[This opinion has been published in Ohio Official Reports at
73 Ohio St.3d 626.]
THE STATE OF OHIO, APPELLEE, v. ALLEN, APPELLANT.
[Cite as State v. Allen, 1995-Ohio-283.]
Criminal law—Aggravated murder—Death penalty upheld, when.
(No. 93-2377—Submitted April 25, 1995—Decided September 6, 1995.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 62275.
__________________
{¶ 1} In June 1991, a Cuyahoga County jury returned guilty verdicts in the
trial of appellant, David W. Allen (“Allen”), for the aggravated robbery and
aggravated murder of eighty-four-year-old Chloie English (“English”) of Bedford,
Ohio. English knew Allen through her participation in a prison ministry program.
English ministered to five convicted felons, including Allen. She visited and
corresponded with Allen while he was in prison and they stayed in touch after his
release in 1989. On January 9, 1991, English received a phone call from someone
named “David.” According to English’s daughter, the conversation left English
shaking.
{¶ 2} English was last seen alive at 5:45 p.m. on January 24, 1991, by her
friend Judy Sperry (“Sperry”) who had visited English in her home. At 6:45 p.m.
the next day, English’s friend Cathy Curry found English lying dead in her living
room. The doors to English’s house were unlocked, which was unusual because
English always locked her doors and never opened them to strangers.
{¶ 3} After English’s body was found, Bedford police officers secured,
photographed, and searched the house. Detective Gerry Artl found English’s
eyeglasses on the floor and noted a large thumbprint on the inside of the left lens.
That thumbprint turned out to belong to David Allen. Police recovered ten cigarette
butts from English’s kitchen garbage. Saliva tests showed that five of the butts had
SUPREME COURT OF OHIO
been smoked by a Type O secretor.1 (The rest lacked sufficient saliva for testing.)
Two of the butts still had the “Doral” brand name on them. Allen is a Type O
secretor, and there was evidence that he smoked Dorals. English disapproved of
smoking and was a Type O non-secretor.
{¶ 4} Although English’s last known visitor was a woman, someone had
left the toilet seat up in English’s bathroom. Moreover, the coffee pot in the kitchen,
empty when Sperry left, was half full when English’s body was discovered. Police
found several items burnt in the fireplace, including the remains of English’s purse
and wallet, a broken ashtray, a broken coffee cup, a broken drinking glass, a wine
bottle, and a knife with its handle burnt off.
{¶ 5} Police found no money in the house, even though English always kept
about $50 in her wallet for emergencies. English’s credit cards and checkbook were
also missing.
{¶ 6} Detective Timothy Oleksiak (“Oleksiak”) obtained the names of
prisoners with whom English had corresponded. All but Allen were still in prison.
Oleksiak and Artl had the print on the eyeglasses compared with Allen’s; when the
print was identified as Allen’s, Oleksiak got an arrest warrant.
{¶ 7} On January 29, Allen was arrested. He was wearing a denim jacket
with a stain on one of the sleeves. That stain turned out to be Type O blood, the
same type Allen and English shared. Allen was carrying a bus transfer issued
between 6:04 and 7:00 a.m., January 25, on the No. 41 Warrensville bus route. The
driver identified Allen as a passenger he had picked up on January 25 at 6:04 a.m.,
at a stop 1.3 miles from English’s house.
{¶ 8} Allen also had a refund receipt for a Greyhound bus ticket. There was
no record of when the ticket was sold, but Allen got the refund on January 25, at
1. Trace-evidence expert Kay May testified that certain individuals secrete their blood type in bodily
fluids, such as saliva.
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11:28 p.m. Moreover, when Detective Artl searched Allen’s bedroom, he found
two packed suitcases under Allen’s bed.
{¶ 9} The jury returned guilty verdicts on two counts of aggravated murder,
R.C. 2903.01(A) and (B), each count having a death specification under R.C.
2929.04(A)(7) (felony-murder). The jury also found Allen guilty of aggravated
robbery, R.C. 2911.01. After a penalty hearing, the jury recommended the death
penalty. The court accepted the recommendation and imposed the death sentence.
As to the aggravated robbery count, the court imposed a sentence of fifteen to
twenty-five years. The court of appeals affirmed the convictions and sentences.
{¶ 10} This cause is now before the court upon an appeal as of right.
__________________
Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, Thomas
Sammon, Timothy Dobeck and Elaine Welsh, Assistant Prosecuting Attorneys, for
appellee.
Gloria Eyerly, Ohio Public Defender, Kathleen A. McGarry and Jane P.
Perry, Assistant Public Defenders, for appellant.
__________________
COOK, J.
{¶ 11} We have reviewed Allen’s twenty-three propositions of law,
independently weighed the aggravating circumstance against the mitigating factors
and evaluated the proportionality and appropriateness of the death penalty. For the
following reasons, we affirm the judgment of the court of appeals and uphold the
convictions and death sentence.
{¶ 12} Pursuant to R.C. 2929.05, this court is required to review capital
cases in a specific way; however, that section does not require us to discuss each
and every proposition of law raised by the parties. State v. Scudder (1994), 71 Ohio
St.3d 263, 267,
643 N.E.2d 524, 528; State v. Poindexter (1988),
36 Ohio St.3d 1,
3
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3, 520 N.E.2d 568, 570. Accordingly, in this opinion we address only those issues
that warrant discussion.
I
The Guilt Phase
A. Jury Issues
1. Alleged Bias
{¶ 13} In his first proposition of law, Allen contends that juror Worthington
should have been excused for cause because she could not be fair and impartial and
was biased against him. Juror Worthington’s brother had been murdered, and the
alleged killer was acquitted. On voir dire, Worthington admitted to some bitterness,
but said she could set her feelings aside and vote solely on the evidence. Although
Worthington was unsure if she could hold back her emotions on hearing testimony
similar to that at her brother’s trial, she answered “no” when asked if her feelings
would “impact” on the case. Additionally, Allen points out that Worthington had
two friends who were police officers, and the prosecutor and detective who
investigated her brother’s murder sometimes “checked-up” on her mother.
{¶ 14} When the defense challenged Worthington, the court noted that she
“unequivocally stated that she could be fair and impartial.” The court found
Worthington was “very straightforward” and “under[stood] the responsibility here
….”
{¶ 15} The trial court’s ruling on a challenge for cause will be affirmed if
supported by substantial testimony. State v. Tyler (1990), 50 Ohio St.3d 24, 31,
553 N.E.2d 576, 587. Here, the trial court found Worthington unbiased, a finding
supported by Worthington’s testimony. Allen argues that the juror’s belief in her
own impartiality is insufficient support, but the trial judge saw and heard
Worthington and could legitimately validate her statements. See
Tyler at 30,
553
N.E.2d at 586; State v. Henderson (1988),
39 Ohio St.3d 24, 26-27,
528 N.E.2d
1237, 1241. Allen’s first proposition of law lacks merit.
4
January Term, 1995
2. Voir Dire Issues
{¶ 16} In his second proposition of law, Allen contends that veniremen
Skufca and Washington, who stated that they could not impose the death penalty,
were improperly stricken from the venire. See, generally, Witherspoon v. Illinois
(1968), 391 U.S. 510,
88 S.Ct. 1770,
20 L.Ed.2d 776. Allen claims the trial court
improperly restricted his questioning of them. However, defense counsel
questioned Skufca after she said she didn’t believe she could impose the death
penalty. Although the court did excuse her after only two questions by the defense,
the defense apparently had no more questions and alleged no deprivation of voir
dire. During Washington’s voir dire, the trial court sustained objections to three
defense questions; however, all three repeated questions the judge had already
asked. Allen also argues that the trial court should have allowed the defense to ask
Washington whether he understood “that only the Judge can decide ultimately what
the sentence is,” because it “downplayed to the jurors, the significance of their
verdict ….” This court has previously found that such an instruction does not
constitute prejudicial error, State v. Landrum (1990),
53 Ohio St.3d 107, 122,
559
N.E.2d 710, 727, although we have expressed a preference that this instruction be
avoided.
Id., citing State v. Williams (1986),
23 Ohio St.3d 16, 22, 23 OBR 13, 19,
490 N.E.2d 906, 912.
{¶ 17} In part B of Allen’s second proposition of law, he complains that the
state peremptorily challenged a juror because she opposed the death penalty. Allen
waived this issue by not raising it at trial. See State v. Campbell (1994), 69 Ohio
St.3d 38, 40-41,
630 N.E.2d 339, 344. Furthermore, “[a]part from excluding jurors
based on race … or gender ‘prosecutors can exercise a peremptory challenge for
any reason, without inquiry, and without a court’s control.’ ” (Citations omitted.)
State v. Lundgren (1995),
73 Ohio St. 474, ____;
653 N.E.2d 304. The second
proposition of law is overruled in its entirety.
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3. Judge’s Note to Jury
{¶ 18} In his eighteenth proposition of law, Allen claims that he was denied
a fair trial because the trial court communicated with the jury outside his presence.
During penalty phase deliberations, the jury sent the judge a note asking for “a copy
of DSM III-R2 and [d]ictionary[.]” The judge wrote back: “You have received all
of the exhibits that have been received into evidence and you may not receive any
others. No extraneous research may be done (i.e., looking up words in a dictionary
etc.)”
{¶ 19} A trial judge may not communicate with the jury in the defendant’s
absence. State v. Abrams (1974), 39 Ohio St.2d 53, 56,
68 O.O.2d 30, 32,
313
N.E.2d 823, 825; Bostic v.Connor (1988),
37 Ohio St.3d 144, 149,
524 N.E.2d 881,
886. However, if the communication is not “substantive,” the error is harmless.
State v. Jenkins (1984),
15 Ohio St.3d 164, 236-237, 15 OBR 311, 373-374,
473
N.E.2d 264, 324; accord
Abrams, supra, and
Bostic, supra. In Bostic, we held that
the court’s ex parte communication with the jury was harmless error because there
was “no possibility that the jury’s conclusion was influenced by the court’s reply.”
Id. at 150,
524 N.E.2d at 887. Likewise, in this case there is no possibility that the
court’s refusal to supply a dictionary and DSM III-R could have influenced the
jury’s conclusion. The eighteenth proposition of law lacks merit.
2. ”DSM III-R” refers to the Third Edition of the Diagnostics and Statistical Manual of the
American Psychiatric Association. Dr. Kaplan, a clinical psychologist who testified in this case,
explained that it is a publication used by mental health professionals for classifying psychiatric and
emotional problems and diseases and defects and determining their existence.
6
January Term, 1995
B. Evidentiary Issues
1. Sufficiency
{¶ 20} In his fourth proposition of law, Allen contends that the evidence of
each count and specification was legally insufficient to convict him. The test for
the sufficiency of evidence is whether any rational trier of fact, viewing the
evidence in the light most favorable to the prosecution, could have found the
elements of the crime beyond a reasonable doubt. Jackson v. Virginia (1979), 443
U.S. 307, 319,
99 S.Ct. 2781, 2788-2789,
61 L.Ed.2d 560, 573; State v. Jenks
(1991),
61 Ohio St.3d 259, 273,
574 N.E.2d 492, 503.
{¶ 21} As to the aggravated murder count, Allen claims the state did not
prove he was the killer. The strongest evidence of Allen’s guilt is the presence of
his partial thumbprint on English’s glasses. That print could not have been left days
before the murder as Allen argues. It was on the inside of the lens, and English
wore her glasses “constantly.” Moreover, the print covers nearly half the lens.
There was testimony that English was a tidy person, from which the jury could infer
that she would not have allowed a large thumbprint to remain on her glasses for
days. Allen’s mistaken claim that the print wasn’t that large is based on a
misreading of the fingerprint expert’s comment, “It’s a very little area”; this
comment refers to the area of the thumb represented by the print, not the area of the
lens covered. Allen also suggests that the expert might have misidentified the print,
since he found “only” in excess of twelve to fourteen matching ridge characteristics
out of a possible seventy-five to one hundred twenty-five. However, the fingerprint
expert testified that twelve matches are enough for an identification.
{¶ 22} There was also evidence presented that about two weeks before her
murder, English got a phone call from someone named “David” that left her
“shaking.” That suggests that Allen was hostile to English, despite their earlier
friendship. Furthermore, there was evidence that English was killed by someone
she knew. English never unlocked her doors to strangers, yet on the evening that
7
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her body was discovered her doors were found unlocked, with no signs of forced
entry. English made coffee after Sperry left, and a coffee cup was found burned in
the fireplace in an apparent attempt to destroy fingerprints. From that evidence the
jury may have concluded that the killer shared a cup of coffee with English, another
indication that English knew her killer.
{¶ 23} Inside English’s home, police found several Doral brand cigarette
butts, which had been smoked by a Type O secretor; Allen is a Type O secretor 3
and there was testimony that he smoked Dorals. Someone burned an ashtray in
English’s fireplace, apparently to destroy fingerprints. Moreover, English
disapproved of smoking, and even her daughter did not feel free to smoke in her
home. Based on this evidence the jury could conclude that the killer smoked the
cigarettes found in English’s home.
{¶ 24} There was evidence that Allen boarded a bus at a bus stop just 1.3
miles from English’s home at 6:04 a.m., January 25, 1991, yet he was not going to
or from work. The coroner estimated that English died between midnight and 6:00
a.m. on January 25. Allen points out that some of the coroner’s testimony indicates
that English died between 12:38 p.m. and 10:38 p.m., on January 24; however, the
jury was entitled to accept the coroner’s estimated time of death. Even if English
did die in the afternoon or evening of January 24, Allen’s presence at the bus stop
near English’s home in the early morning of January 25 could still be viewed by
the jury as incriminating.
{¶ 25} There was also some evidence that Allen had prepared to flee. He
had evidently purchased a Greyhound bus ticket (although he did turn it in for a
refund), and packed his bags. He did not go to work on January 25.
3. Trace expert Kay May testified that 32.4 percent of the white population are Type O secretors.
8
January Term, 1995
{¶ 26} Finally, the jury could find prior calculation and design, necessary
for an aggravated murder conviction, based on the protracted nature of the murder.
English was beaten and strangled; her wrists were slashed; and she was stabbed
sixteen times, with three of the wounds being in her back.
{¶ 27} Allen next contends that there was insufficient evidence that he
committed aggravated robbery; specifically, he claims there was no evidence that
he committed a theft. We find that there was sufficient evidence that Allen
committed a theft. English kept five credit cards, a checkbook, and a wallet
containing cash in her purse, yet none of these items were found in her house. The
burned remains of her purse and wallet were found in the fireplace. English
received a $104 monthly pension and a monthly gift of $100 from her daughter
Sharon. Her daughter Janet gave her $100 for her birthday on January 9. Allen
argues that English could have spent or given away all of her money, but Janet
testified that her mother always kept about $50 on hand for emergencies. From this
evidence, the jury could reasonably find that money, checks, and credit cards should
have been present. The absence of these items along with the burned purse and
wallet and the evidence of Allen’s presence in English’s home was sufficient for a
reasonable jury to conclude that Allen committed aggravated robbery.
{¶ 28} Based on the foregoing we find that there was sufficient evidence for
the jury to find Allen guilty of aggravated murder and aggravated robbery. Allen’s
fourth proposition of law is overruled.
2. Character Evidence
{¶ 29} In his third proposition of law Allen claims he was denied a fair trial
because of the introduction of evidence that he was previously incarcerated. This
evidence came in through testimony that English met Allen through her church’s
prison ministry program.
{¶ 30} Allen challenges the prior-imprisonment evidence as inadmissible
“other acts” evidence. However, Evid. R. 404(B) allows “other acts” evidence as
9
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proof of identity. Since English was apparently killed by someone she knew, the
prior-imprisonment evidence was relevant to explain that English knew Allen
through visiting him in prison.
{¶ 31} Allen’s argument under Evid. R. 403(A) also fails. Pursuant to Evid.
R. 403(A), the court is required to weigh the probative value of the evidence against
the danger of unfair prejudice, confusion of the issue, or misleading the jury. When
considering evidence under Evid. R. 403, the trial court is vested with broad
discretion and an appellate court should not interfere absent a clear abuse of that
discretion. State v. Morales (1987), 32 Ohio St.3d 252, 257-258,
513 N.E.2d 267,
273-274. Allen never denied English knew him, and the state had other evidence
of the fact. However, the judge took steps to minimize unfair prejudice, forbidding
the state to mention why Allen had been in prison and instructing the jury: “[Y]ou
may not infer that the defendant is guilty of these offenses because he may have
been convicted and incarcerated in the past.” Thus, the trial court did not abuse its
discretion by finding that potential unfair prejudice did not substantially outweigh
the relevance of the testimony. Allen’s third proposition of law is overruled.
{¶ 32} In his sixth proposition of law, Allen contends that the state
introduced irrelevant, prejudicial evidence of the victim’s good character during
trial. Allen failed to object to the alleged character evidence and therefore waived
this argument. See State v. Williams (1977), 51 Ohio St.2d 112,
5 O.O.3d 98,
364
N.E.2d 1364, vacated on other grounds (1978),
438 U.S. 911,
98 S.Ct. 3137,
57
L.Ed.2d 1156.
{¶ 33} Furthermore, Allen’s claims regarding evidence of English’s
character have no merit. Evidence about a victim is admissible when it relates
directly to the circumstances of the crime and is not offered to elicit sympathy from
the jury. State v. Williams (1988), 38 Ohio St.3d 346, 354,
528 N.E.2d 910, 919-
920. The evidence that Allen complains about was not offered to elicit sympathy
from the jury; rather, the testimony related directly to the circumstances of the
10
January Term, 1995
murder and the robbery. Testimony that English did not drink or smoke was
relevant, because a wine bottle and cigarette butts were found in her house.
Testimony that she was an immaculate housekeeper was relevant to show that she
likely would have wiped Allen’s fingerprint off her glasses had he placed it there
before the murder. This was “habit” evidence, admissible under Evid. R. 406, not
character evidence.
{¶ 34} Evidence showing English’s religious devotion was also relevant for
non-character purposes. The “praying hands” design on the wallet identified it as
hers. Her dedication to helping sinners “straighten … out” explained her
friendship with Allen. Her habit of baking things for people was relevant to her
spending habits.
{¶ 35} Cathy Curry, who found the body, testified that English taught
Sunday school, knew the Bible, taught Curry how to make pecan tarts, and attended
a monthly prayer meeting. The prayer meeting explained what Curry was doing at
English’s house: Curry had come to take English to that meeting. The other facts
explained Curry’s relationship with English and knowledge of her habits. See State
v. Waddy (1992), 63 Ohio St.3d 424, 444,
588 N.E.2d 819, 834.
{¶ 36} English’s friend Constance Dickson testified that English rose early
for morning devotions. This evidence of English’s habit was relevant because
English had not put out her garbage on the morning of January 25. English’s
habitual early rising explained why this non-occurrence was unusual, narrowing the
time of death.
{¶ 37} Allen’s sixth proposition of law lacks merit because the evidence
about English related directly to the circumstances of the crimes.
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3. Photographic “Show-up” Identification
{¶ 38} Police showed bus driver Gilbert Pittman a photo of Allen, whom he
identified as the person he picked up at 6:04 a.m. on January 25. In Allen’s ninth
proposition of law, he claims the identification was tainted by the “unnecessarily
suggestive” use of a single photo instead of an array. See Stovall v. Denno (1967),
388 U.S. 293, 302,
87 S.Ct. 1967, 1972,
18 L.Ed.2d 1199, 1206. However, Allen
stipulated to the identification at trial and never moved to suppress it. As a result,
Allen’s claims of error are deemed to be waived. State v. Cook (1992),
65 Ohio
St.3d 516, 523,
605 N.E.2d 70, 79.
{¶ 39} Even if Allen had raised this objection at trial, Pittman’s
identification testimony was properly admitted. Use of a single photo may have
been “suggestive”; however, reliable identification testimony may be admitted
regardless of the flaws in the identification procedure. State v. Jells (1990), 53
Ohio St.3d 22, 26-27,
559 N.E.2d 464, 469-470. The test for determining the
admissibility of a photographic identification is “ ‘whether under the “totality of
the circumstances” the identification was reliable even though the confrontation
procedure was suggestive.’ ”
Id. at 27, 559 N.E.2d at 469. The factors to be
considered include the opportunity of the witness to view the criminal at the time
of the crime and the witness’s degree of attention. Id. Allen boarded the bus near
a streetlight, was the only passenger for seven minutes, and conversed with Pittman.
Moreover, Pittman’s identification of Allen is verified by Allen’s possession of the
transfer slip. Accordingly, we find that under the totality of the circumstances the
identification was reliable, and we reject the ninth proposition of law.
4. Authentication
{¶ 40} In his seventh proposition of law, Allen claims the blood samples,
shoes, jeans jacket and bus transfer were not properly authenticated. See Evid. R.
901. However, Allen never made this objection at trial, and thus waived this issue
absent plain error. See State v. Wiles (1991), 59 Ohio St.3d 71, 86,
571 N.E.2d 96-
12
January Term, 1995
97, 116. Plain error occurs when, but for the error, the outcome of the trial clearly
would have been otherwise. State v. Long (1978), 53 Ohio St.2d 91, 96-97,
7
O.O.3d 178, 181,
372 N.E.2d 804, 807-808. We find no plain error in this instance.
Although probative, the admission of these items into evidence did not alter the
outcome of this case. The blood sample was used to link Allen’s blood type to that
found on the cigarette butts in English’s wastebasket. This evidence was not
determinative of the case because the trace evidence examiner testified that forty-five percent of whites have Type O blood and, of that forty-five percent, seventytwo percent are secretors. The jeans jacket, shoes and bus transfer are also not
determinative of the case. These items were introduced as the items worn by Allen
when he was arrested. The jeans jacket had Type O blood on it; however, both
Allen and English had Type O blood. The shoes had an unidentified black
substance on them, possibly ash from English’s fireplace, and the bus transfer
placed Allen at a bus stop 1.3 miles from English’s home. Given the ample
evidence of Allen’s guilt in addition to these items, we do not find plain error in the
admission of these items. The seventh proposition of law lacks merit and is
overruled.
5. Other Evidentiary Issues
{¶ 41} In his fifth, eighth, tenth and eleventh propositions of law Allen
claims various errors involving evidentiary issues. Each of these propositions of
law is discussed below.
{¶ 42} In his fifth proposition of law, Allen contends that it was error for
the trial court to allow prosecution exhibits to be displayed in open court before
their formal admission into evidence, which did not occur until after the state had
rested its case. Allen failed to object to the display of the exhibits at trial and
consequently waived any claim, absent plain error. See State v. Esparza (1988), 39
Ohio St.3d 8,
529 N.E.2d 192. There is no plain error because none of the state’s
exhibits were ruled inadmissible, so there can be no prejudice since all the exhibits
13
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which were displayed eventually went to the jury. Furthermore, Evid.R. 611 grants
the trial court discretion over the mode of the presentation of evidence. Evid.R.
611(A). The fifth proposition of law lacks merit.
{¶ 43} In his eighth proposition of law, Allen complains that the state’s
expert witnesses gave impermissible testimony. First, Allen claims that trace-evidence-examiner Kay May’s (“May”) answers to several questions on redirect
should have been stricken because they were not based on a reasonable degree of
medical certainty. See Evid.R. 403. Specifically he complains about May’s
responses that (1) items burned in English’s fireplace, including a knife and
scissors, could not be tested for blood, and thus “could have” had blood on them,
and (2) it was “possible” that the black substance found on the bottom of shoes
which allegedly belonged to Allen was ash.
{¶ 44} May did not provide an improper opinion that blood had been on the
knife and scissors; she merely explained that she did not find blood on the objects
but could not rule out the possibility that blood could have been on the objects at
some time. She did not testify that the substance on the shoes was in fact ash; she
said she could not rule that possibility out. We do not find any error in the
admission of this testimony. See State v. D’Ambrosio (1993), 67 Ohio St.3d 185,
191,
616 N.E.2d 909, 915; State v. Bayless (1976),
48 Ohio St.2d 73, 111-112,
2
O.O.3d 249, 270,
357 N.E.2d 1035, 1058-1059, vacated on other grounds (1978),
438 U.S. 911,
98 S.Ct. 3135,
57 L.Ed.2d 1155.
{¶ 45} Allen also complains about the following question asked of
Detective Edward Walsh, the fingerprint expert: “[Y]ou don’t go walking around
with a fingerprint on your eyeglasses normally, do you?” He answered, “No. I do
not.” Allen contends Walsh was not an expert “on whether people immediately
clean their glasses when a fingerprint gets on them. …” But Walsh did not
purport to give an expert opinion on that subject; his response was specifically
limited to his personal experience. The jurors were free to rely on their common
14
January Term, 1995
sense and experience in determining the length of time the victim would have
allowed Allen’s fingerprint to remain on her glasses.
{¶ 46} Lastly, Allen argues that these responses from the experts were
“given an air of credibility” by the jury because they were offered by expert
witnesses. This argument lacks merit because the trial court cautioned the jurors
that expert testimony was entitled to no more weight than the testimony of any other
witness. Allen’s eighth proposition of law is overruled.
{¶ 47} In his tenth proposition of law, Allen asserts that the state introduced
repetitive, gruesome photos of English’s body, as well as a crime-scene videotape.
Specifically, Allen argues that exhibits 1 though 16, photos of the victim’s body,
are gruesome and repetitive. “Under Evid.R. 403 and 611(A), the admission of
photographs is left to the sound discretion of the trial court.” State v. Maurer
(1984), 15 Ohio St.3d 239, 264, 15 OBR 379, 401,
473 N.E.2d 768, 791. Allen has
failed to show how the trial court abused its discretion by admitting the
photographs. The test Allen cites from Maurer, which prohibits repetitive photos,
is the standard for admitting gruesome photographs. “Absent gruesomeness or
shock value, it is difficult to imagine how the sheer number of photographs
admitted can result in prejudice requiring reversal.” State v. DePew (1988),
38
Ohio St.3d 275, 281,
528 N.E.2d 542, 550; see, also, State v. Davis (1992),
62 Ohio
St.3d 326, 348,
581 N.E.2d 1362, 1380. The photographs admitted in this case
were not particularly gruesome or shocking. The photographs clarified the
testimony regarding the number, type and placement of the wounds, and the cause
of death. We find that the probative value of the photographs outweighed any
prejudice to Allen. State v.
Maurer, supra.
{¶ 48} As to the videotape of the crime scene, Allen failed to object to its
introduction and therefore waived that claim. See State v. Wiles (1991), 59 Ohio
St.3d 71, 86,
571 N.E.2d 97, 116. Allen’s tenth proposition of law is not well taken.
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{¶ 49} In his eleventh proposition of law, Allen contends that the trial court
erroneously admitted both physical exhibits and photographs of those exhibits. He
claims the photos were cumulative. Allen failed to object to the admission of these
exhibits and therefore waived this issue absent plain error. State v. Watson (1991),
61 Ohio St.3d 1, 7-8, 572 N.E.2d. 97, 104. Furthermore, we find that the
photographs were admissible because they show the items that were admitted into
evidence in the location where they were found. The photographs serve to show the
condition of the items when they were discovered and to authenticate the items.
See State v. Murphy ( 1992),
65 Ohio St.3d 554, 581,
605 N.E.2d 884, 906. The
eleventh proposition of law is overruled.
C. Instructional Issues
{¶ 50} In his thirteenth proposition of law, Allen claims the jury instructions
were deficient in several ways.
1. Lesser Included Offense
{¶ 51} Allen requested that the trial court instruct the jury on murder as a
lesser included offense of aggravated murder. The trial court did so, but only as to
Count One (aggravated murder with prior calculation and design), and refused to
give any lesser-included-offense instruction on Count Two (felony-murder). Allen
claims that the trial court’s refusal to give this lesser-included-offense charge was
erroneous.
{¶ 52} An instruction on a lesser included offense is required where the
evidence presented at trial would reasonably support an acquittal on the crime
charged and a conviction on the lesser included offense. State v. Tyler, 50 Ohio
St.3d at 36,
553 N.E.2d at 591. The lesser-included-offense instruction for Count
Two in this case was required if the jury could reasonably have found that Allen
killed English, but not while trying to rob her. See
id.
{¶ 53} Assuming arguendo that the trial court did err in failing to give the
lesser-included-offense instruction on Count Two, that error was harmless, because
16
January Term, 1995
the jury actually did find that a robbery took place when it convicted Allen on Count
Three - aggravated robbery. Given that the jury did find Allen guilty of aggravated
robbery, it follows that the jury would have convicted Allen of aggravated murder
on Count Two even if given the lesser-included-offense option. Any error in not
giving the lesser-included-offense instruction did not enhance “the risk of an
unwarranted conviction” on Count Two. See Beck v.Alabama (1980), 447 U.S.
625, 638,
100 S.Ct. 2382, 2390,
65 L.Ed.2d 392, 402-403, limited on other grounds,
Harmelin v. Michigan (1991),
501 U.S. 957,
111 S.Ct. 2680,
115 L.Ed.2d 836.
2. “Acquittal First” Instruction
{¶ 54} Although the trial court did instruct the jury on murder as a lesser
included offense to aggravated murder on Count One, Allen contends that
instruction barred the jury from considering murder without first acquitting him of
aggravated murder. Absent a showing of plain error, Allen waived this claim
because he failed to object to the instruction. Allen has failed to make a showing
of plain error. This court has previously held that an acquittal-first instruction is
erroneous. State v. Thomas (1988), 40 Ohio St.3d 213, 219-220,
533 N.E.2d 286,
292-293. In this case, however, the trial court did not give an acquittal first
instruction; rather, the court instructed the jury as follows: “If you find the
defendant not guilty of aggravated murder, you will then proceed with your
deliberations and determine whether … the defendant is guilty or not guilty of
murder.” Although not ideal,4 this instruction does not require unanimous acquittal
on the crime charged before the jury can move on to consider the lesser included
offense. See
id. The Thomas court found an instruction substantially similar to the
one given in this case acceptable.
4. A better instruction would incorporate the “inability to agree” language adopted in
Thomas,
supra., at 220-221,
533 N.E.2d at 293.
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3. Denial of “Mercy” Instruction
{¶ 55} Next, Allen complains of the trial court’s denial of his request to
instruct the jury that they could consider sympathy arising from the mitigating
evidence and that they could consider mercy. Allen also complains of the court’s
instruction that the jury “must recommend” death if aggravation outweighed
mitigation.
{¶ 56} The jury’s decision should not be based on sympathy or mercy,
which are not mitigating factors and are thus irrelevant to sentencing. State v.
Landrum , 53 Ohio St.3d at 123,
559 N.E.2d at 728; State v. Lorraine (1993),
66
Ohio St.3d 414, 417-418,
613 N.E.2d 212, 216-217. Permitting the jury to consider
sympathy and mercy would violate the well-established principle that the death
penalty must not be administered in an arbitrary, capricious or unpredictable
manner. California v. Brown (1987),
479 U.S. 538, 541,
107 S.Ct. 837, 839,
93
L.Ed.2d 934, 939; Lorraine,
66 Ohio St.3d at 417,
613 N.E.2d at 216. Accordingly,
there was no error in the trial court’s denial of the requested sympathy and mercy
instructions. Furthermore, the court’s instruction that the jury must recommend the
death penalty if the aggravating circumstance outweighed the mitigating factors is
consistent with R.C. 2929.03(D)(2) which sets forth the guidelines for imposing
sentence in a capital case.
4. Felony-Murder Instruction
{¶ 57} Allen next claims the trial judge erred when, during her instruction
on the felony-murder specification (R.C. 2929.04[A][7]), she failed to state that, to
find Allen guilty, the jury must find that he was the principal offender or that he
killed with prior calculation and design. Allen claims this omission is reversible
error.
{¶ 58} Again, Allen did not object at trial and therefore waived this issue,
absent plain error. State v. Underwood (1983), 3 Ohio St.3d 12, 3 OBR 360,
444
N.E.2d 1332.
18
January Term, 1995
{¶ 59} The failure to give a jury instruction is not plain error, unless, but for
the error, the outcome of the trial would have been different. State v. Long, 53 Ohio
St.2d at 97,
7 O.O.3d at 181,
372 N.E.2d at 808. The trial court’s omission does
not constitute plain error, because the jury actually did find prior calculation and
design in this case. The jury convicted Allen of aggravated murder, R.C.
2903.01(A), on Count One, and the judge expressly told the jury that it had to find
prior calculation and design if it found him guilty of that count.
{¶ 60} Allen’s thirteenth proposition of law is overruled in its entirety.
C. Prosecutorial Misconduct
{¶ 61} In his twelfth proposition of law Allen alleges several instances of
prosecutorial misconduct. Allen raised no objection to many of the comments he
challenges and therefore these alleged improprieties are waived, absent plain error.
State v. Williams, supra.; State v. Greer (1988), 39 Ohio St.3d 236,
530 N.E.2d
382. We have reviewed these prosecutorial comments and find no plain error.
{¶ 62} Allen also complains of the prosecutor’s comment regarding his lack
of organic brain damage and the prosecutor’s question concerning Allen’s prior not
guilty by reason of insanity pleas. Allen objected in both instances and both of
these objections were sustained. Furthermore, Allen failed to request the curative
instruction he claims should have been given.
{¶ 63} Lastly, the prosecutor’s comment on Allen’s unsworn statement was
within the guidelines of State v. DePew, supra, at paragraph two of the syllabus,
because the prosecutor merely commented that Allen’s statement was not made
under oath, in contrast to testimony of all the other witnesses.
{¶ 64} Allen’s twelfth proposition of law is overruled.
D. Ineffective Assistance of Counsel
{¶ 65} In his nineteenth proposition of law, Allen claims ineffective
assistance of counsel. In order to prevail on this claim Allen must show that
counsel’s representation was deficient and that he was prejudiced by that
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deficiency. Strickland v. Washington (1984), 466 U.S. 668, 687,
104 S.Ct. 2052,
2064,
80 L.Ed.2d 674, 693. The Strickland court defined deficient representation
as representation which is unreasonable under prevailing professional norms. In
order to show prejudice, Allen must show a reasonable probability that, but for
counsel’s unprofessional errors, the result would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome of
the case.
Id. at 694,
104 S.Ct. at 2068,
80 L.Ed.2d at 698. Allen’s claims of
ineffective representation are discussed below.
1. Motions to Suppress
{¶ 66} Allen claims his counsel inadequately investigated the facts behind
a motion to suppress. Police seized several cigarette butts (some smoked by a Type
O secretor) from Allen’s bedroom. Allen’s counsel moved to suppress that
evidence, alleging a warrantless search. However, at the hearing, counsel stated:
“I’m unclear as to whether there was a warrant ….” The prosecutor later
produced the warrant. Defense counsel examined it, then withdrew the motion.
{¶ 67} Allen claims his counsel was ineffective because he was ignorant of
the warrant’s existence due to inadequate investigation. The record does not show
what investigations counsel made so we are unable to evaluate the sufficiency of
those investigations. Nor has Allen shown how he was prejudiced. Since a warrant
existed, defense counsel’s knowledge of it is inconsequential.
{¶ 68} Next, Allen claims his counsel should have moved to suppress the
bus driver’s identification of him based on the use of a single photograph. Since
we have previously found that this identification procedure was reliable under the
totality of the circumstances, defense counsel’s failure to move to suppress did not
“render the [trial’s] result unreliable.” Strickland, 466 U.S. at 687,
104 S.Ct. at
2064.
80 L.Ed.2d at 693.
20
January Term, 1995
2. Ineffective Assistance in Penalty Phase
{¶ 69} Allen next argues that it was ineffective for his counsel to ask
psychologist Dr. Robert Kaplan (“Kaplan”) whether Allen’s illness would be
“treatable” over a thirty-year imprisonment. Kaplan said it was “possible” but
uncertain, leading the prosecutor to ask if Allen could kill again. Kaplan replied:
“It’s certainly a possibility.” The asking of this question constituted neither
deficient performance nor was it prejudicial. This question was of some benefit to
Allen because Kaplan answered that it was possible that Allen’s condition was
treatable.
{¶ 70} Allen has identified no act or omission that was both deficient and
prejudicial and his nineteenth proposition of law is overruled.
II
Penalty Phase
A. Refusal to Appoint Neurologist
{¶ 71} In his fifteenth proposition of law, Allen argues that the trial court
erred by refusing to appoint a neurologist to investigate possible organic brain
damage as a mitigating factor. R.C. 2929.04(B)(3).
{¶ 72} Just seven days before the date set for the penalty phase hearing,
Allen moved for appointment of a neurologist to determine, by means of a CAT
scan or MRI scan, whether he had brain damage. The motion was filed beyond the
deadline previously set for motions related to the penalty phase. The court set the
motion for a hearing. At that hearing, Allen introduced reports and an affidavit of
psychologist Dr. Robert G. Kaplan. Kaplan was first employed by Allen’s parents
and then appointed by the court at Allen’s request. Kaplan did two examinations
and some testing of Allen. In his report relating to the first examination of Allen,
Kaplan stated that, at age sixteen, Allen was knocked unconscious by a head injury.
That report did not address possible brain damage. Kaplan’s second report gave
the results of two tests. The first was the Rorschach Ink Blot Test. Kaplan reported
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SUPREME COURT OF OHIO
that Allen’s responses indicated a simplistic, “black or white” view of life. Kaplan
stated that such a view is “characteristic of persons with limited intelligence or
organic brain impairment,” but there could also be un-organic causes as well.
Kaplan then reported on the results of the Bender Visual-Motor Gestalt Test
(“Bender test”) which is a screening measure for organic brain impairment. In this
report, Kaplan stated that the test results “would indicate little likelihood of any
organic brain impairment.” In the conclusions and recommendations section of this
report, Kaplan attributed Allen’s simplistic world view to a “motivation to avoid
problems.” Kaplan did not mention brain damage, nor did he suggest that a
neurologist be obtained or that further testing be conducted. However, in an
affidavit, dated just three days after his second report, Kaplan stated the following:
“… *That I have examined David Allen and administered psychological
tests which suggest the presence of organic brain damage, which if present could
cause him to lack substantial capacity to appreciate the criminality of his conduct
or to conform his conduct to the requirement of the law.
“… *That the absence or presence of organic brain impairment can be
determined by a qualified neurologist in conjunction with the administration of a
CAT or MRI scan.”
{¶ 73} In considering Allen’s assertion that a neurologist should have been
appointed, we look to R.C. 2929.024, which entitles an indigent defendant charged
with aggravated murder to such “investigation services, experts, or other services”
as the trial court finds “reasonably necessary for [his] proper representation …
at trial or at the sentencing hearing. …” A defendant must show, not just a mere
possibility, but a reasonable probability that an expert would aid in his defense, and
that denial of expert assistance would result in an unfair trial. State v. Broom
(1988), 40 Ohio St.3d 277, 283,
533 N.E.2d 682, 691. Moreover, the determination
of necessity lies in the trial court’s discretion. R.C. 2929.024; see State v. Jenkins
15 Ohio St.3d at 193, 15 OBR at 336, 473 N.E.2d at 291.
22
January Term, 1995
{¶ 74} The trial court did not abuse its discretion by denying Allen’s motion
to appoint a neurologist. First, the request was filed after the court’s deadline for
such motions. Second, Allen failed to specifically demonstrate the reasonableness
of the request. State v. Broom, 40 Ohio St.3d at 283-284,
533 N.E.2d at 691. Allen
did not show a reasonable probability that an expert would aid in his defense.
Id.
Although Allen’s ink blot test indicated a “simplistic … view of life” consistent
with, but not necessarily caused by, brain damage, the Bender test indicated “little
likelihood” of brain damage, and Kaplan’s second report seems to rule out brain
damage. Given that the Bender test is specifically designed to test for organic brain
damage and that the results of the ink blot test were not conclusive as to brain
damage, we find no abuse of discretion by the trial court in denying the motion to
appoint a neurologist to further investigate Allen’s claim of brain damage.
{¶ 75} Although Kaplan’s affidavit states that test results suggest the
presence of organic brain damage and that testing by a neurologist could determine
the absence or presence of brain damage, the trial court could properly disregard
the affidavit. It adds nothing substantive to the reports, fails to mention the Bender
test, and ventures no opinion as to whether neurological testing is necessary.
{¶ 76} Accordingly, Allen’s fifteenth proposition of law lacks merit.
B. Factual Errors in Sentencing Opinion
{¶ 77} In his twenty-first proposition of law, Allen claims that the trial
court’s sentencing opinion contains factual mistakes, improperly treats the facts of
the case as aggravating circumstances, and improperly weighs the mitigating
factors.
{¶ 78} The trial court’s opinion does contain two minor factual errors. The
cigarette butts from Allen’s bedroom were not identified as Dorals. And, there was
no testimony that Allen boarded the bus “less than one mile from Mrs. English’s
home,” as the court stated. We find these minor flaws inconsequential.
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SUPREME COURT OF OHIO
Furthermore, this court’s independent review can correct flaws in the trial court’s
opinion. See State v. Lewis (1993), 67 Ohio St.3d 200, 204,
616 N.E.2d 921, 925.
C. Court of Appeals’ Independent Review
{¶ 79} In his twenty-second proposition of law, Allen charges that the court
of appeals improperly performed its independent review under R.C. 2929.05(A).
With its opinion, the appellate court filed a one-page “supplemental journal entry,”
summarily stating that the aggravating circumstance outweighed the mitigating
factors and that the sentence was not disproportionate. Allen asks this court to
remand to the court of appeals with instructions to explain why it so found.
{¶ 80} R.C. 2929.05(A) requires courts of appeals to independently review
death sentences; it does not expressly require a detailed explanation. By contrast,
R.C. 2929.03(F) requires that the trial court opinion explain why aggravation does
or does not outweigh mitigation. If the legislature had intended that the court of
appeals provide an explanation, it would have stated that requirement, as it did for
trial courts in R.C. 2929.03(F).
{¶ 81} Allen incorrectly relies upon State v. Gillard (1988), 40 Ohio St.3d
226,
533 N.E.2d 272, and State v. D’
Ambrosio, supra, to support his argument. In
Gillard, this court remanded because the court of appeals had not reviewed the
sentence at all. Here the supplemental entry says the court did perform an
independent review. In D’Ambrosio, it appeared that the court of appeals reviewed
the sentence without a full record. Allen makes no such claim here.
{¶ 82} We find no deficiencies in the court of appeals’ independent review
and, accordingly, we overrule Allen’s twenty-second proposition of law.
III
Independent Review
{¶ 83} Having found that the evidence shows beyond a reasonable doubt
that Allen committed the murder while committing or attempting to commit
aggravated robbery, R.C. 2929.04(A)(7), we now turn to our independent
24
January Term, 1995
assessment of whether that aggravating circumstance outweighs the mitigating
factors raised by Allen. Against the single specification Allen asks us to weigh two
mitigating factors: diminished capacity, R.C. 2929.04(B)(3), and residual doubt of
guilt.
A. Diminished Capacity
{¶ 84} Dr. Kaplan testified regarding Allen’s claim of diminished capacity.
Kaplan testified that multiple mental diseases substantially impaired his capacity to
appreciate the criminality of his actions and conform to the law. Dr. Kaplan
diagnosed Allen as having post-traumatic stress disorder (“PTSD”). Allen told
Kaplan he was raped in prison in 1981; Kaplan did not know if this was true, but
noted that being raped can cause PTSD. Allen’s symptoms included “intrusive
recollections” of the trauma, excessive suspiciousness, and feelings of inadequacy,
shame, and rage.
{¶ 85} Kaplan further testified that Allen’s “sense of limited ability to
handle” complex situations motivates him to oversimplify situations without regard
for reality, due to “personality disorganization” and possibly also to low
intelligence or brain damage. However, Kaplan said “intellectual laziness” may
also play a part.
{¶ 86} On cross-examination, Kaplan testified that he “doubt[ed]” Allen
would have murdered English had a policeman been sitting in her house. This
testimony undermines Kaplan’s finding of substantially impaired capacity to obey
the law.
{¶ 87} We assign only modest weight to Dr. Kaplan’s mitigation testimony.
B. Residual Doubt
{¶ 88} Allen also raises “residual doubt” of his guilt as a mitigating factor.
In an unsworn statement Allen insisted he was innocent and tried to explain the
evidence. Based on the evidence as set forth in the body of this opinion, we find
Allen’s explanations unpersuasive and we have no doubt of his guilt.
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{¶ 89} Accordingly, weighing the aggravating circumstance against the
claimed mitigating factors, we conclude that the aggravating circumstance
outweighs the mitigating factors beyond a reasonable doubt.
IV Proportionality Review
{¶ 90} We conclude that the death penalty is appropriate and proportionate
in this case. R.C. 2929.05(A). This court has consistently upheld the death penalty
in cases involving aggravated robbery-murder. See, e.g., State v. Scott (1986), 26
Ohio St.3d 92, 26 OBR 79,
497 N.E.2d 55; State v. Holloway (1988),
38 Ohio St.3d
239,
527 N.E.2d 831; State v. Van Hook (1988),
39 Ohio St.3d 256,
530 N.E.2d
883.
{¶ 91} Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed
DOUGLAS, RESNICK and F.E. SWEENEY, JJ., concur.
MOYER, C.J., WRIGHT and PFEIFER, JJ., dissent.
__________________
WRIGHT, J., dissenting.
{¶ 92} The bedrock of our criminal justice system is the constitutional right
to a trial by jury. At the heart of this basic grant and due process of law is the
constitutional guaranty that the jurors who decide a defendant’s fate will be fair,
impartial and free from bias or prejudice. Morgan v. Illinois (1992), 504 U.S. 719,
727,
112 S.Ct. 2222, 2228,
119 L.E.2d 492, 501; Ross v. Oklahoma (1988),
487
U.S. 81, 85,
108 S.Ct. 2273, 2277,
101 L.E.2d 80, 88; Wainwright v. Witt (1985),
469 U.S. 412, 418,
105 S.Ct. 844, 849,
83 L.Ed.2d 841, 845; Turner v. Louisiana
(1965),
379 U.S. 466, 471-472,
85 S.Ct. 546, 549,
13 L.E.2d 424, 431; and Irvin v.
Dowd (1961),
366 U.S. 717, 722,
81 S.Ct. 1639, 1642,
6 L.Ed.2d 751, 755.
{¶ 93} A prospective juror should be removed for cause when he “discloses
by his answers that he cannot be a fair and impartial juror or will not follow the law
as given to him by the court.” R.C. 2313.42(J). Additionally, a prospective juror
26
January Term, 1995
should be excused “if the court has any doubt as to the juror’s being entirely
unbiased.” (Emphasis added.) R.C. 2313.43. In the present case, the trial court
deprived the defendant of important constitutional and statutory rights when it
failed to remove for cause a juror who clearly demonstrated that she could not be
impartial.
{¶ 94} Before this trial began, the trial judge asked all of the prospective
jurors en masse to advise the bailiff if they had any personal problems with serving
as a juror. Ms. Worthington, one of the prospective jurors, approached the bailiff,
indicating that she had some problems with serving as a juror. She was then
brought before the judge. She advised the court that she was previously unaware
that she had been called to serve in a criminal case and that she did not feel that she
could serve as a juror in such a case because only a few years earlier her brother
had been shot and killed. The trial court did not take any action, stating that her
ability to serve as a juror, in light of her experiences, would be addressed during
the general voir dire.5
{¶ 95} When Ms. Worthington was finally called as a juror, she was the
twelfth juror to be seated on the panel. At that point, the defendant had exhausted
all six of his peremptory challenges. Ms. Worthington was questioned in open court
in the presence of the balance of the seated jurors. During questioning, she again
related the facts surrounding her brother’s murder and the fact that she had sat
through every day of that trial. She indicated without equivocation that she did not
feel that justice was done in that case because the accused had been found not guilty.
She stated without equivocation that she harbored feelings of bitterness and
resentment as a result of the outcome of that trial. She further indicated that she
was friendly with a number of police officers and the detectives and the prosecutor
5. The action of the trial judge in this instance appears to be inapposite to the judge’s treatment of
prospective juror Townes. Mr. Townes indicated he had been convicted of manslaughter, and the
trial judge immediately excused him.
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who were involved with her brother’s case. The detective in her brother’s case
apparently was still in contact with her mother. Ms. Worthington also stated that
she did not know if she could hold back her emotions when the coroner testified as
she believed, apparently as a result of listening to earlier questioning, that the facts
in this case were very similar to those in her brother’s case. She then stated that the
recent trial involving her brother’s murder could be a problem if she served as a
juror in the present case.
{¶ 96} Counsel for appellant asked that this juror be excused for cause,
citing, among other reasons, her familiarity with potential state witnesses, her
bitterness arising from the not guilty finding in her brother’s murder case, and her
emotional involvement as a result of her brother’s case. As a result, counsel argued
that she did not have the “detachment from these proceedings that ought to be
required, particularly in a capital case.” Defense counsel, of course, also pointed
out there were many other jurors available for seating in the event that the trial court
sustained their challenge for cause. The trial court overruled the challenge, stating
that “[t]he juror, when questioned, unequivocally stated that she could be fair and
impartial. … I don’t see a problem with her serving.”
{¶ 97} I do not see how any fair-minded individual can suggest that Ms.
Worthington did not indicate a state of mind and view that cast the most serious
sort of question on her ability to render an impartial verdict. In Palmer v. State
(1885), 42 Ohio St. 596, paragraph three of the syllabus, this court stated: “A
person called as a juror in a criminal case, who clearly shows himself, on his voir
dire, not to be impartial between the parties, is not rendered competent by saying
that he believes himself able to render an impartial verdict, notwithstanding his
opinions, although the court may be satisfied that he would render an impartial
verdict on the evidence.” While it is true that the state made every effort to extract
a statement to the effect that this juror believed herself capable of rendering an
impartial verdict, I cannot think of a situation similar to this where this court or any
28
January Term, 1995
other court has indicated that a juror with experience and perspective similar to Ms.
Worthington should not have been excused for cause.
{¶ 98} It is interesting to note that when questioned about this matter during
oral argument to this court, the assistant prosecutor arguing this case indicated that
Ms. Worthington was the type of juror he “wanted” on the jury. I must respectfully
disagree. The state has an obligation to vigorously prosecute crime. However, the
state also has a duty to uphold the law and protect the constitutional rights of those
who are tried for crimes.
{¶ 99} The state argues that our decision in State v. Broom (1988), 40 Ohio
St.3d 277,
533 N.E.2d 682, upholds the posture taken by the trial judge. In Broom,
we held that the relevant inquiry with respect to the impartiality of the jury is
focused on the jurors who eventually sat and decided the case, not those jurors who
were excused pursuant to peremptory challenges.
Id. at 287-288, 533 N.E.2d at
695. Consequently, we stated: “[I]n order to state a constitutional violation in this
situation, the defendant must use all his peremptory challenges and demonstrate
that one of the jurors seated was not impartial.” Id. at 288, 533 N.E.2d at 695. In
Broom, the defendant’s impartiality challenge was unsuccessful because he had
exercised a peremptory challenge to remove the juror who he alleged was biased.
{¶ 100} Consistent with our holding in Broom, if a biased juror has sat on a
jury that ultimately sentenced a defendant who had preserved his right to challenge
the trial court’s failure to remove the juror for cause, the defendant’s sentence must
be overturned. Accord Ross v. Oklahoma, supra, 487 U.S. at 85,
108 S.Ct. at 2277,
101 L.Ed.2d at 88. That is exactly what occurred in this case. The appellant had
exhausted all of his peremptory challenges by the time Ms. Worthington was seated
on the panel. He challenged her for cause, but because the trial court failed to
remove her, she was a member of the panel that found defendant guilty and
sentenced him to death.
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{¶ 101} I do not relish taking a position that would require a retrial of this
particular matter. However, better to retry this matter now than two or three years
hence as a result of a successful action in habeas corpus. Furthermore, this is a
purely circumstantial case. There are serious questions concerning the
admissibility of certain evidence with respect to the defendant’s background and
character and whether or not the defendant, if he did commit this crime, did so in
the course of an armed robbery.
{¶ 102} Accordingly, for the foregoing reasons, I would reverse the
decision of the court of appeals and remand this matter for a new trial.
MOYER, C.J., and PFEIFER, J., concur in the foregoing dissenting opinion.
__________________
APPENDIX
“Proposition of Law No. I
{¶ 103} “A prospective juror should be removed for cause when she
discloses by her answer that she cannot be a fair and impartial juror or if the court
has any doubt as to the juror’s being entirely unbiased.
“Proposition Law No. II
{¶ 104} “Defense counsel should be permitted to question prospective
jurors concerning their views on capital punishment and the trial court should not
excuse a juror for cause based on views concerning capital punishment until such
questioning is allowed and unless those views would prevent or substantially impair
the performance of their duties.
“Proposition of Law No. III
{¶ 105} “The existence of a prior offense is such an inflammatory fact that
it should not be revealed to the jury unless specifically permitted under statute or
rule.
“Proposition of Law No. IV
30
January Term, 1995
{¶ 106} “A conviction cannot stand when the state failed to present
sufficient evidence to meet the legal requirements to sustain a conviction.
“Proposition of Law No. V
{¶ 107} “Evidentiary exhibits, sought to be introduced into evidence,
should not be displayed to the jury prior to their admission.
“Proposition of Law No. VI
{¶ 108} “Victim character evidence is inadmissible in the guilt-innocence
phase of a capital trial.
“Proposition of Law No. VII
{¶ 109} “A trial court should not admit evidentiary exhibits absent proper
authentication.
“Proposition of Law No. VIII
{¶ 110} “Expert testimony should be excluded from evidence when no basis
or foundation for such testimony is established and its admission is irrelevant.
“Proposition of Law No. IX
{¶ 111} “The use of a single photograph for identification purposes is
impermissibly suggestive and destroys any reliability of the identification.
“Proposition of Law No. X
{¶ 112} “Duplicative and repetitive gruesome photographs are inadmissible
in a capital prosecution.
“Proposition of Law No. XI
{¶ 113} “When the state admits actual physical exhibits into evidence, the
introduction of photographs of those items, having no independent evidentiary
value, is error since it only serves to cumulate the quantity of evidence and overstate
the state’s case.
“Proposition of Law No. XII
{¶ 114} “Misconduct by the prosecuting attorney in either the guilt-innocence or penalty phase of a capital case will serve as the basis of a reversal if
31
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it denies the capital defendant a fair determination of either his guilt or innocence
or the appropriate sentence in the case.
“Proposition of Law No. XIII
{¶ 115} “A jury in a criminal case must be instructed to find every element
of the offense beyond a reasonable doubt.
“Proposition of Law No. XIV
{¶ 116} “Erroneous jury instructions in either the guilt-innocence or penalty
phase of a capital case mandate reversal of the conviction and/or death sentence.
“Proposition of Law No. XV
{¶ 117} “An indigent defendant is entitled to the appointment of a defense
expert, at state’s expense, to assure he has a fair opportunity to present his defense.
“Proposition of Law No. XVI
{¶ 118} “The state may re-admit evidence from the guilt-innocence phase
of a capital case into the penalty phase only if they are relevant to the death penalty
specifications of which appellant was found guilty.
“Proposition of Law No. XVII
{¶ 119} “A trial court’s use of the word ‘recommendation’ (when
describing the jury verdict) in voir dire and penalty phase jury instructions denies a
capital defendant a fair determination of his sentence by the jury.
“Proposition of Law No. XVIII
{¶ 120} “A trial court should not engage in communications with a
deliberating jury without notice to and consultation with the parties involved.
“Proposition XIX
{¶ 121} “A capital defendant is entitled to the effective assistance of
counsel throughout all stages of the capital prosecution.
“Proposition of Law No. XX
32
January Term, 1995
{¶ 122} “When a capital defendant is indicted and later convicted under
both Sections of R.C. 2903.01 when there is but one victim, the trial court should
sentence the defendant under only one of the counts and vacate the other.
“Proposition of Law No. XXI
{¶ 123} “When a trial court opinion in a capital case is replete with errors
and fails to correctly weigh the aggravating circumstances and mitigating factors
the appropriate remedy is vacation of the death penalty.
“Proposition of Law No. XXII
{¶ 124} “A capital appellant is constitutionally entitled to an independent
review of his conviction and death sentence by both the court of appeals and the
Ohio Supreme Court.
“Proposition of Law No. XXIII
{¶ 125} “The Fifth, Sixth, Eighth and Fourteenth Amendments to the
United States Constitution and Sections 2,9,10 and 16, Article I of the Ohio
Constitution establish the requirements for a valid death penalty scheme. Ohio
Revised Code, Section[s] 2903.01, 2929.02, 2929.021, 2929.022, 2929.023,
2929.03, 2929.04 and 2929.05, Ohio’s statutory provisions governing the
imposition of the death penalty, do not meet the prescribed requirements and thus
are unconstitutional, both on their face and as applied.”
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