State v. Joseph

[This opinion has been published in Ohio Official Reports at 

.]




             THE STATE OF OHIO, APPELLEE, v. JOSEPH, APPELLANT.
                      [Cite as State v. Joseph, 

.]
Criminal law—Aggravated murder—Death penalty upheld, when.
       (No. 94-372—Submitted May 10, 1995—Decided August 30, 1995.)
         APPEAL from the Court of Appeals for Allen County, No. 1-91-11.
                                  __________________
        {¶ 1} During the fall of 1989, defendant-appellant, Richard E. Joseph,
began dating Cara M. Wireman. They began to date steadily until sometime in
February 1990. Cara decided to end the relationship because she did not like the
way appellant treated her and she attended her senior prom with someone else. In
April, Cara started dating the victim, Ryan Young, a student at the same high
school. Ryan and appellant knew each other from playing together on the school
football team.
        {¶ 2} Cara testified that appellant was jealous of Ryan’s relationship with
her.   Appellant wanted her to stop seeing Ryan so they could renew their
relationship.    This was evidenced by several letters appellant wrote to Cara
indicating his jealousy and desire to continue dating Cara. In one letter, he
indicated he had been secretly watching Cara and Ryan together for three hours.
Cara knew that martial arts played a big part in appellant’s life and she had
previously seen him with guns and knives.
        {¶ 3} On Monday, June 25, 1990, the day prior to the kidnapping, Cara and
Ryan observed appellant driving around in the area where Cara and Ryan both
lived. Cara indicated she did not normally see appellant driving in this area.
        {¶ 4} On Tuesday, June 26, 1990, Ryan asked his mother if he could go to
Cara’s house, and he left around seven o’clock that evening driving his father’s
1981 Oldsmobile. Ryan’s mother received a telephone call from Ryan about 10:30
                            SUPREME COURT OF OHIO




p.m. that evening and, during that conversation, she told him he could stay and
finish watching the movie and then come straight home.
       {¶ 5} Cara’s next-door neighbor, Rose Fetter, was outside walking her dog
at about 11:15 p.m. that night, when she observed a clean white car driving slowly
down Thayer Road. There were two occupants in the car. Fetter indicated she first
saw the car being driven north up Thayer Road. About ten minutes later she
observed the car heading south on Thayer Road. The car pulled into a dirt driveway
leading to property owned by a local kennel club and parked for a few minutes.
Just prior to Fetter’s going into her home she observed the car back out of the
driveway and head north for a second time. Fetter testified she and her husband
took care of the property for the kennel club and that she mowed around the
driveway earlier in the day and did not observe any tire tracks at that time.
However, the next morning she noticed there were tire tracks in the driveway.
       {¶ 6} Ryan, Cara, and Cara’s friend, Michelle Rumer, were at the same time
watching the movie at Cara’s house. The movie ended at approximately 11:30 p.m.,
at which time Michelle left to go home. Ryan stayed about fifteen or twenty
minutes after Michelle left. Ryan and Cara walked out of Cara’s house and into the
driveway. As Ryan got into the car, Cara heard Ryan remark, “That looks like the
White Cutlass that Dick [appellant] drives.” Cara responded, “I doubt that. He
wouldn’t be out here.” Ryan said, “I’m pretty sure that was him.”
       {¶ 7} Ryan was wearing a baseball hat turned backwards on his head that
night. Cara saw Ryan back out onto Thayer Road into a position that would permit
him to drive north on Thayer. Just as Ryan backed onto the roadway, she saw the
dome light in his car illuminate and heard a voice when the dome light came on.
Cara also saw Ryan’s head turn toward the passenger side door.
       {¶ 8} Cara went back into the house and watched television for about fifteen
minutes. She decided to go to bed, so she went to shut the front door and saw the
tail end of a white car drive by slowly heading south on Thayer Road. She saw the




                                        2
                                January Term, 1995




tail lights on the car and heard the breaks squeak. The subject car repeatedly turned
around after passing Cara’s residence and passed in front of her house
approximately ten to twelve times. Cara testified the car matched the description
of the car belonging to Bill Forest, a friend of appellant. Cara testified appellant
and Jose Bulerin, appellant’s friend and roommate, often borrowed Forest’s car.
Cara became upset and called Michelle concerning the car that had passed in front
of her house. At about 12:35 a.m., Cara called the residence shared by appellant
and Bulerin. She spoke with appellant’s cousin, April Joseph, who testified neither
appellant nor Bulerin was home to answer the call. Cara again called Michelle and
talked for a while before calling the appellant’s residence a second time at 1:00 a.m.
Appellant and Bulerin still had not returned home.
       {¶ 9} Cara went to sleep and was awakened by a phone call from Ryan’s
mother, Sharon Young, at approximately 4:00 a.m. that morning. At about that
time, Ryan’s father, Rick Young, awoke and discovered that neither his son nor the
car Ryan had been driving was home. The Youngs drove down Thayer Road
toward Cara’s house in search of their son. They found the 1981 Oldsmobile
Cutlass Ryan had been driving abandoned just north of the bridge on Thayer Road.
Rick entered the car and nothing apparently was out of place. The keys were still
in the ignition and the car was still in gear. There were no indications of a robbery,
as Ryan’s wallet and money were, respectively, left on the seat and console tray of
the car. A wet spot and char marks were found on the passenger seat of the car.
The seat had not been wet or dirty the day before. Inspector William Dailey took a
material sample of a burnt log located across the road opposite from Cara’s house
on the morning of June 27, 1990. The inspector observed that the vegetation there
was trampled down such that it led him to believe that someone may have been
sitting in that area. The vegetation still had its color and the breaks in the leaves
appeared to be fresh. He also took a sample of the blackened stain area on the front




                                          3
                              SUPREME COURT OF OHIO




seat of Ryan’s car for purposes of comparison with the burned log. Chemical
analysis performed later revealed that the samples were consistent with one another.
        {¶ 10} The sheriff’s department was notified and a search began. After
talking with Cara, Deputy Gene King of the Allen County Sheriff’s Office
proceeded to appellant’s residence to question him concerning Ryan’s
disappearance. King arrived at appellant’s residence at approximately 5:10 a.m. on
the morning Ryan was discovered missing and observed a white Cutlass in the
driveway. King testified that the hood and radiator of the car were warm to the
touch. There was also a dirty hand print on the trunk lid of the vehicle.
        {¶ 11} King spoke with appellant and Bulerin. Appellant was hesitant to
respond to questioning, as he persistently stared at the ground and his answers were
invariably inaudible. The deputy testified that in spite of the early morning hour,
appellant did not appear to have been asleep. The deputy also noticed fresh blisters
on appellant’s right hand.
        {¶ 12} Appellant was questioned both later that morning and about a week
afterwards by law enforcement officers. Appellant disclaimed any knowledge of
Ryan’s disappearance. Appellant told the sheriff’s detectives that on the day of the
disappearance he reported to work at Frank’s Car Wash. He then left with Forest
to go to work at Indian Lake in Logan County. Forest testified that they had been
building a deck in order to install a hot tub adjacent to a house. Appellant, Bulerin,
and Forest were using Visqueen to cover up the deck to protect against the rain.
        {¶ 13} Appellant told detectives that the trio worked until about 6:30 p.m.
before starting back to Lima to attend karate class. According to Forest, the karate
class was taught by Bulerin with appellant helping out as a co-instructor. Appellant
and Bulerin then left karate class in Forest’s car, the white Cutlass. Forest testified
he left class with his girlfriend and did not see either appellant or Bulerin again that
night. Appellant and Bulerin went home, got cleaned up, and then left to get
something to eat. Appellant stated that, afterwards, the pair drove around in




                                           4
                                January Term, 1995




Forest’s car for several hours before returning home          and going to bed at
approximately 2:30 a.m. Appellant also stated that the brakes on Forest’s car did
squeak on that night.
       {¶ 14} Although Forest’s car had new tires on it, Bulerin took Forest’s car
and changed the tires the day following Ryan’s disappearance. Three of the tires
that had been on Forest’s car the night of Ryan’s abduction were recovered by
Detective Sergeant James Ketchum, who testified the tread pattern on one of the
tires was similar to the tire prints found in the driveway to the kennel club located
on Thayer Road.
       {¶ 15} Forest had kept a knife clipped to the sun visor in his car that was
identical to another knife owned by a friend of his. The knife of Forest’s friend
was subsequently turned over to Lieutenant Van Horn by Forest for the
investigation. Forest’s knife had been in Forest’s automobile on June 26, 1990;
however, it had not been seen since. Forest testified that appellant and Bulerin had
used his car, had access to it, and traveled in it together frequently. Appellant and
Bulerin also kept articles in his car, and he had observed a piece of material
described as plastic, vinyl, or Visqueen and a shovel in his trunk. Forest had
observed the same shovel before at appellant’s house. Forest also testified that he
had watched a lot of movies with appellant and Bulerin, many of which dealt with
the martial arts. He also knew that appellant had a black mask.
       {¶ 16} Monte Stinebuck worked at Frank’s Auto Wash with appellant,
Forest, and Bulerin. He testified that he saw appellant and Bulerin on Thursday,
June 28, 1990, and it was rainy that day. A discussion ensued regarding hauling
some trash from the car wash and taking it to Joseph’s Sand and Gravel Pit. They
had never taken trash there before and the truck was loaded a quarter full.
       {¶ 17} Throughout the week following Ryan’s disappearance, an extensive
search was conducted. On July 4, 1990, the Allen County Sheriff’s Department
acted upon the information provided by Stinebuck and instituted a search at




                                         5
                              SUPREME COURT OF OHIO




Joseph’s Sand and Gravel Pit located in Auglaize County and owned by Joseph’s
grandparents. Mary Joseph, appellant’s grandmother, testified that she owned the
sand and gravel pit and that appellant was familiar with it, as he had spent a lot of
time there growing up.
         {¶ 18} Ryan’s body was discovered in a shallow grave. The body was
wrapped in Visqueen, the jagged edge of which was matched positively with
Visqueen recovered from the job site at Indian Lake where appellant had been
working. Under the body, a black ninja mask was recovered. An autopsy revealed
that Ryan had superficial lacerations in the area of the throat. Further, Ryan had
been stabbed two times in the back--one to the right flank and one at the base of the
skull.
         {¶ 19} Appellant and Bulerin were jointly indicted for purposely causing
the death of Ryan Young while committing or while fleeing immediately after
committing kidnapping.         The indictment also contained a death-penalty
specification based upon R.C. 2929.04(A)(7). Appellant and Bulerin were tried
separately.   Appellant’s case was tried to a jury which found him guilty of
aggravated murder and of the specification thereto. The penalty phase of the trial
began on January 28, 1991. After deliberations, the jury found the aggravating
circumstance surrounding the murder outweighed the mitigating factors beyond a
reasonable doubt. The jury recommended a sentence of death. After independent
deliberations pursuant to R.C. 2929.03(D)(3), the trial court accepted this
recommendation and imposed a sentence of death upon appellant.
         {¶ 20} The court of appeals affirmed the conviction and the sentence of
death.
         {¶ 21} This matter is now before this court as a matter of right.
                                __________________
         David E. Bowers, Allen County Prosecuting Attorney, Gary R. Herman and
Jana E. Emerick, Assistant Prosecuting Attorneys; and Brad C. Roush, for appellee.




                                           6
                                January Term, 1995




       David H. Bodiker, Ohio Public Defender, Kathleen A. McGarry and J.
Joseph Bodine, Assistant Public Defenders, for appellant.
                               __________________
       FRANCIS E. SWEENEY, SR., J.
       {¶ 22} In a line of cases beginning with State v. Poindexter (1988), 

, 

, we have adopted the view that when we review death-penalty cases, we are not required to address all propositions of law in opinion form.
State v. Simko (1994), 

, 

; State v. Scudder (1994),

, 

; State v. Hawkins (1993), 

,

.      Accordingly, we will not discuss the merits of many of
appellant’s propositions of law which have been resolved in other cases or which
have not been properly preserved. However, while this opinion does not separately
address each of the thirty-six propositions of law (see Appendix), we have fully
reviewed the record and passed upon each proposition prior to reaching our
decision. We have also independently assessed the evidence relating to the death
sentence, balanced the aggravating circumstance against the mitigating factors, and
reviewed the proportionality of the sentence to sentences imposed in similar cases.
As a result, we affirm the conviction and death sentence.
                                            I
                                   INDICTMENT
       {¶ 23} In appellant’s first proposition of law, he asserts that the indictment
in this case did not specify a proper aggravating circumstance, without which a
capital offense is not charged. Specifically, appellant argues that the error resulted
in the trial court’s lacking subject-matter jurisdiction over the case and, hence, also
lacking the power to sentence the appellant to death. For the following reasons, we
find that this argument is without merit.
       {¶ 24} Initially, we note that appellant never challenged the sufficiency of
the indictment at any time before or during his trial. An appellate court need not




                                            7
                             SUPREME COURT OF OHIO




consider an error which was not called to the attention of the trial court at a time
when such error could have been avoided or corrected by the trial court. State v.
Williams (1977), 

, 

, 

.
As a result, such error is waived absent plain error. State v. Moreland (1990), 

, 

. Plain error does not exist unless, but for
the error, the outcome at trial would have been different. 

       {¶ 25} The grand jury issued a joint indictment against appellant and
Bulerin. The indictment charged that the pair jointly and purposely caused the
death of Ryan Young while committing or fleeing immediately after committing
kidnapping. The indictment also contained a death-penalty specification based
upon R.C. 2929.04(A)(7). The specification as stated in the indictment reads:
       “The Grand Jurors further find and specify that the offense was committed
while the offenders were committing, attempting to commit, or fleeing immediately
after committing or attempting to commit kidnapping, and the offenders were
principal offenders in the commission of the kidnapping in violation of the Ohio
Revised Code, Section 2903.01(B) ….”
       {¶ 26} In order to correspond with the statutory language of R.C.
2929.04(A)(7), the last part of the specification should have indicated the offenders
were the principal offenders in the commission of the aggravated murder, and not
merely the kidnapping.      However, while the indictment does not expressly
correspond with the statutory language of R.C. 2929.04(A)(7), we find that this
error does not render the indictment invalid here since the record demonstrates that
appellant had sufficient notice that he was being tried as a principal offender in the
commission of the aggravated murder of Ryan Young while committing
kidnapping.




                                          8
                                   January Term, 1995




        {¶ 27} Former Crim.R. 7(B) provided1 that the indictment “… shall
contain a statement that the accused has committed some public offense therein
specified. Such statement may be made in ordinary and concise language without
any technical averments or any allegations not essential to be proved. It may be in
the words of the applicable section of the statute as long as the words of that statute
charge an offense, or in any words sufficient to give the accused notice of all the
elements of the offense with which he is charged ….”
        {¶ 28} Thus, the indictment must adequately inform the defendant of the
charge against him.       In the present case, the indictment adequately charged
appellant with the crime of aggravated murder, as it set forth the essential elements
charging appellant with the offense of aggravated murder in violation of R.C.
2903.01(B).      This indictment provided appellant with sufficient and adequate
notice of the charge against him and the death-penalty specification alleged.
Accordingly, the trial court had subject-matter jurisdiction over the appellant, as
the indictment adequately charged appellant with the crime of aggravated murder.
        {¶ 29} The penalty for aggravated murder is life imprisonment or death.
R.C. 2929.02. If the state desires to seek the death penalty for a defendant who
commits aggravated murder, the indictment charging the offense must contain at
least one of eight specifications enumerated in R.C. 2929.04(A)(1) through (8).
R.C. 2929.04(A) provides: “Imposition of the death penalty is precluded, unless
one or more of the following is specified in the indictment or the count of the
indictment pursuant to section 2941.14 of the Revised Code and proved beyond a
reasonable doubt.”        That section then sets out eight different aggravating
circumstances.
        {¶ 30} The form of the specification is governed by R.C. 2941.14(C), which
requires that the aggravating circumstance “may be stated in the words of the

1. The relevant language of current Crim.R. 7(B) is essentially the same as that in the former
provision.




                                              9
                             SUPREME COURT OF OHIO




subdivision in which it appears, or in words sufficient to give the accused notice of
the same.” Thus, the language of the statute clearly provides that the specification
is sufficient if the accused knows which subsection, or which aggravating
circumstance of the eight listed in R.C. 2929.04(A) has been alleged.
       {¶ 31} While the specification in the present case contained a technical
error, we cannot find that this error rendered the indictment invalid, as the correct
language of the specification was clearly ascertainable to appellant.            The
indictment’s aggravated-felony-murder count and specification recited an obvious
and undeniable reference to R.C. 2929.04(A)(7) (the felony murder specification)
as the capital specification pursuant to R.C. 2901.03(B) (aggravated-felony
murder). The indictment informed appellant of all elements comprising the capital
offense of aggravated murder under R.C. 2901.03(B), as the exact language of that
section containing all the elements for that offense was correctly recited in the
single count of the indictment. Following the count set forth in the indictment and
pursuant to R.C. 2941.14, a capital specification was included, which stated
verbatim the relevant language of R.C. 2929.04(A)(7), except for the substitutional
error in the last word of the specification. However, appellant certainly had
sufficient notice from the wording of the specification that the aggravating
circumstance set forth in R.C. 2929.04(A)(7) was being alleged. In fact, appellant,
his attorneys, the prosecutor, and the trial judge treated the indictment as valid at
all stages of the proceedings, never noticing any flaw in the indictment. Thus, the
record demonstrates that the wording of the specification was sufficient to give
appellant notice that the state was required to prove that he was a principal offender
in the commission of the aggravated murder of Ryan Young pursuant to the
specification contained in R.C. 2929.04(A)(7).
       {¶ 32} Furthermore, appellant has not shown that he was prejudiced in the
defense of his case from this substitutional error or that he would have proceeded




                                         10
                                January Term, 1995




differently had this error been corrected. Indeed, had the error been discovered, it
was properly subject to amendment. Crim.R. 7(D).
       {¶ 33} Moreover, the jury verdict form correctly phrased the specification.
The trial court read to the jury this verdict form, which contained the properly
worded specification. The jury then signed each of their names to this verdict form,
which correctly phrased the specification to them for the jury’s consideration.
       {¶ 34} In conclusion, we find that the flawed indictment sufficiently
notified appellant of the charge against him and the death-penalty specification.
Accordingly, appellant’s proposition of law number one is without merit.
                                         II
                                  GUILT PHASE
                            Immunity of William Forest
       {¶ 35} In proposition of law number two, the appellant asserts that he was
denied a fair trial due to the appellee’s failure to disclose exculpatory information
pursuant to Crim.R. 16(B)(1)(f). Specifically, appellant argues that the trial court
erred when it denied the appellant’s motion for mistrial when it was discovered
during trial that William Forest, a witness for the state, had been granted immunity
and that the grant of immunity had not been disclosed to the defense. Appellant
argues that voir dire and opening statement would have been conducted differently
had the defense known of the immunity.
       {¶ 36} Crim.R. 16(B)(1)(f) provides, in relevant part: “Upon motion of the
defendant before trial the court shall order the prosecuting attorney to disclose to
counsel for the defendant all evidence, known or which may become known to the
prosecuting attorney, favorable to the defendant and material either to guilt or
punishment.” In the present case, the state’s granting immunity to Forest affected
his credibility as a prosecution witness. Furthermore, Forest was a crucial witness
to the prosecution’s case. Thus, we agree with appellant that this information was
properly discoverable.




                                         11
                             SUPREME COURT OF OHIO




       {¶ 37} Prosecutorial violations of Crim.R. 16 are reversible only when there
is a showing that (1) the prosecution’s failure to disclose was a willful violation of
the rule, (2) foreknowledge of the information would have benefited the accused in
the preparation of his defense, and (3) the accused suffered some prejudicial effect.
State v. Parson (1983), 

, 6 OBR 485, 488, 

. See, also, State v. Moore (1988), 

, 

, 694-
695. In the present case, there is no indication that the violation was willful.
Furthermore, there is nothing in the record to indicate that had the fact of immunity
or even the substance of Forest’s testimony been disclosed prior to trial, the result
of the proceeding would have been different. Moreover, while the evidence was
not disclosed to the defense prior to trial, it was disclosed during trial. The record
reflects that the trial court took many remedial measures at that time to ensure the
fairness of the proceedings, including notifying the jury of the immunity upon the
defense’s cross-examination of Forest and, at the end of trial, admonishing the jury
that the credibility of a witness to whom immunity had been granted must be
examined with greater scrutiny. Thus, since there is no evidence that appellant
suffered any prejudice from the initial nondisclosure of the information, proposition
of law number two is without merit.
                              Sufficiency of Evidence
       {¶ 38} Appellant was convicted of aggravated murder (R.C. 2903.01),
which included a death specification for kidnapping, and was found to be the
principal offender in the commission of the aggravated murder. In proposition of
law number eleven, appellant contends that the conviction was based on insufficient
evidence. For the following reasons, this argument is without merit.
       {¶ 39} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is




                                         12
                                January Term, 1995




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 proven
beyond a reasonable doubt.” State v. Jenks (1991), 

, 

, paragraph two of the syllabus.
       {¶ 40} The record demonstrates that appellant was jealous of Ryan’s
relationship with Cara Wireman. In one letter to his ex-girlfriend Cara, appellant
admitted that he had been secretly watching Cara and Ryan. Appellant also told
Cara that he wanted her to stop seeing Ryan so that they could renew their
relationship. Thus, appellant had a motive to kill the victim. On Tuesday, June 26,
just prior to Ryan’s abduction, the white Cutlass often driven by appellant was seen
near Cara’s home on Thayer Road as Ryan was about to leave. Appellant later
admitted that he and Bulerin were driving around in Forest’s white Cutlass on that
night until about 2:30 a.m. Cara’s neighbor, Rose Fetter, observed a white car with
two occupants in it drive up and down Thayer Road at about 11:15 p.m. that night.
Cara observed the car which matched the description of Forest’s car pass her home
ten to twelve times just after Ryan left. The vegetation across from Cara’s home
was found to be trampled down as if someone had been recently sitting in the area.
Ryan’s body was found buried on property owned by appellant’s grandparents and
on land with which appellant was familiar. The body was wrapped in Visqueen
which matched Visqueen recovered from the job site at Indian Lake where
appellant had been working. Forest stated that appellant had a black mask, and a
black ninja mask was found under the body of the victim. Furthermore, Ryan
suffered two stab wounds, either of which could have been fatal, and the knife
always kept in the car was missing the morning of the disappearance.
       {¶ 41} Based on the above and all the other evidence in the record, we find
that there was sufficient evidence adduced at trial to convince the trier of fact that
appellant was guilty beyond a reasonable doubt of the kidnapping and murder of
Ryan Young and that he was the principal offender in the commission of the




                                         13
                             SUPREME COURT OF OHIO




aggravated murder. While the evidence establishing appellant as a principal
offender is circumstantial, circumstantial and direct evidence inherently possess the
same probative value and, therefore, should be subject to the same standard of
proof. See Jenks at paragraph one of the syllabus. The jury signed the verdict form
containing the R.C. 2929.04(A)(7) specification that appellant was the principal
offender in the commission of the aggravated murder. We will not disturb this
determination, as sufficient evidence existed for a rational trier of fact to find that
appellant was the principal offender, i.e., actual killer, in the aggravated murder of
Ryan Young beyond a reasonable doubt. See State v. 

 State v. Green
(1993), 

, 

. Accordingly, this argument is without
merit.
                              Gruesome Photographs
         {¶ 42} In proposition of law number twenty, appellant argues that the
prosecution’s introduction of a videotape of the crime scene, photographs of the
crime scene, and slides of the autopsy were so gruesome and repetitive that any
probative value was outweighed by unfair prejudice to the accused. This argument
is without merit.
         {¶ 43} “Properly authenticated photographs, even if gruesome, are
admissible in a capital prosecution if relevant and of probative value in assisting
the trier of fact to determine the issues or are illustrative to testimony and other
evidence, as long as the danger of material prejudice to a defendant is outweighed
by their probative value and the photographs are not repetitive or cumulative in
number.” State v. Maurer (1984), 

, 15 OBR 379, 

, paragraph seven of the syllabus. The trial court has broad discretion in the
admission of evidence and unless it has clearly abused its discretion and the
defendant has been materially prejudiced thereby, an appellate court should not
disturb the decision of the trial court. 

, 15 OBR at 401, 

.




                                          14
                                 January Term, 1995




         {¶ 44} In the present case, six photographs of the crime scene were admitted
into evidence, all showing different views of the body. These photographs were
relevant, as they were used, in part, to corroborate the testimony of Inspector Daily
concerning wounds inflicted on the victim. A videotape of the crime scene was
taken, but the camera stopped working before the victim’s body was unearthed.
Thus, this videotape did not unduly prejudice appellant. In addition, nine autopsy
slides were entered into evidence to corroborate the expert testimony of Dr. Amy
Martin of the Hamilton County Coroner’s Office. While some of these photos are
gruesome, their probative value outweighed any danger of material prejudice to
appellant. Accordingly, we find that the trial court did not abuse its discretion.
                                          III
                                 PENALTY PHASE
                                  Jury Instructions
         {¶ 45} In proposition of law number seven, appellant argues that the
cumulative effect of alleged erroneous instructions to the jury requires reversal of
the death sentence. For the following reasons, this argument is without merit.
         {¶ 46} First, appellant asserts that his sentence must be reversed because an
imperfect specification was read to the jury at the beginning of the penalty phase.
The trial court instructed the jury that the state charges in the specification that
“‘… the offenders were the principal offenders in the commission of the
kidnapping.’” Initially, we note that appellant did not object to this instruction at
trial and, thus, it is waived absent plain error. State v. 

 Crim.R.
52(B).
         {¶ 47} In the present case, this error was cured, as the trial court
subsequently read to the jury the correctly worded specification. The court began
by stating: “It is now my duty to instruct you on the law which applies to this
proceeding.”     The court then stated:         “In the single count the aggravating
circumstance is precisely set out in the specification. Completely stated, it is as




                                          15
                              SUPREME COURT OF OHIO




follows: ….” The trial court subsequently read the correctly worded specification
to the jury. This correctly worded instruction was read immediately before the jury
began its penalty deliberations. Thus, the jury was informed of the proper phrasing
of the specification prior to undergoing its deliberations. Accordingly, we cannot
find that the trial court’s reading of the imperfect specification at the beginning of
the penalty phase rises to the level of plain error, especially in light of the fact that
the jury had already signed the verdict form which contained the correctly worded
specification during the guilt phase.
        {¶ 48} Second, appellant argues that the trial court placed the burden on
appellant to prove that death was not the appropriate penalty when, in its
preliminary instruction, the trial court instructed: “… the defendant will have the
opportunity to offer evidence of mitigating factors to attempt to offset the affect
[sic] of the aggravating circumstance as set forth above and as found by you during
the guilt determination phase.” This instruction is not an incorrect statement of the
law. See R.C. 2929.03(D)(2). Further, the jury was also instructed as follows:
“[Y]ou must determine whether the State of Ohio has proved beyond a reasonable
doubt that the aggravating circumstance of which the defendant is guilty outweighs
the mitigating factors.” Thus, it is clear from a review of the instructions as a whole
that the state of Ohio was not relieved of its burden of proof. This argument is
meritless.
        {¶ 49} Third, appellant argues that the trial court improperly used the word
“blame” when it instructed the jury that “[m]itigating factors … may be
considered by you as … reducing the degree of the defendant’s blame.” However,
this argument is without merit, as use of the word “blame” alone did not constitute
error where, as here, the jury instructions, taken as a whole, clearly indicate that the
penalty phase was for punishment determination and not for assessment of
culpability. See State v. Lawrence (1989), 

, 

.




                                           16
                                January Term, 1995




       {¶ 50} In conclusion, this court has reviewed all of appellant’s arguments
regarding erroneous jury instructions, and we have found that they do not amount
to error either individually or collectively. Accordingly, proposition of law number
seven is without merit.
                                Independent Review
       {¶ 51} In appellant’s proposition of law number three, appellant argues that
the aggravating circumstance here does not outweigh the mitigating factors. For
the following reasons, we find that the trial judge properly determined that the
aggravating circumstance outweighs the mitigating evidence presented.
       {¶ 52} Pursuant to R.C. 2929.05(A), we must independently determine
whether the aggravating circumstance outweighs any mitigating factors that have
been established and whether the sentence of death is appropriate.
       {¶ 53} The sole statutory aggravating circumstance in this case is that
appellant murdered the victim while committing kidnapping.                 See R.C.
2929.04(A)(7).
       {¶ 54} Against the aggravating circumstance we weigh all mitigating
factors drawn from the nature and circumstances of the offense; the history,
background and character of appellant, and any other factors listed in R.C.
2929.04(B)(1) through (7) which exist in this case. The statutory mitigating factors
include the youth of the offender (age nineteen at the time of the murder) and his
lack of a prior criminal history or delinquency adjudications. The mitigating factors
of R.C. 2929.04(B)(1),(2),(3), and (6) were not established. While appellant went
to live with co-defendant Bulerin at the age of sixteen, we find no evidence to
establish a showing of duress, coercion, or strong provocation impacting on the
appellant sufficient to establish this as a mitigating factor. Also, appellant was not
shown to lack the substantial capacity to appreciate the criminality of his conduct
or to conform his conduct to the requirements of the law.




                                         17
                             SUPREME COURT OF OHIO




       {¶ 55} Under R.C. 2929.04(B)(7), the catchall category, appellant claims as
mitigating factors that he had a difficult homelife and a learning disability.
       {¶ 56} When appellant was young his father spent time in prison and his
parents divorced. His mother remarried but his stepfather was abusive to him. This
evidence is entitled to little or no weight as a mitigating factor. See State v. Seiber
(1990), 

, 

.
       {¶ 57} Appellant’s learning disability involved a difficulty with reading and
writing in school, but appellant had a normal I.Q. and was permitted to graduate
with his class. The psychologist, Dr. Wayne Graves, testified that appellant was
shy and nonverbal and internalized his feelings and emotions. Dr. Graves also
indicated that appellant had a good potential for rehabilitation. This evidence is
subject to little or no weight as a mitigating factor. See State v. Scudder, supra, 

, 

.
       {¶ 58} The facts and circumstances of this case are that appellant, motivated
by jealousy, lay in wait outside his former girlfriend’s residence, where the sixteenyear-old victim was then kidnapped after visiting the girlfriend. The victim was
then subjected to cuts across his throat and fatally stabbed twice with a knife. Thus,
the evidence is compelling that appellant committed kidnapping during the murder
of Ryan Young.
       {¶ 59} In weighing the aggravating circumstance against the mitigating
factors, we conclude that the aggravating circumstance outweighs the mitigating
factors beyond a reasonable doubt.
                               Proportionality Review
       {¶ 60} In proposition of law number four, appellant argues that the sentence
of death is not appropriate in this case. In carrying out the analysis of whether the
sentence of death is appropriate, we find that the sentence of death in this case is
neither excessive nor disproportionate, but is appropriate, when compared with
other felony-murder cases which involved kidnapping. See State v. Simko (1994),




                                          18
                                       January Term, 1995

, 

; State v. Fox (1994), 

, 

; State v. Spirko (1991), 

, 

; State v. Roe
(1989), 

, 

.
         {¶ 61} Therefore, we affirm the judgment of the court of appeals.
                                                                               Judgment affirmed.
         DOUGLAS, RESNICK and PFEIFER, JJ., concur.
         MOYER, C.J., DESHLER and COOK, JJ., concur in part and dissen tin part.
         DANA A. DESHLER, JR., J., of the Tenth Appellate District, sitting for
WRIGHT, J.
                                     __________________
         MOYER, C.J., dissenting in part and concurring in part.
         {¶ 62} Richard Joseph was convicted of the crime of aggravated murder
beyond a reasonable doubt. No prejudicial error occurred in the guilt phase of his
trial. I partially dissent, however, because I am unable to reach a similar conclusion
with respect to the death penalty specification. In my view, the indictment issued
against Joseph by the grand jury did not contain a specification upon which a death
sentence could legally be based. I similarly do not find evidence in this record
sufficient to support a finding beyond a reasonable doubt that Joseph was a "principal
offender" in the death of Ryan Young, as that term has consistently been interpreted
by this court. I therefore dissent from the majority's affirmation of Joseph's death
sentence. I would remand this case to the trial court with instructions that Joseph be
resentenced, in accordance with R.C. 2929.03(A),2 to life imprisonment with parole
eligibility after serving twenty years of imprisonment.



2. R.C. 2929.03 provides in part:
         "(A) If the indictment or count in the indictment charging aggravated murder does not contain
one or more specifications of aggravating circumstances listed in division (A) of section 2929.04 of the
Revised Code, then, following a verdict of guilty of the charge of aggravated murder, the trial court
shall impose a sentence of life imprisonment with parole eligibility after serving twenty years of
imprisonment on the offender."




                                                  19
                                    SUPREME COURT OF OHIO




         {¶ 63} The state concedes that the specification included in the indictment was
flawed. The indictment3 charged Joseph and Jose Bulerin (who was tried separately
and sentenced to twenty years to life imprisonment) with aggravated murder (R.C.
2903.01[B]).       The specification charged both Joseph and Bulerin as principal
offenders in the commission of the kidnapping of Young rather than the principal
offenders in the commission of Young's aggravated murder. However, where prior
calculation and design has not been alleged, as it was not here, Ohio's statutorily
defined aggravating circumstance of felony-murder requires that the defendant be "the
principal offender in the commission of the aggravated murder."                                    R.C.
2929.04(A)(7).4 The specification included in the Joseph-Bulerin indictment simply
did not give notice of that element, either by setting it forth in the words of the statute,
or by including a reference to the statutory number of the felony-murder specification.



3. The indictment states:
          "THE JURORS OF THE GRAND JURY of the State of Ohio, … do find and present that
from on or about the 26th day of June, 1990 to on or about the 4th day of July, 1990, at Allen County,
Ohio,
          "JOSE E. BULERIN AND RICHARD E. JOSEPH, whose real and true names are to the
Grand Jury unknown did jointly purposely cause the death of another, to wit: Ryan R. Young, while
committing or while fleeing immediately after committing kidnapping;
          "SPECIFICATION
          "The Grand Jurors further find and specify that the offense was committed while the offenders
were committing, attempting to commit, or fleeing immediately after committing or attempting to
commit kidnapping, and the offenders were the principal offenders in the commission of the kidnapping;
in violation of the Ohio Revised Code, Section 2903.01(B) and against the peace and dignity of the State
of Ohio. [Emphasis added.]
                                                                                  “[s/ David E. Bowers]
                                                                                 “Prosecuting Attorney"
4. R.C. 2929.04 provides in relevant part:
          "(A) Imposition of the death penalty for aggravated murder is precluded, unless one or more
of the following is specified in the indictment or count in the indictment pursuant to section 2941.14 of
the Revised Code and proved beyond a reasonable doubt:
          “…
          "(7) The offense was committed while the offender was committing, attempting to commit, or
fleeing immediately after committing or attempting to commit kidnapping, rape, aggravated arson,
aggravated robbery, or aggravated burglary, and either the offender was the principal offender in the
commission of the aggravated murder or, if not the principal offender, committed the aggravated murder
with prior calculation and design.” (Emphasis added.)




                                                   20
                                 January Term, 1995




I do not believe that the Ohio Constitution, governing statutes, or rules of procedure,
nor this court's prior precedent allows this flaw to be dismissed as harmless.
       {¶ 64} The majority opinion asserts that Joseph's death sentence may be
upheld because defense counsel never challenged the sufficiency of the specification
in the indictment, and imputes to the defense knowledge of the elements of the felony-murder death specification. Our established precedent is clear that the "principal
offender" requirement of the felony-murder specification set forth in R.C.
2929.04(A)(7) equates to a finding of "actual killer." State v. Penix (1987), 

, 

; State v. Wiles (1991), 

, 

; State v. Taylor (1993), 

, 

. See,
also, State v. Doty (1916), 

, 113 N.E.811; State v. Rogers (1938), 

, 

 ("Adams was the principal offender as the
evidence discloses that he, Adams, was the one who fired the shot that killed the
Dickey boy."). My review of the record supports the conclusion that inclusion in the
indictment of the phrase "principal offenders in the commission of the kidnapping” of
Ryan Young was more than a mere clerical or typographical error. The error indicates
that this case was tried upon the mistaken theory that a death sentence based upon the
statutory aggravating circumstance of felony-murder (R.C. 2929.04[A][7]) could be
imposed upon Joseph irrespective of whether Joseph actually inflicted knife wounds
on Young.
       {¶ 65} This conclusion is evidenced most strongly by the prosecutor's own
words. During his closing argument made to the jury at the conclusion of the guilt
phase, the prosecutor stated:
       "We have to prove to you beyond a reasonable doubt that this crime, or crimes,
was committed between the 26th day of June of this year and the 4th day of July.
We've got a time frame. Frankly, the State of Ohio can't prove to you exactly when
the death occurred. We can tell you when [the victim] was last seen. We can tell you




                                          21
                               SUPREME COURT OF OHIO




when the car was seen out there. We can tell you where the car was found. The State
of Ohio doesn't know.
        "Another thing the State of Ohio doesn't know and can't tell you, and it doesn't
make any difference as long as you find the two people, Jose Bulerin and Richard E.
Joseph, jointly committed these crimes, or this crime, the law is very clear in Ohio
that if one person is an aider and abettor, no matter what part he has in it, if he plays a
part in the commission of that crime then he's as guilty as the other guy. The State of
Ohio can't tell you. I wish I could. I wish I could tell you exactly what happened. I
don't know who struck the death blow. But, I believe the evidence is very clear that it
was one of the two that's charged here. If you find one of them did it, or the other one
did it, they're both just as guilty as if each of them had their hands around the hilt of
that knife when it was stuck in Ryan Young." (Emphasis added.)
        {¶ 66} Later in closing argument, the prosecutor argued to the jury: "You'll
find that they took Ryan Young to some area. Here again, it doesn't make any
difference who did what; who did the cutting." (Emphasis added.)
        {¶ 67} During his rebuttal argument the prosecutor stated:
        "[Defense counsel] wants you to infer or surmise that this defendant was not
there and it was somebody else. We don't have to show that this defendant was the
one who administered the fatal blows. He was with him. We don't know which one
did it. We don't have to prove that." (Emphasis added.)
        {¶ 68} These comments did not materially misstate the law in regard to
obtaining a guilty verdict as to the aggravated murder charge against Joseph. An
aider and abettor may be found guilty of aggravated murder even though he is not
himself the actual killer. However, "[t]he fact that, pursuant to R.C. 2923.03(F), a
defendant who aids and abets another in committing an offense 'shall be prosecuted
and punished as if he were a principal offender' and so may be convicted of aggravated
murder under R.C. 2903.01(B) does not make the defendant ‘the principal offender’




                                            22
                                      January Term, 1995




for purposes of imposing the death penalty under R.C. 2929.04(A)(7)." State v.
Taylor, syllabus.
         {¶ 69} It seems unlikely that the prosecutor in this case would have admitted
the state's failure to prove the identity of the actual killer had he realized that such an
admission precluded a guilty verdict as to the felony-murder death specification.
Similarly, the fact that trial defense counsel never raised the issue of the indictment's
flaw, and did not address, let alone focus, its defense on the absence of proof of
Joseph's "principal offender" status, leads to the conclusion that the defense accepted
the prosecutor's legal interpretation. In affirming Joseph's death sentence, this court
enters dangerous grounds, by effectively holding that the state may obtain a death
sentence based not upon what was actually charged in the indictment, but upon what
the state meant to charge, or should have charged in the indictment.
         {¶ 70} The framers of the Ohio Constitution clearly were aware of the
importance of grand jury review in criminal matters, and thus included Section 10,
Article I, which provides in part: "[N]o person shall be held to answer for a capital, or
otherwise infamous, crime, unless on presentment or indictment of a grand jury." I
find the majority's willingness to excuse the defect in this indictment to significantly
undercut the protection against unjust prosecution this constitutional provision was
intended to guarantee. In that the prosecutor conceded at trial that it could not prove
who actually killed Young, it seems more than simply academic to question whether
the grand jury would have ever issued an indictment with a felony-murder
specification in the first place had its members been aware that such a specification
required proof that Bulerin, Joseph, or both, were "principal offenders in the
aggravated murder" of White rather than proof that they both were principal offenders
in his kidnapping. This being the case, it is of little significance that the trial court
prepared verdict forms consistent with the statutory specification language.5 Cf. State

5. The verdict form signed and returned by the jury read as follows:
        "SPECIFICATION




                                                 23
                                  SUPREME COURT OF OHIO




v. Headley (1983), 

, 6 OBR 526, 529, 

(in light of Section 10 of Article I of the Ohio Constitution, "where one of the vital
elements identifying the crime is omitted from the indictment, it is defective and
cannot be cured by the court as such a procedure would permit the court to convict the
accused on a charge essentially different from that found by the grand jury”). See,
also, State v. O'Brien (1987), 

, 30 OBR 436, 

; State
v. Dilley (1989), 

, 

.
          {¶ 71} In addition, in my view Ohio's statutes governing capital punishment
preclude imposition of the death penalty in this case. Pursuant to R.C. 2929.03(A),
where an indictment fails to contain one or more specifications of aggravating
circumstances listed in division (A) of section R.C. 2929.04, a sentence of life
imprisonment with parole eligibility after serving twenty years of imprisonment must
be imposed where a defendant is found guilty of aggravated murder. R.C. 2929.04
provides that "[i]mposition of the death penalty for aggravated murder is precluded"
unless one of the specifications set forth in subsections (A)(1) through (7) is specified
in the indictment. R.C. 2941.14(B) precludes imposition of the death penalty for
aggravated murder "unless the indictment … specifies one or more of the
aggravating circumstances listed in division (A)" of R.C. 2929.04. Although R.C.
2941.14(C) provides for specifications to be stated "in the words of the subdivision in
which it appears, or in words sufficient to give the accused notice of the same," I do
not believe that the specification included in the indictment issued against Joseph does
either.
          {¶ 72} Similarly, the majority's reliance on Crim.R. 7(D),6 which authorizes
amendment of indictments in certain circumstances, is misplaced. The fact is that no


         "The offense charge [sic] [was] committed while the offender was committing, attempting to
commit, or fleeing immediately after committing or attempting to commit Kidnapping, and the offender
was the principal offender in the commission of the Aggravated Murder.
         “[dated and signed by 12 jurors]." (Emphasis added.)




                                                24
                                        January Term, 1995




Crim.R. 7(D) motion was ever made in this case. Assuming, arguendo, that the defect
in the amendment was of a nature capable of correction by amendment, had that
deficiency been noticed earlier and the provisions of Crim.R. 7(D) been invoked, the
defendant would have been entitled by the express terms of the rule to ask for
discharge of the sitting jury, and a reasonable continuance. In my view, an appellate
court improperly precludes a defendant from invoking that right where the provisions

6. Crim.R. 7 provides:
          "(A) Use of indictment or information. A felony that may be punished by death or life
imprisonment shall be prosecuted by indictment. All other felonies shall be prosecuted by indictment,
except that after a defendant has been advised by the court of the nature of the charge against the
defendant and of the defendant's right to indictment, the defendant may waive that right in writing and
in open court.
          “…
          “(B) Nature and contents. The indictment shall be signed, in accordance with Crim. R. 6 (C)
and (F) and contain a statement that the defendant has committed a public offense specified in the
indictment. The information shall be signed by the prosecuting attorney or in the name of the
prosecuting attorney by an assistant prosecuting attorney and shall contain a statement that the defendant
has committed a public offense specified in the information. The statement may be made in ordinary
and concise language without technical averments or allegations not essential to be proved. The
statement may be in the words of the applicable section of the statute, provided the words of that statute
charge an offense, or in words sufficient to give the defendant notice of all the elements of the offense
with which the defendant is charged. It may be alleged in a single count that the means by which the
defendant committed the offense are unknown or that the defendant committed it by one or more
specified means. Each count of the indictment or information shall state the numerical designation of
the statute that the defendant is alleged to have violated. Error in the numerical designation or omission
of the numerical designation shall not be ground for dismissal of the indictment or information, or for
reversal of a conviction, if the error or omission did not prejudicially mislead the defendant.
          “…
          “(D) Amendment of indictment, information, or complaint. The court may at any time before,
during, or after a trial amend the indictment, information, complaint, or bill of particulars, in respect to
any defect, imperfection, or omission in form or substance, or of any variance with the evidence,
provided no change is made in the name or identity of the crime charged. If any amendment is made to
the substance of the indictment, information, or complaint, or to cure a variance between the indictment,
information, or complaint and the proof, the defendant is entitled to a discharge of the jury on the
defendant's motion, if a jury has been impanelled, and to a reasonable continuance, unless it clearly
appears from the whole proceedings that the defendant has not been misled or prejudiced by the defect
or variance in respect to which the amendment is made, or that the defendant's rights will be fully
protected by proceeding with the trial, or by a postponement thereof to a later day with the same or
another jury. Where a jury is discharged under this division, jeopardy shall not attach to the offense
charged in the amended indictment, information, or complaint. No action of the court in refusing a
continuance or postponement under this division is reviewable except after motion to grant a new trial
therefor is refused by the trial court, and no appeal based upon such action of the court shall be sustained
nor reversal had unless, from consideration of the whole proceedings, the reviewing court finds that a
failure of justice resulted." (Emphasis added.)




                                                    25
                               SUPREME COURT OF OHIO




of Crim.R. 7 are first asserted upon appeal. Nor is it our role, as a reviewing court, to
determine in the first instance that it "clearly appears from the whole proceedings that
the defendant [was not] misled or prejudiced by the defect or variance in respect to
which the amendment [was] made," or that the defendant's rights were otherwise fully
protected.
        {¶ 73} The simple facts remain that the grand jury in this case issued an
indictment which did not make factual allegations falling within the scope of a
statutorily defined aggravating circumstance, nor did it reference R.C. 2929.04(A)(7)
by statutory number. This deficiency was never corrected by amendment pursuant to
Crim.R. 7 or otherwise. I believe that these factual circumstances, combined with a
record which shows the case to have been tried pursuant to a misunderstanding of the
law's requirements, constituted plain error, which, had it not occurred, might well have
resulted in a different verdict as to the death specification. I therefore believe that this
error precludes imposition of a death sentence upon Joseph.




                                            26
                                  January Term, 1995




          Insufficiency of the Evidence Related to the Death Penalty
        {¶ 74} I agree with the majority to the extent that significant circumstantial
evidence was produced by the state to support a finding that Joseph was involved in
the murder of Young and that he was either himself the killer or was an aider and
abettor in the murder, and that either finding would support a conviction of aggravated
felony-murder. R. C. 2903.01(B); 

 However, this record contains no
evidence, either direct or circumstantial, as to who held the knife (or knives) that were
thrust into Young causing his death. The state simply did not prove Joseph guilty of
a felony-murder death specification beyond a reasonable doubt. It instead conceded
that it knew virtually nothing as to the precise circumstances by which Young was
murdered, including the facts as to who was his actual killer (or killers).
        {¶ 75} This court has decided past cases in which more than one individual
have been deemed to be a "principal offender" in one murder. In those cases, however,
there has been evidence supporting a finding that the physical acts of more than one
defendant together contributed to cause death. In other cases the evidence supports
the conclusion that only one actor was involved in an aggravated murder. See, e.g.,
State v. Murphy (1992), 

, 

. In those cases,
the actor has been recognized to be death-eligible as the "principal offender" because,
in the absence of an aider or abettor, a finding of guilt of aggravated murder
necessarily requires a finding that the guilty party was also the "principal offender."
        {¶ 76} The evidence produced by the state at this trial is unlike the evidence
in these categories of cases. In this case only two people (Joseph and his co-indictee
Jose Bulerin) know which of them "actually killed" Young, or whether they both did.
Neither of them testified in this trial, nor did the state produce confessions to disclose
those facts. The state never found the murder weapon; hence, the weapon could not
be traced to one or both of the defendants through fingerprints or other circumstantial
evidence. We do not know exactly where Young was killed (no evidence was
presented of blood in either Young's car or the Forest car) or any other circumstances




                                           27
                               SUPREME COURT OF OHIO




surrounding his stabbing. Perhaps most significantly, the state conceded in its
arguments to the jury that it did not know who stabbed Young ("I don't know who
struck the death blow. … [I]t was one of the two that's charged here.” “[I]t doesn't
make any difference who did what; who did the cutting.")
        {¶ 77} In short, the record is sufficient to support speculation as to who
actually killed Young. Clearly this defendant had a motive. However, proof of a
motive is not proof of guilty conduct. On the other hand, testimony was presented
that the co-defendant Bulerin (age late thirties) was highly involved with martial arts,
and protective of “his kid” (Joseph). Forest confirmed that Bulerin had indicated that
he would “either snap your neck or put a bullet through your head and throw you out
alongside the road” if you ever “screwed with or messed with” him or Joseph.
Joseph’s mother testified that, on one occasion when her son was ill, Bulerin told her
not to “waste [her] time” in attempting to take Joseph home with her because she
“wasn’t going to get [her] son.” She testified that Bulerin had threatened to break into
her home and take something, or kill her dogs. At Joseph’s mitigation hearing,
Bulerin’s ex-wife testified that, while she could not believe Joseph actually killed
Young, she could believe that behavior of Bulerin.
        {¶ 78} Unfortunately, however, the evidence produced by the state does not
confirm either speculation. We simply do not know, on the basis of this record, who
killed Young. Having complied with our statutory responsibility pursuant to R.C.
2929.05 to make an independent review of the record to "determine if the evidence
supports the finding of the aggravating circumstances the trial jury … found the
offender guilty of committing," I do not find that this record supports a finding that
Joseph was proven guilty of being a principal offender, i.e., actual killer, in the felony-murder of Young. I therefore believe it is the duty of this court to disaffirm the
sentence of death imposed upon Richard Joseph.
        DESHLER, J., concurs in the foregoing opinion.
                                 __________________




                                            28
                                January Term, 1995




       COOK, J., concurring in part and dissenting in part.
       {¶ 79} Like Chief Justice Moyer and Judge Deshler, I dissent from the
majority opinion as to the sentence of death. I write separately because, unlike
them, I find the flawed indictment to be harmless error. I do agree, however, with
Chief Justice Moyer’s dissent on the sufficiency-of-the-evidence issue. Given that
the decisional law defines “principal offender” with respect to the penalty phase as
an “actual killer,” and that this jury was misled throughout the proceedings that to
reach a sentence recommendation it need not resolve the issue of whether Joseph
or Bulerin was the actual killer (or that they both were), I cannot concur in the
imposition of the death penalty.
       {¶ 80} Future cases with similar evidence—with two potential killers
present at a murder and no witness as to which one killed the victim or whether it
was a joint effort—ought to merit further instruction beyond what was given here.
The trial court should instruct in such a case that “principal offender,” as used in
the death-penalty specification, means one who actually kills the victim; not one
who just aids and abets in the commission of the aggravated murder.
                               __________________
                                    APPENDIX
       {¶ 81} “Proposition of Law No. I[:] An indictment that fails to set forth an
offense for which the sentence of death may be imposed is invalid as to the capital
offense and the death sentence which resulted is void.
       {¶ 82} “Proposition of Law No. II[:] The proper remedy for the state’s
willful failure to disclose that its chief witness has been granted immunity is a
mistrial or the striking of the witnesses [sic] testimony.
       {¶ 83} “Proposition of Law III[:] When a death sentence is both unreliable
and inappropriate it must be vacated and a life sentence imposed.




                                          29
                               SUPREME COURT OF OHIO




        {¶ 84} “Proposition of Law IV[:] When the death sentence is excessive and
disproportionate to the sentence in similar cases, the death sentence must be vacated
and a life sentence imposed.
        {¶ 85} “Proposition of Law V[:] When every single potential juror in a
capital trial has been exposed to pre-trial publicity and victim impact evidence, it is
an abuse of discretion for the trial court to deny the defendant’s motion for change
of venue.
        {¶ 86} “Proposition of Law VI[:] A trial court denies a capital defendant
the right to a fair trial and to due process of law [when] it erroneously instructs the
jury during the guilt-innocence phase of a capital case.
        {¶ 87} “Proposition of Law VII[:] Erroneous instructions at the penalty
phase of a capital case result in an unreliable determination of the proper penalty in
a capital trial.
        {¶ 88} “Proposition of Law VIII[:] When a trial court fails to consider
mitigating evidence presented during the penalty phase of a capital case and
considers erroneous aggravating circumstances in making its determination to
impose the death sentence the death sentence must be vacated.
        {¶ 89} “Proposition of Law IX[:]          When a prosecutor’s pattern of
misconduct throughout both phases of a capital trial and closing argument deprive
a capital defendant of a fair trial the appropriate remedy is a new trial.
        {¶ 90} “Proposition of Law X[:] A reviewing court may not apply a new
rule of law in an ex post fact [sic] manner when the new rule reduces the state’s
burden of supporting a capital conviction.
        {¶ 91} “Proposition of Law XI[:] A conviction for aggravated murder may
not be sustained when the evidence presented does not meet the legal requirements
to prove the elements of the crime.
        {¶ 92} “Proposition of Law XII[:] When the trial court allows a capital jury
to hear prejudicial irrelevant evidence, a mistrial should be declared.




                                          30
                                 January Term, 1995




        {¶ 93} “Proposition of Law XIII[:] The failure to object to numerous errors
at trial, to adequately address substantial capital issues, and to prepare a meaningful
penalty phase case deprives a capital defendant of the effective assistance of
counsel in violation of the Sixth and Fourteenth Amendments to the United States
Constitution, Article I, Sections 10 and 16 of the Ohio Constitution.
        {¶ 94} “Proposition of Law XIV[:] When the trial court refuses to instruct
a jury to select one of the available life sentences after the jury informs the court
that it is deadlocked on the death penalty, a capital defendant is denied the right to
a fair trial and a reliable sentencing determination in violation of the Sixth, Eighth
and Fourteenth Amendments to the United States Constitution and Sections 5, 6
and 16, Article I of the Ohio Constitution.
        {¶ 95} “Proposition of Law XV[:] When a trial court in a capital trial
erroneously denies a challenge for cause against a juror who is biased, reversible
error occurs when the defendant is forced to use a peremptory challenge to remove
the juror.
        {¶ 96} “Proposition of Law XVI[:] Exhibits that have been admitted into
evidence in the guilt-innocence phase of a capital case can only be readmitted in
the penalty phase if they are relevant to the aggravating circumstances proved in
the guilt-innocence phase or to mitigating factors presented in the penalty phase.
        {¶ 97} “Proposition of Law XVII[:] A criminal defendant has a right to be
present at all proceedings, including in-chambers conferences, unless he voluntarily
absents himself from the proceeding.
        {¶ 98} “Proposition of Law XVIII[:]         When a trial court permits the
admission of expert opinion testimony that is not properly qualified or based on
reasonable scientific certainty, a capital defendant is denied his right to a fair trial
and to due process of law in violation of the Fifth and Fourteenth Amendments to
the United States Constitution. and Section 16, Article I of the Ohio Constitution.




                                          31
                              SUPREME COURT OF OHIO




        {¶ 99} “Proposition of Law XIX[:] When a trial court admits into evidence
statements by a defendant which were not knowingly, voluntarily and intelligently
given, the defendant is denied his rights to a fair trial and against self-incrimination
in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States
Constitution and Article I, Sections 2, 9, 10 and 16 of the Ohio Constitution.
        {¶ 100} “Proposition of Law XX[:]          When gruesome and prejudicial
photographs are admitted into evidence even though their prejudicial effect
outweighs their probative value, a capital defendant is denied his rights to a fair
trial, due process of law and a reliable sentencing determination as guaranteed by
the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States
Constitution, Article I, Sections 10 and 16 of the Ohio Constitution.
        {¶ 101} Proposition of Law XXI[:] A trial court should refuse to allow the
introduction or admission of evidence unless the state can clearly show that the
evidence it seeks to introduce is related to the defendant or the crime with which he
is charged.
        {¶ 102} “Proposition of Law XXII[:] A witness may testify as an expert if
the witnesses [sic] testimony is based on reliable scientific, technical, or other
specialized information to the extent that the testimony reports the result of a
procedure, test, or experiment and the testimony is reliable.
        {¶ 103} “Proposition of Law XXIII[:] Evidence is not admissible against a
defendant unless the state first establishes that a foundation exists to tie the evidence
to the defendant.
        {¶ 104} “Proposition of Law XXIV[:] Absent any indication that a witness
is hostile, an adverse witness or a witness identified with an adverse party,
questioning by use of leading questions on direct examination is prohibited.
        {¶ 105} “Proposition of Law XXV[:] Hearsay evidence which lacks any
indication of trustworthiness is inadmissible.




                                           32
                                 January Term, 1995




        {¶ 106} “Proposition of Law XXVI[:] A capital defendant is denied a fair
trial when the trial court refuses to permit the voir dire to be video taped.
        {¶ 107} “Proposition of Law XXVII[:] When a trial court unduly restricts
voir dire related to mitigation and sentencing issues, a capital defendant is denied a
fair trial and reliable sentencing determination.
        {¶ 108} “Proposition of Law XXVIII[:] The statements from the prosecutor
that the jury’s verdict at the penalty phase was only a recommendation violated the
Eighth and Fourteenth Amendments to the United States Constitution as well as
Article I, Sections 2, 9, 10 and 16 of the Ohio Constitution.
        {¶ 109} “Proposition of Law XXIX[:] A trial court deprives a capital
defendant the right to a fair and impartial jury when it asks questions during an
individual sequestered voir dire which tend to ‘death qualify’ the jury.
        {¶ 110} “Proposition of Law XXX[:] The trial court erred to the prejudice
of appellant Joseph in allowing the prosecutor to perempt jurors with reservations
about the death penalty.
        {¶ 111} “Proposition of Law XXXI[:] A capital defendant is denied the
right to a fair trial and to due process of law when the trial court refuses to allow
alternating voir dire.
        {¶ 112} “Proposition of Law XXXII[:] After a witness testifies, the trial
court should conduct an in camera inspection of the witness’s written statement
with the defense counsel and the prosecuting attorney present and participating to
determine any inconsistencies between the witness’s testimony and any prior
statement. (Ohio R.Crim.P. 16(B)(1)(g) applied.)
        {¶ 113} “Proposition of Law XXXIII[:] When a trial court, on its own,
orders the Grand Jury transcripts to be transcribed and then treats the transcripts as
if they were witness statements pursuant to Ohio R.Crim.P. 16(B)(1)(g), the Grand
Jury transcripts should be turned over to defense counsel for inspection.




                                          33
                              SUPREME COURT OF OHIO




        {¶ 114} “Proposition of Law XXXIV[:] On direct appeal as of right to the
court of appeals in a capital case, a capital appellant is entitled to the review of his
entire record by the court of appeals.
        {¶ 115} “Proposition of Law XXXV[:] The state has an obligation to
preserve evidence used to secure a conviction in a capital case.
        {¶ 116} “Proposition of Law XXXVI[:]           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.”




                                          34