State v. Eley

[This opinion has been published in Ohio Official Reports at 

.]




              THE STATE OF OHIO, APPELLEE, v. ELEY, APPELLANT.
                        [Cite as State v. Eley, 

.]
Criminal law—Aggravated murder—Death penalty upheld, when.
   (No. 96-285—Submitted October 16, 1996—Decided December 18, 1996.)
   APPEAL from the Court of Appeals for Mahoning County, No. 87 C.A. 122.
                                  __________________
        {¶ 1} On August 26, 1986, defendant-appellant, John Jeffrey Eley, shot and
killed Ihsan “Easy” Aydah during a robbery of the Sinjil Market in Youngstown,
Ohio. Eley confessed to the killing, and was subsequently convicted of aggravated
murder and aggravated robbery, and sentenced to death.
        {¶ 2} During the early afternoon of August 26, 1986, Eley was visiting
Melvin Green at the home of Green’s girlfriend in Youngstown. According to Eley,
he and Green were just sitting around when Green suggested that they go down to
the “Arab store.” Eley and Green left the house and proceeded down a path through
the woods leading to the Sinjil Market. Along the way, Green showed Eley a
“Black Snub nose gun,” and told Eley he “was going to take the Arab off.” Since
the proprietor of the store, Ihsan Aydah, knew Green’s face, Eley agreed to go in
alone and rob the store while Green waited outside.
        {¶ 3} Eley entered the store and told Aydah to put his hands up and to turn
and face the wall. Green had told Eley that Aydah had a gun under the store
counter, so when Aydah lowered his hands and went under the counter, Eley fired
a shot. Eley claimed that he aimed at Aydah’s shoulder. However, the shot hit
Aydah on the right side of his head, approximately four inches above the earlobe.
Aydah died the next day of shock and hemorrhage due to a gunshot wound to the
head.
                             SUPREME COURT OF OHIO




       {¶ 4} Just before Eley fired the gun, Green entered the store. After the shot,
Green ran behind the counter and got into the cash register. He took Aydah’s wallet
while Aydah lay wounded on the floor. As the two left the store, Green gave Eley
a brown paper bag with the money and wallet. According to Eley, they went up the
street, “got to the path and ran up the woods.”
       {¶ 5} Around 2:00 to 2:30 p.m. that day, Cheryl E. Cooper left home for the
Sinjil Market with her three children. Cooper saw Melvin Green and another man
enter the path to the store “walking fast in front of us.” Cooper saw the pair turning
the corner heading to the store, and noticed that neither man was carrying anything
at that time. Shortly thereafter, Cooper saw Melvin Green and the other man, who
was carrying a brown paper bag, come around the corner, passing them halfway on
Davis Lane. When Cooper arrived at the Sinjil Market, she saw magazines and
cigarettes strewn all over the floor. She looked over the counter and saw Aydah
lying on the floor.
       {¶ 6} Christopher Cretella lived half a block from the Sinjil Market, and
around 2:30 p.m. that day was outside washing a car in his driveway. He saw
Melvin Green and “another fellow” walking away from the store, and then running
toward the path, right into the woods. Cretella noticed the pair holding a bag and
passing something back and forth. Two weeks before the murder, Cretella had seen
Green and Aydah “[having] some words,” and “Easy told him to get out and not to
come back.”
       {¶ 7} Several days after the murder, Eley was arrested by Youngstown
police at the residence of his cousin’s girlfriend, Carlotta Skinner. After his arrest,
Eley told police that he and Green had split the money taken in the robbery, which
was around $700. However, Eley later gave the money back to Green “because he
said it was all on him and he had to get out.”
       {¶ 8} After apprehending Eley, Lt. Robert Kane, Detective Joseph Fajack,
and Detective James Pasquale of the Youngstown Police Department brought Eley




                                          2
                               January Term, 1996




into the roll call room at police headquarters. There, Eley was given his Miranda
rights, and signed two forms. In the first form, Eley waived his Miranda rights; in
the second, Eley indicated that he could read and write English and reiterated the
waiver of Miranda rights and his desire to make a voluntary statement.
       {¶ 9} Eley told the detectives that he wanted to talk about his involvement
in the Aydah murder. Although there were tape-recording and video-equipment
devices available nearby, Fajack stated that he and the officers present “did not
have access” to them. Therefore, Fajack conducted his interview with Eley by
writing down each of the questions asked. Below each question, Fajack transcribed
Eley’s response verbatim.
       {¶ 10} In his voluntary statement Eley admitted that he and Green had
robbed the Sinjil Market, and that he shot Aydah. Fajack testified that Eley did not
appear to be under the influence of alcohol or drugs during the interview and was
“very calm” and “passive.”
       {¶ 11} The grand jury indicted Eley on one count of aggravated murder with
a specification that the murder was committed during, or immediately after, the
commission of an aggravated robbery (R.C. 2929.04[A][7]), and that Eley was the
principal offender. This count also carried a firearm specification. In addition,
Eley was indicted on one count of aggravated robbery (R.C. 2911.01[A][1] and [2])
and one count of conspiracy (R.C. 2923.01[A]). Each count carried a firearm
specification.
       {¶ 12} In May 1987, Eley waived his right to a jury trial and opted for a trial
before a three-judge panel. Eley pled not guilty to the charges against him, thereby
withdrawing a prior plea of not guilty by reason of insanity. In May 1987, the trial
court rejected Eley’s motion to suppress his confession and found that Eley had
made a knowing, intelligent ,and voluntary waiver of his rights at the time of the
confession.




                                             3
                             SUPREME COURT OF OHIO




       {¶ 13} Trial was held before a three-judge panel on May 11-12, 1987, but
the defense chose not to present any evidence. The panel found Eley guilty of
aggravated murder, aggravated robbery, the felony-murder capital specification,
and two of the three firearm specifications, but not guilty of conspiracy.
       {¶ 14} During the mitigation hearing, several family members testified on
Eley’s behalf. Eley’s mother, Cecilia Joseph, divorced Eley’s father when Eley
was seven or eight years old, and stated that Eley had “not much” of a relationship
with his father. Joseph testified that on Christmas night 1964, her second husband
had been drinking and began choking her and her daughter. At that time, Eley
stabbed the second husband with a knife in order to stop him. Joseph testified that
Eley dropped out of high school in the ninth grade, but later entered the Job Corps
and learned to be a welder. Eley sent money home to his mother during this time,
and gave her money to help her finish paying for nursing school. Joseph stated that
while Eley has had problems with drugs and alcohol, he is a better person when he
is not under the influence. She characterized Eley as “church oriented,” and
believed he had been “born again.”
       {¶ 15} Eley’s sister, Susan Laury, testified that Eley had helped the family
financially while he was in the Job Corps, and that Eley is normally a “quiet, sweet,
gentle person that wouldn’t hurt anybody.”
       {¶ 16} Dr. Douglas Darnall, a clinical psychologist, found Eley to be of
borderline intelligence, and ranked him in the twelfth percentile on the Wechsler
Adult Intelligence Test. According to Darnall, Eley has a history of chronic alcohol
and polysubstance abuse, but exhibited “no evidence of psychosis or major
defective disorder.”   In addition, Darnall testified that Eley understands the
difference between right and wrong. Darnall found Eley to be remorseful, but Eley
never mentioned that he felt remorse for the victim. However, two police officers
who witnessed Eley’s confession testified that Eley was remorseful before he made




                                         4
                                January Term, 1996




that statement. Eley made a short unsworn statement at the mitigation phase that
consisted of several biblical quotations from the Book of Romans.
       {¶ 17} After deliberation, the panel unanimously found that the aggravating
circumstance outweighed the mitigating factors beyond a reasonable doubt, and
sentenced Eley to death. Upon appeal, the court of appeals affirmed the convictions
and sentence of death.
       {¶ 18} The cause is now before this court upon an appeal as of right.
                              __________________
       James A. Philomena, Mahoning County Prosecuting Attorney, and Michele
G. Cerni, Assistant Prosecuting Attorney, for appellee.
       David H. Bodiker, Ohio Public Defender, Linda E. Prucha and Cynthia A.
Yost, Assistant Public Defenders, for appellant.
                              __________________
       ALICE ROBIE RESNICK, J.
       {¶ 19} In this appeal, Eley has raised eighteen propositions of law. Finding
none meritorious, we affirm his convictions. In addition, we have independently
reviewed the record, weighed the aggravating circumstance against the mitigating
factors, and compared the proportionality of the death sentence in this case to the
penalty imposed in similar cases. Upon a complete review of the record, we affirm
Eley’s convictions and sentences.
                                          I
                                Suppression Issues
       {¶ 20} In Proposition of Law III, Eley contends that his confession to police
was the product of his drug and alcohol intoxication, as well as psychological
coercion and the manipulative actions of Youngstown police officers. Eley asserts
that because of his intoxication at the time of his arrest, he lacked the capacity to
comprehend the nature of his right against self-incrimination and the consequences




                                              5
                              SUPREME COURT OF OHIO




of waiving it. In addition, Eley argues that he lacked the intelligence to voluntarily
waive his constitutional rights.
        {¶ 21} During the suppression hearing, both Eley and Carlotta Skinner, with
whom he was staying at the time of his arrest, testified that Eley had consumed
large quantities of Valium, sleeping pills and alcohol during the two-day period
leading up to his arrest. As a result, Eley claims to remember very little about the
events subsequent to his arrest when he confessed to the crimes.
        {¶ 22} Defense witness Dr. Russell Morrison, a physician, testified that
combining alcohol with the drugs Eley allegedly ingested would prolong the effect
and deepen one’s state of sedation. However, Morrison also stated that ingesting
the quantity of alcohol and drugs allegedly consumed by Eley could put a person
near death.
        {¶ 23} The testimony of the three officers who interrogated Eley weakens
defense arguments under this proposition. Detective Fajack stated that he did not
notice anything that would indicate that Eley was under the influence of any
medication, drugs, or stimulants. Detective Robert Kane testified that Eley told
Fajack at the time of the confession that he (Eley) wanted to tell his side of the story
of what happened at the Sinjil Market. Detective Pasquale felt that Eley understood
the questions posed to him by Fajack.
        {¶ 24} Whether a statement was made voluntarily and whether an accused
voluntarily, knowingly, and intelligently waived his right to counsel and right
against self-incrimination are distinct issues. However, both are measured by the
“totality of circumstances” standard. State v. Clark (1988), 

,

. Evidence of police coercion or overreaching is necessary for
a finding of involuntariness, and not simply evidence of a low mental aptitude of
the interrogee. State v. Hill (1992), 

, 

,
citing Colorado v. Connelly (1986), 

, 

, 

.




                                           6
                                January Term, 1996




       {¶ 25} Here, there is no evidence that the police subjected Eley to threats or
physical abuse, or deprived him of food, sleep, or medical treatment. See State v.
Cooey (1989), 

, 

. The transcript from the
suppression hearing reveals no hint or allegation of coercive activity by the police,
either in the testimony elicited from the officers or in Eley’s testimony. Also, the
time between Eley’s arrest and confession was not lengthy, as the two events took
place less than two hours apart. According to Detective Pasquale, the whole
interrogation process with Eley encompassed “roughly an hour.” See State v. Smith
(1991), 

, 

.
       {¶ 26} Eley testified at the suppression hearing that he understood his
constitutional rights prior to giving his confession to the police.        Moreover,
evidence of a written waiver form signed by the accused is strong proof that the
waiver is valid. 

, 

, citing N.
Carolina v. Butler (1979), 

, 

, 

.
       {¶ 27} Under the totality of the circumstances, we conclude that Eley made
a knowing, voluntary, and intelligent waiver of his constitutional rights, and that
his confession to police was voluntarily made. Eley’s claims of heavy drug and
alcohol intoxication are inconsistent with the testimony given by the police officers,
nor do they appear to be credible in view of Dr. Morrison’s testimony at the
suppression hearing. See State v. Fanning (1982), 

, 1 OBR 57,
58, 

 (weight of the evidence and credibility of witnesses are
primarily for trier of fact). Accordingly, we overrule Proposition of Law III.
       {¶ 28} In Proposition of Law IV, Eley claims that the trial court violated
Crim.R. 12(E) by failing to state essential findings of fact on the record when it
ruled on his motion to suppress the confession. However, Crim.R. 12(E) does not
control because Eley did not request factual findings. “[I]n order to invoke the rule,
the defendant must request that the court state its essential findings of fact in




                                              7
                             SUPREME COURT OF OHIO




support of its denial of a motion. See Bryan v. Knapp (1986), 

, 21
OBR 363, 

. ” State v. Benner (1988), 

, 

; State v. Richey (1992), 

, 

; State v. Brown (1992), 

, 

. Eley’s
failure to invoke the rule waived any error. State v. Williams (1977), 

, 

, 

. Thus, we reject Eley’s fourth proposition of
law.
                                          II
                                  Evidentiary Issues
       {¶ 29} In Proposition of Law II, Eley argues that the evidence proffered by
the state was insufficient to prove every essential element of the capital crime with
which he was charged. Eley further contends that his conviction was against the
manifest weight of the evidence.
       {¶ 30} When reviewing a claim of insufficient evidence, the relevant
inquiry is whether any rational factfinder, viewing the evidence in a light most
favorable to the state, could have found the essential elements of the crime proven
beyond a reasonable doubt. Jackson v. Virginia (1979), 

, 

, 

; State v. Jenks (1991), 

, 

, paragraph two of the syllabus. The verdict will not be disturbed unless
the appellate court finds that reasonable minds could not reach the conclusion
reached by the trier of fact. 

, 574 N.E.2d at 503.
       {¶ 31} Eley points out that neither of the two witnesses who saw Melvin
Green and another man at the scene could identify him as the other person.
However, Eley put himself at the crime scene with Green when, in front of three
police detectives, he confessed to the killing. The testimony of Cooper and
Cretella, who were in the vicinity of the Sinjil Market at the time of the murder,
corroborated Eley’s confession.




                                          8
                                January Term, 1996




       {¶ 32} Eley also asserts that he did not possess the culpable mental state
required for conviction under R.C. 2903.01(B) and (D), and that specific intent is
lacking, since his statement to police indicated that he tried to shoot Aydah in the
shoulder. Therefore, Eley submits that his specific intent was only to wound the
victim, who was reaching for a gun.
       {¶ 33} However, intentional use of an inherently dangerous weapon during
the commission of a felony, resulting in death, is sufficient to establish the element
of purposefulness. State v. Esparza (1988), 

, 

. Intent need not be proven by direct testimony. State v. Lott (1990), 

, 

. Instead, an intent to kill “may be deduced
from all the surrounding circumstances, including the instrument used to produce
death, its tendency to destroy life if designed for that purpose, and the manner of
inflicting a fatal wound.” State v. Robinson (1954), 

, 

,

, paragraph five of the syllabus. Here, Eley entered the market with
a loaded gun and fired it at Aydah when it appeared that Aydah was reaching for a
gun that Green had told him was kept under the counter. Eley’s self-serving
statement that he was trying to shoot Aydah in the shoulder supports Eley’s
preferred interpretation as to his intent. However, the evidence and surrounding
circumstances strongly support the panel’s conclusion that Eley intended to kill
Aydah, since the shot allegedly intended for his shoulder struck him in the upper
part of his head. Under the evidentiary test outlined in 

 there was
sufficient evidence to convict Eley of aggravated murder.
       {¶ 34} Eley’s manifest-weight argument must also fail, since this court
lacks the constitutional power to consider and pass upon the weight of the evidence.

, 544 N.E. at 906. This court will not sit as a
“‘thirteenth juror,’” even in capital cases. State v. Tyler (1990), 

, 

, quoting Tibbs v. Florida (1982), 

, 

, 

.




                                              9
                             SUPREME COURT OF OHIO




       {¶ 35} In State v. Post (1987), 

, 

, this court reaffirmed that it will indulge “in the usual presumption that in a
bench trial in a criminal case the court considered only the relevant, material, and
competent evidence in arriving at its judgment unless it affirmatively appears to the
contrary.” 

 citing State v. White (1968), 

, 

, 

.       In Proposition of Law VII, Eley asserts that this
presumption allows the state to present inflammatory and prejudicial evidence
without cost, and thereby denies him due process and equal protection.
       {¶ 36} However, we believe that this presumption appropriately credits the
judiciary with knowledge of the law and the ability to correctly apply it. Moreover,
a capital defendant has a full and fair opportunity to point out any errors occurring
during a trial before a three-judge panel, and to subsequently on appeal demonstrate
how such errors were relied upon by the court in arriving at its judgment. Eley’s
arguments in this vein are unpersuasive. Therefore, we reject Proposition of Law
VII.
       {¶ 37} In Proposition of Law XI, Eley contends that the testimony of the
coroner, Dr. Nathan D. Belinky, did not meet the requirements of Evid.R. 703:
“The facts or data in the particular case upon which an expert bases an opinion or
inference may be those perceived by him or admitted in evidence at the hearing.”
Eley contends that Belinky’s mere observation of the autopsy performed on Aydah
provided insufficient facts upon which he could have based his testimony. Eley
submits that since the coroner’s report was never admitted into evidence, Belinky’s
testimony was improper. Eley further asserts that his right to confront and cross-examine witnesses against him was violated.
       {¶ 38} At trial, Belinky testified as to the autopsy findings and Aydah’s
cause of death. While Belinky did not perform the autopsy on Aydah’s body, he
was present while it was done, and it was done at his direction. However, Belinky
admitted that he did not supervise the autopsy or tell the performing pathologist




                                         10
                                January Term, 1996




what to do. Belinky used the coroner’s report to refresh his memory while he
testified, but the report was not admitted into evidence.
       {¶ 39} In State v. Solomon (1991), 

, 

, we
rejected a similar argument that testimony is rendered inadmissible if an expert
opinion is based in part on reports not admitted into evidence. Therein, we held
that “[w]here an expert bases his opinion, in whole or in major part, on facts or data
perceived by him, the requirement of Evid.R. 703 has been satisfied.” 

 syllabus.
       {¶ 40} In this case, Belinky, as county coroner, was clearly qualified to
testify as an expert when he observed the autopsy performed on the victim. His
testimony was based on his personal observations, which were refreshed by the
autopsy report and hospital records. Belinky’s testimony regarding the entrance
wound on Aydah’s head was plainly based on his personal observations.
       {¶ 41} In addition, Eley’s constitutional arguments are not valid. Defense
counsel cross-examined Belinky at trial concerning his testimony and, thus, there
was no denial of Eley’s right to confront and cross-examine witnesses against him.
Therefore, we overrule Proposition of Law XI.
       {¶ 42} In Proposition of Law XIV, Eley claims that he was denied a fair
trial during both phases when the trial court admitted gruesome, inflammatory and
repetitive photographic evidence.
       {¶ 43} 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 OBR 379, 401, 

. Nonrepetitive photographs in
capital cases, even if gruesome, are admissible if the probative value of each
photograph outweighs the danger of material prejudice to the accused. 

 at
paragraph seven of the syllabus; State v. Morales (1987), 

,

.
       {¶ 44} A review of the two photos assailed by Eley, State Exhibits 2 and 3,
does not support his assertion that they were gruesome or repetitive. The photos at




                                             11
                             SUPREME COURT OF OHIO




issue portray two different views of Aydah’s cranial area, with the wound sutured
closed, and were illustrative of the coroner’s testimony. Both are in black-andwhite. In addition, the photos were probative of purposefulness in the guilt phase,
and were probative in the penalty phase with regard to the aggravating
circumstance. Accordingly, we reject Proposition of Law XIV.
                                         III
                             Miscellaneous Trial Issues
       {¶ 45} In Proposition of Law VI, Eley argues that the trial panel failed to
ensure an intelligent, voluntary, and knowing jury waiver, because it failed to
consider his limited intellectual ability in assessing his knowledge of the relevant
circumstances and likely consequences of his jury trial waiver.
       {¶ 46} In this case, Eley submitted a written jury waiver and opted for a trial
before a three-judge panel. While the court questioned Eley at the time about his
jury waiver, such an interrogation is not required to determine whether an accused
is fully apprised of his or her right to a jury trial. State v. Jells (1990), 

, 

. Eley’s bald assertion that he is so mentally
challenged as to be incapable of giving a valid waiver is not supported in the record.
Moreover, the trial court complied with all the requirements of a jury waiver in this
case. See State v. Pless (1996), 

, 

, paragraph one
of the syllabus. Therefore, Proposition of Law VI is without merit.
       {¶ 47} In Proposition of Law IX, Eley alleges that the three-judge panel
erred by stating that it would consider the lesser included offenses of murder and
involuntary manslaughter only if any of the necessary elements of aggravated
murder had not been proven, a procedure rejected in State v. Thomas (1988), 

, 

, paragraph three of the syllabus. The trial
transcript, however, does not support Eley’s contention.
       {¶ 48} The statement challenged by Eley was actually a question asked by
one of the panel to the prosecutor:




                                         12
                                January Term, 1996




       “JUDGEHOUSER [sic]: May I ask a question?
       “MR. ZENA [defense attorney]: Go ahead.
       “JUDGE HOUSER: Mr. Van Brocklin [prosecutor], is it your posture that
the lessor [sic] included offense of which Mr. Zena says should be considered by
the Court—you know—depending on whether aggravated murder with
specifications—you know—first we should consider that, but also if any of the
necessary elements have not been proven—you know—going to the lessor [sic]
included offenses. Is it your posture, sir, that under no circumstances is murder or
voluntary manslaughter is a lessor [sic] included offense in this case?”
       {¶ 49} Here, the judge was asking the prosecutor whether in his view of the
case lesser included offenses should be considered by the panel. The judge was not
expressing his own opinion or position, as Eley suggests. Shortly after this question
was posed, Judge Jenkins stated that the panel would consider three charges:
aggravated murder, murder, and involuntary manslaughter.            Moreover, it is
presumed that the three-judge panel knew the law. State v. Davis (1992), 

, 

; 

, 

. Therefore, we overrule Proposition of Law IX.
       {¶ 50} In Proposition of Law X, Eley next argues that the trial court should
have conducted a competency hearing, since there was a bona fide doubt as to his
competency. See Pate v. Robinson (1966), 

, 

, 

. Eley submits that the court’s failure to conduct such a hearing precluded the
development of evidence which would have revealed sufficient indicia of
incompetence.
       {¶ 51} The record indicates that on December 29, 1986, Eley’s counsel
requested the appointment of a psychiatric expert and a competency hearing. The
court ordered an examination and on February 4, 1987, set a competency hearing
for February 10, 1987. On February 10, Dr. Douglas Darnall was appointed by the
court to reexamine Eley. The competency hearing, however, was never held. Then,




                                             13
                             SUPREME COURT OF OHIO




on May 11, 1987, Eley withdrew his plea of not guilty by reason of insanity and
chose to proceed solely on a plea of not guilty. At that time, Eley filed a document
acknowledging that he “knowingly and intelligently” withdrew “any challenge to
his competency to proceed with the trial of this action.” Thus, Eley affirmatively
waived his right to a competency hearing that he previously requested pursuant to
R.C. 2945.37.
       {¶ 52} Even if we were to find Eley’s waiver invalid, any error by the trial
court in not conducting a hearing was harmless, since the record fails to reveal
sufficient indicia of incompetency. See State v. Bock (1986), 

,
28 OBR 207, 

, paragraph one of the syllabus.              Other than
mentioning a few aspects of his background that were brought out during the
mitigation phase, Eley fails to cite any portion of the record which reveals any
suggestion of incompetency. Accordingly, we reject Proposition of Law X.
       {¶ 53} In Proposition of Law XII, Eley contends that the three-judge panel
erred by separating prior to deliberations during both phases of the trial. However,
defense counsel expressly declined to object to the separation of judges during
either phase of trial. This waived any objection.
       {¶ 54} Eley further argues that counsel’s failure to object constituted
ineffective assistance of counsel. However, counsel lacked any basis to object in
light of State v. 

 which held that “the rules pertaining to jury
sequestration need not apply to a three-judge panel which is presumed to consider
only relevant, competent and admissible evidence in its deliberations.” 

, 

.
       {¶ 55} Moreover, Eley fails to demonstrate prejudice, “a reasonable
probability that were it not for counsel’s errors, the result of the trial would have
been different.” State v. Bradley (1989), 

, 

,
paragraph three of the syllabus.




                                         14
                                January Term, 1996




       {¶ 56} Eley next argues that the panel erred in failing to ensure his presence
at all proceedings. Specifically, counsel for Eley objected at the beginning of the
capital trial that Eley had not been present for the selection process of the three-judge panel. In a related argument, Eley claims that the panel erred in failing to
grant his motion for individual voir dire of its members.
       {¶ 57} R.C. 2945.06 provides that the three-judge panel is to be composed
of three judges: the judge presiding at the time in the trial of criminal cases and two
judges to be designated by that judge or by the presiding judge or chief justice of
that court. The statute makes no provision for any hearing or voir dire of the judges
to be selected for the panel. Since there is no right to voir dire the members of a
three-judge panel, Eley’s presence during its selection had no “reasonably
substantial” relationship “to the fullness of his opportunity to defend against the
charge.” Snyder v. Massachusetts (1934), 

, 

,

. Therefore, he had no right to be present when the judges were
selected.
       {¶ 58} In Proposition of Law XV, Eley contends that R.C. 2901.05(D),
which defines “reasonable doubt,” encourages the trier of fact to adopt a standard
below that which is required by due process. However, we have consistently
rejected this argument. See, e.g., State v. Frazier (1995), 

,

.
                                          IV
                                  Sentencing Issues
       {¶ 59} In his first proposition of law, Eley contends that the death sentence
is inappropriate based on the mitigating evidence. In Proposition of Law V, Eley
asserts that the three-judge panel failed to consider and give effect to relevant
mitigating evidence.
       {¶ 60} In support of both propositions, Eley submits that the substantial
evidence in mitigation outweighs the single aggravating circumstance he was found




                                               15
                             SUPREME COURT OF OHIO




guilty of committing (i.e., murder during aggravated robbery). Eley claims that the
following evidence submitted by him should have precluded imposition of the death
penalty: that he came from a dysfunctional family; that despite this, he established
positive relationships with other family members; that he has limited intellect and
education; that he suffers from chronic alcoholism and polysubstance abuse and
related blackouts, which caused him to act out impulsively; that he exercises poor
judgment with minimal control of his behavior; that he suffered head injuries as a
teenager; that he has behaved well while incarcerated and has undergone a religious
conversion; and that Melvin Green, the instigator and planner of the crimes, has
gone unpunished.
       {¶ 61} While a defendant has wide latitude in introducing any evidence
alleged to be mitigating, a court is not necessarily required to accept as mitigating
everything offered by the defendant and admitted. Nor is the court automatically
required to give such admissible evidence any weight. State v. Steffen (1987), 

, 31 OBR 273, 

, paragraph two of the syllabus.
While Eley’s family background may have been dysfunctional, the fact that others
with similar backgrounds have grown up as law-abiding citizens tends to diminish
this factor as mitigating. 

, 31 OBR at 288, 

.
       {¶ 62} Likewise, Eley’s assertions about his intellectual ability, alcoholism,
and polysubstance abuse have diminished mitigating value in light of Darnall’s
testimony. Darnall testified that Eley was literate, could function day to day, and
was sane and competent at the time of the murder. Moreover, Darnall opined that
it did not appear that Eley was in any alcohol- or drug-induced blackout when the
murder took place
       {¶ 63} Although Eley’s accomplice, Melvin Green, was acquitted, disparity
of treatment between accomplices does not justify reversal of a death sentence
where the sentence is neither illegal nor an abuse of discretion. State v. Burke




                                         16
                               January Term, 1996




(1995), 

, 

, 249; State v. Green (1993), 

, 

.
       {¶ 64} Other points raised by Eley will be discussed as part of this court’s
independent review. Even if error did occur in the courts below, it can be readily
cured by this court’s independent review and assessment. 

, 

.
       {¶ 65} In Proposition of Law XIII, Eley argues that the trial court erred in
considering information in the presentence investigation (“PSI”) report about
former charges brought against him that were dismissed. However, the inclusion
of this information in the PSI report was not erroneous. 

, 

; State v. Hutton (1990), 

, 

, paragraph one of the syllabus.
       {¶ 66} Eley also claims that the court erroneously considered the
prosecutor’s death penalty recommendation, which was included in the PSI report.
In Cooey, the defendant similarly claimed error where the PSI report included a
police captain’s death penalty recommendation. As in 

 it does not
appear that the trial court placed any reliance on the prosecutor’s recommendation.
Any error is harmless. 

, 

.
       {¶ 67} In Proposition of Law XVI, Eley contends that the proportionality
review process required by R.C. 2929.05 is fatally flawed. We have rejected this
argument many times. See, e.g., 

, 31 OBR at
273, 

, and paragraph one of the syllabus.
       {¶ 68} Eley also argues that his sentence is disproportionate given the fate
of Melvin Green, who was acquitted of an aggravated murder charge for Aydah’s
death in a separate trial. Eley asserts that his death sentence was arbitrary and
inappropriate, since Green planned the crime and was the only person identified
near the crime scene.




                                            17
                             SUPREME COURT OF OHIO




       {¶ 69} Steffen, Burke, and 

 make clear that Green’s acquittal
is irrelevant to proportionality review. Obviously, since Green was acquitted, his
is not a “similar” case under R.C. 2929.05(A).
                                         V
                             Prosecutorial Misconduct
       {¶ 70} Under Proposition of Law VIII, Eley alleges seven areas of
prosecutorial misconduct encompassing both phases of the trial: (1) misstatements
concerning the evidence and permissible inferences; (2) inappropriate expression
of opinion regarding the truth or falsity of testimony and other evidence; (3)
misstatements concerning the amount and quality of mitigating evidence and the
law applicable thereto; (4) inflammatory arguments; (5) injection of extraneous
issues to improperly influence deliberations; (6) presentation of nonstatutory
aggravating circumstances; and (7) cumulative misconduct.
       {¶ 71} The test for prosecutorial misconduct is whether the remarks were
improper, and, if so, whether they prejudicially affected substantial rights of the
accused. State v. Smith (1984), 

, 14 OBR 317, 318, 

. In this case it is presumed that the three-judge panel considered
only relevant, competent, and admissible evidence in its deliberations. 

, 

. In addition, the prosecution is
entitled to a certain degree of latitude in summation. State v. Liberatore (1982), 

, 

, 493, 

.
       {¶ 72} (1)    With respect to alleged misstatements of evidence and
impermissible inferences, no objection was raised by Eley at the time any of the
cited statements were made. Therefore, all but plain error is waived. State v. Slagle
(1992), 

, 

. Except for the second
statement cited by Eley, that Aydah “expired about three or four hours after the
shooting,” all of these statements were reasonable inferences that could be drawn
from the evidence. See State v. Stephens (1970), 

, 

                                January Term, 1996




182, 185, 

. Moreover, both parties are permitted wide latitude
during closing argument. State v. Brown (1988), 

, 

. Eley has not demonstrated that the one misstatement set forth
above clearly altered the outcome of the trial. See State v. Long (1978), 

, 

, 

, paragraph two of the syllabus.
       {¶ 73} (2) With regard to Eley’s allegations of inappropriate expressions
of opinion by the prosecutor, the six statements cited by Eley as inappropriate were
not objected to and, therefore, all but plain error is waived.        

Moreover, none of the alleged expressions of opinion was improper.              The
prosecutor was simply arguing his case. Plain error is absent here.
       {¶ 74} (3) Eley alleges prosecutorial misstatements concerning the amount
and quality of mitigating evidence.      Generally, the prosecution is entitled to
challenge defense mitigation evidence by cross-examination or rebuttal. 

, 

. Moreover, even if these comments
were improper, they did not prejudicially affect the substantial rights of Eley.
Smith, supra, 

, 14 OBR at 318, 

. The panel
is presumed to have considered only relevant, competent and admissible evidence
in its deliberations. 

, 

.
Moreover, any prejudicial impact is minimized by this court’s independent review.
State v. Lundgren (1995), 

, 

.
       {¶ 75} (4) Eley next complains about inflammatory arguments made by the
prosecutor that he contends deprived him of a fair trial. However, Eley’s failure to
object to any of the cited statements waives all but plain error. 

 None
of these statements constituted plain error, since they were clearly not outcomedeterminative. 

       {¶ 76} (5) Eley argues that the prosecutor improperly urged the sentencer
to impose the death penalty based on something other than individualized
determination of the appropriateness of his sentence. However, the panel is




                                             19
                              SUPREME COURT OF OHIO




presumed to know the law and to consider only relevant, competent and admissible
evidence in its deliberations. 

 Any error is harmless at best.
        {¶ 77} (6) Next, Eley contends that the prosecutor argued nonstatutory
aggravating circumstances. Eley relies on State v. Penix (1987), 

, 

, for the proposition that it is error to invoke the words
“prior calculation and design” when referring to an offender who personally killed
the victim. However, a review of the context in which the words “prior calculation
and design” were invoked indicates that such terminology was not being argued as
an additional, uncharged aggravating circumstance.          Thus, Penix is readily
distinguishable.
        {¶ 78} (7) Last, Eley relies on State v. Thompson (1987), 

, 

, in arguing that the accumulation of prosecutorial
misconduct during closing arguments in both phases impaired his right to a fair
trial. However, the record indicates that Eley received a fair trial, that the closing
arguments were generally within the bounds of propriety, and that any error
committed by the prosecutor was clearly nonprejudicial. Therefore, Thompson
does not require reversal. Accordingly, we overrule Eley’s Proposition of Law
VIII.
                                         VI
                                  Constitutionality
        {¶ 79} In Propositions of Law XVII and XVIII, Eley raises several
arguments claiming that Ohio’s death penalty provisions are unconstitutional on
their face and as applied. However, these arguments have previously been rejected
by this court and are summarily rejected here. State v. Poindexter (1988), 

, 

, syllabus.
                                         VII
                   Independent Review and Proportionality Analysis




                                         20
                               January Term, 1996




       {¶ 80} After independent assessment, we find that the evidence supports
beyond a reasonable doubt that Eley murdered Ihsan “Easy” Aydah while
committing or attempting to commit aggravated robbery, and that Eley was the
principal offender in the aggravated murder. R.C. 2929.04(A)(7).
       {¶ 81} We find nothing in the nature and circumstances to be mitigating.
Eley participated in a robbery where, under the circumstances, a murder was likely
to occur. Eley used a gun, and was aware that the proprietor kept a gun under the
store counter. After shooting Aydah and fleeing the scene of the crime, Eley
divided the stolen money with his accomplice, and then hid out until his arrest.
       {¶ 82} Eley’s history, character, and background are entitled to modest
weight in mitigation. Eley was seven or eight years of age when his parents
divorced, and he had a weak relationship with his father. At one time, Eley had a
good relationship with his stepfather, but the stepfather would get “nasty” when he
drank alcohol. On one occasion, he physically abused Eley’s mother and sister.
Eley defended them by stabbing his stepfather.
       {¶ 83} Eley’s mother and sister testified that Eley had expressed frustration
over being placed in slow learner classes, but they encouraged him that he had a
good mind. Nevertheless, Eley quit school in the ninth grade, then entered the Job
Corps at age seventeen and learned how to be a welder. While in the Job Corps,
Eley would send money home to his family and, in one instance, gave his mother
$100 to finish payments for her nursing education.
       {¶ 84} Eley’s mother and sister both conceded that Eley had problems with
alcohol and drugs, but maintained that “you wouldn’t want to meet a better person”
when he wasn’t abusing these substances. Eley’s sister described him as normally
a “quiet, sweet, gentle person that wouldn’t hurt anybody.” Eley’s brother-in-law
stated that Eley was kind and concerned with his children, especially with the one
who has a learning disability. Eley’s mother stated that all his siblings love him,
and that Eley was “church oriented” growing up, and is now “born again.” Eley’s




                                            21
                             SUPREME COURT OF OHIO




unsworn statement, consisting mostly of Bible verses, seems to support this
assertion. However, Eley had served time in prison for shooting a man in the legs,
and for breaking and entering.
         {¶ 85} Dr. Douglas Darnall testified that Eley was of borderline
intelligence, but could comprehend most material he would encounter day-to-day
and is literate. Darnall stated that Eley has a chronic history of both alcohol and
polysubstance abuse, but found “no evidence of psychosis or major defective
disorder.” Eley understands the difference between right and wrong, but has a
history of impulsivity. Darnall found Eley to be remorseful, but not about the
victim of his crime. However, two of the police detectives present when Eley
confessed testified that Eley appeared to be remorseful and sorrowful for murdering
Aydah.
         {¶ 86} We find none of the first six statutory mitigating factors in R.C.
2929.04(B) to be relevant. However, several aspects of factor (7), the catchall
factor, deserve some weight in mitigation. Eley’s longstanding, consistent devotion
and care for his family deserve some weight. See State v. Lawrence (1989), 

, 

. While the testimony was conflicting, Eley
had shown remorse, which is worthy of some weight in mitigation. See State v.
Landrum (1990), 

, 

.
         {¶ 87} Based upon the foregoing, we conclude that        the aggravating
circumstance outweighs the mitigating factors beyond a reasonable doubt. Eley
confessed to the crimes of aggravated murder and aggravated robbery against Ihsan
Aydah, and his actions merit the capital penalty to which he was sentenced.
         {¶ 88} Eley’s death sentence is both appropriate and proportionate when
compared with similar cases of murder combined with aggravated robbery. See

, 

; State v. Tyler (1990), 

, 

; 

, 

; and
State v. Scott (1986), 

, 26 OBR 79, 

.




                                        22
                                  January Term, 1996




          {¶ 89} For all of the foregoing reasons, the judgment of the court of appeals
is affirmed.


                                                               Judgment affirmed.
          MOYER, C.J., DOUGLAS, F.E. SWEENEY, PFEIFER, COOK and STRATTON, JJ.,
concur.
                                 __________________




                                               23