant argues that prosecutor's closing argument during the penalty phase was improper. Defendant's first example of the prosecutor's improper argument includes the following: “Because certainly Winda Snipes is not here to talk about, you know, her feelings and what she went through those last minutes of her life. So, the information from her mother is permitted for your consideration.” However, defendant failed to object to this argument and waived all but plain error. See State v. Wade (1978), 53 Ohio St.2d 182, 7 O.O.3d 362, 373 N.E.2d 1244, paragraph one of the syllabus. The prosecutor erred in inviting the jury to concentrate on what the victim experienced and was feeling in her last moments of life. As recognized in State v. Wogenstahl, 75 Ohio St.3d at 357, 662 N.E.2d at 322–323, citing State v. Combs (1991), 62 Ohio St.3d 278, 283, 581 N.E.2d 1071, 1077, such argument improperly “invites the jury to speculate on facts not in evidence.” Although error, we find that the prosecutor's brief remarks do not rise to the level of outcome-determinative plain error.
Defendant also claims that the prosecutor committed misconduct during the following segment of his penalty phase argument: “[T]he Judge is going to tell you [what] the law is, but I anticipate that, against those aggravating circumstances you weigh the nature and circumstances of this offense.” Again, defendant failed to object to this segment of the argument, and waived all but plain error. State v. Wade, 53 Ohio St.2d 182, 7 O.O.3d 362, 373 N.E.2d 1244, paragraph one of the syllabus. Under R.C. 2929.04(B), the jury must weigh proven aggravating circumstances against the nature and circumstances of the offense as a potential mitigating factor. See State v. Wogenstahl, 75 Ohio St.3d at 361, 662 N.E.2d at 325; State v. Lindsey (2000), 87 Ohio St.3d 479, 486, 721 N.E.2d 995, 1004. Accordingly, we find that this segment of the prosecutor's argument did not involve misconduct.
Defendant also argues that the prosecutor committed misconduct during this portion of his penalty phase closing argument: “I think you certainly can consider as a part of the aggravating circumstance this Defendant's actions after the murder, removing of evidence, trying to wipe down the scene, letting the mutilated body of Winda Snipes lay for several hours before * * * the police are called, fleeing after the commission of a crime. Those kinds of actions can also by considered by you.” The trial court overruled the defense counsel's objection to these comments. Here, the kidnapping specification was the only aggravating circumstance that the jury could consider during the penalty phase. Thus, it was wholly improper for the state to argue or suggest that the jury may consider the nature and circumstances of the offense as “part of the aggravating circumstance.” See State v. Wogenstahl, 75 Ohio St.3d 344, 662 N.E.2d 311, 321, paragraph one of the syllabus.
The test for prejudice regarding prosecutorial misconduct in closing arguments is “ ‘whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant.’ ” State v. Hessler (2000), 90 Ohio St.3d 108, 125, 734 N.E.2d 1237, 1254, quoting State v. Smith (1984), 14 Ohio St.3d 13, 14, 14 OBR 317, 318, 470 N.E.2d 883, 885. Here, the prosecutor's improper argument could not have made any difference in the outcome of the trial, particularly in light of the statutory aggravating circumstance defendant was found guilty of committing and the lack of compelling mitigating evidence. Cf. State v. Wogenstahl, 75 Ohio St.3d at 360, 662 N.E.2d at 324. Moreover, the trial court properly instructed the jury that the only aggravating circumstance in this case was the kidnapping specification. The instruction was very clear in this regard, and we can assume that the jury followed the trial court's instructions. Id. at 360, 662 N.E.2d at 324–325. Also, our independent reassessment of the sentence can cure this error. State v. Hill (1996), 75 Ohio St.3d 195, 210, 661 N.E.2d 1068, 1082. Thus, we reject this complaint.
Finally, defendant argues that the prosecutor committed misconduct by improperly introducing victim-impact evidence before the defense opened the door to its admission. However, the state's introduction of relevant victim-impact testimony is not limited to refuting or rebutting mitigation evidence that the defense has first introduced. See, generally, State v. Fautenberry, 72 Ohio St.3d at 440, 650 N.E.2d at 883; State v. White (1999), 85 Ohio St.3d 433, 446, 709 N.E.2d 140, 154. We find that the testimony was relevant to guilt. Therefore, we reject this argument. In summary, we find no prosecutorial misconduct justifying reversal and we reject proposition VI.
Ineffective Assistance of Counsel
In proposition of law VII, defendant raises multiple instances of ineffective assistance of counsel. Reversal of a conviction for ineffective assistance of counsel requires that the defendant show, first, that counsel's performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693. Accord State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus.
1. Concession during final argument in the penalty phase
Defendant argues his defense counsel was ineffective during final argument in the penalty phase by conceding that “[t]here's nothing I can do, nothing we can say, no evidence we can put on to reduce the blame that you've already ascribed.” Defendant claims that by making this concession about blame, his counsel totally foreclosed any opportunity to avoid the jury's imposition of the death sentence. In the instant case, it may appear that defense counsel “conceded blame” during the penalty phase of the trial, but this was after guilt had already been determined. There was, in fact, nothing counsel could do to change the jury's finding of guilt. A reading of the transcript reveals, moreover, that counsel was merely explaining to the jury that the guilt phase and penalty phases are separate. Counsel merely noted that the jury had already convicted his client and found that he was guilty of the murder and that counsel was now moving beyond that fact to focus the jury's attention on mitigating factors. Here, his defense counsel forcefully argued throughout his summation that the mitigating factors justified imposition of a life sentence. Counsel's tactical decision conceding blame maintained the defense's credibility and allowed counsel to focus the jury's attention on mitigating factors supporting a life sentence. See State v. Tyler (1990), 50 Ohio St.3d 24, 40, 553 N.E.2d 576, 595 (counsel not ineffective for conceding guilt in closing argument during the penalty phase). Thus, we find no error in counsel's argument.
2. Failure to object to expert testimony
Defendant argues that his counsel were ineffective by failing to object to Englert's opinion on blood–transfer evidence, since Englert did not testify that his opinion was based upon a reasonable degree of scientific certainty. Further, defendant argues that his counsel should have cross-examined Englert on his inadequate expert qualifications. Englert provided his opinion on blood–transfer stains found on defendant's tee-shirt and Snipes's stuffed toy rabbit after being asked by the prosecutor if he had formed his opinion to “a reasonable degree of scientific certainty.” During the same series of questions, the prosecutor asked Englert for three more opinions on blood–transfer stains and the freshness of blood without first asking Englert whether his opinion was based on a “reasonable degree of scientific certainty.”
Defense counsel were not ineffective by failing to object to these follow-up questions. After the prosecutor's first questions, defense counsel could reasonably conclude that Englert would continue to give opinions based on a reasonable degree of scientific certainty. Further objections by defense counsel would only further emphasize the scientific certainty of the witness's testimony. The failure to object to error, alone, is not enough to sustain a claim of ineffectiveness. “Because ‘[o]bjections tend to disrupt the flow of a trial, [and] are considered technical and bothersome by the fact-finder,’ Jacobs, Ohio Evidence (1989), at iii-iv, competent counsel may reasonably hesitate to object in the jury's presence.” State v. Campbell (1994), 69 Ohio St.3d 38, 53, 630 N.E.2d 339, 352. Thus, we find that counsel made a legitimate “tactical decision” by not objecting to Englert's further answers and that this decision was not ineffective.
Defendant also argues that his counsel were ineffective by failing to cross-examine Englert on his expert qualifications. Contrary to defendant's assertions, Englert's qualifications were extremely strong. Englert graduated from the FBI Academy at Quantico, he had completed postgraduate work at the University of Virginia, and he had twenty-five years of experience as a police homicide investigator, retiring as chief detective. He has lectured all over the world, including at Scotland Yard. He is a published author on crime scene reconstruction and has been teaching for twenty-five years at the Southern Police Institute. He has testified over two hundred times as an expert. By not cross-examining Englert on his background and experience, defense counsel avoided inviting the prosecutor to ask followup questions that might bolster Englert's qualifications even more in the eyes of the jury. Again, we find that counsel made a legitimate tactical decision and were not ineffective. See State v. Jones (2001), 91 Ohio St.3d 335, 354, 744 N.E.2d 1163, 1183.
Defendant also claims that his counsel were ineffective by failing to object to Warrick's expert testimony, since this was the first time that Warrick had ever testified using digitally enhanced fingerprint evidence. Further, defendant attacks counsel's failure to object to Warrick's testimony because his written report never stated that the information he utilized was sufficient for him to form an opinion. He also argues that counsel were ineffective for never objecting during Warrick's testimony that his conclusions were not based on a reasonable degree of scientific certainty.
During cross-examination, Warrick admitted that this was the first time he had ever testified using digitally enhanced fingerprint evidence. In this instance, counsel's effective cross-examination exposed Warrick's inexperience in testifying about digitally enhanced fingerprint evidence. The jury was properly instructed that they were to decide what weight to give such evidence. See State v. Jones (2000), 90 Ohio St.3d 403, 416, 739 N.E.2d 300, 315. We reject this claim of ineffective assistance. Defendant's attack on counsel's failure to object to the inadequacy of Warrick's testimony cannot be evaluated, since Warrick's January 9, 1998 report was never presented at trial. Moreover, defendant cannot add to the record, since “[a] reviewing court cannot add matter to the record before it * * * and then decide the appeal on the basis of the new matter.” State v. Ishmail (1978), 54 Ohio St.2d 402, 8 O.O.3d 405, 377 N.E.2d 500, paragraph one of the syllabus.
We also find that defendant's attack on counsel's delay in objecting to Warrick's testimony lacks merit. At the conclusion of Warrick's testimony, counsel moved to strike his testimony because it was not based on a reasonable degree of scientific certainty. As previously discussed, the trial court properly overruled counsel's motion. Moreover, we find that counsel's delay in objecting to Warrick's testimony was a “tactical decision,” and reject this claim of ineffectiveness. See State v. Smith (2000), 87 Ohio St.3d 424, 441, 721 N.E.2d 93, 111.
3. Failure to object to Urbank's and Hoffman's testimony
Defendant argues that counsel was ineffective because his counsel failed to object to Urbank's testimony that defendant said that “he face stomped a black guy six months ago.” Since this testimony was properly admitted, counsel's failure to challenge such evidence cannot be considered ineffective assistance. Assuming that such testimony should not have been introduced, any such deficiency constitutes reversible error only where “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. Here, compelling evidence of defendant's guilt was presented during his trial and the jury's consideration of this improper comment would not have changed the outcome of the case. Therefore, we reject this claim of ineffectiveness.
Defendant also asserts counsel's ineffectiveness for failing to object to Christopher Hoffman's testimony. Hoffman, one of defendant's co-workers at the Hilton, testified that defendant mentioned during a conversation in August 1997 that O.J. Simpson could have cut off the victim's hands and eliminated skin and fiber evidence from the victim's nails. Hoffman's testimony was admissible in establishing defendant's identity as the murderer. Evid.R. 401; see, also, State v. Sage, 31 Ohio St.3d 173, 31 OBR 375, 510 N.E.2d 343, paragraph two of the syllabus. Defendant's comments about cutting off a victim's hands implicated defendant as Snipes's murderer, since Snipes's hands were cut off. In addition, defendant's comments were made just a month before the murder and tended to prove “prior calculation and design.” See R.C. 2903.01(A). Thus, we find that counsel's failure to object was not ineffective.
4. Failure to utilize DNA evidence
Defendant argues that his counsel were ineffective for failing to utilize DNA evidence to establish that defendant's semen was not present in Snipes's anus. Urbank testified that defendant had told him that he had only vaginal intercourse with Snipes on September 9, although he “had first asked her when they were going up to the apartment if he could have anal intercourse with her and she said yes but later she said no and he was disappointed because they didn't have any.” At trial, defendant repeated that he had “[j]ust regular vaginal sex,” and no anal sex. Platt, the medical examiner, testified that sperm was found in the victim's anus. The state conducted no DNA testing. According to Wurster, a BCI forensic scientist assigned to the DNA section, he recommended against DNA testing on the semen because “I was given information that the Defendant never denied having sex and DNA would do nothing more than confirm that that was the case.” Moreover, the Akron police did not request DNA testing of the semen, and Wurster was never informed that defendant denied having anal sex with the victim. The defense theory was that someone else had had anal sex with Snipes and killed her on September 9. Thus, defendant claims that his counsel were ineffective for failing to utilize DNA testing to show that his semen was not in Snipes's anus.
As an initial matter, “the failure to call an expert and instead rely on cross-examination does not constitute ineffective assistance of counsel.” State v. Nicholas (1993), 66 Ohio St.3d 431, 436, 613 N.E.2d 225, 230, citing State v. Thompson (1987), 33 Ohio St.3d 1, 10–11, 514 N.E.2d 407, 417. Thus, the defense counsel's decision to rely on cross-examination should be viewed as a legitimate “tactical decision” particularly since the results of a DNA examination may not necessarily have proven favorable for the defense. See State v. Watson (1991), 61 Ohio St.3d 1, 13, 572 N.E.2d 97, 108. Finally, resolving this issue in defendant's favor would be purely speculative. “Nothing in the record indicates what kind of testimony an * * * expert could have provided. Establishing that would require proof outside the record, such as affidavits demonstrating the probable testimony. Such a claim is not appropriately considered on a direct appeal.” State v. Madrigal (2000), 87 Ohio St.3d 378, 390–391, 721 N.E.2d 52, 65 (rejecting claim of ineffectiveness for counsel's failure to utilize an expert on eyewitness identification); State v. Carter (2000), 89 Ohio St.3d 593, 606, 734 N.E.2d 345, 357 (rejecting claim of ineffectiveness for counsel's failure to pursue MRI testing in the penalty phase). Thus, we reject defendant's claim that counsel's failure to utilize DNA evidence constituted ineffective assistance of counsel.
5. Failure to obtain expert testimony on bloodstain
Defendant argues counsel's ineffectiveness for failing to obtain expert testimony concerning a bloodstain found on his right boot. Wurster testified that he found a small bloodstain on one of defendant's boots. However, Wurster conducted no confirmatory testing to determine whether the blood stain matched the defendant's or the victim's blood type, or even whether it was human or animal blood. Thus, defendant argues that his counsel were ineffective for failing to present expert testimony to establish that the bloodstain found on his boot was animal blood or that it came from the “face stomping” incident or elsewhere. The bloodstain on defendant's boot was not an issue in the case, since he admitted that the police “would find the blood of the victim on them.” Moreover, defendant admitted on the stand that he was at Snipes's apartment and tried to lift her bloody corpse from the floor to the bed, got blood on his hands from trying to lift her body, and ran to the bathroom and began washing all the blood off his hands in the bathtub. Thus, blood could obviously be found on his boots. Counsel could have determined that pursuing testing in light of this evidence was not a wise use of time and resources. Counsel exercised a legitimate tactical decision by not pursuing this questionable line of defense. Thus, we reject this claim.
6. Failure to conduct meaningful voir dire
Defendant claims that his counsel were ineffective for failing to adequately voir dire prospective jurors because counsel generally inquired only about the jurors' ability to be fair and impartial. However, defendant fails to specify which prospective jurors were improperly questioned, or how counsel's questioning prejudiced his case. “ ‘The conduct of voir dire by defense counsel does not have to take a particular form, nor do specific questions have to be asked.’ ” State v. Smith, 87 Ohio St.3d at 440, 721 N.E.2d at 110, quoting State v. Evans (1992), 63 Ohio St.3d 231, 247, 586 N.E.2d 1042, 1056. Moreover, this court “will not second-guess trial strategy decisions” such as those made in voir dire, and “ ‘a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.’ ” State v. Mason, 82 Ohio St.3d at 157–158, 694 N.E.2d at 949, quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694; see, also, State v. Cornwell (1999), 86 Ohio St.3d 560, 569, 715 N.E.2d 1144, 1153. As to defendant's claim of ineffective assistance in regard to voir dire, defendant fails to establish prejudice, namely, “that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different.” State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph three of the syllabus. Thus, we find that this claim has no merit.
7. Failure to object to prosecutorial misconduct
Defendant recasts his objections to prosecutorial misconduct into ineffective assistance of counsel without showing why counsel's failure to object made his performance deficient or how reasonably probable that, but for counsel's errors, the result of the trial would be different. Id. However, “ ‘[t]he failure to object to error, alone, is not enough to sustain a claim of ineffective assistance of counsel.’ ” State v. Fears (1999), 86 Ohio St.3d 329, 347, 715 N.E.2d 136, 153, quoting State v. Holloway (1988), 38 Ohio St.3d 239, 244, 527 N.E.2d 831, 837. Since defendant does not show that any particular failure to object substantially violated any essential duty or was otherwise prejudicial, we reject this claim.
8. Failure to object to trial and penalty phase instructions
Defendant argues that counsel's failure to object to the trial and penalty phase instructions constituted ineffectiveness. However, defendant fails to specify the instructions that he believes counsel should have objected to as erroneous. Earlier in this opinion, we found no merit in defendant's allegations of instructional error during either the trial or penalty phase of the trial. Here, defendant similarly fails to demonstrate how counsel's failure to object was deficient performance or how “there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would be different.” Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph three of the syllabus. Since counsel's performance did not fall below an objective standard of reasonableness and defendant did not suffer prejudice, we reject this claim of ineffectiveness. See State v. Madrigal, 87 Ohio St.3d at 397, 721 N.E.2d at 70.
9. Failure to object to “other acts” testimony
Defendant next argues that his counsel were ineffective for failing to object to “other acts” testimony, making no argument in support and citing pages in the trial transcript that deal with the admission of defendant's knives into evidence. If any error was committed here, it had nothing to do with “other acts.” The introduction of a set of defendant's knives from work showed defendant's easy access to a possible murder weapon and his familiarity with using knives. As discussed earlier, this evidence was extremely relevant, since Snipes was stabbed one hundred thirty–eight times, her throat was slit, and her hands were cut off with surgical precision. We find that counsel were not deficient by failing to object, and we reject this claim.
10. Failure to ensure a complete record
Defendant argues that his counsel were ineffective by failing to ensure that a complete record of the proceedings was made and that, as a result, defendant has lost his chance to argue that an improper contact occurred, prompting the trial judge's admonition: “Remember my admonitions about discussing the case with anyone else. I will also further tell you, folks, that you are not allowed to ask questions of the lawyers or speak to the lawyers, okay? “If you have any questions, keep them in your mind, if they answer the questions for you, fine; if they don't, that's something that you can consider during your deliberations.” Defendant presents no evidence of any improper contacts, and “ ‘without knowing what happened during those portions of the trial, we are obviously in no position to find that it was prejudicial error not to record them.’ ” State v. Phillips (1995), 74 Ohio St.3d 72, 87, 656 N.E.2d 643, 660, quoting State v. Tyler, 50 Ohio St.3d at 38, 553 N.E.2d at 593. Since defendant neither specifies how the trial record is incomplete nor demonstrates how he was prejudiced, his counsel's performance cannot be characterized as ineffective assistance. See State v. Davie (1997), 80 Ohio St.3d 311, 332, 686 N.E.2d 245, 264; State v. Keith (1997), 79 Ohio St.3d 514, 536, 684 N.E.2d 47, 67. Therefore, we reject this claim. In summary, since none of defendant's claims establishes ineffective assistance of counsel, we find that proposition VII lacks merit.
Constitutional issues
In proposition of law XI, defendant challenges the constitutionality of the proportionality review that this court conducts in capital cases. However, his claims are without merit. See State v. Steffen (1987), 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d 383, paragraph one of the syllabus; State v. Smith, 80 Ohio St.3d at 118, 684 N.E.2d at 694. In proposition of law XIII, defendant disputes the constitutionality of Ohio's death penalty statute. We reject these claims. See State v. Carter, 89 Ohio St.3d at 607, 734 N.E.2d at 357–358; State v. Clemons (1998), 82 Ohio St.3d 438, 454, 696 N.E.2d 1009, 1023; State v. Poindexter (1988), 36 Ohio St.3d 1, 520 N.E.2d 568, syllabus. Defendant also challenges the Ohio Constitution's requirement of a direct appeal from the trial court to the Ohio Supreme Court if the death penalty was imposed. We find that this claim also has been resolved. See State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, paragraph one of the syllabus; State v. Clemons, 82 Ohio St.3d at 454, 696 N.E.2d at 1023. Further, defendant's claim that Ohio's death penalty violates international treaties lacks merit. State v. Bey (1999), 85 Ohio St.3d 487, 502, 709 N.E.2d 484, 499; State v. Phillips, 74 Ohio St.3d at 103–104, 656 N.E.2d at 671.
Sentencing opinion/Failure to comply with R.C. 2929.03(F).
In proposition of law IX, defendant argues that the trial court's sentencing opinion failed to explain, as required by R.C. 2929.03(F), why the aggravating circumstance outweighed the mitigating factors. In its opinion, the trial court stated that “the emphasis was on seeking, identifying and evaluating factors in mitigation of the death sentence, pursuant to R.C. 2929.04(B).” The trial court listed and considered the mitigating factors defendant presented during the penalty phase of the trial. “Having reviewed all the evidence, and the material presented in mitigation, the Court found [that] the aggravating circumstances did outweigh any factors presented in mitigation in this case.”
Defendant complains that the trial court did not explain how it determined that the aggravating circumstance outweighed the mitigating circumstances. The trial court should have presented an explanation. However, the court set forth the mitigating factors in detail, evidencing its consideration of defendant's evidence in making its decision. There is “no requirement” that the trial court explain “how it decides how much weight to give to any one factor. The weight, if any, given to a mitigating factor is a matter for the discretion of the individual decisionmaker.” State v. Filiaggi (1999), 86 Ohio St.3d 230, 245, 714 N.E.2d 867, 880. Furthermore, our independent reassessment of the sentence will eliminate the effect of any deficiencies found in the trial court's sentencing decision. State v. Fox (1994), 69 Ohio St.3d 183, 191, 631 N.E.2d 124, 131. For these reasons, we reject proposition IX.
Weighing and determination of the death penalty
In proposition of law X, defendant argues that his death penalty must be vacated because the aggravating circumstance does not outweigh the mitigating circumstances. We will address defendant's argument when we independently review defendant's death sentence.
Independent Sentence Evaluation
Aggravating circumstance. Defendant was convicted of the felony murder (kidnapping) aggravating circumstance under R.C. 2929.04(A)(7).
The evidence against defendant included defendant's admissions linking him to the crime and the crime scene, his clandestine 911 calls notifying the police of the murder, his destruction of evidence at the crime scene, his derogatory comments about the victim ( e.g., “psycho bitch” and “she got what she deserved”), the presence of Snipes's watch and defendant's bloody tee-shirt at his apartment, Hoffman's testimony that defendant discussed cutting off a victim's hands to eliminate evidence, and defendant's jailhouse confession. Forensic evidence showing defendant's guilt included fingerprint evidence and expert testimony that the blood patterns on defendant's tee-shirt were applied by a long-bladed knife. Evidence establishing kidnapping included the victim's bound and gagged body at the crime scene and medical testimony that the victim was still alive when she was tied to her bed with a pair of pantyhose. Thus, the evidence in the case clearly established, beyond a reasonable doubt, that defendant intentionally murdered Snipes while kidnapping or attempting to kidnap her.
Mitigation evidence. Defendant called two mitigation witnesses, his sister and his aunt. According to Rhea Wolpert, the defendant's sister, defendant experienced a turbulent childhood. His mother divorced his stepfather when defendant was four, and defendant moved from Wisconsin to California with his mother and her boyfriend, Ralph. Defendant had difficulty adjusting socially and doing well in school in California. After a few years in California, defendant was sent to Arizona to live with his Aunt Arletta. Aunt Arletta was described as a stable influence in Hartman's life. Later, defendant moved to New Mexico to live with his natural father. Defendant returned to California to live with his mother when he was fourteen. While living in California, he started having problems with street kids and experimenting with alcohol. Defendant moved to Wolpert's residence in Akron when he was seventeen or eighteen. Defendant worked at factory jobs, paid Wolpert rent, and contributed to his share of the bills. According to Wolpert, defendant occasionally had problems drinking alcohol and indicated that there is a family history of alcoholism.
When defendant was eighteen, he returned to California. He completed a program at a youth home in California, and later moved with his mother to Wisconsin, and then to Akron. Arletta Hartman, the defendant's aunt, stated that when defendant was eight, he was sent to live with her because of his disciplinary problems. She was a teacher on a Navajo Indian reservation in Arizona, and defendant was enrolled in a Catholic school on the reservation. She described defendant as a very good and kind boy, but hyperactive. Defendant had problems in school and repeated third grade but his grades improved and he was a “strong B student” in fourth grade. Defendant lived with his aunt for three and one–half years. However, defendant started having problems in school and was rebellious, and he was sent to live with his natural father at age twelve. Defendant's stepmother was very strict; he started running away from home, and defendant was placed into a juvenile center for theft. Ultimately, defendant moved back to his mother's home in California. When he was fourteen or fifteen, defendant spent time in a youth home for car theft and alcohol abuse. Later, defendant illegally left the youth home and went to live with his sister in Akron. Defendant later returned to California, turned himself into authorities, and finished his time at the youth home. Thereafter, he returned with his mother to live in Ohio.
In proposition of law X, defendant argues that the aggravating circumstance does not outweigh the mitigating factors. Defendant argues that his youth twenty-three at the time of the offense), lack of significant criminal history (five or six convictions for driving under the influence), and the influence of alcoholism on his life should be considered. Defendant indicates that his substance- and alcohol-abuse problems began at age eleven. Thereafter, he was intermittently homeless and lived on the streets in California, where he used alcohol, marijuana, and other drugs heavily. Defendant says that this pattern of abuse continued through his later teenage years and into his early adult life. He would typically consume a twelve-pack of beer a night, smoke marijuana, and use other drugs, and he was clinically diagnosed “as chemically dependent for alcohol and drugs.”
Defendant argues that there are ten important mitigating factors warranting reversal of his death sentence: (1) his family history of alcoholism, (2) hyperactivity and attention deficits contributing to his adjustment problems, (3) his unstable home environment, (4) difficulty in adjusting to different locations and cultures ( i.e., living on a Navajo Indian reservation), (5) failure to develop childhood trust and emotional bonding, (6) heavy involvement with alcohol and drugs as a youth, (7) alcohol overdose at age twelve, (8) multiple encounters with the criminal justice system, typically involving substance abuse, (9) worsening alcohol dependence as an adult and multiple DUIs, and (10) recent stability as evidenced by his employment as a chef and moving in with his mother to share expenses. Moreover, defendant claims that there is little in his background indicating that he could have or did commit this crime. Also, he claims that there is nothing to suggest that he would commit this type of crime in the future. Defendant argues that he can remain a productive member of society within the prison environment. By remaining drug- and alcohol-free in prison, defendant claims that he can show his true side: “kind, caring, compassionate, friendly, and industrious.” Defendant expressed his sorrow about Snipe's death but continued to profess his innocence.
Sentence evaluation
We find that the evidence proves beyond a reasonable doubt that defendant committed the aggravating circumstance with which he was charged, i.e., murder during kidnapping, R.C. 2929.04(A)(7). We find nothing in the nature and circumstances of the offense to be mitigating. Snipes was gagged and forcefully tied to her bed with a pair of pantyhose and then brutally murdered. The facts show a senseless, horrific murder that lacks any mitigating circumstances.
Defendant's history and background provide only modest mitigating features. Nevertheless, defendant's childhood was turbulent, as he lived with a succession of relatives and parents in different parts of the country. Moreover, alcohol problems were a part of his family's history and defendant's alcohol and substance abuse began at age eleven. Defendant's alcohol dependency undoubtedly contributed to his criminal activity (thefts) and numerous DUI convictions. Despite these difficulties, defendant was gainfully employed and appears to have been a hard worker. We find that the R.C. 2929.04(B)(4) mitigating factor (youth of the offender) applicable but entitled to little weight, since defendant was twenty-three years of age at the time of the offense. See State v. Dunlap (1995), 73 Ohio St.3d 308, 319, 652 N.E.2d 988, 998; State v. Ballew (1996), 76 Ohio St.3d 244, 257, 667 N.E.2d 369, 382. We conclude that the R.C. 2929.04(B)(5) mitigating factor (lack of a significant criminal history) may be applicable but entitled to little weight, since defendant had at least five previous DUI convictions. See State v. D'Ambrosio, 73 Ohio St.3d at 145, 652 N.E.2d at 714 (lack of significant prior criminal record entitled to some weight despite two previous DUIs).
In summary, defendant's mitigation is only modest. His youth (age twenty-three), his employment history, see State v. Madrigal, 87 Ohio St.3d at 400, 721 N.E.2d at 72, as well as his lack of a significant prior criminal record (although he committed at least five DUIs), merit some consideration. Also, we accord only modest weight in mitigation to defendant's dysfunctional family background, his family's history of alcohol abuse, and his short record of gainful employment. Defendant's alcohol use undoubtedly affected his judgment and may have played a role in the murder. However, there was no testimony that he was heavily intoxicated before the murder or that alcohol somehow significantly reduced his ability to control his actions that night so as to negate specific intent. Overall, the mitigating factors are of modest significance, and we find that they are outweighed by the aggravating circumstance.
We find that the death penalty imposed for aggravated murder of Snipes is appropriate when compared with other kidnapping-murder cases. See State v. Ballew, 76 Ohio St.3d 244, 667 N.E.2d 369; State v. Joseph, 73 Ohio St.3d 450, 653 N.E.2d 285; State v. Simko, 71 Ohio St.3d 483, 644 N.E.2d 345; State v. Scudder (1994), 71 Ohio St.3d 263, 643 N.E.2d 524; State v. Fox, 69 Ohio St.3d 183, 631 N.E.2d 124; State v. Jells (1990), 53 Ohio St.3d 22, 559 N.E.2d 464; and State v. Brewer (1990), 48 Ohio St.3d 50, 549 N.E.2d 491. Accordingly, we affirm defendant's convictions and sentence of death. Judgment affirmed. MOYER, C.J., DOUGLAS, RESNICK and FRANCIS E. SWEENEY, SR., JJ., concur. COOK, J., concurs in judgment.
PFEIFER, J., dissenting.
In State v. Maurer (1984), 15 Ohio St.3d 239, 243, 15 OBR 379, 383, 473 N.E.2d 768, 775, this court stated that “prolonged restraint, secretive confinement, or significant movement apart from that involved in the underlying crime [are required] in order to justify the application of the aggravating circumstance of kidnapping under R.C. 2929.04(A)(7).” In this case, the alleged kidnapping was in reality a series of actions that were incidental to the crime of murder. The sad truth is that it is easier to stab someone over one hundred times if the victim can't evade you. The majority places great weight on the fact that the victim was tied up before she was killed. The sad truth is that there was no reason to tie up the victim after she was dead. The record does not contain proof beyond a reasonable doubt that a kidnapping occurred. It is possible to believe that a kidnapping occurred; our system of justice requires more. Without the kidnapping felony–murder specification, this case is a murder case, not a capital murder case. Despite the grisly nature of the crime, that is what it should be. I would reverse the kidnapping conviction and felony–murder conviction and vacate the sentence of death. I dissent.
APPENDIX
“Proposition of Law No. I: The state failed to introduce sufficient evidence to prove all of the elements of kidnapping beyond a reasonable doubt. Appellant Hartman was deprived of his right to due process of law under the Fourteenth Amendment to the United States Constitution. “Proposition of Law No. II: The trial court committed constitutional, reversible error when it instructed the jury during the penalty phase of the proceedings. “Proposition of Law No. III: The trial court erred when it permitted highly prejudicial, nonprobative and irrelevant evidence and testimony to be introduced at the trial. “Proposition of Law No. IV: Computer generated digital enhancement of fingerprints is not a reliable technic [ sic] for analyzing fingerprints. Admission of testimony at trial regarding computer enhanced fingerprints denied appellant Hartman a fair trial and due process as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. “Proposition of Law No. V: It was error for the trial court to admit the opinion of witnesses who had not first been qualified as an expert. “Proposition of Law No. VI: Persistent and pervasive prosecutorial misconduct prejudicially affected the appellant's constitutional rights and requires reversal of his conviction and death sentence. “Proposition of Law No. VII: Defense counsel's repeated acts and ommissions [ sic] deprived appellant of effective assistance of counsel as guaranteed by the Sixth, Eight [ sic], and Fourteenth Amendments to the United States Constitution and Article I, §§ 9, 10, and 16 of the Ohio Constitution. “Proposition of Law No. VIII: Gruesome, prejudicial and cumulative photographs were admitted into evidence even though there [ sic] prejudicial effect outweighed there [ sic] probative value in violation of the Sixth, Eighth and Fourteenth Amenments [ sic] to the United States Constitution. “Proposition of Law No. IX: The trial court erred when it failed to comply with the requirements of R.C. § 2929.03(F). The trial court's opinion is constitutionally defective and no independent review can cure tehse [ sic] fatal flaws. “Proposition of Law No. X: The death sentence in this case must be vacated because the aggravating circumstance does not outweigh the mitigating circumstances and the sentence of death is not appropriate. “Proposition of Law No. XI: The proportionality review that this court must conduct in the present capital case pursuant to Ohio Revised Code Section 2929.05 is fatally flawed and therefore the present death sentence must be vacated pursuant to the Fifth, Eighth and Fourteenth Amendments to the United States Constitution, Sections 5 and 10, Article I of the Ohio Constitution and Ohio Revised Code 2929.05. “Proposition of Law No. XII: The trial court committed prejudicial, reversible error when it failed to instruct the jury of an essential element of the kidnapping specification. “Proposition of Law No. XIII: Ohio's death penalty law is unconstitutional. The Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and §§ 2, 9, 10 and 16, Article I of the Ohio Constitution establish the requirements for a valid death penalty scheme. Ohio Rev.Code Ann. §§ 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04, and 2929.05 (Anderson 1996), do not meet the prescribed constitutional requirements and are unconstitutional on their face and as applied to Brett Hartman.”
Hartman v. Bagley, 492 F.3d 347 (6th Cir. 2007). (Habeas)
Background: Following affirmance of conviction for aggravated murder with an aggravated circumstance specification of kidnapping and death sentence, 93 Ohio St.3d 274, 754 N.E.2d 1150, petitioner filed application for a writ of habeas corpus. The United States District Court for the Northern District of Ohio, James S. Gwin, J., 333 F.Supp.2d 632, denied petition, and petitioner appealed.
Holdings: The Court of Appeals, Ronald Lee Gilman, Circuit Judge, held that: (1) state court's application of res judicata rule to bar postconviction claim was not independent and adequate ground that procedurally barred federal habeas review; (2) petitioner established cause to excuse procedural default occurring when he did not timely appeal denial of post-conviction relief; (3) counsel's strategic decisions regarding presentation of mitigating evidence were not deficient, as required for ineffective assistance claim; (4) petitioner was not entitled to evidentiary hearing regarding whether he was prejudiced by counsel's allegedly defective assistance; (5) penalty phase instructions did not amount to improper “acquittal first” instruction; (6) state appellate court did not unreasonably apply federal law in rejecting claim of prosecutorial misconduct; and (7) state court did not unreasonably apply applicable standard in determining that evidence of separate animus was sufficient for kidnapping aggravating circumstance. Affirmed. Clay, Circuit Judge, filed opinion concurring in part and dissenting in part.
RONALD LEE GILMAN, Circuit Judge.
Brett X. Hartman was convicted in an Ohio state court of aggravated murder and was sentenced to death. After exhausting his state-court remedies, he filed a petition for habeas corpus in federal district court. The district court denied his petition, but issued a certificate of appealability (COA) regarding one of Hartman's claims. This court added three more claims to the COA. For the reasons set forth below, we AFFIRM the judgment of the district court.
I. BACKGROUND
A. Factual background
In Hartman's direct appeal from his conviction, the Ohio Supreme Court set forth the following summary of the relevant facts: Defendant met Winda Snipes at a bar in Akron, Ohio, sometime during 1997. Subsequently, they engaged in sexual intercourse on several occasions. During the late afternoon of September 9, 1997, defendant went to Snipes's apartment and brutally murdered her by tying her to the bed, stabbing her one hundred thirty-eight times, slitting her throat, and cutting off her hands. Defendant was convicted of aggravated murder, kidnapping, and tampering with evidence, and sentenced to death. In order to establish defendant's guilt, the state introduced statements defendant had made to the police and to a fellow inmate in jail, and the testimony of a co-worker that defendant mentioned cutting off a victim's hands as a way to eliminate evidence in the O.J. Simpson case. The state also introduced as evidence defendant's bloody tee-shirt and Snipes's watch recovered from defendant's apartment, and forensic testimony linking defendant to the murder.
State's case
Around 2:20 a.m. on September 9, 1997, defendant met Snipes at the Bucket Shop, an Akron bar. Defendant kissed Snipes on the cheek and they talked. Thereafter, defendant and Snipes left the bar and they went to her apartment across the street. Around 3:00 a.m., David Morris, an acquaintance of defendant and Snipes, left the Inn Between, another Akron bar. While walking past Snipes's apartment on his way home, Morris observed Snipes and defendant through the upstairs window of her apartment. Morris testified that Snipes was yelling at defendant about touching stuff that was not his. Defendant closed the window blinds and “obviously she wasn't very happy about it” because she “scolded” him and reopened the blinds. That afternoon, at around 4:30 p.m., Snipes was observed crossing a street in a nearby business district. She was never seen alive again.
Defendant had the day off from work on September 9. According to Richard Russell, a bartender at the Inn Between, defendant entered the bar at around 8:00 p.m. and appeared nervous and hyper, and talked excessively. Thereafter, defendant was in and out of the bar five to six times between 9:00 and 10:30 p.m. Defendant first contacted the police on September 9 with a series of anonymous 911 calls, which he later admitted to. His first 911 call at 9:59 p.m. reported the location of a mutilated body. The police officers dispatched to Snipes's address entered Snipes's apartment building and checked around, but left after finding nothing unusual. Meanwhile, defendant viewed the police unit's arrival and departure while hiding behind a tree across the street. Defendant then made another 911 call telling the police to return to the apartment building and provided further instructions on the body's location.
Akron police officers responding to this call entered Snipes's unlocked apartment and found her naked, mutilated body lying on the bedroom floor. Snipes's leg was draped across the bed, a pair of pantyhose tied her ankle to the bed leg, and a white plastic chair was on top of her body. Snipes's hands were cut off and have never been found. Around 10:45 p.m., defendant was at the Inn Between with Morris, while police units were across the street investigating Snipes's murder. Morris, having learned that Snipes had been murdered, suggested to defendant that he should talk to the police, since Morris had observed defendant at Snipes's apartment the previous evening.
Shortly before midnight, defendant approached Detective Gregory Harrison while he was at a mobile crime lab parked outside Snipes's apartment. Defendant walked up to Harrison and said, “I hear it's pretty bad in there,” and asked if Harrison had “ever seen anything so gruesome.” Later that evening, defendant approached Harrison a second time and spontaneously mentioned that Snipes was a whore, “that she slept around a lot,” and that “he had slept with her * * * and he had even slept with her the night before at 3:00.” In their final contact at around 3:00 a.m., defendant was “kind of mumbling to himself” and Harrison heard defendant say that “she was a whore, she was a big whore, she got what she deserved.” Between 11:30 p.m. and 12:15 a.m., defendant also approached Akron Police Lt. John A. Lawson near the murder scene and, “rather abruptly said, ‘You're going to find my semen in her and my prints over there.’ ” When Lawson asked why, defendant said he “had been with her earlier that morning, the morning of the 9th,” and that he had had sex with her. At 12:15 a.m. on September 10, defendant spoke to Detective Joseph Urbank in front of the apartment building. Defendant began their conversation by announcing that “he had sex with the victim the night before.” Moreover, defendant said he did not know her name but “only knew her as psycho bitch and that everybody knew that if you got drunk and were horny you went to go see her, you went to go see psycho bitch.”
Defendant also told Urbank that he went to Snipes's apartment at 2:30 a.m. on September 9, and “she started dancing a little bit.” He “lifted her onto the bed, undressed her,” and “they started having vaginal intercourse.” Defendant said that he was disappointed because Snipes refused to have anal intercourse, and he left her apartment around 3:30 a.m. However, defendant claimed that he did not know anything about the murder until the bartender at the Inn Between told him about it on the evening of September 9. Around 6:00 a.m. on September 10, police took defendant to the Akron police station, where he was interviewed by Lawson and Urbank. During his interview, defendant denied making the 911 calls, and denied hiding behind a tree across from Snipes's apartment. Then, defendant changed a part of his story and admitted hiding behind a tree near the murder scene.
Following the September 10 police interview, the police searched defendant's apartment with his consent. The police seized defendant's bloody tee-shirt from underneath the headboard of his bed, a pair of his jeans, and his boots. Police found a knife on his dresser and Snipes's wristwatch on defendant's bed stand. Police took defendant to the police station after the search of his apartment. While awaiting transfer to the Summit County Jail, defendant approached Detective John R. Gilbride and blurted out, “I was the one that called the police” and “I'm the one that found the body.” Defendant told Gilbride he had been sexually involved with Snipes since February 1997, and had sexual intercourse with Snipes during the early morning hours of September 9. Defendant stated that “after having sex the psycho bitch threw him out of the apartment stating that her boyfriend was coming over.” He left around 3:30 a.m. and returned to his own apartment. According to Gilbride, defendant said that he slept until 6:00 p.m. on September 9, and then took the bus to the Inn Between bar around 7:30 p.m. Gilbride testified that while going into the Inn Between bar, defendant noticed a light on in Snipes's apartment and decided to visit her. According to Gilbride, defendant gained entry to the apartment through an unlocked door and claimed that he found her dead body in her bedroom. Defendant said that he unsuccessfully tried to pick her body off the floor, noticed that her hands had been cut off, and “freaked out.” Thinking “I'm going to get busted for this,” defendant washed her blood off his hands and clothes, tried wiping down everything he touched, removed evidence linking him to her apartment, and went home.
Snipes was stabbed one hundred thirty-eight times. Bruising on her ankles indicated that she was alive when she was tied to the bed. Additionally, sperm was found in her vagina and anus. The medical examiner concluded that Snipes had died from strangulation and a slit throat either in the late afternoon or early evening of September 9.
Police found defendant's bloody fingerprint on the leg of the white chair draped over Snipes's body, and police found another of defendant's fingerprints on Snipes's bedspread. An expert witness testified that the long linear blood patterns found on defendant's tee-shirt and Snipes's bedspread were applied by a long-bladed knife. Further, the blood patterns found on defendant's tee-shirt were applied while the tee-shirt was lying flat, and not while defendant was wearing it.
At trial, the prosecution introduced a set of defendant's knives, including a meat cleaver, a knife, and a knife sharpener that defendant kept at the Quaker Square Hilton, where he worked as a chef. Christopher Hoffman, a Hilton co-worker, testified that he talked to defendant in August 1997 about the O.J. Simpson trial. According to Hoffman, defendant said that Simpson could have disposed of evidence against him by cutting off the victim's hands and eliminating “fibers and hair and skin that might be found on the fingernails.” Bryan Tyson, a fellow inmate at the Summit County Jail, testified that during a jailhouse conversation, defendant admitted that he had killed Snipes. According to Tyson, defendant said that “he pushed himself on her, something in his mind snapped, she was hitting him, he lost his temper, did things he regretted, killed her.” Then, defendant said that he had “tried to make it look like a burglary,” admitted cutting off Snipes's hands, and mentioned a hacksaw, and jokingly said “ ‘Don't leave home without it,’ like the credit card commercial.”
Defense case
Jessica O'Neill, an acquaintance of defendant, talked on the phone with defendant on September 9. Phone records showed that O'Neill called defendant's apartment and spoke with him at 3:12 p.m. and 4:50 p.m. She also claimed that she talked with defendant on the phone around 6:30 or 7:00 p.m. The defense also introduced evidence suggesting an alternative suspect, Jeff Nichols. Nichols lived across the hallway from Snipes's apartment until he moved out of his apartment around September 1, 1997. Nichols worked as a handyman for the apartment building and had access to the landlord's keys to other apartments.
In January 1997, Jeffrey Barnes, a friend of Snipes, was visiting Snipes's apartment when Nichols came to her door. According to Barnes, Nichols “got up right to her door and then he said, ‘Slit the bitch's throat, cut her up,’ and called her a slut and all other kind of vulgar names.” Barnes reported this incident to the police upon hearing about Snipes's murder. On an evening prior to September 1, 1997, Linda Zarski, a neighbor in Snipes's apartment building, heard Snipes pounding on Nichols's door and screaming that she wanted her shirt. On another occasion prior to the murder, Linda Kinebrew, a neighbor living at the apartment, “heard [Nichols] arguing, telling [Snipes] to let him in and she wouldn't.”
Carol Parcell, defendant's mother, provided an alibi. Defendant lived at his mother's apartment, and Parcell claimed that when she came home on September 9 at 6:15 p.m., her son was sleeping in his bedroom. According to Parcell, defendant woke up at 7:00 p.m., got ready, left the apartment at 7:30 p.m., and returned to the apartment around 8:15 p.m.
Defendant testified on his own behalf. He admitted having sex with Snipes several times over the past year and during the early morning hours of September 9 when he was at Snipes's apartment. After having sex, defendant returned to his apartment at about 3:30 a.m., slept until 6:15 p.m., left his apartment at 7:35 p.m., and returned to the Inn Between bar. Before reaching the Inn Between, defendant noticed that Snipes's bathroom light was on at her apartment, and he decided to visit her to see if he could “get laid.” Defendant entered Snipes's apartment through an unlocked door and found her mutilated body in the bedroom. Defendant tried to “get her up and put her on the bed * * * to see if there was anything else I could help with.” Defendant “freaked out” after noticing Snipes had no hands and realized he “could get in a lot of trouble” if he was placed at the scene. Thus, he washed her blood off his hands, wiped down the cupboards, chair handles, and anything else he might have touched, gathered whatever items he could find that belonged to him, and left Snipes's apartment. Defendant “ran home” and threw the items taken from Snipes's apartment into a nearby dumpster. Upon arriving home, defendant changed his shoes and hid the bloody tee-shirt so that his mother would not find it. Thereafter, defendant hurried back to the Inn Between bar and started drinking. When he was “semi-intoxicated,” defendant made the anonymous 911 calls reporting the location of Snipes's body, admitted standing behind a tree watching the police arrive at Snipes's apartment, and later approached the police to report that he had been at the apartment the previous evening.
Defendant introduced photographs taken of his naked body following his arrest to show the absence of bruises and injuries. Defendant explained that a cut on his elbow had occurred at work while he was moving crates. Defendant acknowledged talking with Chris Hoffman about the O.J. Simpson case but did not recall discussing anything about cutting off a victim's hands. Defendant knew Tyson as a fellow inmate but denied making any jailhouse admissions that he murdered Snipes.
Trial result
The grand jury indicted defendant on two counts of aggravated murder, including one count of murder with prior calculation and design and one count of felony murder. A capital specification relating to murder during a kidnapping was included in the felony murder count. He was also charged with kidnapping and tampering with evidence. The jury found defendant guilty of all offenses and recommended death for Snipes's murder. The trial court sentenced defendant to ten years for kidnapping, five years for tampering with evidence, and death for the aggravated murder of Snipes. State v. Hartman, 93 Ohio St.3d 274, 754 N.E.2d 1150, 1158-61 (2001). The Ohio Supreme Court affirmed Hartman's conviction and death sentence. Id. at 1183.
B. Subsequent case history
After the Ohio Supreme Court decided Hartman's direct appeal, he initiated state postconviction proceedings by setting forth 11 grounds for relief. The state trial court, however, denied his petition as to all of them. Hartman filed an appeal from the denial of his postconviction petition, but he missed the filing deadline. To excuse this procedural default, Hartman asserted that he did not receive timely notification that his postconviction petition had been denied, and that he filed his appeal diligently after receiving belated notification. Finding this excuse to be without merit, the Ohio Court of Appeals sua sponte dismissed Hartman's appeal as untimely. The Ohio Supreme Court then declined jurisdiction to hear his postconviction petition. It also denied Hartman's subsequent motion to reopen that was based, among other reasons, on the claim that his counsel had been constitutionally ineffective during the penalty phase of his trial.
After exhausting his state postconviction remedies, Hartman initiated federal habeas corpus proceedings pursuant to 28 U.S.C. § 2254 in January of 2003, again asserting 11 grounds for relief. He also argued that DNA testing was necessary because none had been performed during the course of his trial. Although he admitted having vaginal intercourse with Snipes on the morning of the murder, he denied having anal intercourse with her. He therefore asserted that DNA testing on the semen samples taken from the two cavities would exculpate him. The district court granted funds for the DNA testing. Unfortunately for Hartman, the tests ultimately showed that both samples matched his DNA. In August of 2004, the district court denied Hartman's § 2254 petition in its entirety, but granted a certificate of appealability (COA) on the issue of whether sufficient evidence supported Hartman's kidnapping capital specification and separate kidnapping conviction. Hartman v. Bagley, 333 F.Supp.2d 632 (N.D.Ohio 2004). This court expanded Hartman's COA by adding the issues of whether Hartman's counsel provided ineffective assistance at the mitigation phase, whether the trial judge gave improper “acquittal-first” jury instructions, and whether certain of the prosecutor's statements made during the penalty phase amounted to prosecutorial misconduct. We now address each of these four issues.
II. ANALYSIS
A. Standard of review and legal framework
“In a habeas corpus appeal, we review a district court's legal conclusions de novo, but will not set aside its factual findings unless they are clearly erroneous.” Dyer v. Bowlen, 465 F.3d 280, 283-84 (6th Cir.2006). The standard for reviewing for state-court determinations, by contrast, is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA), codified at 28 U.S.C. § 2254(d). Under the AEDPA standard, a federal court may not grant a writ of habeas 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. Benge v. Johnson, 474 F.3d 236, 241 (6th Cir.2007) (quotation marks omitted).
A state-court decision is considered “contrary to ... clearly established federal law” if it is “diametrically different, opposite in character or nature, or mutually opposed.” Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (quotation marks omitted). Alternatively, to be deemed an “unreasonable application of ... clearly established Federal law,” a state-court decision on the merits must be “objectively unreasonable,” not simply erroneous or incorrect. Id. at 409-11, 120 S.Ct. 1495. Findings of fact made by the state court are presumed to be correct unless rebutted by “clear and convincing evidence.” Benge, 474 F.3d at 241. The AEDPA standard of review, however, applies only to “any claim that was adjudicated on the merits in State court proceedings.” Danner v. Motley, 448 F.3d 372, 376 (6th Cir.2006). Consequently, where a state court has not previously ruled on the merits of a claim, we apply the de novo standard of review. Id.
B. Ineffective assistance of counsel during the penalty phase
The first COA issue is whether Hartman's defense counsel rendered ineffective assistance during the penalty phase of the trial. Hartman's claim encompasses his counsel's alleged failure to either fully investigate or adequately present mitigating evidence. This claim was not fully adjudicated on the merits in the Ohio courts, so we must also examine whether it has been procedurally defaulted.
1. Ohio court rulings
Hartman did not present his ineffective-assistance claim on direct appeal. He fully presented the claim to the state trial court, however, during his postconviction proceedings. The trial court determined that res judicata barred the claim because Hartman had failed to raise it on direct appeal and “there was no proffer of evidence outside the record.” To the contrary, our review of the record indicates that Hartman's claim of ineffective assistance of counsel was based primarily on a forensic psychology report that was, in fact, outside the record. As explained above, however, Hartman failed to timely appeal the state trial court's ruling. The Ohio Court of Appeals therefore sua sponte dismissed his appeal.
Hartman also raised a portion of his ineffective-assistance-of-counsel claim in his motion to reopen his direct appeal. In that motion, Hartman asserted that he had received ineffective assistance based on his counsel's allegedly inadequate presentation of mitigation evidence as well as several other grounds not relevant to the present appeal. As to his mitigation-evidence claim, however, Hartman's motion asserted ineffectiveness only in relation to his counsel's alleged failure to adequately present evidence of his alcoholism. The Ohio Supreme Court entered a summary order denying Hartman's motion to reopen without explanation.
2. District court's ruling
In analyzing Hartman's federal habeas petition, the district court concluded that, based on the state-court procedural history set forth above, Hartman had procedurally defaulted all portions of his present claim not relating to his alleged alcoholism. Hartman 333 F.Supp.2d at 671-72. Reviewing only that portion of Hartman's claim, the district court determined that Hartman's counsel was not ineffective. Id. at 674. The district court did not address, however, the effect of Hartman's efforts to raise the entirety of his claim in his state postconviction proceedings, including the Ohio trial court's determination that the claim was barred by res judicata and the Ohio Court of Appeals's sua sponte dismissal of his postconviction appeal.
3. Our review
This court applies a four-part test to determine whether a claim has been procedurally defaulted: (1) the court must determine that there is a state procedural rule with which the petitioner failed to comply; (2) the court must determine whether the state courts actually enforced the state procedural sanction; (3) the state procedural rule must have been an adequate and independent state procedural ground upon which the state could rely to foreclose review of a federal constitutional claim; and (4) if the court has determined that a state procedural rule was not complied with and that the rule was an adequate and independent state ground, then the petitioner must demonstrate that there was cause for his failure to follow the rule and that actual prejudice resulted from the alleged constitutional error. Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir.2002). Reviewing Hartman's postconviction petition, the state trial court expressly relied on res judicata to determine that Hartman's claim was barred. “In Ohio, res judicata has long been held to bar consideration of constitutional claims in post-conviction proceedings brought under Ohio Rev.Code Ann. section 2953.21 when those claims have already been or could have been fully litigated either before judgment or on direct appeal from that judgment.” Id. (citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104, 105-06 (1967)). A claim that relies on evidence outside the record, however, may be raised for the first time in postconviction proceedings if it could not have been brought on direct appeal based on the original record. State v. Gibson, 69 Ohio App.2d 91, 430 N.E.2d 954, 957 (1980) (citing Ohio Rev.Code Ann. § 2953.21).
In the present case, a review of the record reveals that Hartman's ineffective-assistance claim is based primarily on evidence outside the record. He particularly relies on a forensic psychologist's report that identified specific mitigating considerations, but which was not introduced at trial. This court has held that Ohio's application of its res judicata rule generally constitutes an independent and adequate state ground that forecloses federal habeas review. See, e.g., Monzo, 281 F.3d at 577. Nonetheless, this court has previously decided to review claims after determining that the “state court's reliance upon its own rule of procedural default [was] misplaced” because the claims were in fact based primarily on credible evidence outside the record and could not have been raised on direct appeal. White v. Mitchell, 431 F.3d 517, 527 (6th Cir.2005) (quotation marks omitted); see also Hill v. Mitchell, 400 F.3d 308, 314 (6th Cir.2005) (finding that the petitioner's ineffective-assistance claim was not barred under Ohio's default rule). Here, we similarly conclude that Hartman's postconviction ineffective-assistance claim is not procedurally barred. The psychologist's report upon which Hartman principally relies was not part of the original trial record and the claim could not otherwise have been properly litigated on direct appeal. Hartman faces a second barrier to our review of his ineffective-assistance claim, however, because he failed to timely appeal the state trial court's ruling that the majority of his claim was procedurally barred. He concedes that he filed his appeal over nine months after the judgment dismissing his petition was entered. Under Rule 4(A) of the Ohio Rules of Appellate Procedure, Hartman had 30 days from the date of entry to file a timely notice of appeal. Hartman does not contest that the Ohio Court of Appeals's dismissal of his postconviction appeal pursuant Rule 4(A) would ordinarily represent an independent and adequate state ground foreclosing review of his federal constitutional claim. He argues, however, that he can demonstrate cause and prejudice sufficient to overcome the default. See Monzo, 281 F.3d at 576.
To establish cause, Hartman must present a substantial reason that is external to himself and cannot be fairly attributed to him. See Jamison v. Collins, 291 F.3d 380, 386 (6th Cir.2002) (holding that the prosecution's withholding of Brady evidence from the petitioner's attorneys qualified as a “substantial reason for the default that is external to [the petitioner]”). Hartman asserts in this regard that neither he nor his attorney ever received formal notice of the state trial court's order denying his petition. According to the docket, a copy of the order was sent only to Hartman, and not to his attorney. In support of his claimed nonreceipt, Hartman submitted an affidavit from a prison employee stating that no legal mail for Hartman was received during the relevant time period. The government raises no argument in response. Hartman has thus established cause to excuse the procedural default resulting from his failure to timely appeal the denial of his postconviction petition. We will defer analyzing the related issue of prejudice until our evaluation of the merits of his claim, which is to be reviewed de novo because of the absence of a prior state adjudication on this issue. See Joseph v. Coyle, 469 F.3d 441, 462-63 (6th Cir.2006) (concluding that a demonstration of prejudice under Strickland “likewise establishes prejudice for purposes of cause and prejudice” in the procedural-default context); Danner, 448 F.3d at 376 (applying the de novo standard of review to a claim not adjudicated on the merits by the state court).
Hartman's claim that he received ineffective assistance of counsel during the penalty phase of his trial centers on his counsel's alleged failure to investigate and present mitigating evidence based on a report from forensic psychologist Dr. James Siddall. Hartman concedes that his counsel performed some investigation. Counsel interviewed several members of Hartman's family, including his aunt, Arletta Hartman, and his half-sister, Rhea Wolpert; procured the services of Dr. Siddall; and arranged for Dr. Siddall to interview Hartman as well as his mother and aunt. In his final report, Dr. Siddall listed 10 mitigating factors that he had discovered in connection with Hartman's case. These factors include Hartman's family history of alcoholism, his unstable childhood involving frequent moves to different caretakers and new environments, his problems with hyperactivity, his instances of running away from home and living on the streets, his hospitalization for an alcohol overdose, his problems with drugs and alcohol throughout adolescence and early adulthood, and his recent purported stabilization shortly before the murder. The report also noted Hartman's claims that his step-father had physically abused him and his step-mother had sexually abused him. Dr. Siddall added, however, that these abuse claims were not corroborated by his interviews with family members.
In order to demonstrate ineffective assistance under Strickland, Hartman must show both that (1) his counsel's performance was deficient, and (2) the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Hartman claims that his counsel's performance was deficient because counsel did not enter Dr. Siddall's report into evidence and failed to further investigate or adequately present evidence regarding the factors listed in the report. The Warden argues in response that Hartman's counsel made a strategic decision not to present the report itself, but instead to call family witnesses to testify regarding the mitigating circumstances identified in the report. Furthermore, the Warden asserts that any deficiencies did not prejudice Hartman because the allegedly significant evidence cited in the report would simply have been cumulative to the testimony and argument already presented. See Broom v. Mitchell, 441 F.3d 392, 410 (6th Cir.2006) (“[T]he failure to present additional mitigating evidence that is merely cumulative of that already presented does not rise to the level of a constitutional violation.”)
Outside of the jury's presence, Hartman's counsel explained to the court that “Dr. Siddall delineated, I think, ten separate mitigating factors and I think the family members will talk about virtually all of those in one way or another.” He then called Hartman's half-sister and aunt to testify on Hartman's behalf during the penalty phase, and both described many of the factors listed in Dr. Siddall's report. They both testified about Hartman's chaotic upbringing that involved his parents' divorce and his frequent moves to different caretakers, his hyperactivity, his severe problems with drugs and alcohol at a young age, his alcohol-overdose incident, the alcoholism in his family, and his running away from home and living on the streets. The penalty-phase opening statement and summation presented by Hartman's counsel also emphasized these factors, as well as Hartman's age and his lack of adult felony convictions. Nevertheless, the district court noted that counsel's overall presentation of mitigating evidence was “not exemplary and in certain respects may have fallen short of the ABA's standards,” particularly given that it “encompasses only 41 pages of transcript.” Hartman, 333 F.Supp.2d at 672. Hartman points out that the first mitigation witness, his half-sister Rhea Wolpert, had lived with Hartman only until he was 5 years old, and then not again until he turned 17. In the interim, she learned of events in his life primarily through their mother. The other defense witness, Hartman's aunt Arletta Hartman, had taken care of Hartman for just three and one-half years during his adolescence. Moreover, Hartman argues that certain elements of Dr. Siddall's report-such as the “alcohol and substance abuse, addiction, and mental health issues”-were not adequately presented through the witnesses' testimony and required expert development. Neither witness was able to corroborate the abuse referenced in the report, and Wolpert specifically stated that Hartman's step-father had not been abusive, but simply “strict.”
On the other hand, Hartman cites no specific failures or overlooked evidence sufficient to prejudice him under Strickland. The family testimony described above addressed most if not all of the factors listed in Dr. Siddall's report, albeit from a lay perspective. Furthermore, the decision not to introduce the report itself finds strategic justification. Although Dr. Siddall's report identifies mitigating factors and contains some sympathetic commentary, other aspects of it paint a decidedly unsympathetic portrait. The report, for example, describes Hartman as an individual of “average intelligence,” with “no evidence of psychotic symptoms” and “intact” organic brain function. Despite the report's description of Hartman's troubled childhood, it states that he “seemed to be stabilizing” prior to the murder. Such findings run contrary to the unstable or impaired mental functioning that a defendant would typically attempt to demonstrate by way of mitigation. See, e.g., Dickerson, 453 F.3d at 698-99 (holding that counsel's failure to present mitigation evidence regarding the defendant's borderline-retarded intelligence constituted prejudice).
Hartman is diagnosed in the report with a mixed personality disorder typified by features of being “stubborn, self-centered, low in frustration tolerance, and often fail[ing] to conform to social norms with respect to lawful behaviors.” Dr. Siddall further explained in the report that Hartman “portray [s] himself in a manner which is exceptionally free of common shortcomings to which other individuals will admit.” Given that, prior to the murder, Hartman was generally able to conform his behavior to the law during his adult life in spite of this disorder, a jury might view the report's portrayal of Hartman's personality deficits as simply off-putting rather than mitigating. Dr. Siddall himself in fact chose not to include Hartman's personality disorder in his list of “factors [that] are relevant to mitigation.” In light of these arguably unhelpful elements that are mixed in with the mitigating elements of the report, counsel might quite reasonably have made a strategic decision to present the report's mitigation findings through the more sympathetic lens of family members' testimony. Hartman counters that his counsel should have employed an alternate strategy of calling Dr. Siddall to testify in order to soften the impact of the report's “cold words.” This alternate strategy, however, would simply carry a different set of risks. Moreover, Hartman's argument plainly invites us to second guess his counsel's strategic decisionmaking. Counsel's statements to the court that he had reviewed Dr. Siddall's report and planned to present the factors outlined therein through the testimony of family members invoke the oft-repeated directive that “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” See Strickland, 466 U.S. at 690, 104 S.Ct. 2052.
Ultimately, no evidence cited by Hartman, either from Dr. Siddall's report or elsewhere, “differ[s] in a substantial way-in strength and subject matter-from the evidence actually presented at sentencing.” See Hill, 400 F.3d at 319. Hartman's habeas brief is instead replete with contentions that counsel failed to “expand on” or “corroborate[ ]” or “fully develop” the factors listed in Dr. Siddall's report. For example, Hartman asserts that counsel's mitigation investigation was inadequate because counsel “failed to obtain or present records from juvenile court or the juvenile detention facilities ... [or from] child welfare agencies.” Although the ABA standards indeed recommend obtaining such government records, Hartman argues that, if presented to the jury, the records would have simply “corroborated and detailed” the testimony actually presented. See Dickerson v. Bagley, 453 F.3d 690, 694 (6th Cir.2006) (discussing the ABA guidelines for mitigation investigations). These allegations typify Hartman's ineffective-assistance claim and distinguish it from the cases in which habeas relief has been granted. See, e.g., Wiggins v. Smith, 539 U.S. 510, 515, 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); Hamblin v. Mitchell, 354 F.3d 482, 485, 490 (6th Cir.2003) (holding that counsel's assistance was ineffective because he “did nothing” in preparation and “did not present the jury with any mitigating evidence”); Dickerson, 453 F.3d at 698-99 (determining that prejudice arose from counsel's failure to investigate evidence of the defendant's borderline-retarded IQ and abusive childhood).
Confronted with this difficulty in his argument, Hartman contends that cumulative evidence must nonetheless be taken into account in the reweighing process that requires us to determine if there is a reasonable probability that, but for counsel's errors, “the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. The necessary reweighing of evidence, however, is not evaluated simply in terms of volume. As this court has previously stated, “[o]ur cases reject a requirement that any later-identified cumulative mitigating evidence must have been introduced in order for counsel to be effective.” Clark v. Mitchell, 425 F.3d 270, 286 (6th Cir.2005).
Hartman alternatively argues that he is entitled to a remand to the district court for an evidentiary hearing regarding whether his counsel's allegedly ineffective assistance in the penalty phase of the trial prejudiced him. He requested an evidentiary hearing in his initial state-court postconviction petition and before the district court below, but both courts denied his request. Assuming that he avoids the 28 U.S.C. § 2254(e)(2) bar, we nonetheless conclude that Hartman has not alleged sufficient facts to warrant an evidentiary hearing on this issue. 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, --- U.S. ----, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (2007). 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.” Id. In the present case, Hartman's allegations focus exclusively on the mitigating factors addressed in Dr. Siddall's report. As detailed above, his counsel's mitigation presentation addressed these factors, even if not to the extent that Hartman desires in retrospect. We therefore conclude that Hartman is not entitled to relief on his claim of ineffective assistance of counsel during the penalty phase of the trial.
C. The “acquit first” jury instruction
Hartman's second COA issue is whether the trial court erroneously instructed the jury that they must first unanimously “acquit” Hartman of the death penalty before considering possible life sentences. Prior to the jury beginning its deliberation in the penalty phase, the trial judge instructed the jurors as follows: If all 12 members of the jury find by proof beyond a reasonable doubt that the aggravating circumstances ... are sufficient to outweigh the mitigating factors, then you must return such finding to the court.... I instruct you, as a matter of law, that if you make such a finding, then you have no choice and must make a recommendation to the court that the sentence of death be imposed on the Defendant, Brett X. Hartman. ... On the other hand, if after considering all of the evidence raised at trial which is relevant to the issues before you, the testimony, other evidence, and the arguments of counsel, you cannot unanimously agree that the State of Ohio proved beyond a reasonable doubt that the aggravating circumstances, as I have defined them, outweigh the mitigating factors, then you'll return your recommendation reflecting your decision. In this event, you will then proceed to determine which of the three possible life imprisonment sentences to impose. In addition, the judge informed the jury that “[w]hen all 12 of you, and I repeat, all 12 jurors agree upon a verdict, you will sign the verdict form in ink and advise the Court of this fact.” The verdict forms themselves are addressed in greater detail below.
1. Ohio Supreme Court's ruling
In evaluating this claim, the Ohio Supreme Court determined that, “[c]ontrary to the defendant's contention, the trial court never instructed the jury that it had to unanimously reject the death penalty before it could consider a life sentence.” Hartman, 754 N.E.2d at 1171. The Court further explained that “[t]he instructions explicitly advised the jurors that if they were unable to unanimously agree to recommend death, they shall consider life sentences,” and concluded that because “[t]he jury was ... implicitly advised that a single juror could prevent the death penalty,” the instruction was proper. Id.
2. District court's ruling
The district court addressed this claim by comparing the state trial court's jury instructions to those deemed constitutionally sound in Scott v. Mitchell, 209 F.3d 854 (6th Cir.2000). Characterizing the instructions in Scott as “virtually identical” to the instructions given here, the district court concluded that the instructions in question passed constitutional muster. Hartman, 333 F.Supp.2d at 671. Furthermore, the court cited Roe v. Baker, 316 F.3d 557, 563 (6th Cir.2002), as another case where this court “found no constitutional violation when the sentencing court failed to instruct the jury that unanimity was not required before the jury could consider a life sentence.” Hartman, 333 F.Supp.2d at 671. The district court noted, however, that this court's opinion in Davis v. Mitchell, 318 F.3d 682 (6th Cir.2003), “gives support” to Hartman's argument, characterizing the instructions held unconstitutional in that case also as “substantially identical” to the instructions given by the trial court here. Nevertheless, the district court concluded that it was bound by the prior precedent of Scott and Roe because “a panel cannot overrule another panel.” Hartman, 333 F.Supp.2d at 671 n. 16.
3. Our review
Hartman argues that the Ohio Supreme Court's ruling on his claim does not warrant deference under AEDPA because the Court's ruling was so cursory as to preclude review of whether it reasonably applied federal law. The Warden does not address this argument. Although Hartman is correct that the Ohio Supreme Court failed to cite any federal law in support of its determination, the Court nevertheless articulated the governing legal standard that it applied to evaluate the instructions in this case. Furthermore, the Court relied extensively on its own prior holding in State v. Brooks, 75 Ohio St.3d 148, 661 N.E.2d 1030 (1996), which did directly address the federal law cited by Hartman. But see Danner, 448 F.3d at 376 (“Any consideration of the [applicable federal law] contained within the state case law upon which the state courts relied is too attenuated to consider the [federal-law] claim to have been adjudicated on the merits”). Ultimately, we need not resolve this issue because, even reviewing Hartman's claim de novo, we agree with the Ohio Supreme Court's conclusion that the instructions were not improper.
An acquittal-first jury instruction is “[a]ny instruction requiring that a jury must first unanimously reject the death penalty before it can consider a life sentence.” Davis v. Mitchell, 318 F.3d 682, 689 (6th Cir.2003) (emphasis added). This court has held that such instructions are unconstitutional and provide grounds for habeas relief. Id. Under Ohio law, however, the jury must unanimously agree on the final sentence imposed, whether it be death or a term of life imprisonment. See id. Thus, even though the jury may not be required to unanimously “acquit” a defendant of death before considering life sentences, Ohio law requires that the jury be instructed that their ultimate sentencing decision must be unanimous. Hartman urges that the instructions given in this case, although not explicitly erroneous, were ambiguous and subject to an unconstitutional interpretation. The Supreme Court has held that, in evaluating such an argument, the appropriate inquiry centers on “whether there is a reasonable likelihood that the jury has applied the challenged instruction” in an unconstitutional manner. Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990) (applying the “reasonable likelihood” examination to determine that an allegedly ambiguous jury instruction was not unconstitutional). Hartman urges that there is a reasonable likelihood that the jury misinterpreted the trial court's instructions as requiring unanimity at every stage of deliberation, including the question of whether the mitigating factors outweighed the aggravating circumstances.
We believe that the district court erred in determining that the instructions given in this case were substantially identical to those evaluated in Davis and Scott. (Roe did not specifically address instructions analogous to those at issue here.) The instructions in those cases and, more recently, in Spisak v. Mitchell, 465 F.3d 684 (6th Cir.2006), all began by explaining to the jury that “if all twelve members of the jury find ... that the aggravating circumstances ... outweighs [sic] the mitigating factors, ... then you must recommend to the court that a sentence of death be imposed.” Id. at 709; see also Davis, 318 F.3d at 684; Scott, 209 F.3d at 873. The trial court in the present case, to be sure, began with a similar instruction, informing the jury that their determination must be unanimous in order to recommend imposing the death penalty. Where the instructions given by the trial court materially differ from those evaluated in Davis, Scott, and Spisak, however, is in the crucial portion just following the above-quoted instruction. In the prior cases cited, the state trial court's next instruction explained: “On the other hand, if after considering all of the relevant evidence ... you find that the State failed to prove ... that the aggravating circumstances ... outweigh the mitigating factors, you will then proceed to determine which of [the] possible life imprisonment sentences to recommend.” Spisak, 465 F.3d at 709-10 (emphasis added); see also Davis, 318 F.3d at 685; Scott, 209 F.3d at 873.
The state trial court in Davis added: “[T]hat is, you must find that the State has failed to prove beyond a reasonable doubt that the aggravating circumstances which the defendant was found guilty of committing outweigh the mitigating factors.” 318 F.3d at 685 (emphasis omitted). In Mapes v. Coyle, 171 F.3d 408 (6th Cir.1999), the state trial court gave substantially identical instructions, but then went a step further by adding: “That is, you must unanimously find that the State has failed to prove beyond a reasonable doubt that the aggravating circumstances of which the defendant was found guilty of committing outweigh the mitigating factors.” Id. at 416 (emphasis added). This court in Davis held that the above-quoted language ambiguously instructed the jury what to do in the event that “you find” that the state failed to prove that the aggravating circumstances outweighed the mitigating factors because the instruction did not specify whether that “finding” needed to be unanimous. Davis, 318 F.3d at 690. The courts in Davis and Spisak went on to examine the totality of the jury instructions given and concluded that there was a reasonable likelihood that the jury would have filled in this instructional void by drawing from other sources that required unanimity, such as the verdict forms or, as in Davis, the general instruction given in “close proximity” that “since this is a criminal case, the law requires that in order for you to reach a decision all 12 of you must be in agreement.” Davis, 318 F.3d at 684.
Here, the trial court's instructions left no such void. After instructing the jurors as stated above regarding what to do in the event that all 12 agreed that the aggravating circumstances outweighed the mitigating factors, the court explained: “On the other hand, if after considering all of the evidence ... you cannot unanimously agree that the State ... proved beyond a reasonable doubt that the aggravating circumstances ... outweigh the mitigating factors, then you'll return your recommendation reflecting your decision. In this event, you will then proceed to determine which of the three possible life imprisonment sentences to impose.” (Emphasis added.) The above instructions correctly and explicitly state that anything short of unanimous agreement regarding whether the aggravating circumstances outweigh the mitigating factors required the jury to proceed to determine which possible life sentence to impose. Notably, the court did not employ the “if ... you find” or “you must find” language used in cases like Davis and Spisak, but instead instructed the jurors, first, what to do if they did unanimously find that the aggravating circumstances outweighed the mitigating factors, and then, second, what to do if they could not unanimously so find. These instructions are therefore readily distinguishable from those held to be susceptible to an unconstitutional acquittal-first interpretation in Davis and Spisak.
Relying on this court's holding in Davis, Hartman further asserts that the jury verdict forms used by the Ohio trial court permitted an unconstitutional interpretation. He argues that the forms could be interpreted to erroneously indicate that a life verdict may be rendered only if the jury unanimously finds that the aggravating circumstances do not outweigh the mitigating factors. The death-sentence verdict form used in Hartman's case was in fact similar to those used in prior cases. It provided, in pertinent part, that “[w]e the jury ... do find ... that the aggravating circumstances outweigh the mitigating factors.... We, the jury, recommend the sentence of death be imposed....” (Emphasis added.) Compare Spisak, 465 F.3d at 710; Scott, 209 F.3d at 873-74. All 12 jurors were required to sign the form. The central point argued by Hartman, however, concerns the life-sentence verdict forms. In prior cases analyzed by this court, Ohio's life-sentence verdict forms provided that “we the jury ... do find that the aggravating circumstances ... are not sufficient to outweigh the mitigating factors present,” and required the signatures of all 12 jurors. Spisak, 465 F.3d at 710 (emphasis added); Davis, 318 F.3d at 690; Scott, 209 F.3d at 874. In both Davis and Spisak, the court concluded that this wording contributed to the potential misunderstanding that unanimity was required in order to consider life sentences.
The verdict forms used in Hartman's trial differed from those used in other recent death-penalty cases that this court has reviewed. Although the death-sentence verdict forms were the same, the life-sentence verdict forms provided that “we the jury ... do not find, by proof beyond a reasonable doubt, that the aggravating circumstances outweigh the mitigating factors.” (Emphasis added.) Again, all 12 jurors were required to sign the form. The difference in the life-sentence verdict forms used in this case is significant. Whereas both the life-sentence and death-sentence verdict forms in prior cases expressed a finding and required the signature of all jurors, only in Hartman's case did the life-sentence verdict forms profess a nonfinding regarding whether the aggravating circumstances outweighed the mitigating factors. This wording conforms to the trial court's earlier proper instructions that, essentially, anything short of a unanimous agreement that the aggravating circumstances outweighed the mitigating factors necessitated a life sentence. In Goff v. Bagley, No. 1:02-cv-307, 2006 WL 3590369, at * 10 (S.D.Ohio Dec.1, 2006), the Southern District of Ohio recently reached a similar conclusion in analyzing a life-sentence verdict form substantially identical to the ones employed in Hartman's case. This court in Williams v. Anderson, 460 F.3d 789, 811-13 (6th Cir.2006), attempted to resolve in dicta what the district court in this case perceived to be the tension among this court's holdings regarding acquittal-first jury instructions. We have no occasion to comment on that analysis here, however, because we conclude that the trial court's instructions in this case differed materially from prior alleged “acquittal-first” instructions and did not create a reasonable likelihood that the jury applied them in an unconstitutional manner.
D. Prosecutorial misconduct
Hartman's third COA issue asserts that the prosecutor's alleged implication during the penalty phase of the trial that the murder itself could be considered as an aggravating circumstance amounted to prosecutorial misconduct and violated Hartman's constitutional rights. He specifically highlights four instances of alleged misconduct during the penalty phase in which the prosecutor stated:
1. The kidnapping is certainly the fact that Winda Snipes was restrained during the aggravated murder. She was tortured and the kidnapping encompasses torture, serious physical harm as well as the restraint. Okay?
2. And I submit to you you can consider the binding of her ankles to the bed, cord ligature around her neck, in excess of 130 stab wounds of [sic] cuts of different sorts to her body, some of which you learned from the Medical examiner was [sic] before she was dead, terrorize, inflict serious physical harm. You can certainly consider those things.
3. I think you can certainly consider as part of the aggravating circumstance this Defendant's actions after the murder, removing of evidence, trying to wipe down the scene, letting the mutilated body of Winda Snipes lay for several hours before- Mr. Whitney: Objection, objection. Court: Overruled. Mr. Bandy:-the police are called, fleeing after the commission of a crime. Those kinds of actions can also be considered by you.
4. You think about the aggravating circumstance and I want you to think about it, take each one-everything that Attorney Bandy went over in regard to the kidnapping: Winda Snipes was restrained, she was terrorized, over 130 stab wounds, her throat was slit, her hands were removed, think about that aggravating circumstance. Hartman argues that the prosecutor's references to facts pertaining to the murder itself were improper in the course of discussing the aggravating circumstances.
1. Ohio Supreme Court's ruling
The Ohio Supreme Court considered only the third statement of alleged prosecutorial misconduct that Hartman now highlights. Hartman, 754 N.E.2d at 1173. In reference to that statement, the Court agreed that “it was wholly improper for the state to argue or suggest that the jury may consider the nature and circumstances of the offense as ‘part of the aggravating circumstances.’ ” Id. Nevertheless, the Court concluded that the alleged misconduct did not prejudicially affect Hartman's substantial rights for two reasons: (1) the statement “could not have made any difference in the outcome” in light of the jury's finding of guilt regarding the aggravating circumstance of kidnapping and the “lack of compelling mitigating evidence,” and (2) the trial court's clear and proper instruction to the jury that kidnapping was the only aggravating circumstance in the case. Id. at 1173-74.
2. District court's ruling
In reviewing Hartman's prosecutorial-misconduct claim, the district court specifically addressed only the fourth statement listed. The court agreed that the statement was improper, and added that it found “deeply troubling the prosecutor's references to the gruesome nature of the crime and the post-mortem mutilation of the body.” Hartman, 333 F.Supp.2d at 664 & n. 13. Characterizing the statement as “a passing remark” and “limited in nature,” however, the court concluded that it did not render the penalty-phase proceeding “fundamentally unfair.” Id. at 664. Moreover, the district court determined that the trial court properly instructed the jury as to the aggravating circumstance of kidnapping, and that Hartman had failed to overcome the presumption that the jury would follow the court's instruction. Id.
3. Our review
The district court correctly noted that Hartman preserved his prosecutorial-misconduct claim for review by raising it before the Ohio Supreme Court. Of the four allegedly improper statements Hartman points to, we agree with the Ohio Supreme Court and the district court that the third and fourth statements were improper. As explained below with respect to Hartman's fourth COA claim, however, his alleged restraint, “torture,” and “terroriz[ing]” of Snipes are central to establishing a necessary element of the kidnapping in this case: that Hartman's restraint of Snipes led to a substantial increase in the risk of physical harm to which she was exposed separate from that associated with her murder. The prosecutor's first and second statements simply detail this serious harm separate from that associated with the murder to which Snipes was subjected by virtue of her restraint. Such “serious physical harm” is a statutory component of kidnapping, the sole aggravating circumstance charged against Hartman. See Ohio Rev.Code Ann. § 2905.01 (defining kidnapping as the asportation or restraint of another for the purpose of, among other things, “terroriz[ing], or ... inflict[ing] serious physical harm on the victim”). For this reason, the prosecutor's first and second statements were not misleading.
By contrast, the third and fourth statements improperly encouraged the jury to take into account the means of killing-the slitting of Snipes' throat-and the post-mortem mutilation of Snipes's body as aggravating circumstances. But such isolated remarks generally do not rise to the level of a due process violation. In order to warrant habeas relief, Hartman must show that the statements of the prosecutor so infected the trial with unfairness as to make the resulting conviction a denial of due process. In order to deny due process, the misconduct must be so pronounced and persistent that it permeates the entire atmosphere of the trial or so gross as probably to prejudice the defendant. Simpson v. Jones, 238 F.3d 399, 409 (6th Cir.2000) (citations and quotation marks omitted).
The two statements in question do not fit this description. Moreover, as both the Ohio Supreme Court and the district court noted, the trial court properly instructed the jury to consider only the kidnapping as an aggravating circumstance of the murder. We presume that the jury followed these instructions “unless there is an ‘overwhelming probability’ that they were ignored.” See Scott, 209 F.3d at 879 (quoting Richardson v. Marsh, 481 U.S. 200, 208, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987)). In the case before us, the jury convicted Hartman of the separate kidnapping offense, and the mitigation evidence was relatively weak. These factors substantially undermine Hartman's attempt to rebut the presumption that the jury obeyed the court's instruction to weigh only the kidnapping circumstance against the mitigating factors. The Ohio Supreme Court's conclusion that the prosecutor's closing argument did not violate Hartman's rights, therefore, was not contrary to or an unreasonable application of clearly established federal law.
E. Sufficiency of the kidnapping evidence
Hartman's fourth and final COA issue asserts that insufficient evidence supported the jury's conclusion that he was guilty of the kidnapping capital specification and the separate kidnapping charge. Specifically, he claims that the evidence was insufficient to establish either the standard elements of kidnapping or the additional element that the kidnapping was motivated by an animus separate from that which motivated the murder. This additional element was required in the present case both under Ohio law and under the Eighth Amendment principle that “an aggravating circumstance must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” See Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). If not required to be motivated by a separate animus from the murder itself, a kidnapping capital specification would presumptively fail to genuinely narrow the class of murder defendants eligible for the death penalty. See id.
1. Ohio Supreme Court's ruling
The Ohio Supreme Court determined that the prosecutor had introduced proof that one of Snipes's legs had been tied to the bed, and had shown that this restraint was effected while she was alive. Hartman, 754 N.E.2d at 1162. Regarding the separate animus requirement, the Court stated that
the test to determine whether the kidnapping was committed with a separate animus so as to support a separate conviction is whether the restraint or movement of the victim is merely incidental to a separate underlying crime or, instead, whether it has a significance independent of the other offense.
Id. (quotation marks omitted). Applying this test, the Court concluded: “The evidence therefore shows that Snipes's kidnapping, i.e., the restraint, was completed prior to her murder and that the restraint was not merely incidental to her murder.” Id.
Justice Pfeifer dissented on this issue. He opined that, although “[i]t is possible to believe that a kidnapping occurred,” the record did not establish the kidnapping beyond a reasonable doubt because “the alleged kidnapping was in reality a series of actions that were incidental to the crime of murder.” Id. at 1183 (Pfeifer, J. dissenting).
2. District court's ruling
The district court deemed Hartman's kidnapping claim to be his “best argument for habeas relief,” Hartman, 333 F.Supp.2d at 666, but ultimately concluded that “[a] reasonable juror could well find that Hartman's restraint of Winda Snipes was motivated by a different animus than the animus motivating the murder.” Id. at 669. Reviewing Ohio law, the district court concluded that two questions were significant for determining the existence of a separate animus: “(1) was the restraint prolonged, the confinement secretive, or the movement substantial to show a significance independent of the other offense, and (2) did the asportation or restraint of the victim subject the victim to a substantial increase in risk of harm separate and apart from that involved in the underlying crime?” Id. The district court's analysis focused on the second prong in determining that the tying of Snipes's leg to the bed exposed her to a substantial increase in the risk of harm separate from that involved in the murder. First, the court noted that tying Snipes's leg “substantially increased her risk of harm of assault and rape.” Id. Second, the court held that the restraint in question “only marginally increased her risk of the type of murder she suffered strangulation and a slit throat.” The court based this latter conclusion, in part, on the coroner's testimony that Snipes died quickly after her throat was slit. Id. Were the restraint intended to facilitate this form of murder, the court reasoned, Hartman would have restrained Snipes's upper extremities as well in light of the forensic evidence demonstrating that she struggled with her arms. Id. at 669 n. 15. Furthermore, the court determined that “Snipes' small size, only 5 feet, 2 inches tall with a weight of 128 pounds, suggests that binding her to the bed was neither necessary to carry out the murder nor likely associated with the murder.” Id. at 669 (citation omitted).
3. Our review
Hartman preserved this claim for habeas review by raising it in his direct appeal. As a result, the Ohio Supreme Court's determination that the evidence was sufficient to support the kidnapping capital specification and separate kidnapping conviction must be upheld unless it is contrary to, or an unreasonable application of, clearly established federal law. Evidence is constitutionally sufficient if, when viewed in the light most favorable to the government, “ 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 and the district court concluded, the evidence that Hartman restrained Snipes by forcibly tying one of her legs to the bed for some period of time while she was alive sufficed to establish the standard elements of kidnapping. Consequently, we turn to the central issue of whether the evidence was constitutionally sufficient to support a finding that Hartman possessed an animus to commit the kidnapping that was separate and apart from that motivating the underlying murder.
The “separate animus” requirement under Ohio law does not demand that a defendant possess an animus to kidnap exclusive of an animus to commit other crimes; instead, it simply requires that the kidnapping animus exist separately. See State v. Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345, 1351-52 (1979) (framing the primary issue in determining the existence of a separate kidnapping animus as whether “the restraint or movement of the victim” has “significance independent of the other offense”). Evidence of substantial movement of the victim, for example, can satisfy the separate-animus requirement even if the perpetrator may have ultimately intended to commit additional crimes against the victim. See State v. Jells, 53 Ohio St.3d 22, 559 N.E.2d 464, 475 (1990) (finding that the evidence supported a separate kidnapping animus where the defendant kidnapped a victim by forcing her and her son into a van and driving off, and then murdered her by beating her to death either during the course of the drive or after arriving at a junkyard). Similarly, a separate animus has been found where the defendant restrains the victim in order to facilitate inflicting substantial harm separate and apart from that associated with murder (such as terrorizing or torturing a victim), even if the defendant may have ultimately intended to murder the victim. See State v. Seiber, 56 Ohio St.3d 4, 564 N.E.2d 408, 420 (1990) (finding that the evidence supported a separate animus for kidnapping based on a substantially increased risk of harm where the defendant threatened and terrorized various bar patrons before finally murdering one of them). The kidnapping in both Jells and Seiber was not merely incidental to the murder; instead, the restraint was found to have a separate purpose that genuinely distinguished it from the restraint typically inherent in the crime of murder.
In the present case, Snipes was found with one leg bound by pantyhose to the bed and a gag over her mouth. According to the medical examiner, Snipes had been bound while she was still alive. The medical examiner's report stated that, in addition to numerous nonfatal stab wounds, Snipes suffered significant blunt-force trauma to her face and eyes, indicating a beating. (Although the Ohio Supreme Court and the district court speculated as to whether Snipes had been raped based on the semen discovered in Snipes's body, Hartman accurately points out that the medical examiner found no evidence of forced entry. Combined with the admitted consensual relationship between Hartman and Snipes, the evidence does not clearly establish that a rape occurred or that the restraint facilitated a rape.) In spite of the clear evidence that Snipes was restrained, Justice Pfeifer dissented from the Ohio Supreme Court's majority opinion and concluded that the increased-risk-of-harm factor of the separate-animus inquiry was not sufficiently established. His conclusion, however, appears to derive primarily from his expansive interpretation of the harm involved in the underlying crime of murder. He states that “the alleged kidnapping was in reality a series of actions that were incidental to the crime of murder.” Hartman, 754 N.E.2d at 1183 (Pfeifer, J., dissenting). If the harm involved in the underlying crime of murder is confined to acts that purposefully cause the death of another, however, the separate, extraordinary harms to which Snipes was subject by virtue of her restraint establish a separate kidnapping animus. The disagreement among the justices thus centered on whether inflicting beatings and numerous patently nonlethal stab wounds amounted to harm “separate and apart” from that associated with the murder.
We believe that the district court's focus both on Snipes's diminutive size compared with Hartman's and on the rapidity of her death following the slitting of her throat resolve the debate in favor of the Ohio Supreme Court's majority opinion. See Hartman, 333 F.Supp.2d at 669. There is little reason to believe that Hartman needed to restrain Snipes in order to inflict the harm associated with her murder, but strong reason to conclude that the restraint was intended to facilitate the infliction of the additional nonlethal harms apparent from the forensic evidence. Cf. State v. Adams, 103 Ohio St.3d 508, 817 N.E.2d 29, 51 (2004) (finding no separate animus where the victim had not been bound or restrained in any way other than what was “necessary” to commit the underlying offenses). Based on the evidence presented, we conclude that a reasonable juror could find beyond a reasonable doubt that Hartman's restraint of Snipes subjected her to an increased risk of the harm associated with being beaten and terrorized that was separate and apart from the harm involved in being murdered. Had the much-larger Hartman intended solely to murder Snipes, there is no reason to believe that the leg restraint and gag would have been necessary. The Ohio Supreme Court's determination that sufficient evidence supported a finding that Hartman possessed a separate animus to kidnap Snipes was therefore not contrary to or an unreasonable application of clearly established federal law. See Jackson, 443 U.S. at 319, 99 S.Ct. 2781.
F. Ineffective assistance of former habeas counsel
In addition to the issues listed in the COA, Hartman attempts to raise in this appeal the issue of the allegedly ineffective assistance of his former habeas counsel. Hartman previously sought a COA regarding this claim, but both the district court and this court denied that request. This court also denied his petition to rehear that particular COA request en banc. Because the COA granted for this appeal covers only the issues set forth above, and because we have previously determined that Hartman's claim regarding his former habeas counsel is without merit, we decline to further address it here.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.
CLAY, Circuit Judge, concurring in part and dissenting in part.
With the exception of Parts II.B and II.C, I join in the majority's well-reasoned opinion. With respect to Petitioner's claim of ineffective assistance of counsel at the sentencing phase, I concur in the majority's analysis of procedural default and its conclusion that Petitioner established cause to excuse the procedural default. However, I respectfully dissent from the majority opinion inasmuch as it denies Petitioner's ineffective assistance of counsel claim on the merits. In my view, Petitioner's counsel performed ineffectively at the sentencing phase, thereby violating Petitioner's Sixth Amendment Right to Counsel. Correspondingly, I believe Petitioner has shown prejudice to excuse procedural default of this claim. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (a petitioner must show cause and prejudice to obtain federal habeas relief on a procedurally defaulted claim); Joseph v. Coyle, 469 F.3d 441, 462-63 (6th Cir.2006) (“[E]stablishing Strickland prejudice likewise establishes prejudice for purposes of cause and prejudice.”). On the matter of acquittal-first jury instructions, I also dissent on the belief that the Ohio Supreme Court's decision runs contrary to clearly established Supreme Court precedent on jury instructions in capital cases. I would therefore vacate Petitioner's death sentence and remand for a new sentencing phase trial.
Like the majority, I would review Petitioner's ineffective assistance claim de novo because the Ohio state courts failed to adjudicate this claim on the merits. See Wiggins v. Smith, 539 U.S. 510, 528-31, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); McKenzie v. Smith, 326 F.3d 721, 726-27 (6th Cir.2003); Clinkscale v. Carter, 375 F.3d 430, 436 (6th Cir.2004). Petitioner contends that trial counsel “fail[ed] to thoroughly investigate his background and mental health history for potential mitigating evidence,” and failed to present sufficient evidence in mitigation. (Pet.'s Br. at 11, 13) FN1 Reviewing this claim de novo, I would grant Petitioner habeas relief. FN1. Petitioner also challenges counsel's effectiveness inasmuch as counsel conceded in his opening statement “there was nothing they could do to reduce the blame for this crime,” counsel failed to object to the prosecutor's improper arguments, and counsel failed to object to the state's use of certain victim impact evidence. However, this Court granted Petitioner's COA on a more limited scope, certifying the question whether counsel performed ineffectively “by not conducting a sufficient investigation into mitigating factors and not presenting significant evidence during the sentencing phase.” (Order at 2 (Aug. 10, 2005)) Accordingly, claims of ineffective assistance on these alternative bases are not before this Court. See Bugh v. Mitchell, 329 F.3d 496, 502 n. 1 (6th Cir.2003) (citing Valentine v. Francis, 270 F.3d 1032, 1035 (6th Cir.2001)). In an appendix to his Petition to Vacate, Petitioner attached a May 13, 1998 evaluation of Petitioner conducted by a clinical and forensic psychologist, James W. Siddall, Ph.D., wherein Dr. Siddall identified “potential mitigating circumstances pursuant to Ohio Revised Code [§ ] 2929.04(B).” (J.A. at 1332) The Siddall Report set forth Petitioner's social history, including instability in his living situation, adjustment problems at home and at school, physical abuse at the hands of a step-father, alleged sexual abuse at the hands of a step-mother, the death of his father in 1994, a history of substance abuse and alcoholism, and time as a runaway living homeless on the streets. Moreover, the Siddall Report assessed Petitioner's mental status and personality, concluding that Petitioner suffered from “a mixed personality disorder with obsessive-compulsive, narcissistic, and antisocial features.” ( Id. at 1337) It went on to characterize individuals with mixed personality disorder as typically “stubborn, self-centered, low in frustration tolerance, and fail[ing] to conform to social norms,” (id.) and noted that “[u]nder the influence of disinhibiting substances, episodes of irritability, hostility, aggression, and loss of control may be observed.” ( Id. at 1338)
Petitioner's trial counsel did not call Dr. Siddall to testify in the penalty phase, nor did he introduce the Siddall Report into evidence. Instead, the entire case in mitigation consisted of testimony from Petitioner's sister, Rhea Wolpert (“Ms.Wolpert”), and aunt, Arletta Hartman (“Ms.Hartman”). FN2 Their testimony largely tracked the mitigating factors contained in the Siddall Report. Ms. Wolpert spoke about Petitioner's difficulty adjusting as a child, his unstable family situation, his time as a runaway, his involvement with drugs and alcohol, and his family's history of alcoholism. She testified that while Petitioner lived with her, he got himself a job, “was a hard worker,” and helped contribute (both financially and in terms of house work) to the household, but that even then she noticed his problems with alcohol. (J.A. at 708-09) Ms. Wolpert further stated that, in her experience, Petitioner had only “a little” difficulty with authority and was “[n]o[ ] more [rebellious] than any other child.” ( Id. at 711-12)
FN2. As the majority acknowledges, Ms. Wolpert, who is eleven years older than Petitioner, moved away from home when Petitioner was merely five years old. Until Petitioner's late teens, when he lived with Ms. Wolpert for a few years, Petitioner had little contact with Ms. Wolpert. As a result, almost the entire body of Ms. Wolpert's testimony came not from first-hand knowledge of Petitioner's life and activities, but from stories relayed to her by their mother. Ms. Hartman lived with and cared for Petitioner for a similarly brief period of time (three and one-half years). Ms. Hartman testified that she agreed to care for Petitioner when he was eight because Petitioner was experiencing “discipline problems and problems with his stepfather” at home. (J.A. at 724) She indicated that Petitioner behaved hyperactively and had some difficulty adjusting both socially and academically at first, and that later he grew rebellious, lying and stealing apparently so Ms. Hartman would send him back to his mother. Ms. Hartman additionally reported on Petitioner's episodes as a runaway, his involvement in theft, and his time served in a juvenile detention center. Further, she testified to his theft of a car, his apparent selling of drugs, alcoholism, and two additional stays in California group homes. Finally, Ms. Hartman testified that Petitioner took action to make amends with his father and step-mother, voluntarily turned himself in to the California group home that he had improperly left at an earlier time, and-while at the group home-earned his GED and got a job. As stated previously, the testimony of Ms. Wolpert and Ms. Hartman constitutes the entirety of the case Petitioner's counsel put forth in mitigation. Critically, Petitioner's counsel proffered no evidence of physical abuse by Petitioner's step-father or of sexual abuse by Petitioner's step-mother, and insufficient Evidence of genetic alcoholism for the trial judge to allow reference to it in Petitioner's ‘Exhibit U.’ FN3 ( Id. at 751-52)
FN3. Exhibit U was a chart prepared by Petitioner's counsel setting forth mitigating factors that initially included the step-father's abusiveness and genetic alcoholism. In response to Respondent's objection to the exhibit's admissibility, the trial judge required Petitioner to redact references to both the physical abuse and alcoholism. Defendant must show both (1) deficient performance of counsel; and (2) that counsel's deficient performance prejudiced the defense, thereby rendering the trial fundamentally unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Counsel performs deficiently where his “representation f[a]ll[s] below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. Objectively reasonable representation is properly measured with reference to “prevailing professional norms” and the inquiry takes into account all circumstances at the time of the conduct. Id. at 688-89, 104 S.Ct. 2052. Appellate courts review counsel's performance with great deference. To satisfy the second prong of the inquiry, a “defendant [must] affirmatively prove prejudice” by showing “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 693-94, 104 S.Ct. 2052. The probability need only be so great as to “undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. Failure to satisfy either prong of the inquiry is dispositive.
In my view, trial counsel failed to provide objectively reasonable representation at the mitigation phase. See Strickland, 466 U.S. at 688, 104 S.Ct. 2052. “[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Id. at 691, 104 S.Ct. 2052. Accordingly, we must consider “whether counsel conducted a reasonable investigation of Defendant's background.” Spisak v. Mitchell, 465 F.3d 684, 707 (6th Cir.2006). As an aid “to determining what is reasonable,” courts have looked to the American Bar Association Guidelines. Rompilla v. Beard, 545 U.S. 374, 387, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (citing Wiggins, 539 U.S. at 524, 123 S.Ct. 2527). The ABA Standards for Criminal Justice provide that: [t]he lawyer ... has a substantial and important role to perform in raising mitigating factors both to the prosecutor initially and to the court at sentencing. This cannot effectively be done on the basis of broad general emotional appeals or on the strength of statements made to the lawyer by the defendant. Information concerning the defendant's background, education, employment record, mental and emotional stability, family relationships, and the like, will be relevant, as will mitigating circumstances surrounding the commission of the offense itself. Investigation is essential to the fulfillment of these functions. 1 ABA Standards for Criminal Justice 4-4.1 (1982 Supp.).
“In assessing the reasonableness of an attorney's investigation, ... a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further.” Wiggins, 539 U.S. at 527, 123 S.Ct. 2527. Trial counsel apparently possessed at least some of Petitioner's mental health records and his criminal records. Beyond that, the record reflects that trial counsel's mitigation phase investigation involved consultation with Dr. Siddall, and discussions with Ms. Wolpert and Ms. Hartman. Dr. Siddall evaluated Petitioner and prepared a report to assist counsel in identifying potential mitigating factors for presentation at the sentencing phase. Dr. Siddall interviewed Petitioner personally and administered several psychological and personality assessment tests. Although the Siddall Report identified several pathways for further investigation, it does not appear that trial counsel pursued those paths. Rather, from the record before us, it appears that trial counsel unreasonably limited his investigation, all but foreclosing consideration of three potential mitigating factors. First, the Siddall Report clearly identified genetic alcoholism as a factor in mitigation. Ms. Wolpert proffered vague testimony about her family' history of alcoholism and Petitioner's personal struggles with alcohol abuse, as did Ms. Hartman.FN4 Not surprisingly, the trial judge found this testimony insufficient to establish genetic alcoholism and, accordingly, redacted that mitigating factor from an exhibit prepared by Petitioner's counsel to guide the jury's deliberations. Consistent with the ABA Guidelines,
FN4. Notably, when asked about Petitioner's drinking, Ms. Wolpert responded, “He was involved a little bit.” (J.A. at 709) Counsel's exploration of genetic alcoholism consisted of two questions: first, “there's alcoholism in your family; is that correct;” and second, “[Petitioner] has been around alcoholics and alcohol all of his life, if you're aware of that?” ( Id. at 712) In each case, Ms. Wolpert gave brief, lukewarm affirmative answers. Ms. Hartman's testimony recounted an episode where Petitioner was hospitalized as an adolescent following a “chuck-a-lucking” contest. ( Id. at 738) [r]ecords should be requested concerning not only the client, but also his parents, grandparents, siblings, and children. A multi-generational investigation frequently discloses significant patterns of family dysfunction and may help ... underscore the hereditary nature of a particular impairment. Hamblin v. Mitchell, 354 F.3d 482, 487 n. 2, 488 (6th Cir.2003) (quoting ABA Guidelines for the Appointment & Performance of Def. Counsel in Death Penalty Cases ¶ 10.7, at 80-83 (2003)) (citing the “2003 ABA Guidelines ... because they are the clearest exposition of counsel's duties at the penalty phase ..., duties that were recognized by this court as applicable to the 1982 trial of the defendant in Glenn v. Tate ”). A “reasonably competent attorney” would have pursued stronger evidence of genetic alcoholism. See Wiggins, 539 U.S. at 534, 123 S.Ct. 2527.
Second, according to the Siddall Report, Petitioner suffered physical abuse at the hands of his step-father, and sexual abuse at the hands of his step-mother. As the majority indicates, Petitioner's claims of physical and sexual abuse were not corroborated by Petitioner's family members during interviews with Dr. Siddall. Yet, Dr. Siddall's investigation was not exactly searching itself. In fact, the report indicates that Dr. Siddall relied on background information summarizing Petitioner's “criminal justice involvement, mental health treatment, and the circumstances of the instant offense,” two meetings with Petitioner himself, and telephone interviews with Petitioner's mother and Ms. Hartman. (J.A. at 1332) The fact that Petitioner's mother and Ms. Hartman did not corroborate Petitioner's claims of childhood abuse goes not unequivocally mean that trial counsel, upon investigation, would find no record of abuse.FN5 On the basis of this very small body of evidence, when coupled with the often secretive treatment of abuse, a reasonably competent attorney could not simply conclude “that further investigation would have been fruitless.” See Wiggins, 539 U.S. at 525, 123 S.Ct. 2527. To the extent that Dr. Siddall partially attributed Petitioner's personality disorder to “instability and abuse in his home environment,” ( id. at 1338), trial counsel had even greater reason to investigate the alleged instances of abuse.
FN5. In fact, the Siddall Report suggests that mental health records apparently in counsel's possession described Petitioner as presenting “symptoms characteristic of children who had been abused.” (J.A. at 1339) Third, Dr. Siddall concluded that Petitioner suffered from mixed personality disorder-a condition that, when combined with “disinhibiting substances,” can lead to “episodes of irritability, hostility, aggression, and loss of control.” (J.A. at 1338) As the Report reflects, Dr. Siddall further concluded that instability and abuse at home contributed to Petitioner's mixed personality disorder. In my view, Dr. Siddall's conclusion would prompt a reasonable attorney to investigate more fully Petitioner's mental and emotional stability over time, for example, by requesting his school records, records from juvenile detention facilities and group homes, or from any medical professionals or counselors. On the record before us, it appears that trial counsel did not conduct additional investigation into the development and existence of a personality disorder. “Our Court's precedents ... make clear that conducting a partial, but ultimately incomplete, mitigation investigation does not satisfy Strickland's requirements.” Dickerson v. Bagley, 453 F.3d 690, 695 (6th Cir.2006).
Aside from his insufficient investigation, trial counsel failed to introduce evidence within his control. Specifically, counsel failed to introduce evidence of Dr. Siddall's conclusion that Petitioner suffered from “a mixed personality disorder with obsessive-compulsive, narcissistic, and antisocial features” which left him prone to “episodes of irritability, hostility, aggression, and loss of control” when under the influence. ( See J.A. at 1337-38) Dr. Siddall's report additionally indicated that Petitioner's mixed personality disorder and propensity to substance abuse were “compounded by instability and abuse in his home environment.” ( Id. at 1339). What is more, the Siddall Report raises the implication that counsel had in his possession some evidence of abuse. The Report quotes the findings of psychologists at the New Mexico Youth Diagnostic and Development Center that Petitioner “ ‘presented symptoms characteristic of children who had been abused including poor self-esteem, difficulty with authority, and rebellious behavior.’ ” ( Id. at 1339) These findings apparently came from the mental health records in trial counsel's possession which, of course, counsel did not introduce at the sentencing phase of Petitioner's trial.
The majority finds that Petitioner's trial counsel likely made strategic choices in presenting Petitioner's case in mitigation “through the more sympathetic lens of family members' testimony,” and in omitting reference to less helpful portions of the Siddall Report. I do not disagree that, by presenting mitigating evidence through Ms. Wolpert and Ms. Hartman, trial counsel humanized Petitioner in a way that Dr. Siddall's testimony could not. Yet, by confining the case in mitigation to their testimony, trial counsel similarly limited the evidence of genetic alcoholism and abuse put before the jury. In doing so, counsel did not foreclose reference to less sympathetic elements of Petitioner's background and history, since counsel himself elicited such testimony on direct examination of Ms. Wolpert and Ms. Hartman. Cf. Darden v. Wainwright, 477 U.S. 168, 186, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (counsel not ineffective where limited mitigation case was designed to foreclose rebuttal evidence of petitioner's prior convictions); Clark v. Mitchell, 425 F.3d 270, 286 n. 6 (6th Cir.2005) (finding counsel's representation not deficient, in part, because it was likely that “counsel made a strategic decision to limit testimony about [the petitioner's] past in order to prevent ‘opening-the-door’ to evidence of [his] criminal background”). Ms. Wolpert readily described Petitioner's efforts to work hard and contribute to the household while he lived with her, and testified that Petitioner had only “a little” difficulty with authority as a child. (J.A. at 711-12) Similarly, Ms. Hartman testified that Petitioner had taken steps to mend his relationship with his father and step-mother, to make good at the California group home from which he previously absconded, and to earn his GED and hold down a job. In my view, the contention that counsel made strategic choices to shape this case in mitigation “resembles more a post hoc rationalization of counsel's conduct than an accurate description of their deliberations prior to sentencing.” See Wiggins, 539 U.S. at 526-27, 123 S.Ct. 2527 (emphasis in original). At any rate, “virtually unchallengeable” strategic choices follow “ thorough investigation of law and facts relevant to plausible options.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052 (emphasis added). Absent thorough investigation of plausible leads, I would not find that Petitioner's trial counsel performed effectively.
Although not dispositive, the numbers in this case paint a compelling picture. Dr. Siddall's report identified ten potential mitigating factors. Trial counsel received the report a mere five days before Petitioner's mitigation hearing began. At the hearing, counsel put forth the testimony of two witnesses, and admitted one summary exhibit into evidence. The entirety of Petitioner's case in mitigation spans approximately 40 pages of transcript. Trial counsel's closing argument covered a total of ten pages in the transcript, culminating in “a two and a half page story about the ancient Greek philosopher and orator Aeschylus, the conclusion of which was counsel telling the jury ‘the answer is in your hand.’ ” (Pet.'s Br. at 21 n. 9; see also J.A. at 774) Qualitatively and quantitatively, trial counsel's performance fell below “prevailing professional norms.” See Strickland, 466 U.S. at 688-89, 104 S.Ct. 2052.
Additionally, Petitioner must show he suffered prejudice as a result of trial counsel's deficient performance. Petitioner need only show “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 693-94, 104 S.Ct. 2052. The probability need only be so great as to “undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. “In assessing prejudice, [this Court] reweigh[s] the evidence in aggravation against the totality of available mitigating evidence.” Wiggins, 529 U.S. at 534, 120 S.Ct. 1620. “Mitigating evidence unrelated to dangerousness may alter the jury's selection of penalty, even if it does not undermine or rebut the prosecution's death-eligibility case.” Williams v. Taylor, 529 U.S. 362, 398, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Ultimately, “the ‘prejudice’ prong is satisfied if ‘there is a reasonable probability that at least one juror would have struck a different balance.’ ” Hamblin, 354 F.3d at 493.
On appeal, Petitioner relies on counsel's failure to introduce the Siddall Report-or to have Dr. Siddall testify-to show prejudice. Either through the report itself or through questioning Dr. Siddall, counsel could have elicited testimony on Petitioner's personality disorder, the way his social and familial history likely contributed to the disorder, and the way the disorder (coupled with his alcoholism) rendered him incapable of controlling his impulses. This, of course, is critically important inasmuch as impulse control bears on Petitioner's culpability. Cf. California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987) (O'Connor, J., concurring) (noting that a “defendant[ ] who commit[s] criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse”). In fact, the Ohio death penalty statute rakes “mental disease or defect” a mitigating factor. See Ohio Rev.Code § 2929.04(B)(3).FN6 Thus, had the jury known of Petitioner's apparent personality disorder, and had counsel investigated and adduced evidence of genetic alcoholism and abuse, “there is a reasonable probability that at least one juror would have struck a different balance,” finding Petitioner less culpable and sentencing him to life in prison, not death. See Wiggins, 539 U.S. at 537, 123 S.Ct. 2527; see also Williams, 529 U.S. at 395-98, 120 S.Ct. 1495 (finding prejudice from counsel's failure to investigate and introduce evidence which “might well have influenced the jury's appraisal of his moral culpability”).
FN6. The statute directs the fact finder to consider “[w]hether, at the time of committing the offense, the offender, because of a mental disease or defect, lacked substantial capacity to appreciate the criminality of the offender's conduct or to conform the offender's conduct to the requirements of the law.” Ohio Rev.Code § 2929.04(B)(3). Moreover, “Petitioner ... has the kind of troubled history ... relevant to assessing a defendant's moral culpability.” Wiggins, 539 U.S. at 535, 123 S.Ct. 2527 (citing Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989)). Through Dr. Siddall's report, or his testimony, the jury would have received a more comprehensive understanding of Petitioner's social history. Trial counsel's limited examination of Ms. Wolpert-Petitioner's much older and distant sister-and Ms. Hartman did not sufficiently explore Petitioner's “troubled history” of abuse, alcoholism, and (briefly) homelessness. See Carter v. Bell, 218 F.3d 581, 596-97 (6th Cir.2000) (failure to investigate unstable childhood and history of violence); Greer v. Mitchell, 264 F.3d 663, 678 (6th Cir.2001) (counsel knew of and failed to investigate family history of alcoholism, violence, foster care, and incarceration); cf. Smith v. Mitchell, 348 F.3d 177, 204 (6th Cir.2003) (finding no prejudice where “trial counsel presented five witnesses at mitigation, and its principal witness ... presented a comprehensive picture of [the petitioner's] family, social, psychological background, based upon extensive review of ‘ [n]umerous sources of information,’ which included not only psychological tests, but also interviews, hospital records, school reports, and social services records”).
Dr. Siddall's testimony on these mitigating factors would differ both “in strength and subject matter ... from the evidence actually presented at sentencing.” See Hill v. Mitchell, 400 F.3d 308, 319 (6th Cir.2005). The record here reflects that trial counsel put forth insufficient evidence of genetic alcoholism, and no evidence of physical and sexual abuse. Cf. Smith, 348 F.3d at 200 (finding no prejudice where “virtually all of the mitigating elements that [the petitioner] complain[ed] of were presented via [the mitigation expert's] testimony and her mitigation report”); Hill, 400 F.3d at 317 (finding evidence cumulative where “most of the information” to be conveyed “was included in the nine psychological reports submitted in the penalty and mitigation phases”). Therefore, stronger evidence of genetic alcoholism, or any evidence of abuse, put forth either through Dr. Siddall's testimony or more in depth examination of Ms. Wolpert and Ms. Hartman would not be “merely cumulative,” and could thus support a finding of prejudice. Cf. Broom v. Mitchell, 441 F.3d 392, 410 (6th Cir.2006) ( “[F]ailure to present additional mitigating evidence that is ‘merely cumulative’ of that already presented does not rise to the level of a constitutional violation.”). Finally, above and beyond the evidence at counsel's disposal, a thorough investigation of the mitigating factors identified by Dr. Siddall would likely have revealed further evidence of genetic alcoholism or abuse. Thus, Petitioner's trial counsel rendered ineffective assistance, falling short of the requirements of the Sixth Amendment.
I also disagree with the majority's conclusion on Petitioner's acquittal-first jury instruction claim. The Ohio Supreme Court did consider this claim on the merits albeit, as the majority acknowledges, without reference to federal law. Accordingly, for purposes of this dissent, I limit my review in accordance with the Anti-Terrorism and Effective Death Penalty Act (AEDPA). 28 U.S.C. § 2254(d); cf. Wiggins, 539 U.S. at 529-31, 123 S.Ct. 2527; McKenzie, 326 F.3d at 726-27; Clinkscale, 375 F.3d at 436; but see Danner v. Motley, 448 F.3d 372, 376 (6th Cir.2006) (reviewing de novo where the state court considered petitioner's federal constitutional claim on the merits under state law). Since the Ohio Supreme Court did not apply clearly established federal law, the relevant inquiry is whether their decision runs “contrary to ... clearly established [Supreme Court] precedent.” Williams, 529 U.S. at 405-06, 120 S.Ct. 1495. Thus, the gravamen of this Court's review must be whether the Ohio Supreme Court's decision is “diametrically different, opposite in character or nature, or mutually opposed” to that precedent. Id. at 406, 120 S.Ct. 1495 (internal quotation marks omitted). In my view, the Ohio Supreme Court's decision on this claim runs contrary to clearly established Supreme Court precedent-specifically, Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), and our Circuit precedent in Davis v. Mitchell, 318 F.3d 682 (6th Cir.2003) and Spisak v. Mitchell, 465 F.3d 684 (6th Cir.2006), cases which bear on the inquiry inasmuch as they inform the analysis of acquittal-first jury instructions under Mills.
Pursuant to clearly established Supreme Court precedent, the Eighth and Fourteenth Amendments require individualized consideration of relevant mitigating factors before a state may impose a penalty of death. Lockett v. Ohio, 438 U.S. 586, 606, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). The holding in Mills follows from Lockett and Eddings. Mills holds that a defendant's rights under the Eighth and Fourteenth Amendments are violated if there is a substantial probability that reasonable jurors, upon receiving the judge's instructions in th[e] case, and in attempting to complete the verdict form as instructed, well may have thought they were precluded from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular such circumstance. Mills, 486 U.S. at 384, 108 S.Ct. 1860. Applying Mills, the Supreme Court subsequently concluded that unanimity requirements in capital sentencing schemes “prevent[ ] the jury from considering ... any mitigating factor that the jury does not unanimously find” prior to imposing a sentence of death and therefore violate the Eighth and Fourteenth Amendments. McKoy v. North Carolina, 494 U.S. 433, 435, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990).
From Mills flows a line of cases in our Circuit examining so-called “acquittal-first” jury instructions.FN7 As the majority observes, acquittal-first jury instructions encompass “[a]ny instruction requiring that a jury must first unanimously reject the death penalty before it can consider a life sentence.” Davis, 318 F.3d at 689 (emphasis added). Acquittal-first instructions implicate the Eighth and Fourteenth Amendment inasmuch as they create a substantial probability that the jury will impermissibly require unanimity as to mitigating factors. This not only constitutes a misapplication of Ohio law, but also spuriously tips the scale in favor of death. Under Davis, an acquittal-first instruction “precludes the individual juror from giving effect to mitigating evidence and runs afoul of Mills.” Davis, 318 F.3d at 689; see also Spisak, 465 F.3d at 709.
FN7. These cases also followed the Ohio Supreme Court's decision applying Mills in State v. Brooks, 75 Ohio St.3d 148, 661 N.E.2d 1030 (1996). Several cases in this line consider the issue only in dicta, having found the challenges to the jury instructions procedurally defaulted. Scott v. Mitchell, 209 F.3d 854 (6th Cir.2000) being one of them, I would not consider this Court bound to follow it. Further, as the majority acknowledges, Roe v. Baker, 316 F.3d 557 (6th Cir.2002) concerned jury instructions dissimilar to those now at hand. The jury instructions here very clearly constitute acquittal-first jury instructions. They differ only slightly from the jury instructions in Davis and Spisak, and in ways even more constitutionally questionable. The trial courts in Davis and Spisak framed the issue as follows: “[I]f ... you find that the State failed to prove beyond a reasonable doubt that the aggravating circumstances ... outweigh the mitigating factors, ... you will then proceed to determine which of [the] possible life imprisonment sentences to recommend.” Davis, 318 F.3d at 685 (alterations added and omitted); see also Spisak, 465 F.3d at 709-10. Here, the trial court employed slightly different language: FN8 “[I]f ... you cannot unanimously agree that [the State] proved beyond a reasonable doubt that the aggravating circumstances ... outweigh the mitigating factors, ... you will then proceed to determine which of three possible life imprisonment sentences to impose.” (J.A. at 787-88) Although the words chosen for the jury instructions vary between Davis and Spisak on one hand and Petitioner's case on the other, the meaning and effect of the instructions does not. If anything, the jury instruction in Petitioner's case poses an even greater threat of misleading the jury because it reiterates that the jury must act “unanimously.” FN9
FN8. At greater length, Petitioner's penalty phase jury instructions read, in pertinent part, as follows: If all 12 members of the jury find by proof beyond a reasonable doubt that the aggravating circumstances, as I have defined them, are sufficient to outweigh the mitigating factors, then you must return such finding to the Court. I instruct you, as a matter of law, that if you make such finding, then you have no choice and must make a recommendation to the Court that the sentence of death be imposed on the Defendant [ ]. On the other hand, if after considering all of the evidence raised at trial which is relevant to the issues before you, the testimony, other evidence, and the arguments of counsel, you cannot unanimously agree that the State of Ohio proved beyond a reasonable doubt that the aggravating circumstances, as I have defined them, outweigh the mitigating factors, then you'll return your recommendation reflecting your decision. In this event, you will then proceed to determine which of the three possible life imprisonment sentences to impose.... (J.A. at 786-88) (emphasis added) FN9. More subtly, and perhaps a point more suitably explored by psychologists, the instruction at hand asks the jury to consider what the “State proved,” and not what it “ failed to prove.” The former, it seems, establishes a threshold presumption that the State, in fact, proved its case.
Additionally, the trial court's verdict form substantially mirrors the verdict forms in Davis and Spisak, further compounding the risk of misleading the jury. What is more, the trial judge here dismissed the jury to deliberate with the direction to return a verdict “[w]henever all 12 of you, and I repeat, all 12 jurors agree.” (J.A. at 793) Taken together, the inappropriate acquittal-first jury instructions, the verdict form, and the trial judge's statement upon dismissing the jury for deliberations raise a reasonable likelihood that the jury applied the instructions in Petitioner's case in such a way as to preclude giving effect to mitigating factors unless unanimously found, thereby violating Petitioner's rights under the Eighth and Fourteenth Amendments. Accordingly, in my view, the Ohio Supreme Court's decision runs contrary to the U.S. Supreme Court's clearly established precedent in Mills.
Thus, because the trial court gave unconstitutional acquittal-first jury instructions, and because Petitioner's counsel rendered ineffective assistance at the sentencing phase, I would vacate Petitioner's sentence and remand for a new sentencing phase trial.