State v. Webb

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The State of Ohio, Appellee, v. Webb, Appellant.
[Cite as State v. Webb (1994),      Ohio St.3d       .]
Criminal law -- Rule changing quantum of proof required for
     conviction may be applied to trials of crimes committed
     before the rule was announced -- Prosecutor's offer to
     plea bargain in a capital case is not a mitigating factor
     for purposes of R.C. 2929.04(B)(7) or the Eighth Amendment
     -- Aggravated murder -- Death penalty upheld, when.
1. A rule changing the quantum of proof required for conviction
     may be applied to trials of crimes committed before the
     rule was announced without violating the Ex Post Facto
     Clause. (State v. Jones [1981], 

, 

, 

, overruled.)
2. A prosecutor's offer to plea bargain in a capital case is not
     a mitigating factor for purposes of either R.C.
     2929.04(B)(7) or the Eighth Amendment. (State v. Sneed
     [1992], 

, 

, approved and
     followed.)
     (No. 93-1374 -- Submitted April 19, 1994 -- Decided
September 21, 1994.)
     Appeal from the Court of Appeals for Clermont County, No.
CA91-08-053.
     On November 21, 1990, three-year-old Michael Patrick
("Mikey") Webb was killed in a fire at his home. Mikey's
father, defendant-appellant Michael D. Webb, was convicted of
Mikey's aggravated murder and was sentenced to death.
     Webb lived in Goshen Township, Clermont County, with his
wife Susan, his sons Charlie and Mikey, and the teenaged
daughters of his first marriage, Tami and Amy. In 1978, Webb's
first wife Linda and her mother died in a traffic accident; Amy
was badly injured. Amy and Tami received a total settlement of
$42,667,33 for personal injury and wrongful death, plus at
least $7,567.42 from their grandmother's estate. The probate
court appointed Webb guardian of Tami's and Amy's estate. In
1982, Webb invested the estate funds in a twenty-six-week
certificate of deposit ("CD"), face value $51,800, renewing it
regularly until 1985.
     From 1985 to 1988, Webb appropriated most of the estate
funds for his personal use. He would redeem his daughters' CD,
purchase another with a lower value, and retain the balance of
the funds. Webb did this seven times between 1985 and 1988.
Each time he bought a new CD, Webb instructed the bank to
deposit the interest in his checking account. His authorization to spend guardianship funds had expired on July 1, 1984.
     After July 1983, Webb neglected to file an account with
the probate court. In February 1987, Webb came into court
after receiving a notice ordering him to file an account or be
removed as guardian. Webb told the probate judge "that he had
spent the money" and knew he had to replace it.
     In 1987, Linda Webb's father died, leaving $51,059.66 to
Tami and Amy. Webb did not report these funds to the probate
court as being part of the guardianship. He bought a one-year
CD in his daughters' names, face value $50,000, with this
money. On January 18, 1989, Webb redeemed the CD, receiving
$51,825.73, and bought a new CD with a face value of $50,300.
About a month later, he redeemed that CD prematurely, receiving
$48,522.29. He used $35,000 to open a savings account in his
own name, keeping the balance.
     In 1990, Webb met Nadine Puckett. Their friendship
quickly blossomed. On October 31, 1990, Nadine's ex-husband
found them together. The next morning, Nadine went to stay
with her sister in Dayton. Between November 1 and November 20,
Webb made several trips to Dayton to see Nadine, and phone
company records showed frequent calls from Webb's phone to
Nadine's sister's house. During this period, Webb told Nadine
he planned to leave Susan.
     James Pursifull worked for Webb's bodyshop until quitting
on October 23, 1990. Webb told people that he had fired
Pursifull and accused Pursifull of threatening and harassing
him. Webb later requested Pursifull to help with some work at
his house because Webb "had to go in the hospital to get his
colon removed"; Pursifull never came to appellant's home. The
prosecution later argued that Webb had been trying to "set
[Pursifull] up" by getting him to leave fingerprints at Webb's
residence.
     On the evening of November 20, 1990, Tami Webb locked the
door leading outside from the basement (where she and Amy had
their bedrooms) and went to bed. Early the next morning, Tami
was awakened by cold air and the smell of gasoline. Webb came
into her room. A frightened Tami told him she smelled
gasoline. Webb said that he did too, and that he thought the
house was "rigged." He ordered Tami to "get down" or "lie
down" and to "get Amy." He never told her to get out of the
house. Webb then went upstairs. Tami, too frightened to leave
her bed, pulled the covers up and closed her eyes. She later
testified that, when she opened them, she saw a man in a red
sweatshirt staring at her. However, she conceded on
cross-examination that her "feeling" that "someone else was in
the house" was "based upon the fact that [she] could not
believe" her father set the fire.
     After that, Amy heard an explosion upstairs. Tami yelled
at Amy to get out of the house, and they both ran out through
the basement door and around to the front of the house, where
they saw Webb. Webb's hands were bloody. It was later
discovered that he got out by breaking through the bathroom
window. A firefighter rescued Charlie and Susan from the
master bedroom. Mikey died of smoke inhalation.
     Township Fire Chief Virgil E. Murphy investigated the fire
scene. In the foyer, he found a plastic gasoline can that had
come from Webb's garage.
     A "very definite po[u]r pattern or trailer" was noted in
the foyer. Murphy followed the trailer down a hallway leading
to the bathroom and bedrooms. From the hallway, the trailer
led into the master bedroom up to the base of the bed.
(Charlie's crib stood next to that bed.) The trailer also went
into Mikey's room "up the side of the bed and across the bed to
the rear wall." Arson investigators took samples from the
trailers for analysis. The samples contained gasoline.
     After examining the house, Murphy concluded that the fire
was caused by arson and had started in two places. One fire
was contained in the hall closet. A second had started at the
bathroom door, at the end of the hallway nearest the bedrooms,
and moved from there into the bedrooms and down the hallway
toward the living room.
     An unignited gasoline trailer led downstairs to the
basement, where Murphy found a two-liter pop bottle containing
gasoline; the bottle had Webb's fingerprints on it. Gasoline
had also been poured on Tami's bed, and Murphy smelled it on
Amy's bedclothes. Murphy concluded: "If all the trailers …
had ignited the chances of anybody escaping from that home
[were] very, very slim."
     Police found bloodstains matching Webb's blood type on the
bathroom windowsill and basement door. The bathroom window had
been broken from the inside. Blood trails on the ground led
away from the window. A matchbook found outside bore a partial
fingerprint in blood; Webb later admitted to police the print
was his. Moreover, Webb had a peculiar way of holding a
matchbook when he lit matches, and the print's location
indicated that Webb had put it there while lighting a match.
     On the morning of November 21, Webb told one of Susan's
brothers that a fire bomb had been thrown through the bathroom
window. Subsequently, he told Amy, Tami, and Susan's brother
Larry Beck that he had broken the bathroom window to get out.
He also told Amy that, when the explosion occurred, he was
going into the master bedroom to get Susan, and the explosion
had thrown him into the bathroom.
     Webb was indicted on two counts of aggravated murder, R.C.
2903.01. Each count bore a felony-murder specification, R.C.
2929.04(A)(7), and a course-of-conduct specification, R.C.
2929.04(A)(5). Webb was also indicted on four counts of
attempted aggravated murder, one count of aggravated arson
under R.C. 2909.02(A)(2), five counts of aggravated arson under
R.C. 2909.02(A)(1), and one count of aggravated theft.
     The jury convicted Webb on all counts and, after a
mitigation hearing, recommended death for the aggravated murder
of Mikey Webb. The trial court sentenced Webb to death. The
court of appeals affirmed.

     Donald W. White, Clermont County Prosecuting Attorney, and
David Henry Hoffmann, Assistant Prosecuting Attorney, for
appellee.
     H. Fred Hoefle and Kenneth J. Koenig, for appellant.
     Alice Robie Resnick, J.   In this appeal, Webb advances
twenty-six propositions of law. Finding none meritorious, we
affirm his convictions. We have also independently balanced
the aggravating circumstances against mitigating factors, and
compared the sentence to those imposed in similar cases, as
R.C. 2929.05(A) requires. As a result, we affirm the sentence
of death.
                  I. Prosecutorial Misconduct
     In his first proposition of law, Webb claims that the
prosecutor repeatedly commented in closing argument on Webb's
refusal to testify, violating his Fifth Amendment rights. See
Griffin v. California (1965), 

, 

, 

. We find that the comments complained of did not
violate Griffin.
     In closing argument, the prosecutor said that Webb "killed
his son" and "tried to kill every single person in his house."
Webb interrupted the prosecutor, saying: "You're wrong." The
prosecutor said: "He spoke." Webb claims that the words "He
spoke" were an implied comment on the fact that Webb had not
testified at trial.
     We cannot agree. The prosecutor's remark, on its face,
dealt with what Webb said, not what he did not say. The
question is "whether the language used was manifestly intended
or was of such character that the jury would naturally and
necessarily take it to be a comment on the failure of the
accused to testify." (Emphasis added.)   Knowles v. United
States (C.A.10, 1955), 

, quoted in State v.
Cooper (1977), 

, 6 O.O. 3d 377, 382, 

. From the record, we cannot conclude that the
jury would naturally or necessarily interpret the words "He
spoke" as a comment on Webb's failure to speak.
     Webb construes many other remarks as comments on his
failure to testify. Discussing Pursifull's testimony, the
prosecutor said: "You will see in [Webb's] hospital records
… he was in good health before the fire. … This is
uncontradicted." The defense objected. The prosecutor added:
"Pursifal's [sic] comments are unrebutted that the defendant
told him he had the serious colon cancer …." The defense
did not object, and thus waived any error with respect to this
comment.
     A prosecutor generally may note that his or her evidence
is uncontradicted unless it is evidence only the defendant
could contradict. See Annotation (1967), 

,
730-743. The "uncontradicted" medical records were not
evidence that only Webb could contradict; he could have called
his doctor to rebut them. Thus, "the comment [was] directed to
the strength of the state's evidence and not to the silence of
the accused …." State v. Ferguson (1983), 

, 5 OBR 380, 383, 

.
     The prosecutor repeatedly said that Webb had not explained
what happened to the money he took from the guardianship
account, and Webb contends these remarks violated Griffin as
well. However, the context shows that these comments dealt not
with Webb's failure to testify, but with Webb's failure to
explain to the probate court and to his own family what he did
with the money. We overrule Webb's first proposition of law.
     In his second proposition of law, Webb contends that the
prosecutor provoked him into interrupting the prosecutor's
argument, then used the interruption as an excuse to comment on
Webb's failure to testify. According to Webb, on the day
closing arguments took place, the prosecutor told him during a
recess that "he can't believe they [the defense] would stoop
low enough to blame his daughters." Webb claims this incident
somehow provoked his outburst during the prosecutor's
summation, two hours later. Even if we accept this speculation
as fact, this proposition of law stands or falls with Webb's
earlier claim that the prosecutor's response to that outburst
was a comment on Webb's silence. Rejecting that claim, we also
reject Webb's second proposition.
     In his fourth, fifth, and sixth propositions, Webb
contends that the prosecutor argued "nonstatutory aggravating
circumstances" in the penalty phase. Specifically, Webb
objects because the prosecutor's argument emphasized the horror
of Mikey's death by fire. As he did not object at trial, this
claim is waived. State v. Williams (1977), 

,

, 

, paragraph one of the syllabus.
                  II. Evidentiary Sufficiency
     Webb claims his convictions are not supported by legally
sufficient evidence. In his twenty-second and twenty-third
propositions, he contends that, in assessing evidentiary
sufficiency, we are bound by State v. Kulig (1974), 

, 

, 

, syllabus:
"Circumstantial evidence relied upon to prove an essential
element of a crime must be irreconcilable with any reasonable
theory of an accused's innocence in order to support a finding
of guilt."
     In State v. Jenks (1991), 

, 

, paragraphs one and two of the syllabus, we overruled Kulig
and held that evidence, whether circumstantial or direct, is
sufficient if a rational factfinder could find the crime's
essential elements proven beyond a reasonable doubt. However,
we announced that rule more than eight months after Mikey's
murder. Hence, Webb claims, applying Jenks here would violate
the constitutional prohibition of ex post facto laws.1
     State v. Jones (1981), 

, 

,

, supports Webb's contention. Jenks arguably
decreased the quantum of proof necessary for conviction, see 

, 

, and Jones held
that no such change could be retroactively applied.
     Jones involved a statute giving the defense the burden of
persuasion as to affirmative defenses, where before it had had
only the burden of going forward; thus, the new statute
"decrease[d] the quantum of proof required for criminal
conviction." 

, 

, 

. We noted that Calder v. Bull (1798), 

, 

, had defined, "ex post facto laws" to
include "'[e]very law that alters the legal rules of evidence,
and receives less, or different, testimony, than the law
required at the time of the commission of the offence, in order
to convict the offender.' (Emphasis sic.)" Jones, 

, 

, 

, quoting
Calder, 

, 

. By imposing a new
burden on defendants, the statute allowed conviction on less
testimony than required at the time of the offense; it was thus
ex post facto as to crimes committed before it took effect.
     However, Jones is fatally undercut by Collins v.
Youngblood (1990), 

, 

, 

. Citing Beazell v. Ohio (1925), 

, 

,

, Collins summarized the Ex Post Facto Clause as
follows: "Legislatures may not retroactively alter the
definition of crimes or increase the punishment for criminal
acts." 

, 

, 

.
Collins specifically noted that "[t]he Beazell definition omits
the reference … to alterations in the 'legal rules of
evidence.' … [T]his language was not intended to prohibit
the application of new evidentiary rules in trials for crimes
committed before the changes." Collins, 

, 

, 

.
     Retroactive application of Jenks "does not punish as a
crime an act previously committed, which was innocent when
done; nor make more burdensome the punishment for a crime,
after its commission; nor deprive one charged with crime of any
defense available according to law at the time when the act was
committed." Collins, 

, 

, 

. Jenks changed only the "evidentiary standard,"
Jones, 

, 

, 

, and Collins establishes that new evidentiary rules may be
applied retroactively. Therefore, a rule changing the quantum
of proof required for conviction may be applied to trials of
crimes committed before the rule was announced, without
violating the Ex Post Facto Clause. To the extent Jones holds
the contrary, we overrule it.
     We also reject Webb's argument under Section 28, Article
II of the Ohio Constitution, which denies the General Assembly
power to make "retroactive laws." That provision speaks only
of the General Assembly; it does not apply to judicially
created rules. A decision of this court overruling a former
decision "is retrospective in its operation, and the effect is
not that the former [decision] was bad law, but that it never
was the law." Peerless Elec. Co. v. Bowers (1955), 

, 210, 

, 

, 468. Thus, we
overrule Webb's twenty-second and twenty-third propositions of
law and apply Jenks to his twenty-fifth proposition, which
presents his insufficient-evidence claim.
     As to that claim, "the relevant question is whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt."
(Emphasis sic.) Jackson v. Virginia (1979), 

,

, 

; accord 

     Webb argues that someone else could have set the fire.
But Fire Chief Murphy found a two-liter pop bottle, one-third
full of gasoline, in the basement. The bottle had Webb's
fingerprints on it. There is no plausible innocent reason for
Webb's fingerprints to be on a bottle of gasoline in a house
that had just been set afire with gasoline.
     Moreover, the jury could reasonably reject any theory
involving an intruder. All doors had been locked. The front
door was still locked when firefighters arrived. Investigators
found no signs that the other doors had been forced. Moreover,
Larry Beck, Webb's brother-in-law and next-door neighbor, had
an alert dog who usually "barks if there's a noise outside."
Beck's dog did not bark on the morning of the fire, a fact
remarkable enough for Beck to mention to police. (Although
Beck later downplayed the dog's alertness, we must view the
evidence in the light most favorable to the state.)
     The evidence shows that Webb had domestic, financial,
personal and other motives to have his wife and children dead.
He was aware that the lives of Susan and the children were
insured.
     Webb lied to Amy about his actions during the fire. He
told her that he was "going to get Susan" and was reaching for
the master bedroom's doorknob when the explosion propelled him
into the bathroom. That could be true only if the fire had
moved toward the bathroom. But according to Fire Chief Murphy,
the fire started at the bathroom door and moved toward the
foyer and living room at the hallway's other end. Moreover, to
open the bedroom door, Webb would have had to stand in the path
of the flaming gasoline trailer, which extended into the
bathroom and master bedroom. In that case, Webb and his
clothing would have been burned. Yet his shirt, which the
state produced at trial, was not burned at all.
     A matchbook was found in the toilet, further supporting
the state's theory that the fire started at the bathroom door.
That matchbook bore the logo of a Tennessee motel where the
Webbs had vacationed earlier that month. The matchbook found
outside bore the same logo. It also bore Webb's bloody
fingerprint, and the print's location indicated that Webb had
been lighting a match.
     Webb lied to his brother-in-law, telling him a firebomb
had been thrown through the bathroom window. Webb knew better;
by his own admission, he was near the bathroom when the fire
started and broke the window himself.
     To sum up: physical evidence linked Webb to the gasoline,
the matches, and the fire's point of origin. He had strong
motives to kill. He lied to his family about the fire. A
reasonable trier of fact, viewing the evidence in the light
most favorable to the state, could have found him guilty.
     Webb contends that the state failed to prove intent to
kill Susan, Tami, Amy, or Charlie. We disagree. The trailer
on the first floor led into the master bedroom up to the foot
of Susan's bed, which was right next to Charlie's crib.
Gasoline was found on Tami's bed, and Chief Murphy smelled it
on Amy's bedclothes. That is sufficient to show intent to kill.
     Webb contends that no aggravated theft occurred, because
Tami and Amy "consented" to his defalcations. But they told
the jury they were unaware Webb was taking their money.2 In
any case, it was the probate court's consent Webb needed; his
daughters, minor children under guardianship, could not validly
consent.
     Webb further argues that the state did not prove he stole
over $100,000, the amount required for aggravated theft. We
disagree. The record shows that, from 1985 to 1988, Webb
pocketed approximately $48,000 by redeeming CDs belonging to
his daughters. He also ordered that the interest on the CDs be
paid into his checking account; this amounted to nearly
$11,700. (For some reason, the state includes only about half
this amount, $5,800.) In 1989, Webb stole approximately
$50,000 by redeeming CDs belonging to his daughters. He also
incurred well over $5,000 in penalties by prematurely redeeming
CDs. The premature redemptions facilitated Webb's stealing and
deprived his daughters of additional money. We consider the
resulting penalties part of "the value of the property …
stolen," R.C. 2913.02(B), pushing the total to over $115,000.
Webb's twenty-fifth proposition is overruled.
                     III. Opinion Testimony
     In his third proposition of law, Webb complains that two
police officers improperly gave opinion testimony.
     Sergeant William Johnson was asked: "Now, between you and
Chief Sn[y]der … following up on what you obtained from
both investigation of the fire … and from other persons did
you later draw a conclusion with regard to Mr. Pursifal's [sic]
involvement?" Johnson said he had concluded Pursifull "had no
involvement whatsoever … ." A timely objection was
overruled.
     Johnson's opinion was inadmissible. Evid.R. 701 limits
lay opinion testimony to "opinions and inferences which are (1)
rationally based on the perception of the witness and (2)
helpful to a clear understanding of his testimony or the
determination of a fact in issue." Johnson's opinion was not
based wholly on his perceptions, but at least partly on
information from Snyder, Pursifull, and others.
     However, this error is harmless beyond a reasonable
doubt. See Chapman v. California (1967), 

, 

, 

. The record contains no evidence to
implicate Pursifull. (Witnesses did testify that Webb had
accused Pursifull of threatening him, but Webb's out-of-court
assertions to that effect could not be used to prove the truth
of the matters asserted and were not introduced for that
purpose.)
     Police Chief Ray Snyder testified that he searched
Pursifull's car and found nothing "relevant to the crime
committed earlier that morning[.]" This opinion was
admissible. It was based on Snyder's own perceptions, and it
was "helpful" because he would otherwise have had to explain,
item by item, why each item in the car was not relevant. It
was "'not practicable to place before the jury all the primary
facts'" on which Snyder based his opinion. Staff Note to
Evid.R. 701, quoting Baltimore & Ohio R. R. Co. v. Schultz
(1885), 

, 282, 

, 332; Jacobs, Ohio
Evidence: Objections and Responses (1989) 157, Section 701.
We overrule Webb's third proposition.
                      IV. Hospital Records
     Webb was hospitalized after the fire. At trial, the state
introduced Webb's hospital records to show that his injuries
disproved his statements about where he was when the fire
started, and to show that Webb had lied about his health to Jim
Pursifull in order to "set [him] up," indicating prior
calculation and design. In his fifteenth proposition of law,
Webb contends that the use of his hospital records violated
R.C. 2317.02(B), the doctor-patient privilege statute. The
court of appeals held the records inadmissible but found
harmless error. We agree with both conclusions.
     R.C. 2317.02(B)(1) provides that a physician may not
testify "concerning a communication made to him by his patient
in that relation …." R.C. 2317.02(B)(3) broadly defines
"communication" to include "acquiring, recording, or
transmitting any information, in any manner, concerning any
facts, opinions, or statements necessary to enable a physician
… to diagnose, treat, prescribe, or act for a patient. A
'communication' may include, but is not limited to, any …
hospital communication such as a record … ." Thus,
information placed in hospital records by a physician is
privileged.3
     However, error involving privilege is not a constitutional
violation. In the first place, the privilege is not a
requirement of due process. Privileges do not make trials more
fair; they neither "facilitate the fact-finding process" nor
"safeguard its integrity." 1 McCormick on Evidence (4 Ed.1992)
269, Section 72. Rather, they protect "principle[s] or
relationship[s] … that society deems worthy of preserving
and fostering," even at some cost to the court's truth-finding
function. Lily, Introduction to the Law of Evidence (2 Ed.
1987) 381, Section 9.1. But, cf., State v. Rahman (1986), 

, 23 OBR 315, 319, 

.
     Nor can we accept Webb's claim that the records' admission
violated his rights under the Confrontation Clause. See State
v. Spikes (1981), 

, 

, 

, paragraph one of the syllabus. As business records,
hospital records fall within a firmly rooted hearsay exception,
see Ohio v. Roberts (1980), 

, 

, 

; hence, their admission does
not violate the clause. White v. Illinois (1992), 502 U.S.     ,
   , 

, 

.
     Nonconstitutional error is harmless if there is
substantial other evidence to support the guilty verdict. See
State v. Davis (1975), 

, 

, 

, citing State v. Cowans
(1967), 

, 

, 

. See, also, State v. Diehl (1981), 

, 

, 

 (Stephenson, J.,
dissenting); State v. Nichols (1993), 

,

. Here, the state introduced
substantial evidence, independent of the hospital records, that
Webb's injuries were inconsistent with his having stood in the
path of the blazing trailer. Webb's own expert witness
testified that someone standing in the trailer's path "would
burn up" and "would die in three days." Yet Webb was not
killed; his shirt was not burned.
     We also find substantial evidence of prior calculation and
design. Webb poured gasoline down the hallway, into the
bedrooms, onto Mikey's bed, and down the stairs. Physical
evidence indicates that after he lit the trailer and broke out
of the bathroom, he prepared to light another match. Since the
record contains substantial independent evidence of the matters
the state sought to prove with the hospital records, we find
their admission harmless.
                      V. Cumulative Error
     In his twenty-first proposition, Webb contends that
alleged errors, even if individually harmless, had a
"cumulative effect" that denied him a fair trial. We have
applied a similar "cumulative error" analysis in the past. See
State v. DeMarco (1987), 

, 31 OBR 390, 

, paragraph two of the syllabus. In this case, we
find only two cognizable errors (improper opinion testimony and
improperly admitted hospital records), both harmless. We find
that Webb was not denied a fair trial, and overrule this
proposition.
                   VI. Plea Offer as Mitigation
     During trial, the state offered Webb a plea bargain; had
he accepted, the state would have sought leave of court to
dismiss the death specifications. Webb turned it down, but now
insists that he is entitled to the benefit of the bargain he
refused. In his eighth, ninth, and tenth propositions of law,
Webb contends that the state's willingness to make a plea offer
renders his death sentence "inappropriate as a matter of law."
Alternatively, he contends that the offer is at least a
mitigating factor.4
     We rejected such a claim in State v. Sneed (1992), 

, 

, and see no reason to
accept it here. A prosecutor's willingness to accept a life
sentence pursuant to a plea bargain is not "relevant to the
issue of whether the offender should be sentenced to death."
R.C. 2929.04(B)(7).
     Webb argues that the plea offer indicated that the
prosecutor thought the death penalty inappropriate. We
disagree. There could have been a multitude of reasons why the
prosecutor may have offered a plea bargain. See Wiggins v.
State (1989), 

, 

.
     Nor is the offer mitigating under the Eighth Amendment,
since a plea offer "does not relate to the defendant's
character, prior record, or to the circumstances of the offense
…." Davis v. State (1986), 

, 

. See, also, Wiggins v. State, supra; People v. Zapien
(1993), 

, 

, 

; Huffman v. State (Ind.1989), 

,
overruled on other grounds, Street v. State (Ind.1991), 

; but, see, Jeffers v. Ricketts (D.Ariz. 1986), 

, reversed on other grounds (C.A.9, 1987),

.
     A prosecutor's offer to negotiate a guilty plea in a
capital case is not a mitigating factor under either R.C.
2929.04(B)(7) or the Eighth Amendment; thus, it follows that
such an offer does not affect the appropriateness of the death
penalty. Therefore, Webb's eighth, ninth, and tenth
propositions fail.
     In Webb's eleventh proposition, he calls his trial counsel
ineffective for waiving this issue. Since the issue is not
waived, Webb's eleventh proposition fails.
             VII. Disclosure of Grand Jury Testimony
     In questioning witnesses Joseph, Larry, and David Beck,
the prosecutor quoted from their grand jury testimony. The
defense requested disclosure of the grand jury testimony, but
the trial court refused. In his eighteenth proposition of law,
Webb contends that the defense was entitled to see the Becks'
grand jury testimony under Evid.R. 106.
     Evid.R. 106 provides that, when a party introduces a
statement or part thereof, the other party "may require him at
that time to introduce any other part … which is otherwise
admissible and which ought in fairness to be considered
contemporaneously with it." However, since the grand jury
testimony is not in the record, we cannot determine whether
this rule applies. In any event, the issue is not whether the
grand jury testimony should have been admitted, but whether it
should have been disclosed to the defense. Thus, the court of
appeals correctly analyzed this issue, not under Evid.R. 106,
but under State v. Greer (1981), 

, 

, 

. The appellate court held the defense
entitled to disclosure, but found harmless error.
     Under Greer, an accused may not see grand jury transcripts
unless he shows "that a particularized need for disclosure
exists which outweighs the need for secrecy." 

 paragraph
two of the syllabus; see, also, State v. Patterson (1971), 

, 

, 

, paragraph three
of the syllabus. Such a need exists where nondisclosure will
probably "deprive the defendant of a fair adjudication of the
allegations placed in issue by the witness' trial testimony."
Greer, paragraph three of the syllabus. Finally, the trial
court has "discretion as to whether the particularized need
… has been shown to its satisfaction." 

, 

, 

.
     The court of appeals held that Webb showed need because
"[w]ithout access … [he] was not able to evaluate whether
or not the statements read to the jury needed to be
clarified." But in citing the mere possibility that the
statements "needed to be clarified," the court of appeals
applied the wrong standard. It is always conceivable that
grand jury material might be quoted out of context, but general
assertions, citing no specific facts of record, do not
establish particularized need. State v. Richey (1992), 

, 

; State v. Lawson (1992), 

, 

. Webb had to show
that nondisclosure would probably deprive him of a fair trial,
and that the trial court abused its discretion by not so
finding. There is no basis here to surmise that the prosecutor
used the testimony misleadingly. 5
     Nor does Webb cite any other specific basis for finding
particularized need. Webb speculates that the grand jury
testimony might have contained material evidence or might have
aided his cross-examination of the Becks by revealing
contradictions. These arguments could be made in every case.
Nothing in the record supports them here.
     The trial court did not abuse its discretion, but
reasonably found that Webb had not shown particularized need.
Webb's eighteenth proposition is overruled.
                  VIII. Trial Court's Weighing
     In his seventh proposition, Webb objects to the trial
court's sentencing opinion. None of his complaints has merit.
     After a thorough consideration of the sentencing opinion,
we find that the trial court reviewed all of the evidence,
applied the appropriate weight to each factor, and made
"specific findings as to … the aggravating circumstances
the offender was found guilty of committing … ." R.C.
2929.03(F). Having found the indictment's specifications
proven, the court properly set forth the evidence supporting
that finding. Finding no merit in any of Webb's arguments, we
overrule his seventh proposition.
     Webb contends in his nineteenth proposition of law that
the aggravating factors did not outweigh the mitigating
factors. After a thorough consideration of the record, we find
no merit to this claim.
                        IX. Jury Issues
     Webb alleges that a venireman proclaimed Webb's guilt
during voir dire in front of other veniremen. In his twelfth
proposition, Webb contends that the trial judge should have
investigated this allegation more thoroughly.
     After the jury was seated, Jacquelyn Griffis, a spectator,
told the prosecutor she had overheard a venireman discuss the
case during voir dire; this venireman fit the description of a
venireman who had been peremptorily removed. At the defense's
request, the court called Griffis to testify. She testified
that, during a recess in the voir dire, she went outdoors.
There she saw a "loud and boisterous" man, whom she knew to be
a venireman, talking to a black man and a woman; Griffis was
unsure whether they were also veniremen. The loud venireman
said Webb was guilty; his companions "looked upon [him] with
some disdain."
     Defense counsel then asked that juror McDonald be voir
dired; since only two jurors were male, counsel felt "certain"
he was the black man Griffis had seen the venireman talking
to. When examined, however, McDonald didn't recall talking to
anyone about the case, and Griffis told the prosecutor she had
not seen McDonald. The defense sought no further inquiry.
     Webb claims the trial court should have voir dired the
whole jury. However, "[t]he scope of voir dire is within the
trial court's discretion …." State v. Bedford (1988), 

, 

. Here, after doing
everything defense counsel asked, the court reasonably found
the evidence did not warrant further investigation. We find no
abuse of discretion and overrule this proposition.
     In his thirteenth proposition, Webb contends that
venireman Justice was improperly excluded for opposing the
death penalty. "[A] juror may not be challenged for cause
based on his views about capital punishment unless those views
would prevent or substantially impair the performance of his
duties …." Adams v. Texas (1980), 

, 

, 

. Accord State v. Beuke
(1988), 

, 

. The trial
court's finding is entitled to deference and will be affirmed
absent abuse of discretion. Wainwright v. Witt (1985), 

, 

, 

; State
v. Wilson (1972), 

, 

,

.
     Justice initially said she "would have trouble"
recommending death even if the facts warranted it. She
specifically admitted that her views would bias her and
substantially impair her ability to sit at the penalty phase.
She thought she would hold to those views "under almost any
circumstances," and said impartiality "would be … extremely
difficult." Asking leading questions, defense counsel got
Justice to concede she could follow the court's instructions
and listen to the evidence, but even then she hedged, stating
that imposing death "would be real hard to live with."
     Justice then asked to approach the bench because "I don't
know if I can say this out in court without getting emotional
… ." At sidebar, she explained that an event in her past
would make it "extremely difficult for me to find a verdict of
guilty if I knew … that I would sentence him to death …
even though up here (motioning to head) I was convinced that I
did the right thing. … I don't think I could do it based on
that." (Emphasis added.)
     Justice was properly excused: the record supports a
finding that her views would have substantially impaired her
performance of duty in accordance with her instructions and
oath. Webb's focus on the answers his counsel extracted from
Justice is misplaced; it was the trial court's job to decide
which of Justice's conflicting "answers reflected her true
state of mind." State v. Tyler (1990), 

,

. Webb's thirteenth proposition is
overruled.
                         X. Tax Returns
     In his fourteenth proposition, Webb contends that the
state violated his Fifth Amendment privilege when it subpoenaed
copies of his federal income tax returns for 1986, 1987, 1988,
and 1989 from his tax preparer and introduced them at trial.
However, a taxpayer's Fifth Amendment privilege is not violated
by enforcement of a subpoena against his accountant because
"the ingredient of personal compulsion against an accused is
lacking." Couch v. United States (1973), 

, 

, 

. Accord Cincinnati v.
Bawtenheimer (1992), 

, 

. Moreover, statements on tax returns are not
"compelled." A taxpayer may assert the Fifth Amendment
privilege on his return; if he answers the questions instead,
he does so voluntarily. Garner v. United States (1976), 

, 

, 

. We overrule this
proposition.7
                     XI. Character Evidence
     In his sixteenth proposition, Webb contends that the state
introduced evidence of his bad character, violating Evid.R.
404. The prosecutor asked Tami Webb whether her father's
frequent calls and visits to Nadine Puckett were "out of
character" and whether Webb was "the type of person" to do such
a thing. Tami replied: "It depends on what it was for," adding
that Puckett "had been through a lot, and my father is a very
compassionate man. And I think that he was just being a friend
to her."
     We agree with Webb that this was character evidence.
However, Evid.R. 404(A) and (B) bar such evidence only when it
is used to show that a person acted in conformity with a
character trait on a particular occasion. The prosecutor did
not use Tami's testimony for that purpose; on the contrary, he
used it to show that Tami's view of Webb's character was at
odds with Webb's behavior, demonstrating the depth of Tami's
bias. Indeed, had her testimony been used to show Webb's
conduct, it could only have helped him; she spoke nothing but
good of his character. Her testimony hurt Webb for precisely
the same reason it was admissible -- because it was not used to
show conduct.
     Webb's other complaints also lack merit. The prosecutor
asked Tami whether it would surprise her to discover that Webb
had planned to leave Susan. Tami said it would because "the
relationship was good." The prosecutor then suggested that a
prior statement by Tami was "not a ringing endorsement of …
their relationship."7 Tami said the relationship "was average,
I guess. …" This was not character evidence. Webb's
feelings toward Susan were relevant to show why he tried to
kill her. Likewise, evidence of Webb's relations with Nadine
Puckett went to motive. Webb's sixteenth proposition is
overruled.
                  XII. Witnesses Called by Court
     At the state's request, the trial court called Susan and
Tami Webb as court's witnesses, allowing both parties to
cross-examine them under Evid.R. 614(A). In his seventeenth
proposition, Webb contends that this was error. According to
Webb, a court may not call its own witness at a party's
request, unless the court finds that the requesting party would
be entitled to lead the witness on direct under Evid.R. 611(C).
     Webb's argument has no basis in either rule. Evid.R.
611(C) in no way purports to limit the trial court's power to
call its own witnesses. Cf. State v. Apanovitch (1987), 

, 

, citing State v. Dacons
(1982), 

, 5 OBR 227, 

 (Evid.R.
607 requirements inapplicable to witness called by court at
state's request). We reject Webb's seventeenth proposition.
                   XIII. Ineffective Assistance
     In his twenty-fourth proposition, Webb contends that his
counsel rendered ineffective assistance by not objecting to
certain penalty-phase prosecution arguments. (See discussion of
propositions four, five, and six, supra.) We disagree. The
arguments were relevant to the statutory aggravating
circumstances of arson and attempted multiple murder;
therefore, counsel could reasonably conclude that they were not
objectionable references to "nonstatutory" aggravation. Webb
has not shown "that counsel's representation fell below an
objective standard of reasonableness." Strickland v.
Washington (1984), 

, 

, 

.
                       XIV. Settled Issues
     We overrule propositions twenty and twenty-six on
authority of, respectively, State v. Steffen (1987), 

, 31 OBR 273, 

, paragraph one of the
syllabus, and State v. Mills (1992), 

, 

.

                     XV. Independent Review
     R.C. 2929.05(A) requires us to review Webb's sentence
independently. We must weigh the aggravating circumstances
against the mitigating factors and consider whether the death
sentence is disproportionate to sentences in similar cases.
     Webb was convicted of two aggravated murder counts; as
both involve the same victim, they merge. State v. Huertas
(1990), 

, 

. There are
two aggravating circumstances. First, Webb committed the
murder while committing aggravated arson. R.C. 2929.04(A)(7).
In assessing this circumstance's weight, we think it relevant
to take into consideration the method Mikey Webb's father chose
to execute his plan. Mikey suffocated from smoke inhalation,
and he also suffered burns over seventy to eighty percent of
his body. He died in fear as well as pain: a firefighter found
him hiding under his bed in a fetal position.
      Second, the murder was part of a course of conduct
involving the purposeful attempt to kill two or more persons.
R.C. 2929.04(A)(5). Here, Webb attempted to kill four other
people. As a result, Susan and Charlie both sustained burns on
twenty percent of their bodies. Charlie had to wear a mask for
twenty-two hours daily to prevent facial scarring.
      In the penalty phase, ten of Webb's friends and relatives
came to plead for his life. Webb also made an unsworn
statement.
      Webb's father died when Webb was only twelve. His mother
testified that this caused him to withdraw and have "problems
associating with the family." Webb's IQ was once measured at
sixty-four, and he dropped out of ninth grade. However, by the
time he took the GED exam, his IQ was measured at one hundred
five.
      Webb married his first wife, Linda, in 1968. After two
years in the Army, he was honorably discharged in 1970. Tami
was born that year and Amy in 1973.
      In 1978, Linda was killed and Amy was badly injured in an
auto accident. Though devastated by Linda's death, Webb visited
Amy daily in the hospital and stayed overnight three times a
week.
      Webb later remarried, but his second marriage ended in
divorce. He married his third wife, Susan, in 1986, and they
had two sons, Mikey and Charlie. Webb experienced financial
difficulties during the late 1980s.
      Webb's family and friends testified that he was a loving,
attentive father, and his family would miss him sorely. Tami
testified that "if it wasn't for my father, I couldn't make it
through some of the stuff I've been through." Amy said: "He'll
always be there if I need to talk to him."
      Susan testified that Webb is very close to Charlie.
"[W]hen Charlie was in the hospital …, no one could get
Charlie to respond but Mike …."
      Witnesses described Webb as "friendly and outgoing," and
the family's "peacemaker." His mother said: "He doesn't like
to hurt anything." Webb got upset when his brother-in-law
"came down on his children a little bit hard."
      The witnesses emphasized that Webb's family will suffer if
he is executed. In his unsworn statement, Webb said: "If you
take my life, you'll be taking my mother's life." Webb's
half-brother agreed. Susan said: "I don't see how Charlie
would be able to cope … in this community having a daddy
who has been killed or is on death row."
      Webb's family clearly loves him and believes in his
innocence, even though some of them were targets of his murder
plot. Of course, Webb's family is biased; it is natural that
his loved ones cannot believe him capable of these horrible
crimes, even in the face of the evidence. Their testimony
deserves some weight.
      Webb's history and background afford little mitigation.
His honorable military service during wartime (but for an
injury, he would have gone to Vietnam) deserves some weight.
     The trial court found the premature deaths of Webb's
father and first wife mitigating, but we do not. While those
deaths evoke sympathy, mere sympathy is not mitigation, and
Webb has not shown that the murder was "attributable to" those
events. California v. Brown (1987), 

, 

, 

 (O'Connor, J.,
concurring). Nor is Webb's IQ mitigating. There was neither
expert testimony on its meaning nor any indication that low
intelligence had any relationship to the crimes. We also
disagree with the trial court's apparent belief that Webb's
relationship with Nadine and his thefts from his daughters are
mitigating. However, Webb's money problems presumably
contributed to his crimes, and that is a mitigating factor,
though a weak one.
     Webb argues residual doubt, but this, if mitigating at
all, is weak. No evidence links anyone but Webb to the fire,
and Tami's testimony about a man in a red sweatshirt is
unconvincing.
     The aggravating circumstances are unusually significant.
Webb tried to destroy by arson five human lives -- the lives of
those who loved him most, as the record shows, and whom he
should have loved most. We find that aggravating circumstances
outweigh mitigating factors beyond a reasonable doubt. The
death penalty is therefore appropriate.
     The death penalty is also proportionate. The most
comparable case is State v. Grant (1993), 

,

. In Grant, given the same aggravating
circumstances and similar facts -- the defendant murdered her
two children by arson for insurance money -- we affirmed the
death penalty. Grant killed more people than Webb, but Webb
intended to kill five. And unlike Webb, Grant was "raised in
an environment where human life was not greatly valued." 

, 

.
     The judgment of the court of appeals is affirmed.
                                 Judgment affirmed.
     Moyer, C.J., A.W. Sweeney, Douglas, Wright, F.E. Sweeney
and Pfeifer, JJ., concur.
FOOTNOTES
     1 Though the Ex Post Facto Clause "does not of its own
force apply to the Judicial Branch," Marks v. United States
(1977), 

, 

, 

, due process places similar constraints on a court's power
to apply precedent to cases arising before the precedent was
announced. See Bouie v. Columbia (1964), 

, 

, 

. While we
have applied Jenks retroactively in State v. Waddy (1992), 

, 

, in State v. Franklin
(1991), 

, 

, and in Jenks
itself, we have not addressed the ex post facto issue.
     2 While Tami may have given her consent during the trial,
subsequent ratification is no defense. State v. Warner (1990),

, 

.
     3 We note that R.C. 2921.22(E)(3) requires hospitals to
report "any burn injury … that shows evidence of having
been inflicted in a violent, malicious, or criminal manner,"
and R.C. 2921.22(E)(5) provides that "evidence regarding a
person's burn injury or the cause of the burn injury" is
unprivileged "in any judicial proceeding resulting from a
report submitted pursuant to" R.C. 2921.22(E). However, the
record does not show whether any such report was made, nor has
the state invoked these statutes at trial or on appeal.
     4 Webb did not argue at trial that the plea offer was a
mitigating factor; he thus waived his claim that the trial
court should have considered it or instructed the jury to do
so. State v. Henderson (1988), 

, 

. However, he did argue on appeal that the
plea offer was mitigating, thus preserving his claim that the
court of appeals should have considered it on independent
review. Moreover, Webb contends that the plea offer barred the
death penalty altogether; if that is true, Webb's death
sentence is plain error, for the sentence "clearly would have
been otherwise" but for the error. State v. Long (1978), 

, 

, 

, paragraph one of
the syllabus. We therefore reach the merits.
     5 At trial, Webb argued that the prosecutor had taken a
witness's statement to police out of context, and thus might do
the same with the grand jury testimony, creating a need for
Webb to see it. However, the prosecutor gave the witness an
opportunity to explain his statement; hence, we find no
prosecutorial duplicity.
     6 Webb also suggests that the copies admitted at trial
were inadmissible because they were unsigned. We disagree. The
Webbs' tax preparer testified that the exhibits were copies of
the Webbs' 1986-1989 returns and that the Webbs had supplied
the information contained thereon. This authenticated the
exhibits.
     7 When an investigator asked Tami whether Webb was
affectionate to Susan, Tami allegedly said: "He's never beat
her, let's put it that way."