Executed January 7, 2010 10:28 a.m. by Lethal Injection in Ohio
1st murderer executed in U.S. in 2010
1189th murderer executed in U.S. since 1976
1st murderer executed in Ohio in 2010
34th murderer executed in Ohio since 1976
(Race/Sex/Age at Murder-Execution) |
Birth |
(Race/Sex/Age at Murder) |
Murder |
Murder |
to Murderer |
Sentence |
||||
(1) |
Vernon Lamont Smith a/k/a Abdullah Sharif Kaazim Mahdi B / M / 21 - 37 |
Sohail Darwish Arab / M / 28 |
Accomplice Bryson was sentenced to 8-25 years for Involuntary Manslaughter. Accomplice Layson was sentenced to 10-25 for Aggravated Robbery and paroled in 2001.
Citations:
State v. Smith, 89 Ohio St.3d 323, 731 N.E.2d 645 (Ohio 2000) (Direct Appeal).
Mahdi v. Bagley, 522 F.3d 631 (6th Cir. 2008) (Habeas).
Final/Special Meal:
Whole and chopped dates as well as hot tea with lemon and honey. He was also given a miswak, a tree branch used to clean teeth, as well as olive oil, which he used to lubricate his beard.
Final Words:
"There's no god but God, and Mohammed is his prophet."
Internet Sources:
Ohio Department of Rehabilitation and Correction(Clemency Report)
Inmate#: OSP #A288-960
Inmate: Vernon Lamont Smith n/k/a Abdullah Sharif Kaazim Mahdi
DOB: April 7, 1972
County of Conviction: Lucas County
Date of Offense: May 26, 1993
Case Number: 93-6197
Date of Sentencing: March 22, 1994
Presiding Judge: James D. Bates
Prosecuting Attorney: Anthony G. Pizza, Chris Anderson
Institution: Southern Ohio Correctional Facility
Convictions: Count 1: Aggravated Murder (Death), Count 3&4: (Aggravated Robbery (8-25-years), Count 5: Aggravated Robbery (7-25 years).
"Toledoan Smith was put to death under a new death house protocol," by Jim Provance. (Jan 08, 2010)
COLUMBUS - As he repeatedly recited a Muslim vow in Arabic, Toledo native Vernon Lamont Smith took what appeared to be a deep yawn, fell unconscious, and became the second person in the nation executed in an unusual one-drug process yesterday.
"There's no god but God, and Mohammed is his prophet. That's what he's saying," said Charlotte Darwish, the widow of Smith's victim, as she watched the execution with her two daughters. It was the same proclamation - a translated version of the affirmation of Muslim faith - that she had frequently heard her late husband, Sohail Darwish, recite.
Smith, who converted to Islam and legally changed his name to Abdullah Sharif Kaazim Mahdi while on death row, was pronounced dead at 10:28 a.m. at the Southern Ohio Correctional Institution in Lucasville. He was the 34th person executed by the state since 1999.
On May 26, 1993, Mahdi, brandishing a gun, walked into the Woodstock Carryout in central Toledo with Herbert Bryson while Bryson's cousin, Lamont Layson, waited in the car. Mahdi shot the store owner, Mr. Darwish, a 28-year-old Palestinian reared in Saudi Arabia who immigrated to Toledo.
Mr. Darwish left behind his wife and daughter, Dolly, who was just shy of her first birthday. A second daughter, Mona, was born three months later. Gov. Ted Strickland on Wednesday denied Mahdi's request for clemency as his lawyers contended he had not intended to kill Mr. Darwish but rather thought he had shot him in the arm. The bullet actually hit Mr. Darwish in the upper chest near his shoulder, severing an artery that led him to bleed to death.
The execution process lasted 28 minutes. The prison execution team seemed to have little trouble finding usable veins through which the powerful anesthetic thiopental sodium could flow.
Fourteen minutes into the process, Mahdi stood and took 17 steps into the execution chamber. He appeared to make eye contact with his imam, Atef Hamed, as he entered the room. But after he was strapped onto the gurney, he stared only at the ceiling or closed his eyes as he appeared to silently mouth inaudible words. He never looked at or addressed the Darwish family.
When the warden asked him if he had a final statement, he audibly repeated the prayer four times in Arabic and then returned to repeating it silently. It was Mrs. Darwish who told others in the room, including media witnesses, what he was saying.
At 10:21 a.m. he fell silent, appeared to yawn once deeply, and then fell asleep. He appeared to stop breathing two minutes later. At 10:28, a member of the medical team checked for a heartbeat. A curtain blocking the view of the room was closed as a coroner examined Mahdi. When the curtain was reopened at 10:30, death was declared to have occurred two minutes earlier.
Ater leaving the death house, Mrs. Darwish said she found comfort in hearing Mahdi recite the vow. "There's no apology. However, he doesn't realize it, but I'm grateful that he recited that… Translated, it means, 'There's only one God but Allah, and Mohammed is his prophet and messenger,' " Mrs. Darwish said. "He has found Allah, or religion, or whatever it may be. Hence, perhaps in time, none of us know when, his soul may be saved for his actions here on Earth."
According to Dr. S. Zaheer Hasan, a spokesman for the United Muslim Association of Toledo, the vow, known as shahada, is one of the five pillars of Islam. People make the proclamation upon becoming a Muslim and restate it often during their lives to affirm that there is only one God. Since "Allah" is Arabic for God, it can be translated either way correctly: "There is no God but Allah and Mohammed is his prophet," or "There is no God but God and Mohammed is his prophet."
Mrs. Darwish said she asked her two daughters whether they wanted to be with her as she watched her husband's killer die. But she said they assured her they did. "My concern was, are they here because they want to be, or is it because they have to be because of me?" she said. "They chose to do it."
Mona, 16, became the youngest witness of an Ohio execution. Neither she nor her sister talked to reporters. Although sniffles could be heard, there were no obvious tears. Mona declined a tissue when her mother offered it. Mrs. Darwish has since remarried Dennis Martin. The family plans to move soon from Toledo to Alabama where Mr. Martin works.
Mahdi spent his final hours of life in prayer with a pair of Islamic imams and on the phone throughout the night and wee hours of the morning with family and a friend. Mahdi fasted Wednesday from sunrise to sunset, and was with Mr. Hamed when he broke the fast that night with a "special meal'' of whole and chopped dates as well as hot tea with lemon and honey. He was also given a miswak, a tree branch used to clean teeth, as well as olive oil, which he used to lubricate his beard.
Since arriving at the prison Wednesday morning, he spent much of his time praying, engaging in ceremonial feet washing, reading, and talking on the telephone with someone identified as his wife, a cousin, a friend, and one of his state attorneys.
He also wrote two letters to unidentified individuals that he asked be mailed after his death. "He was very calm and peaceful," said Ohio Public Defender Tim Young, who spoke with Mahdi via telephone on Wednesday. "He had accepted the governor had denied clemency and what was going to happen."
Ohio's unique new lethal injection protocol involves a massive dose of thiopental sodium. The prior procedure involved a series of three drugs. Ohio remains the only state to use a one-drug process. It has yet to use the fallback process in the event the execution team fails to find usable veins - the direct injection of two drugs into muscle tissue.
"Toledo killer executed; Last words are Islamic creed," by James Nash. (January 7, 2010 11:50 AM)
LUCASVILLE, Ohio -- A Toledo man convicted of fatally shooting a convenience-store owner in 1993 this morning became the second person in the U.S. to be put to death using a single drug. Vernon Smith, 37, was pronounced dead at 10:28 after Lucasville prison staff administered a fatal dose of thiopental sodium, a powerful anesthetic.
He was the second death-row inmate to be put to death with a single drug after Ohio switched from a three-drug system in November. The change came after a botched execution attempt in October. "I'm sure there are plenty of people across the country who are watching what we're doing today," said state prisons director Terry Collins before the execution.
Asked for a final statement, Smith, who converted to Islam and changed his name to Abdullah Sharif Kaazim Mahdi in prison, repeated in Arabic four times: "There is no God but God, and Mohammed is his prophet."
Smith was convicted of fatally shooting Sohail Darwish, a 28-year-old immigrant from Saudi Arabia who owned a convenience store in Toledo that Smith and two accomplices robbed. Even though Darwish complied with the men's orders to hand over money from the cash register and his wallet, Smith shot him in the chest. Darwish, who bled to death, had a 1-year-old daughter, and his wife was pregnant with another girl. His widow and daughters came to the Southern Ohio Correctional Facility in Lucasville today to witness Smith's execution.
Prison staff were easily able to find a vein in Smith's arm. A 5-gram dose of the lethal drug was administered at 10:20. Smith was pronounced dead eight minutes later. He appeared to mouth verses from the Quran as prison staff prepared him for the injection. Within a minute of the lethal drug entering his system, Smith's lips slowed. At 10:21, his mouth opened wide and his head jerked back slightly. He twitched for a couple of minutes after that but did not speak.
Darwish's widow and daughters witnessed the scene. They sniffled a little but there was no outpouring of emotion. At 10:03, Charlotte Darwish, Sohail's widow, turned to younger daughter Mona and said: "OK, so this is the beginning of the end, right, Mona?" Charlotte, who has remarried and is moving to Alabama with her daughters and husband, took questions from reporters afterward. Smith's imam did not.
Charlotte Darwish (she did not give a new last name) said that while she found it ironic that Smith adopted her late husband's religion while in jail, she did not begrudge him his beliefs. "He has found Allah or religion, whatever that may be, hence in time -- none of us know when that may be -- his soul may be saved," she said. "With the death of Vernon Smith, the unfortunate death of two people, two human beings, because of his hand, it is now the beginning of the end," she said. "As far as Vernon Smith, his life here on Earth, it is the end. What doors will open after that, I don't know."
Smith did not appear to show remorse over the murder and did not cooperate during clemency hearings. Still, two of the seven state Parole Board members recommended clemency Dec. 11. Gov. Ted Strickland, who admitted he wrestled with the decision, said late yesterday afternoon he would not to spare Smith's life.
Smith arrived at the Southern Ohio Correctional Facility near Lucasville at 9:45 a.m. yesterday. He fasted from sunrise to sunset before eating a meal of whole and chopped dates and hot tea with lemon and honey. He also received olive oil to groom his beard and a "miswak" stick, a twig from the Peelu tree commonly used in Muslim countries to clean the teeth.
Dates are recommended in the Islamic faith to consume when ending a fast. Smith spent the night on the phone with a friend and a cousin before meeting with a mental-health counselor at dawn, prison officials said. He then huddled with two spiritual advisers: Iman Atif Hamed and Iman Sunni Ali.
Smith did not eat breakfast. He had two brief phone calls with his wife yesterday before learning at 5:27 p.m. that Strickland had denied clemency. Smith's reaction was positive and respectful, a prison spokeswoman said. "Family sees end of dad's killer; Second execution with single drug has no complications," by James Nash. (Friday, January 8, 2010 3:09 AM)
LUCASVILLE, Ohio— As prison staffers prepared Vernon Smith to receive a fatal dose of an anesthetic, his victim's widow whispered to her daughter, "OK, so this is the beginning of the end, right, Mona?"
Mona Darwish, who was still in the womb when Smith fatally shot her father at a Toledo convenience store in 1993, nodded. About 25 minutes later, the 16-year-old became the youngest person to witness an execution in Ohio, at least since the state resumed capital punishment in 1999.
Smith, 37, was pronounced dead at 10:28 a.m. yesterday, eight minutes after staff members at the Southern Ohio Correctional Facility near Lucasville administered a 5-gram dose of the powerful anesthetic sodium thiopental.
He was the second person in the country to be put to death using a single drug. The state had used a series of three chemicals but abandoned that protocol after executioners were unable to find a suitable vein to inject a convicted killer in September. There were no complications with Smith's execution. He mouthed verses from the Quran as medics prepared him for injection, and his lips continued moving until about a minute after the chemical entered his body. After that, his mouth opened wide and his head jerked back, and then he was largely motionless.
Smith died without addressing the family of Sohail Darwish, whom Smith killed while robbing Darwish's Toledo carryout in May 1993. Smith and two accomplices demanded that Darwish turn over the cash from his cash register and wallet. Even though Darwish complied, Smith shot him once in the chest. Darwish, 28, bled to death.
Darwish's widow, Charlotte, and daughters Mona, now 16, and Dolly, 17, remained mostly silent as prison officials located a vein in Smith's left arm, inserted a needle and then pumped the fatal chemical into his bloodstream.
Smith converted to Islam while in prison and changed his name to Abdullah Sharif Kaazim Mahdi. Asked whether he wished to make a final statement, the condemned inmate, wearing a traditional Muslim kufi cap, repeated an Islamic creed in Arabic four times. The statement translates roughly to, "There is no God but God, and Muhammad is his prophet."
Addressing reporters after Smith was pronounced dead, Charlotte Darwish said she was neither surprised nor especially disappointed that Smith did not apologize. "He doesn't realize it, but I am grateful that he recited that line," she said of the Islamic creed. "He has found Allah or religion, whatever that may be, hence in time -- none of us know when that may be -- his soul may be saved."
Although Smith was married, his wife did not witness his execution. His only witness was Atef Hamed, an imam. Hamed remained silent during the execution and did not speak to reporters afterward. He planned to officiate at an Islamic burial for Smith later in the day.
Charlotte Darwish has remarried and is moving to Alabama, where her husband works. She closed Sohail Darwish's store after the murder. Yesterday, she remembered her late husband -- a Palestinian who was raised in Saudi Arabia -- for his enthusiasm about all things American. "He loved the United States and he embraced everything it had to offer -- from the people to the food, everything about the United States," she said. "Things we take for granted."
"Man who killed Toledo store owner in 1993 scheduled to be executed," by Julie Carr Smith. (AP January 07, 2010)
COLUMBUS, Ohio -- When Vernon Smith enters the execution chamber for the 1993 shooting and killing of an Arab store owner, he'll do so as Abdullah Sharif Kaazim Mahdi.
It's unclear what role the shopkeeper's heritage played in the shooting, but his family members will find themselves 16 years later watching a fellow Muslim put to death.
Smith's execution, scheduled for 10 a.m. today, was to be the second using Ohio's unique single-drug lethal-injection method instead of its previous three-drug system. The state made history last month by becoming the first to execute an inmate, Kenneth Biros, with an intravenous infusion of only sodium thiopental, a common anesthetic.
Smith, 37, fasted from sunrise to sunset Wednesday at the Southern Ohio Correctional Facility and then took a last meal of chopped and whole dates and hot tea with honey and lemon. He also requested a miswak, a Muslim teeth-cleaning implement, and olive oil to lubricate his beard.
With his legal appeals exhausted, he and his attorneys waited with anticipation until late Wednesday to hear whether Gov. Ted Strickland would grant him clemency. His attorneys had argued that a botched robbery attempt by a 21-year-old raised by an abusive stepfather is not what the death penalty was intended for.
Strickland disagreed, turning down Smith's plea for mercy. The governor agreed with the majority recommendation of the Ohio Parole Board.
Smith, who is black, was sentenced to death for killing 29-year-old Sohail Darwish, who was raised in Saudi Arabia. Smith, wielding a gun, and two friends entered Darwish's carryout store in Toledo, demanded cash and stole beer. When Darwish grabbed for his money, Smith shot him once in the chest. Smith's friends told investigators that when he got back in their car, he said Darwish "shouldn't be in our neighborhood with a store, no way."
Darwish had a baby daughter, and his wife was pregnant with a second. Charlotte Darwish and her two girls -- Dolly, now 17, and Mona, 16 -- planned to witness Thursday's execution. Mona would be the youngest witness on record with the state, prisons spokeswoman Julie Walburn said.
Charlotte Darwish told the Parole Board in early December that her husband was devoted to the store and his customers. "My husband did belong in that neighborhood," she said. "He helped that neighborhood."
Smith's public defender Rob Lowe said evidence never bore out the allegation that Smith shot Darwish because he was Muslim. "Because it was an interracial crime, there was one statement made by him as a reason, but there are a lot of other things that contradict that, that show this wasn't a racial crime," Lowe said. "The evidence all shows and statements show that he went in there to rob."
Lowe said Smith converted to Islam shortly after his arrest and has never indicated the decision was related to the crime.
During the afternoon of May 26, 1993, Vernon Lamont Smith met up with Herbert Bryson and Lamont Layson at a dirt basketball court in a park at Highland and Maplewood in Toledo. The trio discussed "hitting a lick," i.e., committing a robbery. The group got in Bryson’s car, and Smith directed them to the corner of Woodstock and Avondale, where the Woodstock Market was located. Layson remained in the car while Smith and Bryson headed toward the carryout. Jeremiah Bishop, who was two houses down from the Woodstock Market at that time, saw Smith and another person enter the carryout.
Bryson testified that after he and Smith entered the carryout, they noticed only two people in the store, both of whom were behind the counter. Bryson asked about a type of beer, and the storeowner, Sohail Darwish, came around the counter and walked over to the cooler to assist him. Darwish retrieved a forty-ounce beer bottle from the cooler and placed it on the counter. Bryson did the same. As Darwish was ringing up the sale on the cash register, Smith brandished a black gun and ordered Darwish to "open the cash register, motherf***er." Darwish, who was standing next to Bryson, put his hands up in the air and did not resist.
Bryson went behind the counter and hit several buttons on the cash register, trying to open it. Bryson then ordered Darwish to open the cash register, which he did. Darwish then put his hands back up in the air. Osand Tahboub, a former co-worker who was visiting Darwish at the carryout at that time, testified that the gunman then told Darwish to "move and empty your wallet, mother***er." As Darwish was reaching for his wallet, Smith fired a single shot, hitting Darwish in the chest. Smith then ordered Tahboub to empty his wallet as well, and the two assailants then fled the scene. Darwish was able to push the alarm button before he fell to the floor. As a result of the single gunshot wound to the upper left side of his chest, Darwish bled to death.
After Smith and Bryson left the carryout, Layson, who was waiting in Bryson’s car, noticed Smith holding a gun in his hand when he and Bryson climbed back into the automobile. According to Layson, Smith exclaimed, "Dang, I forgot the beer." When Bryson asked Smith "why did he do it," Smith replied that he shot the man "in the arm" because "he moved too slow," and that "he took too long opening the cash register." According to Layson, Smith then said, "F*** him, he in our neighborhood anyway. He shouldn’t be in our neighborhood with a store no way." Later, Smith and Bryson split the money taken in the robbery, which was apparently over $400. They also gave Layson all the stolen food stamps from the robbery plus $50.
On June 9, approximately two weeks after the murder, police detective Dennis Richardson received information that persons possibly involved in a homicide were incarcerated in the Sandusky County Jail. Based on this and other information he received from sources, Richardson made up an eight-man photo array, including a photo of Herbert Bryson, to show to Tahboub. The next day, upon viewing the array, Tahboub selected Bryson’s photo as "not the guy with the gun, but the other guy." Based on this information and the fact that computer records showed Smith as a known associate of Bryson, Richardson compiled a second photo array that included a picture of Smith. Richardson showed Tahboub the second photo array, and Tahboub immediately selected Smith’s photo as that of the gunman.
Consequently, Smith was arrested, and along with Bryson and Layson, was indicted by the grand jury in the Darwish murder. In count one, Smith was charged with aggravated felony-murder during an aggravated robbery. A death penalty specification attached to this count alleged that Smith was the principal offender in the aggravated murder during a robbery. The second count charged Bryson and Layson with aggravated felony-murder during an aggravated robbery. Counts three through five charged all three defendants with aggravated robbery of the carryout, of Darwish, and of Tahboub respectively. All five counts also carried firearm specifications.
Prior to trial, defense counsel informed the trial judge that the prosecution had offered Smith a plea bargain to avoid the death penalty. However, Smith declined the plea offer contrary to the advice of defense counsel. At an in-chambers conference, Smith reiterated his desire to decline the plea bargain and proceed to trial.
A jury trial was held wherein both Bryson and Layson testified for the state as a result of plea agreements. Bryson, who was in the carryout at the time of the shooting, testified that Smith fired the gunshot that caused Darwish’s death. Layson testified that Smith exhibited no remorse when he admitted that he had shot the carryout owner. Tahboub also testified and identified Smith as the murderer. The defense presented no witnesses and made no closing argument at the conclusion of trial.
After deliberation, the jury found Smith guilty as charged. At the mitigation hearing, several witnesses testified on Smith’s behalf, including his wife, mother, and a psychologist, Robert Kahl, who evaluated Smith. In Kahl’s opinion, Smith suffers from a mental illness, but Kahl was unable to identify it specifically, since he was unable to complete his evaluation due to Smith’s lack of cooperation during the interview process. Smith’s mother testified that Smith’s biological father was never around during Smith’s childhood. In addition, Smith’s stepfather physically abused the mother in front of the children, including Smith. Smith’s wife, Grace Smith, testified that Smith broke down and cried one or two days after the murder and told her that it was an accident, and that he didn’t mean to do it. The jury recommended death, and the court imposed the death sentence on Smith.
List of individuals executed in Ohio
A total of 34 individuals convicted of murder have been executed by the U.S. state of Ohio since 1976. All were executed by lethal injection.
Wilford Berry, Jr. (19 February 1999) Charles Mitroff
Jay D. Scott (14 June 2001) Vinnie M. Price
John William Byrd, Jr. (19 February 2002) Monte Tewksbury
Alton Coleman (26 April 2002) Tonnie Storey and Marlene Walters
Robert Anthony Buell (24 September 2002) Krista Lea Harrison
Richard Edwin Fox (February 12, 2003) Leslie Renae Keckler
David M. Brewer (April 29, 2003) Sherry Byrne
Ernest Martin (June 18, 2003) Robert Robinson
Lewis Williams, Jr. (14 January 2004) Leoma Chmielewski
John Glenn Roe (3 February 2004) Donette Crawford
William Dean Wickline (30 March 2004) Peggy and Christopher Lerch
William G. Zuern, Jr. (8 June 2004) Phillip Pence
Stephen Allan Vrabel (14 July 2004) Susan Clemente and Lisa Clemente
Scott Andrew Mink (July 20, 2004) William Mink and Sheila Mink
Adremy Dennis (October 13, 2004) Kurt Kyle
William Smith (March 8, 2005) Mary Bradford
Herman Dale Ashworth (27 September 2005) Daniel L. Baker
William James Williams, Jr. (25 October 2005) William Dent, Alfonda R. Madison, Sr., Eric Howard and Theodore Wynn Jr.
John R. Hicks (29 November 2005) Brandy Green
Glenn L. Benner II (7 February 2006) Trina Bowser, Cynthia Sedgwick
Joseph L. Clark (4 May 2006) David Manning
Rocky Barton (12 July 2006)
Darrell Ferguson (8 August 2006) David A. Gowdown, Dennis J. Langer, Jeffrey M. Welbaum
Jeffrey Lundgren (24 October 2006) Dennis Avery, Cheryl Avery, Trina Avery, Rebecca Avery, Karen Avery
James J. Filiaggi (24 April 2007) Lisa Huff Filiaggi
Christopher J. Newton (24 May 2007) Jason Brewer
Richard Cooey (October 14, 2008) Wendy Offredo and Dawn McCreery
Gregory Bryant-Bey (November 19, 2008) Dale Pinkelman
Daniel E. Wilson (June 3, 2009) Carol Lutz
John Fautenberry (July 14, 2009) Joseph Daron Jr.
Marvallous Keene (July 21, 2009) Joseph Wilkerson, Danita Gullette, Sarah Abraham, Marvin Washington, Wendy Cottrill
Jason Getsy (August 18, 2009) Ann R. Serafino
Vernon Lamont Smith (January 7, 2010) Sohail Darwish
State v. Smith, 89 Ohio St.3d 323, 731 N.E.2d 645 (Ohio 2000). (Direct Appeal)
Defendant was convicted in the Court of Common Pleas, Lucas County, of aggravated murder, and was sentenced to death. Defendant appealed, and the Court of Appeals affirmed. On defendant's subsequent appeal as of right, the Supreme Court, Moyer, C.J., held that: (1) defendant was not denied effective assistance of counsel; (2) trial court was not required to conduct a competency hearing sua sponte; (3) evidence did not require an instruction on the lesser included offense of involuntary manslaughter; (4) erroneous jury instructions as to the weighing of aggravating circumstances and mitigating factors, and as to an aggravating circumstance, were not plain error; and (5) aggravating circumstance outweighed mitigating factors beyond a reasonable doubt. Affirmed.
On the evening of May 26, 1993, defendant-appellant, Vernon Smith, n.k.a. Abdullah Sharif Kaazim Mahdi, and Herbert Bryson robbed the Woodstock Market located at the corner of Woodstock and Avondale in Toledo. During the robbery, Smith fired a single shot at the upper chest of Sohail Darwish, causing his death. Approximately two weeks later, Smith was arrested and then indicted on one count of aggravated murder with a firearm specification, and a death penalty specification alleging that Smith was the principal offender in committing aggravated murder during an aggravated robbery. Smith was also indicted on three counts of aggravated robbery. Subsequently, Smith was found guilty as charged by a jury and sentenced to death.
During the afternoon of May 26, 1993, Smith met up with Herbert Bryson and Lamont Layson at a dirt basketball court in a park at Highland and Maplewood in Toledo. The trio discussed “hitting a lick,” i.e., committing a robbery. The group got in Bryson's car, and Smith directed them to the corner of Woodstock and Avondale, where the Woodstock Market was located. Layson remained in the car while Smith and Bryson headed toward the carryout. Jeremiah Bishop, who was two houses down from the Woodstock Market at that time, saw Smith and another person enter the carryout.
Bryson testified that after he and Smith entered the carryout, they noticed only two people in the store, both of whom were behind the counter. Bryson asked about a type of beer, and the storeowner, Sohail Darwish, came around the counter and walked over to the cooler to assist him. Darwish retrieved a forty-ounce beer bottle from the cooler and placed it on the counter. Bryson did the same. As Darwish was ringing up the sale on the cash register, Smith brandished a black gun and ordered Darwish to “[o]pen the cash register, motherfucker.”
Darwish, who was standing next to Bryson, put his hands up in the air and did not resist. Bryson went behind the counter and hit several buttons on the cash register, trying to open it. Bryson then ordered Darwish to open the cash register, which he did. Darwish then put his hands back up in the air.
Osand Tahboub, a former co-worker who was visiting Darwish at the carryout at that time, testified that the gunman then told Darwish to “[m]ove and empty your wallet, motherfucker.” As Darwish was reaching for his wallet, Smith fired a single shot, hitting Darwish in the chest. Smith then ordered Tahboub to empty his wallet as well, and the two assailants then fled the scene. Darwish was able to push the alarm button before he fell to the floor. As a result of the single gunshot wound to the upper left side of his chest, Darwish bled to death.
After Smith and Bryson left the carryout, Layson, who was waiting in Bryson's car, noticed Smith holding a gun in his hand when he and Bryson climbed back into the automobile. According to Layson, Smith exclaimed, “[D]ang, I forgot the beer.” When Bryson asked Smith “why did he do it,” Smith replied that he shot the man “in the arm” because “he moved too slow,” and that “[h]e took too long * * * [o]pening the cash register.”
According to Layson, Smith then said, “[F]uck him, he in our neighborhood anyway. He shouldn't be in our neighborhood with a store no way.” Later, Smith and Bryson split the money taken in the robbery, which was apparently over $400. They also gave Layson all the stolen food stamps from the robbery plus $50.
On June 9, approximately two weeks after the murder, police detective Dennis Richardson received information that persons possibly involved in a homicide were incarcerated in the Sandusky County Jail. Based on this and other information he received from sources, Richardson made up an eight-man photo array, including a photo of Herbert Bryson, to show to Tahboub. The next day, upon viewing the array, Tahboub selected Bryson's photo as “[n]ot the guy with the gun, but the other guy.” Based on this information and the fact that computer records showed Smith as a known associate of Bryson, Richardson compiled a second photo array that included a picture of Smith. Richardson showed Tahboub the second photo array, and Tahboub immediately selected Smith's photo as that of the gunman.
Consequently, Smith was arrested, and along with Bryson and Layson, was indicted by the grand jury in the Darwish murder. In count one, Smith was charged with aggravated felony-murder during an aggravated robbery. A death penalty specification attached to this count alleged that Smith was the principal offender in the aggravated murder during a robbery, R.C. 2929.04(A)(7). The second count charged Bryson and Layson with aggravated felony-murder during an aggravated robbery. Counts three through five charged all three defendants with aggravated robbery of the carryout, of Darwish, and of Tahboub respectively. All five counts also carried firearm specifications.
Prior to trial, defense counsel informed the trial judge that the prosecution had offered Smith a plea bargain to avoid the death penalty. However, Smith declined the plea offer contrary to the advice of defense counsel. At an in-chambers conference, Smith reiterated his desire to decline the plea bargain and proceed to trial.
A jury trial was held wherein both Bryson and Layson testified for the state as a result of plea agreements. Bryson, who was in the carryout at the time of the shooting, testified that Smith fired the gunshot that caused Darwish's death. Layson testified that Smith exhibited no remorse when he admitted that he had shot the carryout owner. Tahboub also testified and identified Smith as the murderer. The defense presented no witnesses and made no closing argument at the conclusion of trial. After deliberation, the jury found Smith guilty as charged.
At the mitigation hearing, several witnesses testified on Smith's behalf, including his wife, mother, and a psychologist, Robert Kahl, who evaluated Smith. In Kahl's opinion, Smith suffers from a mental illness, but Kahl was unable to identify it specifically, since he was unable to complete his evaluation due to Smith's lack of cooperation during the interview process. Smith's mother testified that Smith's biological father was never around during Smith's childhood. In addition, Smith's stepfather physically abused the mother in front of the children, including Smith. Smith's wife, Grace Smith, testified that Smith broke down and cried one or two days after the murder and told her that it was an accident, and that he didn't mean to do it. The jury recommended death, and the court imposed the death sentence on Smith.
Upon appeal, the court of appeals affirmed the convictions and death sentence in a split decision. While agreeing with the decision to affirm the convictions, the dissenting appellate judge found substantial residual doubt as to Smith's intent which, when combined with the other mitigating factors, “outweighs the aggravating circumstance proven.” The dissent reasoned that it was “fundamentally unfair” to retroactively apply State v. McGuire (1997), 80 Ohio St.3d 390, 686 N.E.2d 1112, syllabus, since Smith was tried before McGuire was announced, when residual doubt was still a legitimate mitigating factor. The dissent further observed that “[t]he unfairness occurs because the defense withheld certain evidence going to [Smith's] intent in the guilt phase, undoubtedly believing it to be more persuasive as going toward residual doubt in the penalty phase.”
The cause is now before this court upon an appeal as of right.
MOYER, C.J.
Moyer, C.J. Appellant Smith raises ten propositions of law. We have reviewed each one and have determined that none justifies reversal of Smith's conviction for aggravated murder and the other crimes he committed. Pursuant to R.C. 2929.05(A), we have also independently reviewed the record, weighed the aggravating circumstance against the mitigating factors, and reviewed the death penalty for appropriateness and proportionality. For the reasons that follow, we affirm Smith's convictions and death sentence. Inquiry on Racial Bias/Effective Assistance [1] In his first proposition of law, Smith asserts that counsel were ineffective for failing to question the venire concerning religious or racial bias, since the crimes in issue were interracial in nature. Smith contends that counsel's ineffectiveness throughout trial, including the presentation of “racially charged evidence,” can be traced to counsel's failure to examine the jurors on racial bias prior to trial. Since Smith failed to raise this issue before the court of appeals, we consider this issue to be waived. State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364, paragraph two of the syllabus.
Smith argues, albeit in a footnote, that if his argument is considered waived, his appellate counsel gave him ineffective assistance.FN1 However, we find that Smith has failed to demonstrate ineffective assistance of trial counsel.
Reversal of a conviction for ineffective assistance 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.
Smith asserts many conclusions, one of which is that the trial was racially charged, since the murder was committed by a black man and the victim was “a man of Arabic descent who operated a grocery store in the inner city.” Characteristic of Smith's arguments under this proposition is his conclusion that “[b]ecause the conflict between blacks and the immigrant newcomers envelops the overall debate on black/white relations, racism may have been a factor in the jury's decision to convict [Smith] of aggravated murder.” (Footnote omitted.) Other examples of Smith's argument that the entire trial was fraught with racially charged evidence include trial counsel's strategy during the mitigation phase to highlight the black “gangsta” movie “Menace II Society,” relying on the testimony of an Islamic jail counselor, citing the movie “Malcolm X,” and relating defendant's story of life in the inner city.
Smith relies on Turner v. Murray (1986), 476 U.S. 28, 36-37, 106 S.Ct. 1683, 1688-1689, 90 L.Ed.2d 27, 37, for the proposition that a capital defendant accused of an interracial crime is entitled to have the venire questioned so as to reveal any possible racial bias. Smith contends that, in the racially charged atmosphere of this case, competent counsel would have taken advantage of that entitlement.
In our view, Smith's arguments are purely speculative and unconvincing. We have held that “[t]he 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. Evans (1992), 63 Ohio St.3d 231, 247, 586 N.E.2d 1042, 1056. Moreover, as we noted in State v. Watson (1991), 61 Ohio St.3d 1, 13, 572 N.E.2d 97, 108, under Turner v. Murray, the actual decision to voir dire on racial prejudice is a choice best left to a capital defendant's counsel. Id., 476 U.S. at 37, 106 S.Ct. at 1688, 90 L.Ed.2d at 37, and fn. 10.
Here, the mitigation transcript indicates that counsel elicited testimony that Smith saw the movie “Menace II Society” earlier on the day of the shooting. In the beginning of the movie, a black man shoots and kills a nonblack storeowner. However, this fact was evidently elicited to support the expert testimony that Smith suffered a mental defect that caused him to become psychotic for a temporary period of time. In the defense psychologist's professional opinion, it was no coincidence that, after seeing what occurred in the movie, Smith committed a similar crime later that day. Clearly, counsel were attempting to portray Smith as someone who was unstable and prone to psychotic displays such as the murder of Darwish, which reprised a scene in the film Smith had seen earlier that day. Far from creating a racially charged atmosphere, it appears that trial counsel attempted to explain Smith's murder of Darwish in a way that could lead jurors to view Smith as less blameworthy for his actions.
Counsel's chronicling of Smith's life story in the inner city does not indicate ineffective assistance. It was likely designed to portray Smith as a victim of his background and upbringing, and thus not deserving of death. The testimony of the Islamic jail counselor attempted to show Smith as a person who has now turned to religion. The references to Malcolm X were raised by defense counsel during examination of the Islamic counselor. As brought out in the trial transcript, such questions appear to have been designed to elicit testimony that the type of Islamic belief Smith was turning to was not the “nationalistic brand” of Islamic belief once espoused by Malcolm X. Moreover, Smith's troubled inner city background and his religious conversion are unquestionably valid mitigating factors, and it was not ineffective assistance to bring them to the jury's attention.
Counsel could have properly determined that the examination of jurors' racial views during voir dire would be unwise, since the subject of racial prejudice is sensitive to most people, and raising it during voir dire could cause some jurors to be less candid if confronted with direct questions attempting to discern any hint of racial prejudice. In addition, our reading of the record leads us to conclude, contrary to Smith's assertions, that racial issues were not “woven into the fabric of trial.”
Yet, even if we viewed counsel's trial strategy as questionable, such a strategy should not compel us to find ineffective assistance of counsel. In these situations, we normally defer to counsel's judgment. State v. Clayton (1980), 62 Ohio St.2d 45, 49, 16 O.O.3d 35, 37, 402 N.E.2d 1189, 1192. Since we find no legitimate basis for Smith's assertions that counsel were ineffective for not examining the venire on racial or religious bias, this proposition is not well taken.
Competency Evaluation
In Proposition of Law No. 5, Smith contends that the trial court erred in failing to order a competency evaluation sua sponte. Smith claims that numerous incidents, when considered together, should have alerted the trial court that defendant was mentally incompetent. Among the incidents cited are Smith's refusal to heed counsel's advice to accept a plea bargain prior to trial; his refusal to waive a jury trial in favor of a three-judge panel; his insistence on appearing at trial in jail clothes and a kuffa (prayer cap); his waiver of a potentially valid Batson claim; his declaration in chambers that he did not want any family members testifying at his mitigation hearing; his decision not to give an unsworn statement during the mitigation phase and his refusal to speak at his sentencing hearing; and his refusal to continue cooperating with the defense expert psychologist.
It has long been recognized that “a person [who] lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.” Drope v. Missouri (1975), 420 U.S. 162, 171, 95 S.Ct. 896, 903, 43 L.Ed.2d 103, 113. “Fundamental principles of due process require that a criminal defendant who is legally incompetent shall not be subjected to trial.” State v. Berry (1995), 72 Ohio St.3d 354, 359, 650 N.E.2d 433, 438, citing Pate v. Robinson (1966), 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815.
In Ohio, R.C. 2945.37(B) requires a competency hearing if a request is made before trial. But “[i]f the issue is raised after the trial has commenced, the court shall hold a hearing on the issue only for good cause shown or on the court's own motion.” Id. Thus, “the decision as to whether to hold a competency hearing once trial has commenced is in the court's discretion.” State v. Rahman (1986), 23 Ohio St.3d 146, 156, 23 OBR 315, 325, 492 N.E.2d 401, 410. The right to a hearing “rises to the level of a constitutional guarantee where the record contains ‘sufficient indicia of incompetence,’ such that an inquiry * * * is necessary to ensure the defendant's right to a fair trial.” State v. Berry, 72 Ohio St.3d at 359, 650 N.E.2d at 439, citing Drope and Pate, supra.
However, the record in this case does not reflect “sufficient indicia of incompetence” to have required the trial court to conduct a competency hearing. During the mitigation hearing, defense psychologist, Robert Kahl, testified that Smith suffers a mental illness, but he was not certain how to categorize it. Yet, Kahl also opined that Smith was competent to stand trial. “The term ‘mental illness' does not necessarily equate with the definition of legal incompetency.” Berry, supra, 72 Ohio St.3d 354, 650 N.E.2d 433, syllabus. “A defendant may be emotionally disturbed or even psychotic and still be capable of understanding the charges against him and of assisting his counsel.” State v. Bock (1986), 28 Ohio St.3d 108, 110, 28 OBR 207, 209, 502 N.E.2d 1016, 1018.
In addition, we note that defense counsel did not enter an insanity plea or suggest that Smith lacked competence. Counsel had ample time to become familiar with Smith, since they represented him from their appointment in June or July 1993, through the March 1994 sentencing. While Smith may have lacked judgment in rejecting his attorneys' advice, his competence was never an issue, either before, during, or after trial. If counsel had some reason to question Smith's competence, they surely would have done so. See State v. Spivey (1998), 81 Ohio St.3d 405, 411, 692 N.E.2d 151, 157.
It is true that defense counsel twice requested in-chambers conferences: (1) prior to trial they informed the court that Smith rejected their advice to accept a plea agreement to avoid a possible death sentence, and (2) during the mitigation phase when they informed the court that Smith did not want to present mitigation witnesses. However, at neither time did counsel or the trial judge think that Smith's behavior raised any question as to his competence. See State v. Cowans (1999), 87 Ohio St.3d 68, 84, 717 N.E.2d 298, 313.
Accordingly, neither Smith's behavior at trial nor the expert testimony proffered on his behalf provided “good cause” or “sufficient indicia of incompetence.” Thus, we find that the trial court did not abuse its discretion by declining, sua sponte, to direct such a hearing. See Berry, supra, 72 Ohio St.3d 354, 650 N.E.2d 433; Rahman, supra, 23 Ohio St.3d at 156, 23 OBR at 323, 492 N.E.2d at 410. Deference on such issues should be granted to those “who see and hear what goes on in the courtroom.” Cowans, supra, 87 Ohio St.3d at 84, 717 N.E.2d at 312. Therefore, we overrule Proposition of Law No. 5.
Jury Instructions
In Proposition of Law No. 3, Smith argues that the trial court erred in refusing to instruct the jury on the lesser included offense of involuntary manslaughter. Smith asserts that the fact that the jury struggled with intent during deliberations fortifies the conclusion that the evidence “reasonably supported” the defense request for the lesser included offense instruction.
Involuntary manslaughter is a lesser included offense of aggravated murder. State v. Thomas (1988), 40 Ohio St.3d 213, 533 N.E.2d 286, paragraph one of the syllabus. The difference between the two offenses is that aggravated murder requires a purpose to kill, while involuntary manslaughter requires only that a killing occurred as a proximate result of committing or attempting to commit a felony. State v. Jenkins (1984), 15 Ohio St.3d 164, 218, 15 OBR 311, 357, 473 N.E.2d 264, 310.
However, “[e]ven though an offense may be statutorily defined as a lesser included offense of another, a charge on such lesser included offense is required only where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction upon the lesser included offense.” Thomas, supra, 40 Ohio St.3d 213, 533 N.E.2d 286, paragraph two of the syllabus; State v. Palmer (1997), 80 Ohio St.3d 543, 562, 687 N.E.2d 685, 702. In making this determination, the court must view the evidence in the light most favorable to the defendant. State v. Wilkins (1980), 64 Ohio St.2d 382, 388, 18 O.O.3d 528, 532, 415 N.E.2d 303, 308; State v. Campbell (1994), 69 Ohio St.3d 38, 47-48, 630 N.E.2d 339, 349.
While the trial record indicates that the jury twice submitted questions to the court during deliberations regarding purpose and intent, Smith's assertion that the jury must have struggled with such terms is purely speculative. A more reasonable explanation for these specific inquiries was the fact that the trial judge did not give a copy of the jury instructions to the jurors during deliberations because of “the hen scratching that's all throughout them.”
Here, we believe the evidence presented at trial did not compel an involuntary manslaughter instruction. Smith helped plan the robbery and directed his accomplices to Woodstock Market to achieve that goal. Once inside the carryout, Smith brandished a loaded weapon, pointed it at Darwish, and shot him once in the chest. According to eyewitnesses to the shooting, Darwish was totally cooperative with Smith and offered no resistance whatsoever. Smith never claimed during trial that the shooting was accidental or unintentional, although he did tell Bryson and Layson that he shot Darwish “in the arm.” Moreover, when his accomplices asked him why he shot Darwish, Smith displayed no hint of remorse in replying that Darwish took too long opening the cash register, and “fuck him, * * * [h]e shouldn't be in our neighborhood with a store no way.”
This evidence is clearly at odds with Smith's assertion that evidence of purpose or intent to kill was lacking. Smith's claims that the evidence “reasonably supported” an involuntary manslaughter instruction do not withstand scrutiny. See State v. Raglin (1998), 83 Ohio St.3d 253, 258, 699 N.E.2d 482, 488, and State v. Sheppard (1998), 84 Ohio St.3d 230, 236-237, 703 N.E.2d 286, 293, where we upheld similar refusals by a trial court to instruct on involuntary manslaughter.
In view of the evidence presented during the trial phase, even when viewed in a light most favorable to Smith, the trial court did not err in refusing to instruct on involuntary manslaughter. No specific evidence submitted at trial raised the issue of involuntary manslaughter. We believe that under any reasonable view of the evidence proffered during the trial phase, the killing of Darwish was purposeful. Raglin, supra, 83 Ohio St.3d at 257-258, 699 N.E.2d at 488. Accordingly, we reject Smith's third proposition of law.
In Proposition of Law No. 9, Smith argues that the jury instructions on reasonable doubt, patterned after the language of R.C. 2901.05, allowed the jury to find him guilty based on a degree of proof below that required by due process. This issue was waived because Smith failed to object to the instructions, State v. Underwood (1983), 3 Ohio St.3d 12, 3 OBR 360, 444 N.E.2d 1332, syllabus, and because Smith failed to raise it before the court of appeals. Williams, supra, 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364, paragraph two of the syllabus. Even if we were to consider the issue, we have rejected similar arguments in a number of cases. See, e.g., State v. Van Gundy (1992), 64 Ohio St.3d 230, 232-233, 594 N.E.2d 604, 606; State v. Stojetz (1999), 84 Ohio St.3d 452, 467, 705 N.E.2d 329, 343.
SENTENCING ISSUES
Jury Instructions/Sentencing Opinion
In Proposition of Law No. 2, Smith contends that the trial court erred in instructing the jury to weigh the aggravating circumstance against each mitigating factor, instead of all the mitigating factors raised at the mitigation hearing. Smith further asserts that the trial court committed the same error in parts of its sentencing opinion. Smith also claims that the trial court incorrectly identified the aggravating circumstance by stating at trial that Smith was the “principal offender in the aggravated robbery” rather than principal offender in the aggravated murder.
Smith is correct in asserting that the jury instructions were erroneous under R.C. 2929.03(D)(2) and R.C. 2929.04(A)(7). However, Smith failed to object to either instruction at trial. Moreover, he failed to complain about the defective instructions before the court of appeals as well. Smith thus waived any error unless, but for the error, the outcome of the trial clearly would have been otherwise. Underwood, supra, 3 Ohio St.3d 12, 3 OBR 360, 444 N.E.2d 1332, syllabus; Williams, supra, 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364, paragraph two of the syllabus. (Smith also failed to object to the incorrect use of the plural “aggravating circumstances” on the verdict form, and thereby waived that error as well.)
The errors Smith alleges were not outcome-determinative, and hence did not amount to plain error. State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph two of the syllabus. In fact, the record indicates that the trial court corrected its erroneous instruction concerning the weighing process by providing the correct standard when it reread the sentencing instructions at the outset of the second day of deliberations upon a specific request by the jury. Moreover, the verdict form signed by all the jurors set forth the correct weighing standard.
The error in the specification instruction given during the sentencing phase (“principal offender in the aggravated robbery”) did not appear on the verdict form signed by all the jurors at the close of guilt-phase deliberations. Nor did any evidence at trial suggest that anyone else but Smith shot the victim. Thus, the instructional error at the close of the sentencing phase was, under these circumstances, inconsequential, since the jury had already convicted Smith of the aggravating circumstance employing the correct language. Overall, we believe that the jury understood the proper sentencing standard as well as its sentencing responsibility. See State v. Hill (1995), 73 Ohio St.3d 433, 438, 653 N.E.2d 271, 277-278.
We therefore hold that none of these alleged errors resulted in a clear miscarriage of justice, State v. Slagle (1992), 65 Ohio St.3d 597, 608, 605 N.E.2d 916, 928, especially upon viewing the instructions in the context of the overall charge. State v. Price (1979), 60 Ohio St.2d 136, 14 O.O.3d 379, 398 N.E.2d 772, paragraph four of the syllabus. They do not amount to plain error sufficient to defeat the waiver rule.
With regard to Smith's assertion that the trial court committed error in the weighing process in its sentencing opinion, that error was in fact raised and found to be well taken by the court of appeals. However, the appellate court found it could cure this error by its own independent review. This court has held that errors in the trial court's weighing process may be cured by our own independent review. See, e.g., State v. Lott (1990), 51 Ohio St.3d 160, 170, 555 N.E.2d 293, 304; State v. Hill (1996), 75 Ohio St.3d 195, 211, 661 N.E.2d 1068, 1083. Likewise, errors in the court of appeals' reweighing may also be cured by our own independent review. State v. Frazier (1995), 73 Ohio St.3d 323, 343, 652 N.E.2d 1000, 1017.
The court of appeals also stated that “[o]ur independent analysis of the evidence leads us to find that the mitigating factors do not outweigh the aggravating circumstance.” This statement was erroneous. The proper standard in capital cases is that the aggravating circumstance(s) must outweigh the mitigating factors before a death sentence may be affirmed. R.C. 2929.05(A). However, independent review can also cure that error. Id.
In sum, the errors alleged by Smith were waived, and we find that these alleged errors were not outcome-determinative and, therefore, not plain error. In addition, the errors in both lower court opinions are curable by independent review. Accordingly, Proposition of Law No. 2 is not well taken.
Sentence Appropriateness
In Proposition of Law No. 8, Smith contends that his death sentence is inappropriate and disproportionate because the aggravating circumstance does not outweigh the cumulative effect of the mitigation present here. We will consider Smith's arguments during our independent review of the sentence.
Effective Assistance
Under Proposition of Law No. 6, Smith claims ineffective assistance of trial counsel. In Proposition of Law No. 7, Smith asserts ineffective assistance of appellate counsel before the court of appeals.
With respect to the claims of ineffective assistance of trial counsel, Smith cites five areas where counsel allegedly provided deficient representation. However, in no instance does Smith demonstrate deficient performance by counsel, or that the allegedly deficient performance prejudiced him so as to deprive him of a fair trial. See Strickland v. Washington, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; Bradley, supra, 42 Ohio St.3d 136, 538 N.E.2d 373. Moreover, in no instance does Smith demonstrate prejudice, i.e., “a reasonable probability that, were it not for counsel's errors, the results of the trial would have been different.” Id. at paragraph three of the syllabus.
The first instance listed by Smith (counsel's failure to explore racial or religious bias during jury selection) is fully explored in our discussion under Proposition of Law No. 1. None of the instances raised by Smith constituted deficient performance by defense counsel. The second instance Smith cites is trial counsel's failure to object to erroneous jury instructions. Yet, as discussed under Proposition of Law No. 2, none of these alleged deficiencies prejudiced Smith so as to deprive him of a fair trial.
Likewise, the third and fourth instances in which Smith alleges deficient representation-failing to request a psychiatric evaluation for Smith, and failing to object to the reasonable doubt instruction-did not deprive Smith of a fair trial. As we discussed under Proposition of Law No. 5, Smith did not display sufficient “indicia of incompetence,” Berry, 72 Ohio St.3d at 359, 650 N.E.2d at 439, to warrant a competency hearing. Counsel's failure to object to the reasonable doubt instruction was of no consequence, since such an instruction based on the language of R.C. 2901.05 is proper. State v. Stojetz, supra, 84 Ohio St.3d at 467, 705 N.E.2d at 343.
In the final instance of alleged ineffectiveness, Smith claims prejudice in trial counsel's failure to assert a defense or to make a closing argument at the end of the guilt phase. Yet it is plausible in this case that counsel's trial strategy to forgo closing argument prevented the prosecution from making a strong rebuttal. The compelling evidence submitted during trial established that Smith was the killer, especially given the fact that two eyewitnesses to the murder and another accomplice testified that Smith shot Darwish during the robbery. In the face of overwhelming evidence of Smith's guilt, defense counsel apparently chose to concentrate on avoiding a death sentence and making a strong case for mitigation and residual doubt.
By doing so, counsel did not fall below an objective standard of reasonable representation. This case was tried in March 1994, more than three years prior to our decision in State v. McGuire (1997), 80 Ohio St.3d 390, 686 N.E.2d 1112, syllabus, where we held residual doubt to be “irrelevant to the issue of whether the defendant should be sentenced to death.” Unfortunately for the defense, neither the jury nor the trial judge was persuaded that sufficient residual doubt existed to prevent imposing a death sentence. Even assuming that defense counsel's trial strategy was questionable, such a strategy did not constitute ineffective assistance of counsel. See State v. Clayton, supra, 62 Ohio St.2d at 49, 16 O.O.3d at 37, 402 N.E.2d at 1192.
Smith's claim that counsel failed to assert a defense to the charges does not appear to be totally accurate. While counsel chose not to present any defense witnesses during the trial phase, they did vigorously cross-examine several key prosecution witnesses. Accordingly, we overrule Proposition of Law No. 6.
Under Proposition of Law No. 7, Smith claims that appellate counsel were ineffective in failing to assign as errors (1) trial counsel's failure to question the venire on any racial or religious biases (see Proposition of Law No. 1), (2) the court's use of the reasonable doubt instruction patterned after R.C. 2901.05 (see Proposition of Law No. 9), and (3) the vagueness defect in Ohio's death sentencing scheme (see Proposition of Law No. 10). Given our rejection of all three claims elsewhere in this opinion, none of these alleged instances of ineffective assistance of appellate counsel compels reversal. Moreover, as we have held in prior cases, “[c]ounsel need not raise all nonfrivolous issues on appeal.” State v. Campbell (1994), 69 Ohio St.3d 38, 53, 630 N.E.2d 339, 353, citing Jones v. Barnes (1983), 463 U.S. 745, 751, 103 S.Ct. 3308, 3312-3313, 77 L.Ed.2d 987, 993. In addition, “[t]his process of ‘winnowing out weaker arguments on appeal and focusing on’ those more likely to prevail * * * is the hallmark of effective appellate advocacy.” Smith v. Murray (1986), 477 U.S. 527, 536, 106 S.Ct. 2661, 2667, 91 L.Ed.2d 434, 445, quoting Barnes, 463 U.S. at 751-752, 103 S.Ct. at 3312-3313, 77 L.Ed.2d at 994. Therefore, we reject Smith's Proposition of Law No. 7.
Constitutionality
In Proposition of Law No. 10, Smith asserts that Ohio's death penalty laws are unconstitutional for various reasons, both facially and as applied. However, these arguments lack merit. See, e.g., Jenkins, supra, 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264; State v. Zuern (1987), 32 Ohio St.3d 56, 512 N.E.2d 585 ; State v. Carter (1992), 64 Ohio St.3d 218, 594 N.E.2d 595; State v. Steffen (1987), 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d 383; State v. Buell (1986), 22 Ohio St.3d 124, 22 OBR 203, 489 N.E.2d 795; and State v. Lewis (1993), 67 Ohio St.3d 200, 616 N.E.2d 921. Therefore, we summarily reject them here. State v. Poindexter (1988), 36 Ohio St.3d 1, 520 N.E.2d 568, syllabus.
Appellate Review
In Proposition of Law No. 4, Smith contends that the court of appeals' refusal to consider residual doubt as a mitigating factor denied him two levels of meaningful appellate review, since the offense was committed prior to January 1, 1995.
While the jury was instructed on residual doubt, such a factor is no longer mitigating. McGuire, supra, 80 Ohio St.3d 390, 686 N.E.2d 1112, syllabus. Accord State v. Goff (1998), 82 Ohio St.3d 123, 131, 694 N.E.2d 916, 923; State v. Mason (1998), 82 Ohio St.3d 144, 165, 694 N.E.2d 932, 954. Moreover, we have specifically rejected the argument that it is error to apply McGuire retroactively. State v. Bey (1999), 85 Ohio St.3d 487, 508-509, 709 N.E.2d 484, 503. Thus, Proposition of Law No. 4 is not well taken.
INDEPENDENT REVIEW AND PROPORTIONALITY
In Proposition of Law No. 8, Smith submits that his death sentence is inappropriate and must be vacated because the aggravating circumstance does not outweigh the mitigating factors in this case, especially the mitigating factor of residual doubt.
The facts show that on the day of the murder and robbery, Smith and others discussed “hitting a lick.” Smith then directed Bryson and Layson to the Woodstock Market to accomplish their goal of committing a robbery. When Smith and Bryson went into the store, only Smith possessed and produced a weapon. Although Darwish and Tahboub fully cooperated with Smith during the robbery, Smith fired a single shot at Darwish because “he took too long * * * opening the cash register.” After the robbery and shooting, Smith's only expressed regret was that he had forgotten the beer he had intended to steal. When Smith's two accomplices pressed him as to why he shot the store owner, Smith replied, “[F]uck him, he in our neighborhood anyway. He shouldn't be in our neighborhood with a store no way.”
Even if defense counsel had attempted to contest the intent element of aggravated murder, it seems unlikely that the jury would have believed his witnesses (if any), as opposed to Smith's accomplices, who participated in the criminal activity. This conclusion would appear to be reasonable, especially since the testimony of Darwish's friend, Tahboub, was largely corroborative of Bryson's testimony as to the circumstances of the robbery and shooting.
After independent assessment, we find that the evidence supports beyond a reasonable doubt the aggravating circumstance that Smith, as the principal offender, killed Darwish while committing aggravated robbery. R.C. 2929.04(A)(7).
The nature and circumstances of the offense provide nothing in mitigation. Prison Islamic religious counselor, Jurry Taalib-Deen, testified that Smith confided with him that he was “nervous and scared and the trigger went off” when he shot Darwish. Yet, such statements seem less credible than those given by Smith to his accomplices immediately after the shooting. While Smith's statements to his accomplices after the shooting could be characterized as street bravado, his statements to the religious counselor could be viewed as a jail house conversion, and thus lacking in credibility. The fact remains that Smith helped plan and then specifically directed the robbery at the Woodstock Market. He was the only one of the three defendants who had a gun. The robbery-murder of Darwish was a senseless, unprovoked, and tragic crime.
Smith's history, character, and background provide some mitigating features. Smith's wife, Grace, testified that she married Smith while he was in jail in October 1990. At that time, Smith already had fathered a child, who was about three years old. The couple moved to Texas because they wanted a different environment, but they struggled on welfare and thereafter moved back to Toledo. Meanwhile, Grace became pregnant, and their baby was born after the murder. Grace stated that Smith's mother treated her well and showed her love. On the day of the murder, Grace and Smith went to the movie “Menace II Society,” which depicted a robbery and shooting similar to the crime Smith acted out later that evening. One or two days later, Smith broke down and told Grace that he shot Darwish, but he added that it was an accident and that he didn't mean to do it. Grace pleaded with the jury to spare Smith's life.
Smith's mother, Verna Smith, chronicled Smith's childhood beginning with a biological father who was “not really” around, and who did not provide financial support. Verna later married Willie Smith, Sr., who took Smith as his son, and whom she described as a good father to Smith and his younger brother. However, the elder Smith beat Verna on different occasions in front of the children, which left her with black eyes and bruises. After several years, Verna separated from the elder Smith because of the physical abuse, but she felt that the separation “was devastating” to defendant Smith. After the divorce, Verna supported her children while on welfare. Smith and his brother occasionally visited the elder Smith until his death around 1989. Verna further testified that Smith got suspended from school about six times for fighting when he was twelve or thirteen years old and that his experience at school was “not too good.” Verna also asked the jury to spare her son's life.
Smith's aunt, Patricia Dickerson, felt that Smith had a “very hard life” in the ghetto and that he only knew about life in the streets and how to survive in that environment. Dickerson stated that her sister, Verna, did the best she could in raising Smith given the circumstances of his upbringing. She also asked the jury to spare Smith from a death sentence.
Smith's uncle, Ronald Dickerson, opined that Smith was a victim of society, who, like a lot of other young people, got cast to the side. In spite of Smith's hard life, Dickerson felt that Smith “always seemed like a nice young man.”
Robert Kahl, the defense psychologist, interviewed and evaluated Smith to determine his emotional and psychological functioning. He also administered several tests to Smith. Kahl met and interviewed Smith's wife and mother. At his first session with Kahl, Smith was very cooperative. However, at their third meeting, Smith became distant with Kahl and indicated he was not going to participate in further evaluations. In one written exercise Kahl left at the jail for Smith to complete, an “Incomplete Sentences” test, Smith wrote in almost every answer that someone or something, usually Kahl, was “bothering” him. Kahl described Smith as being of average intelligence and initially thought Smith was “fairly normal.” According to Kahl, Smith knows right from wrong, but appeared to show signs of depression, which hampered his intellectual functioning. In Kahl's opinion, when Smith is confronted with situations that aroused intense feelings, Smith could lose contact with reality and be self-destructive.
In reviewing Smith's background, Kahl noted that Smith had been suspended from school for fighting a number of times, beginning at the age of ten. Smith fathered a child when he was fourteen and attended a great number of schools. Kahl concluded that part of Smith's problems was due to a lack of proper parenting and to the presence of significant physical violence in the home. In addition to having only a father substitute in the home, Kahl felt that Smith's mother lacked the skills to raise a child in terms of emotional functioning and how to handle feelings. Kahl further opined that it is clear that Smith learned early on to solve any problems with people by physically intimidating them into doing what he wanted them to do.
Kahl also noted that it was significant that Smith and his wife watched the movie “Menace II Society” on the day of the murder. In Kahl's opinion, what Smith saw in the movie was related to the similar crime he acted out later that day at the Woodstock Market. Kahl opined to a reasonable degree of psychological certainty that Smith “has a defect in his ability to handle feelings and stress, and when he gets in situations where feelings are high and stress is high, * * * he becomes psychotic for a temporary period of time.”
In Kahl's view, Smith was not able to conform his conduct to the requirements of law on the evening of the shooting. Kahl also stated that Smith has a mental illness or some defect in personality, but he could not be more specific, since he was unable to complete his evaluations of Smith, due to Smith's refusal to cooperate any further.
With regard to the statutory mitigating factors of R.C. 2929.04(B), factor (3) would appear to be implicated, since the defense psychologist, Robert Kahl, stated that at the time of the shooting, Smith was unable to conform his conduct to the requirements of law. However, we do not find that Kahl's conclusion supports finding the (B)(3) mental disease/defect factor, since Kahl admitted that he was unable to complete his evaluation of Smith. Kahl's inability to define a specific mental disease or defect for Smith's condition detracts from finding the presence of the (B)(3) statutory mitigating factor in this case. Nevertheless, Kahl's findings that Smith suffered from psychotic episodes, including an episode on the day of the murder, must be given some weight as a (B)(7) factor. Yet, the weight we apply to this factor is tempered by the fact that Kahl's evaluation was incomplete due to Smith's refusal to cooperate further in the evaluation process.
Smith's age of the time of the offense (twenty-one years old) is entitled to some weight under R.C. 2929.04(B)(4). See, e.g., State v. White (1999), 85 Ohio St.3d 433, 454, 709 N.E.2d 140, 160. No other specific statutory mitigating factors appear to be applicable except for those under R.C. 2929.04(B)(7).
In addition to Smith's psychological problems discussed earlier, Smith's upbringing where he witnessed physical violence inflicted on his mother is entitled to some mitigating weight under (B)(7). See, e.g., State v. Getsy (1998), 84 Ohio St.3d 180, 207, 702 N.E.2d 866, 891. Also mitigating is the love and support Smith enjoys from his wife and family members. See, e.g., State v. Mason (1998), 82 Ohio St.3d 144, 170, 694 N.E.2d 932, 957. However, residual doubt would be entitled to very little weight in mitigation, even if we had not rejected it as an acceptable mitigating factor in McGuire, supra, 80 Ohio St.3d 390, 686 N.E.2d 1112, paragraph one of the syllabus. The testimony of the defense mitigation witnesses that Smith claimed the shooting was accidental or unintentional is not persuasive. In our view, eyewitness testimony by Smith's accomplices and Tahboub clearly negates the notion that Smith did not intend to kill Darwish.
Upon independent weighing, we hold that the aggravating circumstance outweighs the mitigating factors beyond a reasonable doubt. The robbery-murder of Darwish was an unprovoked and senseless act. The death penalty in this case is both appropriate and proportionate when compared to similar cases of murder combined with aggravated robbery where there was the same or even more evidence in mitigation. See State v. Eley (1996), 77 Ohio St.3d 174, 672 N.E.2d 640 (devotion and care from family, remorse); State v. Raglin (1998), 83 Ohio St.3d 253, 699 N.E.2d 482 (eighteen years old, poor background, mild brain damage, remorse, cooperation with police); State v. Sheppard (1998), 84 Ohio St.3d 230, 703 N.E.2d 286 (close and religious family background, eighteen years old, mental disease/defect); and State v. Goodwin (1999), 84 Ohio St.3d 331, 703 N.E.2d 1251 (difficult childhood, nineteen years old, apology to victim's family).
Based on all the foregoing, we affirm Smith's convictions and sentences, including the death sentence. Judgment accordingly.
DOUGLAS, WALTERS, FRANCIS E. SWEENEY, SR., PFEIFER and COOK, JJ., concur.
LUNDBERG STRATTON, J., dissenting.
Lundberg Stratton, J., dissenting. Because I believe that the defendant was denied his Sixth Amendment right to the effective assistance of counsel due to counsel's failure to voir dire the jury on racial issues, I respectfully dissent.
I agree with the majority's proposition that “ ‘[t]he conduct of voir dire by defense counsel does not have to take a particular form, nor do specific questions have to be asked,’ ” quoting State v. Evans (1992), 63 Ohio St.3d 231, 247, 586 N.E.2d 1042, 1056. Further, I agree, in general, with the proposition that the decision to voir dire on racial prejudice is a choice best left to a capital defendant's counsel. See State v. Watson (1991), 61 Ohio St.3d 1, 13, 572 N.E.2d 97, 108, citing Turner v. Murray (1986), 476 U.S. 28, 37, 106 S.Ct. 1683, 1688, 90 L.Ed.2d 27, 37, and fn. 10. However, I believe that in situations where racial issues have the potential to permeate the entire trial, failure to voir dire the venire regarding racial issues can constitute ineffective assistance of counsel.
The facts presented at trial demonstrate that racial issues did permeate this trial. The defendant, an African-American from the inner city, was accused of shooting a man of Arabic descent who operated a grocery in the inner city. When asked what defendant's reasons were for shooting the victim, co-defendant Layson testified that after shooting the victim, the defendant told him, “[F]uck him, he in our neighborhood anyway. He shouldn't be in our neighborhood with a store no way.”
During mitigation, defense counsel elicited testimony from defendant's wife, Grace Smith, about the film “Menace II Society,” a movie about a group of inner city young men (referring to themselves as “black gangsters”) who enter a neighborhood grocery store in the inner city and shoot the non-African-American clerks. Mrs. Smith, who had viewed the movie with her husband earlier on the day of the shooting, described the film as follows: “Well, it was two guys, you know, who thought they were kind of bad * * *. [T]hey was just going to buy some beer and the guy, the owners of the store * * * were looking at them very strange like you shouldn't belong in here because they were black. * * * [O]ne of the boys in the carryout and the store man * * * had a little words or discrepancy * * * and * * * caused a shooting * * *.”
The parallels between the movie and the facts of this case lead to unavoidable conclusions about racial hatred with regard to the shooting of this Arabic grocery store clerk. Dr. Robert Kahl, a clinical psychologist who testified on behalf of defendant, opined that defendant was depressed and had a great deal of trouble talking about his feelings and that when confronted with situations that aroused intense feelings, he could get out of contact with reality. Dr. Kahl believed that defendant “has a defect in his ability to handle feelings and stress, and when he gets in situations where feelings are high and stress is high, that he becomes psychotic for a temporary period of time.” Regarding the movie “Menace II Society,” Dr. Kahl opined that “it cannot be coincidence. That this thing happened in the movie and this thing happened later. It cannot-I cannot believe it is coincidence.”
Also during the mitigation phase of the trial, defense counsel elicited testimony regarding another film, “Malcolm X.” According to the testimony of an Islamic counselor at the Lucas County Jail, Jurry Taalib-Deen, “Malcolm X” highlights the Nation of Islam, an Islamic splinter group which, according to Taalib-Deen, preaches a “hatred doctrine of blacks being Gods and whites being devils.” In addition, Taalib-Deen testified that “Malcolm X” was “nationalistic,” and testified that “before [defendant] came in [to the Lucas County Jail], he was into nationalistic.”
Throughout the trial and mitigation phase, the defendant, a follower of the Islamic faith, wore a prayer cap. Counsel attempted to make the jury aware that defendant no longer subscribed to the ideology of the Nation of Islam movement mentioned in the movie “Malcolm X,” but rather the peaceful tenets of the Islamic religion. It is possible that defense counsel's tactic of eliciting this religious testimony was an attempt to evoke the sympathy of the jurors by showing that defendant's religious conversion made him a gentler, more peaceful man today.
Further, the evidence regarding the racial aspects of the films, combined with the psychological evidence from Dr. Kahl, could have been an attempt to demonstrate that defendant's psychological defects permitted him to be influenced by the films, causing him to act in conformity with the violence depicted in the films.
But I believe that issues of race and religion so infected this trial that the failure to voir dire the jury venire on those issues made counsel's performance so deficient that counsel were not functioning as the counsel guaranteed by the Sixth Amendment, and that counsel's errors prejudiced the defendant and deprived him of a trial whose result was reliable. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693. If counsel consciously chose these tactics, they had a duty also to choose a jury free of prejudice so that such a tactic would not cause an unfavorable reaction.
These topics, involving highly charged and controversial racial and religious issues, could evoke strong emotional reactions in a jury. Without a careful voir dire of the venire's views and biases on these issues, there is no way to know whether the violent imagery of these two movies (and whether, in fact, any jurors had ever seen them) prejudiced the jury's verdict. Some people believe, rightly or wrongly, that the tenets of the Nation of Islam urge militant violence, a powerful image that could have infected the jury's deliberation. Without a careful rooting out of any potential juror who harbored prejudicial racial or religious views, or who had formed preconceived prejudices about either of the movies or the Islamic movement, there is no way to be sure that the jurors who deliberated were truly fair and impartial.
“Because of the range of discretion entrusted to a jury in a capital sentencing hearing, there is a unique opportunity for racial prejudice to operate but remain undetected.” Turner, 476 U.S. at 35, 106 S.Ct. at 1687, 90 L.Ed.2d at 35. Further, the “risk of racial prejudice infecting a capital sentencing proceeding is especially serious in light of the complete finality of the death sentence.” Id. at 35, 106 S.Ct. at 1688, 90 L.Ed.2d at 36.
The standard is whether “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. I believe that evidence of guilt was so overwhelming that the verdict of guilt would not have been affected. However, I cannot so find as to the sentence of death.
No juror was questioned regarding his or her views on racial issues, ethnic issues, or the politics of the Nation of Islam, Muslims in general, or the Islamic religion itself. With the evidence of mitigation present in this case, I do not believe that we can find a reasonable probability that the emotional issues of race, both African-American and Arabic, suffused with religious overtones, did not affect the outcome of the sentencing phase of trial.
Accordingly, I respectfully dissent and would reverse in part the judgment of the court of appeals and vacate the sentence of death.
Mahdi v. Bagley, 522 F.3d 631 (6th Cir. 2008). (Habeas)
Background: Following affirmance of state conviction for aggravated felony-murder, aggravated robbery, and capital sentence, 731 N.E.2d 645, petition for writ of habeas corpus was filed. The United States District Court for the Northern District of Ohio, Paul R. Matia, J., denied the petition and petitioner appealed.
Holdings: The Court of Appeals, Julia Smith Gibbons, Circuit Judge, held that: (1) trial counsel's failure to voir dire prospective jurors on racial and religious bias was reasonable trial strategy, and (2) state court weighed residual doubt as a mitigating factor. Affirmed.
JULIA SMITH GIBBONS, Circuit Judge.
Petitioner-appellant Abdullah Sharif Kaazim Mahdi (f/k/a Vernon Smith) appeals the district court's denial of his habeas corpus petition. Mahdi argues that the district court erred in finding that: (1) his trial counsel was not ineffective; (2) his appellate counsel was not ineffective; and (3) the retroactive application of a change in Ohio case law did not constitute a violation of the Due Process Clause. For the following reasons, we affirm the district court's denial of Mahdi's petition for a writ of habeas corpus.
I.
The Supreme Court of Ohio summarized the facts underlying this case as follows:
On the evening of May 26, 1993, defendant-appellant, Vernon Smith, n.k.a. Abdullah Sharif Kaazim Mahdi, and Herbert Bryson robbed the Woodstock Market located at the corner of Woodstock and Avondale in Toledo. During the robbery, Smith fired a single shot at the upper chest of Sohail Darwish, causing his death. Approximately two weeks later, Smith was arrested and then indicted on one count of aggravated murder with a firearm specification, and a death penalty specification alleging that Smith was the principal offender in committing aggravated murder during an aggravated robbery. Smith was also indicted on three counts of aggravated robbery. Subsequently, Smith was found guilty as charged by a jury and sentenced to death.
During the afternoon of May 26, 1993, Smith met up with Herbert Bryson and Lamont Layson at a dirt basketball court in a park at Highland and Maplewood in Toledo. The trio discussed “hitting a lick,” i.e., committing a robbery. The group got in Bryson's car, and Smith directed them to the corner of Woodstock and Avondale, where the Woodstock Market was located. Layson remained in the car while Smith and Bryson headed toward the carryout. Jeremiah Bishop, who was two houses down from the Woodstock Market at that time, saw Smith and another person enter the carryout.
Bryson testified that after he and Smith entered the carryout, they noticed only two people in the store, both of whom were behind the counter. Bryson asked about a type of beer, and the storeowner, Sohail Darwish, came around the counter and walked over to the cooler to assist him. Darwish retrieved a forty-ounce beer bottle from the cooler and placed it on the counter. Bryson did the same. As Darwish was ringing up the sale on the cash register, Smith brandished a black gun and ordered Darwish to “open the cash register, motherfucker.”
Darwish, who was standing next to Bryson, put his hands up in the air and did not resist. Bryson went behind the counter and hit several buttons on the cash register, trying to open it. Bryson then ordered Darwish to open the cash register, which he did. Darwish then put his hands back up in the air.
Osand Tahboub, a former co-worker who was visiting Darwish at the carryout at that time, testified that the gunman then told Darwish to “move and empty your wallet, motherfucker.” As Darwish was reaching for his wallet, Smith fired a single shot, hitting Darwish in the chest. Smith then ordered Tahboub to empty his wallet as well, and the two assailants then fled the scene. Darwish was able to push the alarm button before he fell to the floor. As a result of the single gunshot wound to the upper left side of his chest, Darwish bled to death.
After Smith and Bryson left the carryout, Layson, who was waiting in Bryson's car, noticed Smith holding a gun in his hand when he and Bryson climbed back into the automobile. According to Layson, Smith exclaimed, “Dang, I forgot the beer.” When Bryson asked Smith “why did he do it,” Smith replied that he shot the man “in the arm” because “he moved too slow,” and that “he took too long ... opening the cash register.”
According to Layson, Smith then said, “Fuck him, he in our neighborhood anyway. He shouldn't be in our neighborhood with a store no way.” Later, Smith and Bryson split the money taken in the robbery, which was apparently over $ 400. They also gave Layson all the stolen food stamps from the robbery plus $50.
On June 9, approximately two weeks after the murder, police detective Dennis Richardson received information that persons possibly involved in a homicide were incarcerated in the Sandusky County Jail. Based on this and other information he received from sources, Richardson made up an eight-man photo array, including a photo of Herbert Bryson, to show to Tahboub. The next day, upon viewing the array, Tahboub selected Bryson's photo as “not the guy with the gun, but the other guy.” Based on this information and the fact that computer records showed Smith as a known associate of Bryson, Richardson compiled a second photo array that included a picture of Smith. Richardson showed Tahboub the second photo array, and Tahboub immediately selected Smith's photo as that of the gunman.
Consequently, Smith was arrested, and along with Bryson and Layson, was indicted by the grand jury in the Darwish murder. In count one, Smith was charged with aggravated felony-murder during an aggravated robbery. A death penalty specification attached to this count alleged that Smith was the principal offender in the aggravated murder during a robbery, R.C. 2929.04(A)(7). The second count charged Bryson and Layson with aggravated felony-murder during an aggravated robbery. Counts three through five charged all three defendants with aggravated robbery of the carryout, of Darwish, and of Tahboub respectively. All five counts also carried firearm specifications. State v. Smith, 89 Ohio St.3d 323, 731 N.E.2d 645, 648-49 (2000), recons. denied, 90 Ohio St.3d 1419, 735 N.E.2d 457 (2000), cert. denied, 531 U.S. 1167, 121 S.Ct. 1131, 148 L.Ed.2d 997 (2001).
At trial, Mahdi was convicted of aggravated felony-murder and of three counts of aggravated robbery. He presented no evidence in the guilt phase. At the subsequent penalty phase, Mahdi's presentation included testimony of a Muslim counselor that Mahdi had converted to Islam while awaiting trial and now counseled other prisoners. The counselor also testified that Mahdi had told him that the shooting had been unintentional, that Mahdi had been nervous and scared, and that the trigger had just gone off. Mahdi's wife testified that Mahdi had been upset and nervous the evening of the shooting and for days afterward. She further testified that, when he heard on the news that Darwish was dead, Mahdi sat down and cried and told her that the murder had been an accident. Moreover, Mahdi's wife testified that, on the afternoon before the crime, she and her husband went to see the film Menace II Society, whose opening scene depicted an interracial crime in which a black man had words with a store owner and angrily shot him. A psychologist also testified at the mitigation hearing and noted the striking parallels between the film and the crime, opining that it could not have been coincidence that Mahdi later committed a crime so similar to the one he witnessed in the film. In addition, the psychologist testified to the effects of various social and cultural factors on Mahdi, all of which, he believed, impaired Mahdi's ability to conform his conduct to the law. The psychologist further opined that these factors combined with Mahdi's difficult childhood caused a mental illness, although the psychologist was unable to identify the illness with specificity due to Mahdi's lack of cooperation during the interview process.
At the end of the mitigation hearing, the jury returned with a death sentence; in turn, the trial court sentenced Mahdi to death and to a consecutive term of eighteen to fifty-three years in prison. On direct appeal, the state court of appeals affirmed the convictions and sentences. The Ohio Supreme Court affirmed the court's decision. State v. Smith, 731 N.E.2d at 660. Mahdi subsequently exhausted his state post-conviction remedies.
In 2002, Mahdi filed a federal habeas corpus petition, raising the following ten claims as grounds for relief: (1) trial counsel were ineffective in failing to voir dire prospective jurors on racial bias; (2) the trial court erred in failing to instruct the jury on the lesser included offense of involuntary manslaughter; (3) the penalty-phase jury instructions were incorrect; (4) the state court of appeals denied Mahdi his constitutional rights by refusing to consider residual doubt; (5) trial counsel were ineffective in not objecting to flawed penalty-phase jury instructions and in not requesting a competency hearing; (6) counsel rendered ineffective assistance in the state court of appeals; (7) trial counsel were ineffective in the penalty phase in not presenting certain mitigating evidence; (8) the trial court erred in failing to hold a competency hearing sua sponte; (9) the cumulative effect of the errors and omissions presented in the habeas petition deprived Mahdi of his constitutional rights; and (10) the Ohio Supreme Court conducted an inadequate proportionality review. Mahdi abandoned the tenth claim in his reply brief. The district court denied the rest of the petition and dismissed the case, but granted a Certificate of Appealability (“COA”) on Claim 1, as well as Claim 6 to the extent it raised the failure to voir dire prospective jurors on racial and religious bias. This court expanded the COA to include Claim 4. Thus, before this court on appeal are three claims: (1) whether trial counsel were ineffective in failing to voir dire prospective jurors on racial and religious bias;FN1 (2) whether appellate counsel rendered ineffective assistance in the state court of appeals; and (3) whether the state court of appeals denied Mahdi his constitutional rights pursuant to the Due Process Clause by refusing to consider residual doubt.
FN1. Although the district court granted a certificate of appealability on Mahdi's “first and sixth claims for relief as they relate to his right to voir dire the venire on racial grounds,” Mahdi clearly incorporated a claim regarding trial counsel's failure to voir dire on religious grounds into this first (failure to voir dire on racial grounds) claim when presented in his reply brief. Thus, we interpret the district court's certificate of appealability to encompass Mahdi's claims that are predicated on the failure to voir dire on both racial and religious grounds.
II.
The government argues that Mahdi's first claim-that his trial counsel were ineffective-has been procedurally defaulted. We, however, need not address whether in fact Mahdi has procedurally defaulted this first claim. As noted by the district court in its grant of a COA, Mahdi's contentions that both his trial counsel and appellate counsel were ineffective are analytically linked. Mahdi claims that his appellate counsel was ineffective for not appealing the ineffectiveness of his trial counsel. Thus, each claim relies on the underlying argument that Mahdi's trial counsel were ineffective. Because we must reach the merits of whether trial counsel were ineffective in order to dispose of Mahdi's claim that his appellate counsel were ineffective, we decline to address whether Mahdi's claim of ineffectiveness of trial counsel is procedurally defaulted. Indeed, this court has held that “federal courts are not required to address a procedural-default issue before deciding against the petitioner on the merits,” especially where the procedural default issue is “complicated” and “is unnecessary to [the] disposition of the case.” Hudson v. Jones, 351 F.3d 212, 216 (6th Cir.2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997) (“Judicial economy might counsel giving the [other] question priority, for example, if it were easily resolvable against the habeas petitioner, whereas the procedural-bar issue involved complicated issues of state law.”)).
For related reasons, the three issues presented to this court can be consolidated to two issues. As discussed below, we conclude that Mahdi's trial counsel were not ineffective. Such a determination is dispositive of the first two issues Mahdi argues on appeal; if Mahdi's trial counsel were not ineffective, then his appellate counsel cannot have been ineffective for failing to raise the claim that trial counsel were ineffective. We therefore address only two issues, which enable us to dispose of the three claims presented by Mahdi to this court: (1) whether Mahdi's trial counsel were ineffective for failing to voir dire prospective jurors on racial and religious bias, and (2) whether the state court of appeals deprived Mahdi of his constitutional rights under the Due Process Clause by retroactively applying a new state law that determined residual doubt was no longer to be considered to be a mitigating factor. We consider each issue in turn.
1.
Mahdi argues that counsel rendered ineffective assistance on his first appeal of right by not raising as error trial counsel's ineffective assistance in failing to voir dire prospective jurors on racial and religious bias. In turn, Mahdi also claims that his appellate counsel were ineffective for failing to appeal his conviction on these grounds. The Warden responds, among other arguments, that these claims are meritless because Mahdi has failed to establish that trial counsel's failure to voir dire prospective jurors on racial and religious bias constitutes objectively deficient performance. And, if the ineffectiveness claims against trial counsel lack merit, no prejudice could have resulted from the appellate counsel's failing to appeal Mahdi's conviction and sentence on these grounds.
Claims of ineffective assistance of counsel are judged under the Strickland standard, which requires that the appellant affirmatively establish “(1) that counsel's performance was objectively deficient; and (2) prejudice, which means that ‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ ” Haliym v. Mitchell, 492 F.3d 680, 694 (6th Cir.2007) (citing and quoting Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). In addition, defendants are constitutionally entitled to effective assistance of counsel for appeals of right. Bowen v. Foltz, 763 F.2d 191, 194 n. 3 (6th Cir.1985) (citing Gilbert v. Sowders, 646 F.2d 1146 (6th Cir.1981)).
The Sixth and Fourteenth Amendments guarantee a criminal defendant an impartial jury in state court. Ristaino v. Ross, 424 U.S. 589, 595 n. 6, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976); see also Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961) (“[T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors”) (internal quotation marks omitted). Mahdi argues that by not conducting a voir dire that addressed religious and racial bias his counsel failed to ensure that an impartial jury would hear Mahdi's case.
Under the Antiterrorism and Effective Death Penalty Act (AEDPA): 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. Taylor v. Withrow, 288 F.3d 846, 850 (6th Cir.2002) (quoting 28 U.S.C. § 2254(d)) (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.’ ” Ivory v. Jackson, 509 F.3d 284, 291 (6th Cir.2007) (citing Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (quotation marks omitted)). In order to constitute 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. (citing Williams, 529 U.S. at 409-11, 120 S.Ct. 1495). Furthermore, “[t]he state court's findings of fact are presumed to be correct unless they are rebutted by ‘clear and convincing evidence.’ ” Id. (citing Benge v. Johnson, 474 F.3d 236, 241 (6th Cir.2007)).
The Ohio Supreme Court addressed Mahdi's claim of ineffective assistance of counsel on the merits as follows: Reversal of a conviction for ineffective assistance 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, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, (1984). Accord State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).
Smith [n.k.a. Mahdi] asserts many conclusions, one of which is that the trial was racially charged, since the murder was committed by a black man and the victim was “a man of Arabic descent who operated a grocery store in the inner city.” Characteristic of Smith's arguments under this proposition is his conclusion that “because the conflict between blacks and the immigrant newcomers envelops the overall debate on black/white relations, racism may have been a factor in the jury's decision to convict [Smith] of aggravated murder.” (Footnote omitted.) Other examples of Smith's argument that the entire trial was fraught with racially charged evidence include trial counsel's strategy during the mitigation phase to highlight the black “gangsta” movie “Menace II Society,” relying on the testimony of an Islamic jail counselor, citing the movie “Malcolm X,” and relating defendant's story of life in the inner city.
Smith relies on Turner v. Murray, 476 U.S. 28, 36-37, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986), for the proposition that a capital defendant accused of an interracial crime is entitled to have the venire questioned so as to reveal any possible racial bias. Smith contends that, in the racially charged atmosphere of this case, competent counsel would have taken advantage of that entitlement.
In our view, Smith's arguments are purely speculative and unconvincing. We have held that “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. Evans, 63 Ohio St.3d 231, 247, 586 N.E.2d 1042 (1992). Moreover, as we noted in State v. Watson, 61 Ohio St.3d 1, 572 N.E.2d 97 (1991), under Turner v. Murray, the actual decision to voir dire on racial prejudice is a choice best left to a capital defendant's counsel. Id., 476 U.S. at 37, and fn. 10, 106 S.Ct. 1683. State v. Smith, 731 N.E.2d at 651-52. Nothing in the Supreme Court of Ohio's analysis could be construed as contrary to clearly established federal law. In fact, the court reasonably interpreted Supreme Court precedent, noting that decisions about the content of questions during voir dire are typically left to the discretion of the trial counsel. See, e.g., Lear v. Cowan, 220 F.3d 825, 829 (7th Cir.2000) (holding that trial counsel's failure to voir dire jurors on racial bias was not “unprofessional, subpar representation per se,” and noting that “there are tactical reasons why a lawyer would not want to direct the jurors' attention to the interracial character of the crime, and the [Turner] Court recognized this”); accord Hasan v. Ishee, 2006 WL 3253081, *10-11, 2006 U.S. Dist. LEXIS 83926, at *28-32 (S.D.Ohio Aug. 14, 2006). Indeed, as the Supreme Court of Ohio explained,
Counsel could have properly determined that the examination of jurors' racial views during voir dire would be unwise, since the subject of racial prejudice is sensitive to most people, and raising it during voir dire could cause some jurors to be less candid if confronted with direct questions attempting to discern any hint of racial prejudice. In addition, our reading of the record leads us to conclude, contrary to Smith's assertions, that racial issues were not “woven into the fabric of trial.” State v. Smith, 731 N.E.2d at 652. This observation is especially appropriate in this case, since Mahdi's counsel apparently hoped that the jury would conclude that the murder of Darwish had been an accident. Conducting a voir dire on racial and religious grounds could have emphasized the possible role of racial and religious animus in the commission of the crime, bolstering the prosecution's claim that the murder had been intentional. Thus, counsel had to weigh the potential harm that could flow from a voir dire on racial and religious bias against its arguable benefit. Trial counsel's decision not to voir dire prospective jurors on racial and religious bias seems a reasonable tactical decision.
Moreover, as the Supreme Court of Ohio concluded, Yet, even if we viewed counsel's trial strategy as questionable, such a strategy should not compel us to find ineffective assistance of counsel. In these situations, we normally defer to counsel's judgment. State v. Clayton, 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (1980). Since we find no legitimate basis for Smith's assertions that counsel were ineffective for not examining the venire on racial or religious bias, this proposition is not well taken. State v. Smith, 731 N.E.2d at 652. Such an application cannot be said to constitute an objectively unreasonable application of federal law. Instead, it is based upon a particular view of the factual record in this case, determinations that under AEDPA are presumed to be correct, to which the court applied its reasonable interpretation of federal law. Consequently, Mahdi's claim that his trial counsel were ineffective fails. In turn, because Mahdi has failed to demonstrate that his trial counsel were ineffective, the claim that his appellate counsel were ineffective also fails. Given that Mahdi's trial counsel were not ineffective, Mahdi cannot argue that he suffered prejudice from his appellate counsel's failure to raise trial counsel's decision not to question jurors about religious and racial bias. No prejudice flows from the failure to raise a meritless claim.
2.
Mahdi next argues that he was denied due process on his first appeal of right when the state court of appeals, in its independent review of his death sentence, applied a change in case law that retroactively forbade consideration of one of the mitigators he had relied on at trial: residual doubt. Indeed, when Mahdi was tried, Ohio law recognized residual doubt as a mitigating factor. See State v. Watson, 61 Ohio St.3d 1, 572 N.E.2d 97, 111 (1991). Accordingly, Mahdi now argues that he devoted, what he describes as, “a significant portion” of his efforts at the penalty phase to presenting residual-doubt evidence, arguing that there existed some doubt as to his intent to kill. In fact, Mahdi persuaded the trial court to instruct the jury on employing residual doubt as a mitigating factor. While his case was before the state court of appeals on direct appeal, however, the Supreme Court of Ohio declared that residual doubt was not an acceptable mitigator under the state death-penalty statute, thus abrogating Watson. See State v. McGuire, 80 Ohio St.3d 390, 686 N.E.2d 1112, 1123 (1997). As a result, the state court of appeals held that it could not consider residual doubt when independently determining whether the aggravating factors outweighed the mitigating factors in Mahdi's case. The Ohio Supreme Court subsequently held that it was not error to apply McGuire retroactively, State v. Smith, 731 N.E.2d at 657 (citing State v. Bey, 85 Ohio St.3d 487, 709 N.E.2d 484, 503 (1999)), but also went on to conclude that residual doubt would be entitled to very little weight in mitigation. Id. at 660.
Mahdi emphasizes that he does not challenge the constitutionality of McGuire; instead, Mahdi only challenges the retroactive application of McGuire to his case. He argues that due process was violated because it was fundamentally unfair for the court of appeals to apply McGuire retroactively given that Mahdi's strategy at the mitigation hearing relied on the then-good law of Watson. He further argues that, because Ohio law granted him two appeals of right, the intermediate appellate court's failure to consider residual doubt denied him due process by depriving him of his right to a meaningful dual review of his death sentence.
We need not determine whether the Supreme Court of Ohio unreasonably applied clearly established federal law in applying McGuire retroactively. Despite its approval of the retroactive application of McGuire, the Ohio Supreme Court in fact weighed residual doubt and noted that it was entitled to little weight. The court noted that the testimony of defense mitigation witnesses that Mahdi claimed the shooting was accidental was unpersuasive and that the eyewitness testimony negated the absence of intent to kill. Mahdi was not in fact deprived of an appellate weighing of residual doubt.FN2
FN2. Mahdi further points out that O.R.C. § 2929.05 grants a capital defendant the right to a dual review of his sentence. Mahdi argues that his due process rights were violated, despite the fact that the Ohio Supreme Court considered residual doubt, because the Ohio Court of Appeals did not consider residual doubt. Therefore, Mahdi claims, he did not get two meaningful reviews of his sentence as required by Ohio law and this violation of state law amounts to a deprivation of his due process rights under the federal constitution.
It is true that “if a State has created appellate courts as an integral part of the ... system for finally adjudicating the guilt of innocence of a defendant the procedures used in deciding appeals must comport with the demands of the Due Process ... Clause[] of the Constitution.” Evitts v. Lucey, 469 U.S. 387, 393 (1985) (internal quotation marks and citation omitted). However, in Evitts the Court was concerned that the quality of review afforded by Kentucky law would not be meaningful if the defendant was not entitled to effective assistance of counsel. Under such circumstances, a state-created appellate process could run afoul of the Due Process Clause. See also Griffin v. Illinois, 351 U.S. 12 (1956) (holding that the failure to provide defendants with transcripts necessary to pursue an appeal free of cost implicated due process and equal protection concerns). Neither Evitts nor Griffin instructs us, however, to find that Mahdi did not receive the meaningful appellate review required under the Due Process Clause. Here, the sentencing jury considered residual doubt. So did the Supreme Court of Ohio. Thus, in constrast to the concerns implicated in Evitts and Griffin, the Ohio Court of Appeals's failure to consider residual doubt as a mitigating factor did not preclude Mahdi's from receiving meaningful appellate review of his sentence. Indeed, such a conclusion comports with the due process analysis propounded by other circuits. See Rust v. Hopkins, 984 F.2d 1486, 1493 (8th Cir. 1993) (noting that an appellate court is “fully competent to 'cure' some sentencing deficiencies in capital cases ... such as the improper consideration of an invalid aggravating circumstance”).
III.
Because the claims presented were adjudicated on the merits by the Supreme Court of Ohio, and such adjudication did not contradict clearly established federal law, we affirm the district court's denial of Mahdi's petition for a writ of habeas corpus.