State v. Taylor

[This opinion has been published in Ohio Official Reports at 

.]




             THE STATE OF OHIO, APPELLEE, v. TAYLOR, APPELLANT.
                       [Cite as State v. Taylor, 

.]
Criminal law—Aggravated murder—Death penalty upheld—Evidence sufficient
        for jury to have found prior calculation and design, when.
    (No. 96-119—Submitted September 25, 1996—Decided March 19, 1997.)
       APPEAL from the Court of Appeals for Cuyahoga County, No. 65711.
                                  __________________
        {¶ 1} On November 24, 1992, defendant-appellant, Michael N. Taylor, shot
and killed Marion “Donny” Alexander in a bar. Despite appellant’s self-defense
claims, the jury found prior calculation and design, convicted appellant of
aggravated murder, and recommended the death penalty.
        {¶ 2} Between 10:00 and 11:00 p.m. on November 24, 1992, appellant, his
girlfriend Sandra Paul, and David Roseborough arrived at the Club Seville, a bar in
Garfield Heights.       Shortly thereafter, Marion “Donny” Alexander came in.
Alexander, a regular in the bar, greeted Darlene Youngblood and Debra Lymore,
who both worked at the bar, as well as Denise Shephard, another regular. They all
sat around the main bar, but Alexander later took a seat alone at the nearby piano
bar. Alexander did not talk with Paul, whom he had formerly dated, nor to
appellant, whom he had previously met.
        {¶ 3} According to Shephard, Alexander acted quietly, and did not
complain to or argue with appellant that night. However, appellant, Paul, and
Roseborough described Alexander as loud and boisterous. Appellant and Paul
claimed Alexander stared at them when they were dancing that night soon after they
arrived at the club. According to Roseborough, Alexander flashed a large roll of
bills and said, “If a nig*** ain’t getting it like this, he ain’t suppose[d] to be in
                               SUPREME COURT OF OHIO




here.” Paul recalled Alexander saying, “Any nig*** [who] did not have any
money, wasn’t shit.” Appellant believed Alexander was trying to humiliate him.
        {¶ 4} Later, some twenty to thirty minutes after appellant, Paul, and
Roseborough had arrived, Paul went to the jukebox to play music. Alexander asked
her to play a song for him. Appellant, still seated at the main bar, objected to
Alexander’s request. Youngblood testified that appellant told Alexander, “Put your
own goddamn dollar in the box. My woman is not playing you no music.”
Roseborough recalled appellant said, “Man, I give her the money so she could play
the music that we want to hear. … If you want to hear some music, put your money
in there like I did ….”
        {¶ 5} According to Youngblood, Alexander replied, “It ain’t no problem. I
have got a dollar here. … I just asked her to play ….” According to Lymore,
Alexander replied, “What’s the problem? I have been knowing her. I talk to her
when you are not around.”        Appellant again told Alexander, “Put your own
goddamn dollar in there.” Alexander and appellant glared at each other for a
“couple of seconds,” but did not approach each other. Then Paul walked back to
where appellant was sitting.
        {¶ 6} According to appellant’s friends, Alexander told appellant after the
jukebox incident that “this is his bar, and he do[es] what … he wants to do, [and]
says what … he wants,” and if appellant had “a problem with anything, I’m saying
you can see me today, tomorrow.” Alexander also allegedly cursed appellant as a
“punk, hip mother fucker.” It was asserted by the defense that when Paul was
leaving the bar, Alexander said, “Bitch … [I told] you not to bring this mother
fucker up here to my bar.”
        {¶ 7} When Paul got back to her seat, appellant told her, “Get your goddamn
coat. We’re getting out of here.” Paul asked, “Can I drink my drink first … [and]
hear my music.” Appellant told her he did not “have time for this ‘Kid’s shit,’ Let’s
go.” Within a minute, Paul had put her coat on and left the bar. Roseborough and



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                                January Term, 1997




appellant started to follow her, but Roseborough changed direction and walked over
behind Alexander to the jukebox. Appellant stopped a little past Alexander.
Roseborough said to appellant, “Look out,” and Alexander stood up and raised his
hands. Alexander told appellant, “Don’t start no shit and it won’t be no shit.”
       {¶ 8} Appellant replied, “What did you say, mother fucker,” pulled out a
semiautomatic 9 mm pistol, and shot Alexander several times. After being shot
three times, Alexander fell face down and tried to crawl away. Then appellant
walked closer to Alexander and fired three or four more shots into his back.
       {¶ 9} Appellant testified that Alexander had blocked his way and pulled a
gun on him as appellant walked out of the bar. Appellant claimed he “thought
[Alexander] was going to shoot … [or] kill me.” Roseborough testified that
Alexander was reaching into his coat when appellant shot him.
       {¶ 10} However, of those present, only appellant claimed that he saw
Alexander with a gun. Paul testified that Alexander always carried a gun, but she
did not claim that she saw one that night. Testimony from police officers suggested
that they did not find any gun on the premises.
       {¶ 11} Appellant and Roseborough left after appellant shot Alexander. As
appellant left, he leaned out of Paul’s car window and yelled to Youngblood, “It
was self-defense.” Youngblood called 911, and police and paramedics quickly
arrived.
       {¶ 12} At 11:26 p.m., patrolman Michael Naso received a radio call, and he
arrived at the bar within two minutes. Naso found Alexander on the floor bleeding,
and Shephard was “straddling his back [in] near hysteria.” Naso found seven 9 mm
shell cartridges in the club and a spent bullet inside the men’s room.
       {¶ 13} Although appellant and his friends claimed that Alexander had a wad
of money, “two grand or close,” police found only thirteen dollars on him.
Shephard testified she had given Alexander fifty dollars earlier that day, and that
he usually did not have a lot of money on him.




                                         3
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       {¶ 14} Deputy Coroner Dr. Robert Challener found that Alexander had
been shot seven times, the bullets perforating the body, including once in each
thigh, twice in the abdomen, and twice in the back. Alexander died as a result of
these wounds. At least three bullets entered from the back, and the path of one or
more bullets was consistent with the victim’s lying on the ground with the assailant
standing.
       {¶ 15} Rejecting appellant’s self-defense claim, the jury convicted him of
aggravated murder with a death penalty specification for a prior murder conviction.
R.C. 2929.04(A)(5). The jury also found appellant guilty of a firearms specification
and a prior aggravated-felony specification. After considering mitigation evidence,
the jury recommended the death penalty, and the trial court sentenced appellant to
death. The court of appeals affirmed.
       {¶ 16} The cause is now before this court upon an appeal as of right.
       Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, George J.
Sadd and Winston Grays, Assistant Prosecuting Attorneys, for appellee.
       David L. Doughten and John P. Parker, for appellant.
                              __________________
       ALICE ROBIE RESNICK, J.
       {¶ 17} In his appeal to this court, appellant raises eighteen propositions of
law for our review. We have thoroughly reviewed each, and find that none warrants
a reversal of appellant’s conviction or of his death sentence. In addition, we have
conducted an independent review of the record, have weighed the aggravating
circumstance against the mitigating factors, and have examined the proportionality
of the death sentence to the penalty imposed in similar cases. For the reasons which
follow, we affirm appellant’s conviction and sentence of death.




                                         4
                                January Term, 1997




                                          I
                              Sufficiency of Evidence
       {¶ 18} In proposition of law I, appellant argues that “prior calculation” and
“design” are separate elements of “aggravated murder” as defined in R.C.
2903.01(A). Appellant claims the evidence is insufficient to prove those separate
elements; hence, he contends he is not guilty of aggravated murder.
       {¶ 19} However, appellant cites no case holding that “prior calculation and
design” are two separate elements, and we reject such a view. Rather, the phrase
“prior calculation and design” is a single indivisible term, describing the mens rea
element of proof necessary to find a violation of R.C. 2903.01(A). Having rejected
that claim, we now consider whether the trial evidence was sufficient to prove that
appellant murdered Alexander “with prior calculation and design.”
       {¶ 20} In reviewing a record for sufficiency, “[t]he relevant inquiry is
whether, after reviewing the evidence in a 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 (in part), following Jackson v. Virginia (1979),

, 

, 

.
              A. The Meaning of “Prior Calculation and Design”
       {¶ 21} Under former R.C. 2901.01, “murder in the first degree,” aside from
murder by poison or felony-murder, required proof of “deliberate and premeditated
malice.” See State v. Stewart (1964), 

, 

, 

. Effective January 1, 1974, the General Assembly reclassified first-degree
murder as “aggravated murder” and substituted a requirement of “prior calculation
and design” to replace the more traditional “deliberate and premeditated malice.”
(134 Ohio Laws, Part II, 1866, 1900, Am.Sub.H.B. No. 511.) See State v. Jenkins
(1976), 

, 

, 

. R.C. 2903.01(A),




                                          5
                             SUPREME COURT OF OHIO




amended in 1981, retained the term “prior calculation and design” as a necessary
element of aggravated murder. (139 Ohio Laws, Part I, 1, 3.)
       {¶ 22} According to the 1973 Technical Committee Comment to
Am.Sub.H.B. No. 511, a Legislative Service Commission summary, R.C. 2903.01
“restates the former crime of premeditated murder so as to embody the classic
concept of the planned, cold-blooded killing while discarding the notion that only
an instant’s prior deliberation is necessary. By judicial interpretation of the former
Ohio law, murder could be premeditated even though the fatal plan was conceived
and executed on the spur of the moment.” See, e.g., State v. Stewart; State v.
Schaffer (1960), 

, 

, 

.
       {¶ 23} According to the committee comment, “the phrase ‘prior
calculation and design’ [was employed] to indicate studied care in planning or
analyzing the means of the crime as well as a scheme encompassing the death of
the victim. Neither the degree of care nor the length of time … are critical factors
in themselves, but they must amount to more than momentary deliberation.”
       {¶ 24} In State v. Cotton (1978), 

, 

, 

, at paragraph one of the syllabus, we agreed that “‘prior calculation and design’
is a more stringent element than the ‘deliberate and premeditated malice’ which
was required under prior law.” The General Assembly’s apparent intention “was
to require more than the few moments of deliberation permitted in common law
interpretations of the former murder statute, and to require a scheme designed to
implement the calculated decision to kill.” 

, 

, 

. Also, in Cotton, at paragraph two of the syllabus, we held
that “[i]nstantaneous deliberation is not sufficient to constitute ‘prior calculation
and design.’” However, under the particular facts of Cotton, we found prior
calculation and design when, after a botched forgery attempt, the accused wrestled
a gun from a police officer, fired shots at pursuing police, and then returned to the
scene to kill an officer he had wounded as the officer was attempting to crawl away.



                                          6
                               January Term, 1997




       {¶ 25} In State v. Jenkins, 

, 

, 

, the court of appeals found three factors important in determining
whether prior calculation and design exists: (1) Did the accused and victim know
each other, and if so, was that relationship strained? (2) Did the accused give
thought or preparation to choosing the murder weapon or murder site? and (3) Was
the act drawn out or “an almost instantaneous eruption of events”? The court in
Jenkins found no prior calculation in the following “almost spontaneous” eruption
of events: A motorist told the accused, standing in the road, to get out of his way,
and the accused went to his own car, retrieved a shotgun, and killed the motorist.
       {¶ 26} This court has upheld findings of prior calculation and design in
some short-lived emotional situations other than the Technical Committee’s
“classic” concept of the “planned, cold-blooded killing.” Committee Comment to
Am.Sub.H.B. No. 511, R.C. 2903.01. See, e.g., State v. Claytor (1991), 

, 

 (encounter with unarmed Veterans Administration
guards and pursuit of wounded guard); State v. Robbins (1979), 

,

, 

 (after argument and assault, defendant retrieved
weapon and stabbed neighbor); State v. Toth (1977), 

, 

, 

 (accused and victim encountered each other in several bars in
one evening).
       {¶ 27} At other times, Ohio courts (including this court) have declined to
uphold findings of “prior calculation and design” in explosive, short-duration
situations. See, e.g., State v. Reed (1981), 

, 

, 

 (after a botched theft, accused shot pursuing civilian and police
officer); State v. Mulkey (1994), 

, 

 (street-gang
attack on victim); State v. Davis (1982), 

, 8 OBR 276, 

 (excluded patron shot bar owner and doorman).
       {¶ 28} Our review of the preceding cited cases convinces us that it is not
possible to formulate a bright-line test that emphatically distinguishes between the




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presence or absence of “prior calculation and design.” Instead, each case turns on
the particular facts and evidence presented at trial.
                  B. Evidence of Prior Calculation and Design
        {¶ 29} At trial, appellant argued the insufficiency of evidence of prior
calculation and design and moved to dismiss under Crim.R. 29 after the state rested,
and again at the close of all the evidence. In proposition of law I, appellant reasserts
his claim that the evidence is insufficient to permit a finding of prior calculation
and design.
        {¶ 30} In analyzing the jury’s determination that appellant acted with prior
calculation and design, State v. Jenks, 

, 

, at
paragraph two of the syllabus, establishes that we must review the evidence “in a
light most favorable to the prosecution.”
        {¶ 31} In light of that standard, we find that the evidence presented at
appellant’s trial sufficiently supports the jury’s determination of prior calculation
and design. The evidence was conflicting as to the events which took place in the
bar prior to the shooting. The observations made by the court of appeals as it
reviewed the evidence are a reasonable interpretation of the way the jury may have
viewed that evidence. The court of appeals dealt with this issue as follows:
        “The evidence reveals Taylor and Alexander did have an exchange of words
and intimidating glances prior to the shooting, but the shooting did not occur
immediately thereafter. Both men went back to their seats. Taylor ordered his
girlfriend to go outside to the car. Meanwhile, his companion, Roseborough,
headed for the door but positioned himself near the door behind where Alexander
was seated. When Taylor stood up from his chair to leave, Alexander stood up, put
his hands up in the air, and the two men exchanged words again.                 Taylor
immediately pulled out his gun and shot Alexander several times. Alexander fell
to the ground and attempted to crawl away, but Taylor walked over to where
Alexander had fallen and shot Alexander in the back several times.



                                            8
                               January Term, 1997




       “It is reasonable to infer that Taylor ordered his girlfriend to leave and
waited for Roseborough to strategically position himself behind Alexander because
he planned to shoot Alexander. Moreover, Taylor clearly had a choice not to shoot
Alexander after Alexander fell down; Alexander was still alive but injured. Taylor
made a conscious decision to walk over to where Alexander was crawling face
down on the floor and shot him four more times.
       “Construing this evidence in the light most favorable to the prosecution,
there was sufficient evidence to prove the element of prior calculation and design.
Taylor’s conscious decisions to get his girlfriend out of the way, to strategically
position Roseborough, and to continue to shoot Alexander after he was down, more
than any other evidence proved he acted with prior calculation and design.”
       {¶ 32} To underscore the observations of the court of appeals, the evidence
showed that Sandra Paul had introduced appellant to the victim, Alexander, in the
same bar prior to the night of the murder. When Alexander met appellant at that
time, Alexander warned Paul not to “be bringing him [appellant] in my bar.”
Although Paul claimed she told appellant about the warning sometime later, the
jury could have inferred from the circumstances that appellant may have learned
earlier of Alexander’s statement. According to appellant, Alexander had a “nasty
attitude” and elbowed him when they previously met. Clearly, Alexander and
appellant had met before, and their relationship was not a cordial one.
       {¶ 33} On the night of the shooting, their relationship became more strained
even before the jukebox incident. Testimony was conflicting as to Alexander’s
behavior on the night in question. There was some testimony that Alexander acted
like a gentleman that night, but some defense witnesses testified to Alexander’s
boisterousness. Appellant testified he thought Alexander tried to humiliate him by
flashing a big roll of money and saying, “If a nig*** ain’t got no money, he ain’t
shit.” It was also contended by the defense that Alexander “stared” at Paul and
appellant when they were dancing earlier that night. Roseborough claimed that




                                         9
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Alexander called appellant a “bitch” and a “punk, hip mother fucker,” and invited
him several times to fight after the jukebox incident. Alexander also purportedly
told appellant, “Mother fucker, these are my friends up here … [in this bar]. I say
and do what I want to do in here.” As Paul left the bar, Alexander reportedly told
her, “Bitch, I told you not to bring this mother fucker up here to my bar.”
       {¶ 34} The strained relationship between appellant and Alexander occurred
because Alexander had previously dated Paul. Furthermore, Alexander had warned
Paul not to bring appellant into “his” bar. The night of the shooting, Alexander
reportedly was rude and obnoxious, deliberately flashed money in a possible
attempt to humiliate appellant, and stared at appellant and Paul as they danced.
       {¶ 35} Two other specific factors, in addition to the previous relationship of
the appellant and the victim, allowed the jury to find that appellant engaged in more
than “instantaneous deliberation.” Appellant took a gun into a bar where he knew
Alexander frequently drank. The jury could reasonably have inferred that appellant
may have carried the gun with an intention to use it. The jury could have drawn
that inference from all the circumstances surrounding the shooting even though the
prosecution did not specifically claim that appellant went to the bar with the
intention of killing Alexander.
       {¶ 36} Moreover, several of appellant’s shots were fired after Alexander,
already wounded, was lying on the floor. As Alexander tried to crawl away,
appellant walked closer and fired three or four shots into his back.          These
circumstances also support the jury’s finding of prior calculation and design, since
they are inconsistent with an “instantaneous eruption of events.” State v. Jenkins,

, 

, 

.
       {¶ 37} Even though most of the evidence indicates that the time between
the jukebox incident and the shooting was only two or three minutes, there was
more than sufficient evidence for the jury to reasonably have found that appellant,
with prior calculation and design, decided to shoot Alexander in that space of time.



                                         10
                                January Term, 1997




“Neither the degree of care nor the length of time the offender takes to ponder the
crime beforehand are critical factors in themselves,” but “momentary deliberation”
is insufficient. Committee Comment to Am.Sub.H.B. No. 511, R.C. 2903.01. In
light of the strained relationship between appellant and the victim, and the other
factors mentioned above, two or three minutes is more than instantaneous or
momentary under these circumstances, and is more than sufficient for prior
calculation and design.
       {¶ 38} The situation in this case resembles previous cases in which this
court upheld jury findings of prior calculation and design. See, e.g., State v.
Claytor; State v. Robbins; State v. Toth. In particular, Toth involved a defendant
who apparently was unacquainted with the victim until the evening of the killing,
and a murder which occurred after brief encounters in several bars. The facts in
Toth are similar to those in this case, and Toth did not involve any more evidence
of studied deliberation than was present here. This court upheld the jury finding of
prior calculation and design and remarked that “[t]he appellant’s method of
shooting … as well as his apparent determination to follow through on a specific
course of action, sufficiently supports the finding that the appellant had adopted a
plan to kill.” Toth, 

, 

, 

.
       {¶ 39} When all the evidence is viewed in a light most favorable to the
prosecution, as required in Jenks, the jury could reasonably have found the required
element of prior calculation and design. Accordingly, we reject proposition of law
I.
                                          II
                              Procedural Deficiencies
       {¶ 40} In proposition of law II, appellant argues that the prosecution tried
the case on different facts as to the capital specification (a prior murder conviction)
than were presented to the grand jury (a prior attempted murder conviction).
Appellant assumes the prosecutor presented an inaccurate April 1974 journal entry




                                          11
                             SUPREME COURT OF OHIO




to the grand jury showing that appellant had been convicted of only attempted
murder. On April 23, 1993, well after this trial started, the prosecutor secured a
nunc pro tunc entry correcting the April 1974 journal entry to reflect that appellant
had pled guilty and was at that time convicted of two murders.
       {¶ 41} Appellant did not raise this argument at trial or before the court of
appeals, and hence waived this issue. State v. Williams (1977), 

,

, 

. However, even if he had raised it, appellant’s claim
lacks merit. The prosecution tried the case on the same basis as that presented to
the grand jury, since a death-penalty specification under R.C. 2929.04(A)(5) covers
prior convictions for either murder or attempted murder. In addition, appellant’s
indictment charged in specification two that he “was convicted … of Murder, R.C.
2903.02[,] on April 8, 1974, of which an essential element was the purposeful
killing or purposeful attempt to kill another.”
       {¶ 42} Appellant implicitly challenges the trial court’s authority to make
such a nunc pro tunc entry. However, the trial court clearly had authority to correct
factual errors in the 1974 journal entry to reflect that appellant had been convicted
of two counts of murder, and not of attempted murder. See Crim.R. 36; State ex
rel. Hill v. Niehaus (1994), 

, 

; Benedict v. State
(1887), 

, 

. Appellant’s 1974 conviction was affirmed
in State v. Taylor (July 10, 1975), Cuyahoga App. No. 33701, unreported. An
examination of that court of appeals opinion reflects that appellant’s 1974
conviction was for two murders. Appellant also admitted on cross-examination at
this trial that he had been convicted of two murders in 1974. Appellant has failed
to establish any error or prejudice. We reject proposition of law II.
       {¶ 43} In proposition of law III, appellant argues that the trial court erred
by issuing the April 23, 1993 nunc pro tunc entry as to the 1974 conviction without
giving appellant or his counsel notice of the proposed change or an opportunity to
be heard. The judge who signed the nunc pro tunc entry, Judge Norman A. Fuerst,



                                         12
                                 January Term, 1997




was not the judge who presided over appellant’s 1993 murder trial. At trial in the
instant case, the prosecutor did not explain why he secured that April 23, 1993 nunc
pro tunc entry after trial testimony had begun on April 22, 1993. The prosecutor
also did not explain why no notice was given to opposing counsel regarding the
intent to secure the entry. When the prosecutor offered the entry into evidence,
appellant’s counsel objected.
        {¶ 44} The state argues that appellant was not wrongfully excluded from a
crucial hearing because no hearing was held prior to Judge Fuerst’s decision to
issue the nunc pro tunc entry. However, since the 1993 trial had already started,
the prosecutor arguably should have given prior notice to opposing counsel before
securing the 1993 entry correcting the 1974 judgment entry.
        {¶ 45} Nevertheless, the prosecutor did not per se violate appellant’s right
to be present at proceedings to correct the 1974 journal entry. An accused has a
fundamental right to be present at all stages of his criminal trial. Section 10, Article
I, Ohio Constitution; Crim.R. 43(A); State v. Williams (1983), 

, 6 OBR 345, 349, 

, 1330. However, Judge Fuerst’s decision
to sign that entry relating to the 1974 conviction was not a critical stage of
appellant’s 1993 trial, provided appellant had an opportunity to contest the accuracy
of the corrected entry during the course of the 1993 trial. The relevant crucial stage
of appellant’s 1993 trial occurred when the prosecution offered the nunc pro tunc
entry into evidence at the 1993 trial. Appellant was present at that point in his trial,
appellant and his counsel had notice and an opportunity to challenge the corrected
entry’s admission into evidence, and they did so, albeit unsuccessfully. See In re
Petition for Inquiry into Certain Practices (1948), 

, 

,

, paragraph one of the syllabus. Nor can appellant contest the accuracy
of the nunc pro tunc entry; he admitted his 1974 conviction was for two counts of
murder. In these circumstances, any irregularities concerning the nunc pro tunc




                                          13
                             SUPREME COURT OF OHIO




entry did not affect appellant’s fundamental rights. See State v. Clark (1988), 

, 

.
       {¶ 46} In 1982, Governor Rhodes commuted appellant’s 1974 prison
sentence. Despite appellant’s attempt to base arguments on the commutation, the
existence of appellant’s 1974 murder conviction was not affected by the
commutation; only the length of appellant’s sentence was affected. See R.C.
2967.01(C). Even though the commutation mistakenly referred to appellant’s 1974
conviction as one for “attempted murder,” appellant’s argument that that mistake
could change the substance of his 1974 conviction is baseless.            We reject
appellant’s proposition of law III.
       {¶ 47} In proposition of law IV, appellant argues that he was prejudiced
because the indictment included an irrelevant prior aggravated-felony specification.
Appellant further contends that the trial judge incorrectly described to the jury the
prior murder conviction as an aggravated felony.
       {¶ 48} We agree that the prior aggravated-felony specification was
irrelevant. Such a specification operates to increase the minimum and maximum
sentence for an aggravated felony. See R.C. 2929.11(B)(1)(b), (B)(2)(b), (B)(3)(b),
and (F). As appellant points out, neither murder nor aggravated murder is classified
as an aggravated felony. See R.C. 2901.02(A).
       {¶ 49} However, appellant was not prejudiced by the inclusion of this
irrelevant prior-aggravated-felony specification or by the trial judge’s
misdescription of murder as an aggravated felony. The inclusion of the irrelevant
specification did not cause the jury to become aware of appellant’s prior murder
conviction. The jury knew about that conviction because the prosecution properly
introduced evidence of that prior murder conviction to prove the death-penalty
specification. R.C. 2929.04(A)(5). Moreover, appellant deliberately chose to have
that death-penalty specification tried to the jury. The record shows that he did so
because he planned to testify and knew his conviction would inevitably be disclosed



                                         14
                                January Term, 1997




to attack his credibility as a witness. Thus, we reject appellant’s proposition of law
IV.
       {¶ 50} In proposition of law IX, appellant argues his rights were violated
because he was absent from a brief meeting in chambers when the trial court
recorded the preliminary excusal of various jurors for reasons such as medical
problems and financial hardships.       However, appellant was absent with his
counsel’s approval, and both counsel were present and agreed with the excusals.
       {¶ 51} Crim.R. 43(A) preserves an accused’s right to be present “at every
stage of the trial.” An accused’s absence, however, does not necessarily result in
prejudicial or constitutional error. Snyder v. Massachusetts (1934), 

, 

, 

, held that “the presence of the
defendant [in a prosecution for felony] is a condition of due process to the extent
that a fair and just hearing would be thwarted by his absence, and to that extent
only.” (Emphasis added.)
       {¶ 52} Appellant relies upon Rogers v. United States (1975), 

,

, 

, and United States v. Brown (C.A.9, 1987), 

. Yet, those cases involved federal, not state, trials, and counsel did not know
in either of those cases about the court’s unilateral jury contacts taken in the
accused(s)’ absence. United States v. Gagnon (1985), 

, 

, 

, reaffirmed the Snyder principle that an accused’s absence
from a hearing at which counsel were present does not necessarily offend due
process. State v. Williams, 

, 6 OBR at 348-350, 

, recognized that an accused’s absence can be harmless error.
       {¶ 53} In this case, appellant’s absence did not thwart a fair and just hearing.
Snyder. The proceeding was not a “hearing” at which the judge received evidence.
It was no more than the routine noting of excuses from jury duty. The accused’s
absence, with counsel’s consent, was harmless error. See State v. Williams, 

                            SUPREME COURT OF OHIO




St.3d at 287, 6 OBR at 350, 

; State v. Roe (1989), 

, 

.
       {¶ 54} Later, in responding to a jury question, the court incorrectly told the
jury during deliberations on guilt that murder is an aggravated felony. The judge’s
brief written answer to the jury question was also harmless. From the record, we
do not know if the court consulted counsel before answering the question or, if so,
whether counsel objected to the answer or appellant’s absence. Although the
answer was incorrect, i.e., that murder was an aggravated felony, the question and
answer were innocuous. See, also, State v. Allen (1995), 

,

; State v. Jenkins (1984), 

, 15 OBR
311, 373-374, 

, and paragraph thirteen of the syllabus; State v.
Abrams (1974), 

, 

, 

. We reject
proposition of law IX.
                                        III
                                 Evidence Issues
       {¶ 55} In proposition of law VI, appellant argues the trial court erred by
admitting gruesome photographs that prejudiced both the guilt-determination and
penalty phases. However, appellant did not object to these photographs at trial and
waived all but plain error. State v. Williams, 

, 

, 

. We find no plain error and reject proposition of law VI. Cf. State v.
Lundgren (1995), 

, 

; State v. Morales (1987), 

, 

.
       {¶ 56} In proposition of law VII, appellant argues that the state improperly
cross-examined him about details of his prior murder conviction. However, the
trial court “has broad discretion in determining the extent to which testimony will
be admitted under Evid.R. 609.” State v. Wright (1990), 

, 

, syllabus; see Evid.R. 609(A). Accord State v. Amburgey (1987), 

, 

.



                                         16
                               January Term, 1997




       {¶ 57} In this case, appellant failed to disclose on direct examination that
his 1974 murder conviction was for two murders; thus, the prosecutor’s brief
inquiry on cross was proper. See State v. DePew (1988), 

, 

, paragraph three of the syllabus. Additionally, the prosecutor needed
to use the prior murder conviction to prove the death-penalty specification.
       {¶ 58} Appellant’s claim that the Governor’s 1982 commutation of his
previous sentence erased the murder conviction lacks any merit. A commutation is
not a pardon. State ex rel. Maurer v. Sheward (1994), 

, 

, 375; In re Victor (1877), 

, 207. See Evid.R. 609(C);
R.C. 2967.01(B) and (C). We reject proposition of law VII.
       {¶ 59} In proposition of law X, appellant argues that Denise Shephard
disclosed improper victim-impact evidence when she briefly mentioned in the guilt
phase that she had attended counseling for two months to deal with the shooting’s
psychological impact on her. If error, that brief testimony was harmless. Cf. State
v. Allard (1996), 

, 

; State v.
Lorraine (1993), 

, 

. Any
impact on the sentence did not violate appellant’s fundamental rights. Payne v.
Tennessee (1991), 

, 

, 

.
                                        IV
                             Guilt Instruction Issues
       {¶ 60} In propositions of law V, VIII, and XIII, appellant alleges
deficiencies in the court’s jury instructions. However, appellant failed to request
specific instructions or object at trial on issues he now raises, except as to
proposition of law VIII, and thus waived all but plain error. Crim.R. 30(A); State
v. Underwood (1983), 

, 3 OBR 360, 

, syllabus.
We find that no alleged deficiency would cause a different trial result or create a
manifest miscarriage of justice. State v. Long (1978), 

, 

                             SUPREME COURT OF OHIO




178, 

, paragraphs two and three of the syllabus. We therefore reject
propositions of law V and XIII.
       {¶ 61} In proposition of law VIII, appellant argues the trial court erred in
instructing the jury, over objection, that “flight, in and of itself, does not raise a
presumption of guilt, but unless satisfactorily explained, it tends to show
consciousness of guilt or a guilty connection with the crime.”
       {¶ 62} Despite appellant’s claims, this instruction on flight was neither
arbitrary nor unreasonable, and did not create an improper mandatory presumption.
“Flight from justice … may be indicative of a consciousness of guilt.” State v.
Eaton (1969), 

, 

, 

, paragraph six
of the syllabus. Accord State v. Wilson (1988), 

, 

; cf. State v. Strub (1975), 

, 

, 

. Nor did the instruction improperly comment
on appellant’s silence, since he testified. See State v. Fields (1973), 

, 

, 

. We reject proposition of law VIII.




                                         18
                                January Term, 1997




                                          V
                                 Sentencing Issues
       {¶ 63} In proposition of law XI, appellant urges that the prosecutor made
improper and prejudicial comments in his closing arguments to the jury at the
sentencing phase. Appellant claims the prosecutor’s remark that the victim did not
have an opportunity to plead for his life before he was killed was an improper
appeal to the jury’s emotions. The trial court sustained appellant’s objection to this
and related remarks, and appellant did not ask for a curative instruction. Appellant
also complains because the prosecutor asked the jury, over objection, to show
sympathy towards the victim.
       {¶ 64} None of these remarks constituted prejudicial error.         “The test
regarding prosecutorial misconduct in closing arguments is whether the remarks
were improper and, if so, whether they prejudicially affected substantial rights of
the defendant.” State v. Smith (1984), 

, 14 OBR 317, 318, 

. Evidence or comments about crime victims, including the impact
of a crime on victims, do not offend the United States or Ohio Constitutions, and
did not harm appellant. See Payne v. Tennessee, 

, 

, 

; State v. Hill (1996), 

, 

.
“The victims cannot be separated from the crime.” State v. Lorraine, 

, 

. Accord State v. Slagle (1992), 

, 

.
       {¶ 65} Appellant also asserts in proposition of law XI that the prosecutor
improperly commented on nonstatutory aggravating factors by referring to
appellant’s prior conviction for two murders. Appellant’s claim lacks merit. The
charged death-penalty specification alleged appellant had previously been
convicted of murder. See R.C. 2929.04(A)(5); State v. Evans (1992), 

, 

; State v. Gumm (1995), 

, 

, syllabus.




                                         19
                             SUPREME COURT OF OHIO




       {¶ 66} In propositions of law XII, XIV and XVII, appellant argues
instructional errors during the sentencing phase. However, appellant waived these
issues when he did not raise them in the court of appeals. See State v. Williams, 

, 

, 

, at paragraph two of the syllabus.
       {¶ 67} Moreover, except as noted below, appellant at trial did not propose
instructions on issues he now raises or object to the instructions given. Appellant’s
failure to propose instructions and to object to those given waives any error “unless,
but for the error, the outcome of the trial clearly would have been otherwise.” State
v. Underwood, 

, 3 OBR 360, 

, at the syllabus. See
State v. Long, 

, 

, 

, at paragraph two
of the syllabus. See, also, State v. Wolons (1989), 

, 

, paragraph one of the syllabus.
       {¶ 68} In proposition of law XII, appellant argues the trial court gave the
equivalent of an improper “acquittal first” jury instruction during the penalty phase.
Appellant argues the trial court should have specifically instructed “that if the jury
was unable to agree on whether the aggravating factors outweighed the mitigation
evidence, it could consider a lesser sentence.” See State v. Brooks (1996), 

, 

; cf. State v. Thomas (1988), 

, 

.
       {¶ 69} The trial court instructed the jury: “If all 12 members of the jury find
… that the aggravating circumstance … outweighs the mitigating factors, then
… you … must … recommend … the sentence of death …. [But] if … you
find that the State of Ohio failed to prove … that the aggravating circumstance
… outweighs the mitigating factors, then you will return your verdict reflecting
your decision. In this event, you will then proceed to determine which of the two
possible life imprisonment sentences to recommend to the Court.”
       {¶ 70} Our review of the trial court’s instructions reveals that the trial court
simply told the jury it must decide between the life sentence options if it found the



                                         20
                                January Term, 1997




state had failed to prove that the aggravating circumstance outweighed the
mitigating factors. The trial court did not give an improper “acquittal first”
instruction and did not tell the jury how to proceed if jurors did not all agree on a
life or death sentence. The jury was free to consider a life sentence even if jurors
had not unanimously rejected the death penalty.
       {¶ 71} Appellant did not preserve this issue. He failed to ask the trial judge
to instruct the jury that “[y]ou are not required to determine unanimously that the
death sentence is inappropriate before you consider the life sentences.” Brooks, 

, 

. Although the instruction appellant now
seeks may be a desirable one, its absence was not plain error. See State v. Davis
(1996), 

, 

; State v.
Williams (1995), 

, 

; State v.
Jenkins, 

, 15 OBR at 353, 

. We reject
proposition of law XII.
       {¶ 72} In proposition of law XIV, appellant takes issue with trial court
instructions to the jury during the penalty phase. Appellant claims the trial court
erred in instructing the jury, “Reasonable doubt is present when, you, the jurors,
… cannot say that you are firmly convinced of the truth of the charge.” Appellant
had requested that the jury be instructed that “[r]easonable doubt is present when
you are not firmly convinced that death is the appropriate punishment.” See State
v. Wolons, 

, 

, paragraph one of the syllabus.
       {¶ 73} Although appellant’s proposed instruction may be preferred, the
flaw, if any, is harmless. An instruction identical to that given by the trial court in
this case was upheld in State v. Woodard (1993), 

, 

, and in State v. Spirko (1991), 

, 

. Also, a “single instruction … must be viewed in the context of the overall
charge.” State v. Price (1970), 

, 

, 

,
paragraph four of the syllabus. Overall, the trial court clearly instructed the jury




                                          21
                                   SUPREME COURT OF OHIO




that, before recommending death, it must be convinced beyond a reasonable doubt
that the aggravating circumstance outweighed the mitigating factors, and that the
prosecution had the burden of proof on the issue.
         {¶ 74} Appellant also complains because the trial court referred to the
charged R.C. 2929.04(A)(5) aggravating circumstance as “repeat murder.”
However, the trial court’s use of that short, convenient term to refer to the
aggravating circumstance was not improper nor did it inject a nonstatutory
aggravating circumstance into the trial. The indictment as well as the trial court
used the term “repeat murder” to refer to the specification, and appellant did not
object. It is not unusual to use the term “repeat murder” in this context. See, e.g.,
Committee Comment to Am.Sub.H.B. No. 511, R.C. 2929.04; State v. Benner
(1988), 

, 

; State v. Bayless (1976), 

, 

, 

.
         {¶ 75} Appellant also argues that the trial court erred in defining a
“mitigating factor” as one “extenuating or reducing the degree of the defendant’s
blame or punishment.” Appellant requested a more comprehensive definition of
“mitigating factors.” See State v. Holloway (1988), 

, 

. Any instructional error on this point was harmless. State v.
Phillips (1995), 

, 

; State v. Woodard,

, 

.
         {¶ 76} Appellant further contends under proposition of law XIV that the
trial court erred by instructing the jury not to be “influenced by any consideration
of sympathy,” as opposed to the term “mere sympathy.”1 Yet, appellant asked that
sympathy be excluded in considering the sentence, and, in any event, sympathy is


1. The trial court’s instruction to the jury regarding sympathy appears in the record as, “You must
be influenced by any consideration of sympathy ….” The word “not” is missing from this sentence
in the record. If the trial court did indeed omit the word “not,” any prejudice would have been in
appellant’s favor. Hence, any possible error in the trial court’s instruction on this narrow point did
not prejudice appellant.




                                                 22
                                 January Term, 1997




not a relevant sentencing criterion. There is no practical difference between “mere
sympathy” and “any sympathy” in this context. See California v. Brown (1987),

, 

, 

; State v. Allen, 

,

; State v. Combs (1991), 

, 

. In sum, proposition of law XIV lacks merit.
        {¶ 77} In proposition of law XVII, appellant argues that the trial court
violated his rights by instructing the jury, over his objection, that its decision in the
penalty phase was a “recommendation.” However, the trial court’s use of that term
accurately stated the law and did not constitute error. See, e.g., State v. Phillips, 

, 

; State v. Grant (1993), 

, 

.
        {¶ 78} In proposition of law XV, appellant argues that he was denied his
right to the effective assistance of counsel at trial. Reversal of convictions on
grounds of ineffective assistance requires that the defendant show, first, “that
counsel’s performance was deficient” and, second, “that the deficient performance
prejudiced the defense … so as to deprive the defendant of a fair trial.” Strickland
v. Washington (1984), 

, 

, 

. Accord State v. Bradley (1989), 

, 

.
        {¶ 79} However, the performance of appellant’s counsel never fell “below
an objective standard of reasonable representation.” State v. Bradley, at paragraph
two of the syllabus. Appellant complains that his counsel did not introduce
evidence as to the Governor’s 1982 sentence commutation. Yet, counsel could
reasonably hold back this utterly irrelevant evidence. Counsel also reasonably
chose against bifurcation on the death-penalty specification.          Since appellant
claimed self-defense and testified, his prior murder conviction would have been
admissible as to his credibility regardless of bifurcation.         See discussion on
proposition of law IV.




                                           23
                             SUPREME COURT OF OHIO




       {¶ 80} Counsel reasonably chose not to offer evidence of appellant’s
paranoid personality disorder at the guilt phase in view of the doubtful value and
admissibility of such evidence at that stage. See State v. Cooey (1989), 

, 

; State v. Wilcox (1982), 

, 

, 

 (psychiatric testimony unrelated to insanity is
inadmissible to show defendant’s incapacity to form intent). Moreover, appellant
has not demonstrated that these tactical choices caused him prejudice, i.e., that
“were it not for counsel’s errors, the result of the trial would have been different.”
State v. Bradley, at paragraph three of the syllabus.
       {¶ 81} Appellant also argues that his counsel should have objected further
at trial to the jury instructions. However, appellant did not make that argument to
the court of appeals. Thus, he waived that claim save for plain error. State v.
Williams, 

, 

, 

. Moreover, counsel
made some objections. Counsel need not raise meritless issues or even all arguably
meritorious issues. Counsel’s performance never fell below “an objective standard
of reasonable representation,” nor was the result of the trial affected by counsel’s
alleged errors. See State v. Bradley, at paragraphs two and three of the syllabus.
We find that proposition of law XV lacks merit.
       {¶ 82} In proposition of law XVI, appellant argues the trial judge did not
give appropriate weight to mitigating evidence. However, “[a] decisionmaker need
not weigh mitigating factors in a particular manner. The process …, as well as
the weight, if any, to assign a given factor is a matter for the discretion of the
individual decisionmaker.” State v. Fox (1994), 

, 

. Accord State v. Stumpf (1987), 

, 

, paragraph two of the syllabus; State v. Steffen (1987), 

, 31
OBR 273, 

, paragraph two of the syllabus. Appellant further argues
that the mitigating factors outweigh the aggravating circumstance so that the death




                                         24
                                 January Term, 1997




penalty is inappropriate. This court’s independent sentence determination will
resolve that issue. We reject proposition of law XVI.
                                          VI
                                 Constitutionality
       {¶ 83} In   proposition     of    law   XVIII,   appellant   challenges   the
constitutionality of Ohio’s death penalty statute.      We summarily reject this
challenge. State v. Poindexter (1988), 

, 

, syllabus.
Ohio’s death penalty statute is constitutional. See, e.g., State v. Davis (1992), 

, 

; State v. Scott (1986), 

, 26 OBR 79, 93-94, 

.
                                         VII
              Independent Review and Proportionality Analysis
       {¶ 84} At the penalty phase of his trial, appellant presented several
witnesses. Psychologist Dr. Rita J. Politzer concluded that appellant suffered from
a “paranoid personality disorder” that made him overly excitable and suspicious.
Appellant had a tendency to react violently to perceived affronts. Although the
condition was amenable to treatment, appellant had never been treated for it.
Politzer felt appellant could adjust to life in an institutional setting and had so
adjusted during his prior prison term.
       {¶ 85} Suette B. Steiner, who supervised appellant when he worked as a
warehouseman, described appellant as intelligent and a very hard worker.
Reverend Robert L. Doss testified that appellant, a member of Doss’s congregation,
was a man of God and a God-fearing man. Doss believed appellant’s life should
be spared because the Lord said, “Vengeance is mine.”
       {¶ 86} Constance M. Turner, the mother of appellant’s seven-year-old son,
felt sorrow and pity for the family of Marion Alexander, but did not believe
appellant should be sentenced to death. Sharon Levett, appellant’s older sister,




                                          25
                             SUPREME COURT OF OHIO




described appellant as a quiet and peaceable man who did not bother or bully
people. She believed her brother acted in self-defense.
       {¶ 87} In an unsworn statement, appellant expressed regret, but said he
“didn’t do anything that I wouldn’t expect anyone else to do under the
circumstances.” Appellant could not believe the jury convicted him. Further, he
stated, “I am a man, not a coward … and, yes, I have been to Vietnam. I fought
for this country … and killed people that haven’t done anything to me.” Yet, he
also felt that “when someone tries to do something to me, I cannot stand up and
defend myself. … I might as well let myself be shot.” As to the 1974 murder
conviction, appellant stated he pled guilty because he felt responsible and wanted
others, who he felt were not responsible, to go free.
       {¶ 88} After independent assessment, we find the evidence proves beyond
a reasonable doubt the aggravating circumstance charged against appellant, i.e., a
prior murder conviction. R.C. 2929.04(A)(5). As to possible mitigating factors,
the nature and circumstances of the offense provide some slight mitigating features.
Alexander was the ex-lover of appellant’s girlfriend. Appellant crossed paths with
Alexander in the Club Seville, and both were drinking. It appears that jealousy may
have played a part in the violence that ended the encounter. However, appellant’s
self-defense claims lacked credibility, as other witnesses did not support his
account of events.     Furthermore, appellant brutally shot Alexander, already
wounded, as Alexander was lying on the floor.
       {¶ 89} Appellant’s history and background provide very few mitigating
features. Little evidence was introduced on those points beyond that summarized
above. Nothing in appellant’s character appears to be mitigating.
       {¶ 90} The evidence does not support finding that the victim “induced or
facilitated” the offense. See R.C. 2929.04(B)(1). The jury rejected appellant’s
claims of self-defense, and Alexander’s rude and obnoxious behavior, even if it
occurred, did not establish that Alexander “induced” the offense.



                                         26
                                January Term, 1997




       {¶ 91} Defense testimony from appellant, Paul, and Roseborough could be
interpreted to support an argument that appellant acted under “duress, coercion, or
strong provocation” within the meaning of R.C. 2929.04(B)(2), and so provides at
least some mitigation.    Defense witnesses testified to a strained relationship
between appellant and Alexander, and testified that Alexander attempted to
humiliate appellant, and threatened and cursed appellant.
       {¶ 92} Dr. Politzer’s description of appellant’s “paranoid personality
disorder” does not establish the R.C. 2929.04(B)(3) mitigating factor, although the
personality disorder is entitled to some mitigating weight as an “other factor” under
R.C. 2929.04(B)(7). The mitigating factors in R.C. 2929.04(B)(4), (5) and (6) are
not relevant to this case. Appellant was forty-four at the time of the offense, his
criminal record was apparent, and he was the principal offender.
       {¶ 93} As to the R.C. 2929.04(B)(7) “other factors,” this court normally has
accorded little weight to “personality disorders” as a mitigating “other factor.” See
State v. Wilson (1996), 

, 

; State v. Hill
(1995), 

, 

. However, under the
specific facts of this case, appellant’s “paranoid personality disorder” may have
caused him to feel especially threatened by Alexander’s behavior, and to have
overreacted to it. Nevertheless, while we accord some mitigating weight to this
factor, its mitigation value is not great. We give no weight to residual doubt. No
“other factors” are mitigating. There is little evidence that appellant expressed
remorse at trial, and no other possible mitigating features are apparent.
       {¶ 94} We find that the aggravating circumstance outweighs the combined
mitigating factors beyond a reasonable doubt. Having previously been convicted
of the murder of two persons, appellant was incarcerated. Yet, ten years after his
release, he murdered again. A prior murder conviction can be even more grave
than other aggravating circumstances. See State v. Carter (1992), 

, 

.




                                         27
                             SUPREME COURT OF OHIO




       {¶ 95} The very strong aggravating circumstance here, appellant’s prior
conviction for the murder of two persons, outweighs beyond a reasonable doubt all
of his mitigation evidence. Appellant has murdered three persons; he committed
his third murder after he had been tried, convicted, and served eight years in prison
for the first two murders. In view of these circumstances, the death penalty is
appropriate.
       {¶ 96} The death penalty is both appropriate and proportionate when
appellant’s case is compared with similar capital cases. See State v. Carter, 

, 

; State v. Davis, 

, 

; State v. Bradley, 

, 

; State v. Mapes (1985),

, 19 OBR 318, 

.
       {¶ 97} Accordingly, the judgment of the court of appeals is affirmed.
                                                                Judgment affirmed.
       DOUGLAS, F.E. SWEENEY, COOK and LUNDBERG STRATTON, JJ., concur.
       MOYER, C.J., and PFEIFER, J., dissent.
                              __________________
       MOYER, C.J., dissenting.
       {¶ 98} Because the evidence in this case is insufficient to permit a finding
of “prior calculation and design,” a necessary element for the offense of aggravated
murder in R.C. 2903.01(A), I would set aside Taylor’s conviction for aggravated
murder and the resulting death sentence. Therefore, I respectfully dissent.
       {¶ 99} As the majority observes, in 1974 the General Assembly reclassified
first-degree murder as “aggravated murder” and substituted a requirement of “prior
calculation and design” to replace the more traditional requirement of “deliberate
and premeditated malice.” (134 Ohio Laws, Part II, 1866, 1900, Am.Sub. H.B.
No. 511.) See State v. Jenkins (1976), 

, 

, 

. R.C. 2903.01(A), amended in 1981, retained the term “prior calculation and




                                         28
                                  January Term, 1997




design” as a necessary element of aggravated murder. (139 Ohio Laws, Part I, 1,
3.)
          {¶ 100} According to the 1973 Technical Committee Comment to Am.
Sub. H.B. No. 511, R.C. 2903.01 “restates the former crime of premeditated
murder so as to embody the classic concept of the planned, cold-blooded killing
while discarding the notion that only an instant’s prior deliberation is necessary.”
          {¶ 101} In State v. Cotton (1978), 

, 

, 

, at paragraph one of the syllabus, we agreed that “‘prior calculation and design’
is a more stringent element than the ‘deliberate and premeditated malice’ which
was required under prior law.” The General Assembly’s apparent intention “was
to require more than the few moments of deliberation permitted in common law
interpretations of the former murder statute, and to require a scheme designed to
implement the calculated decision to kill.” 

, 

, 

. Also, in Cotton, we held that “[i]nstantaneous deliberation is not sufficient
to constitute ‘prior calculation and design.’” Cotton, at paragraph two of the
syllabus. I would reiterate that holding today.
          {¶ 102} Taylor asserts in this case that the evidence is insufficient to permit
a finding of prior calculation and design. I agree. When the evidence is viewed in
a light most favorable to the prosecution, as required by State v. Jenks (1991), 

, 

, paragraph two of the syllabus, I believe the jury
could not have reasonably found the required element of prior calculation and
design.
          {¶ 103} In State v. Jenkins, 

, 

, 

, the court of appeals set out three factors to be considered in
determining the existence of prior calculation and design: (1) Did the accused and
victim know each other, and if so, was that relationship strained? (2) Did the
accused give thought or preparation to choosing the murder weapon or murder site?
and (3) Was the act drawn out or “an almost instantaneous eruption of events”?




                                            29
                             SUPREME COURT OF OHIO




        {¶ 104} The evidence here showed only two or three minutes had passed
between the jukebox confrontation and the time when Taylor shot Marion “Donny”
Alexander. According to a barmaid, Donny and Taylor glared at each other “for a
couple of seconds” when Taylor told Donny to “[p]ut your own dollar in there.”
The men glared at each other a “couple of more seconds” before Sandra Paul
(“Sandra”) walked back to where Taylor was sitting. According to Darlene
Youngblood, there “wasn’t a minute” between when Taylor last told Donny to
“[p]ut your own … dollar in the box,” and when Taylor told Sandra, “Let’s go.”
Shortly thereafter, Sandra got up to leave, Taylor followed her, and then shot Donny
on the way out in “maybe about a minute.”
        {¶ 105} Admittedly, Sandra had introduced Taylor to Donny in the same
bar some time before the night of the murder. When Donny had met Taylor then,
Donny privately warned Sandra not to “be bringing him [Taylor] in my bar.”
Sandra claimed she only told Taylor about the warning later. According to Taylor,
Donny had a “nasty attitude” and elbowed him when they previously met. Thus,
Donny and Taylor had met before, and their relationship was strained.
        {¶ 106} On the night of the murder, defense witnesses claimed Donny was
loud and boisterous. Taylor testified he thought Donny tried to humiliate him by
flashing around a big roll of money and saying, “If a nig … ain’t got no money,
he ain’t shit.” Donny also “stared” at Sandra and Taylor when they were dancing
earlier that night.
        {¶ 107} While this evidence indicates a strained relationship between
Taylor and Donny, the evidence does not establish, beyond a reasonable doubt, that
Taylor had planned to kill Donny. It is equally plausible that their encounter at the
bar that night was totally coincidental. Significantly, Donny was not even at the
bar when Taylor arrived. No evidence was introduced that Taylor chose that bar as
a murder site, or that he lay in ambush for Donny, or that he even knew Donny
would be there that particular evening. See State v. Jenkins, supra.



                                         30
                                January Term, 1997




       {¶ 108} After the jukebox incident, David Roseborough claimed that
Donny called Taylor a “bitch” and a “punk, hip mother fucker” and invited him
several times to fight. Donny also told Taylor, “Mother fucker, these are my friends
up here … [in this bar]. I say and do what I want to do in here.” As Sandra left
the bar, Donny reportedly told her, “Bitch, I told you not to bring this mother fucker
up here to my bar.”
       {¶ 109} Despite these circumstances, I would hold the evidence insufficient
to permit a finding that Taylor engaged in more than “instantaneous deliberation”
in planning to kill Donny, as Cotton requires. Evidence of bad blood or a strained
relationship between persons is simply not, by itself, sufficient to show that one
planned to kill another. While Taylor did take a gun to Club Seville, the prosecution
never claimed at trial that when he did so, he planned or intended to kill Donny.
See State v. Jenkins. Up to the very moment of the jukebox incident, Donny and
Taylor had not confronted each other. The time between the jukebox incident and
the shooting was very short, two or three minutes at most. No evidence exists that
Taylor planned and deliberated to kill Donny in that brief space of time. In fact,
Taylor had expressed his intention to leave the bar, and actually began to leave,
after the jukebox incident. This case simply falls short of the degree of calculation
envisioned by the General Assembly when it adopted the term “prior calculation
and design” effective in 1974 as part of Am.Sub.H.B. No. 511.
       {¶ 110} Taylor did shoot Donny seven times, including several times as
Donny was lying on the floor. That fact demonstrates Taylor’s anger at the moment
and proves beyond a reasonable doubt that he intentionally killed Donny. Such
intent, however, is not the equivalent of prior calculation and design.
       {¶ 111} When the General Assembly adopted the more stringent “prior
calculation and design” requirement, its precise purpose was to distinguish short-lived eruptions of violence from the more traditional first-degree premeditated and
planned killings. The evidence adduced at trial indicates the altercation that




                                         31
                            SUPREME COURT OF OHIO




resulted in Donny Alexander’s death was “an almost instantaneous eruption of
events.” State v. Jenkins. Established Ohio law requires more than instantaneous
deliberation to support a finding of prior calculation and design. Cotton.
       {¶ 112} Accordingly, I would reverse the court of appeals’ judgment
affirming Taylor’s guilt of the offense of aggravated murder and vacate his sentence
of death.
       PFEIFER, J., concurs in the foregoing dissenting opinion.
                              __________________




                                        32