State v. Smith

[This opinion has been published in Ohio Official Reports at 

.]




THE STATE OF OHIO, APPELLEE AND CROSS-APPELLANT, v. SMITH, APPELLANT
                                 AND CROSS-APPELLEE.

                  [Cite as State v. Smith (1997), 

.]
 Criminal law—Aggravated murder—Death penalty—Appeals—Amendments to
 Section 2(B)(2)(c) and Section 3(B)(2), Article IV, Ohio Constitution and R.C.
       2953.02 are constitutional—All cases in which sentence of death has been
     imposed for an offense committed on or after January 1, 1995 shall be directly
              appealed from the trial court to the Supreme Court of Ohio.
1.        The amendments to Section 2(B)(2)(c) and Section 3(B)(2), Article IV,
          Ohio Constitution, and the implementing statute, R.C. 2953.02, are
          constitutional.
2.        The courts of appeals shall not accept jurisdiction of any case in which the
          sentence of death has been imposed for an offense committed on or after
          January 1, 1995. Appeals in such cases shall be made directly from the trial
          court to the Supreme Court of Ohio.
     (Nos. 96-677 and 96-678— Submitted March 5, 1997—Decided October 15,
                                           1997.)
APPEAL and CROSS-APPEAL from the Common Pleas Court of Butler County, No.
                                     CR 95-05-0471.
       APPEAL from the Court of Appeals for Butler County, No. CA96-02-024.
                                  __________________
          {¶ 1} On May 12, 1995, sometime around 11:00 p.m., defendant-appellant,
Kenneth W. Smith (“defendant”), and his brother, Randy Smith (“Randy”), brutally
murdered Lewis Ray and Ruth Ray in their Hamilton, Ohio home. Lewis was
severely beaten, his skull was fractured, and his throat was slit, severing his
windpipe and carotid arteries. Ruth died from manual strangulation. Their home
                            SUPREME COURT OF OHIO




was ransacked, and money and jewelry were taken. The following morning, David
L. Lester, Ruth’s son, discovered the bodies of his mother and stepfather and called
the police.
       {¶ 2} In the Rays’ home, police observed signs of a struggle, blood on the
kitchen floor, and bloody footprints throughout the house. Police found a damaged
white ceramic coffee pot covered with blood stains in the trash can and a green
army camouflage hat on the floor. A knife had recently been removed from a
butcher block set. Police found Lewis lying on the kitchen floor and Ruth lying in
the doorway between the hall and bedroom.          The Rays’ bedroom had been
ransacked, and the contents of dressers were strewn about the floor.
       {¶ 3} Earlier in the evening of May 12, 1995, defendant and Randy had
gone to the Crystal Lounge, a.k.a. Crystal Bar, with a friend, Russell C. Baker. At
approximately 10:20 p.m., defendant borrowed Baker’s car allegedly to pick up his
wife, Brenda Smith, and some friends. By midnight, defendant had not returned
Russell’s car. At about that time, Brenda and Lillian Canafax, Randy’s live-in
girlfriend, arrived at the Crystal Lounge also looking for the Smith brothers. About
forty-five minutes later, Russell and the two women decided to go to Chasteens
Bar. Defendant eventually showed up at Chasteens Bar at approximately 1:30 a.m.
When Russell questioned defendant about the car, defendant claimed that he was
late because he had been in a fight at a gas station. Defendant showed Russell a
bump on his head. At the time, Russell also noticed that defendant had changed his
clothes.
       {¶ 4} At approximately 2:00 a.m., defendant left Chasteens Bar in his
Monte Carlo automobile with Brenda, Randy, Lillian, and Russell. Defendant
drove to his house, handed his car keys to Randy, and instructed Randy to take a
stuffed pillowcase from a nearby blue automobile and put it into the trunk of the
Monte Carlo. Russell accused the Smith brothers of being “out thieving with my
car.” Defendant replied, “Russell, I wouldn’t do that.” The group then drove to




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                                January Term, 1997




Buckeye Street, where Russell’s brother, James, was staying. Russell soon went
home and to bed.
       {¶ 5} In the early hours of May 13, 1995, defendant admitted to his friend,
James Baker, that he had killed Lewis Ray and that his brother, Randy, had
strangled Ruth Ray. James testified that on May 12, 1995, he was staying at his
mother’s apartment, when defendant and Randy arrived at approximately 1:30 a.m.
in Russell’s automobile. The Smiths had been to the apartment earlier in the
evening before going to the Crystal Lounge. Defendant told James that he had been
in a fight, and James noticed that defendant had cleaned up and changed clothes.
Defendant was wearing a sweater and boots instead of tennis shoes. He was not
wearing a hat. James further testified that defendant left the apartment again at 1:35
a.m. to go to Chasteens Bar.
       {¶ 6} When defendant returned to James’s mother’s apartment at
approximately 2:45 a.m., he began to tell James about the murders. James testified
that defendant told him that he had taken a hammer and “struck Louie Ray between
his eye[s],” and that during this time, defendant had winked at his brother, Randy,
who followed Ruth into a bedroom and strangled her. Defendant also told James
that they took gold and jewelry in a pillowcase from the Rays’ home.
       {¶ 7} James testified that when he asked defendant why he killed the Rays,
defendant replied that they had killed them to prevent the Rays from identifying
them. James testified that defendant “was talking how he sliced Lewis Ray’s throat
from ear to ear and just laughing about it.” Defendant also told James that after he
killed Lewis, he “kicked Ruth’s brain in” to make sure she was dead. James
testified that defendant brought a pillowcase stuffed with jewelry inside the
apartment, but James asked him to take it back to the car.
       {¶ 8} Later that morning, James was driving around with defendant and
Brenda. They stopped to buy cigarettes and marijuana. Defendant mentioned to
James that he was concerned because he lost his green army camouflage hat in the




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struggle with Lewis. Eventually they drove to Russell’s home. There, out of
defendant’s presence, James told Russell what defendant had admitted. Defendant
then suggested to James that he hide the remaining jewelry. This prompted Russell
to contact the police. Police later recovered the jewelry in the attic of a garage.
       {¶ 9} In addition to the testimony of James Baker, Lillian Canafax testified
that she was outside Chasteens Bar arguing with Randy when he showed her a gun.
She testified that she saw the same gun in her bedroom the following morning.
Several days later, after she found the gun and money under the bed, she authorized
police to search the apartment. Lillian also turned over to police three money orders
she had purchased for Randy the day after these crimes occurred.
       {¶ 10} Another witness testified that around 11:15 or 11:30 p.m., he saw
Randy standing outside a pizza parlor about a block from the Rays’ residence. The
witness testified that Randy had a hammer in his hand as he ducked behind the
building. Russell testified that a hammer was missing from his car after he had
loaned his car to defendant.
       {¶ 11} That afternoon, the police detained defendant for questioning. At the
time, police observed cuts and scratches on defendant’s face, and a long cut and
bruises near his right collarbone.      Police also searched Brenda’s purse and
discovered a cellophane bag containing rings, two $100 bills, and a quantity of
nonsequentially numbered food stamps. Police knew that Lewis sold similar
jewelry and suspected that he may have dealt in food stamps as currency.
       {¶ 12} At the police station, defendant waived his Miranda rights and
admitted that he and Randy had killed Lewis and Ruth. Defendant said that while
at the Crystal Bar, he and Randy had talked about going to rob the Rays, and
decided that they would have to kill the Rays because they did not want the Rays
to be able to identify them. Defendant told police that after arriving at the Rays’
house, he and Lewis began to argue about money that defendant supposedly owed
Lewis. Defendant further admitted that he picked up an object from the kitchen




                                          4
                                 January Term, 1997




counter and struck Lewis, eventually overpowering him. Defendant claimed that
Lewis said, “I’m going to kill you, Kenny,” so defendant grabbed a knife and cut
Lewis’s throat. He then rolled Lewis on his side and took his wallet. Defendant
said he walked to the bedroom and saw Ruth’s body on the floor. Randy had
choked her to death. The two men ransacked the bedroom and left in Russell’s
automobile.
       {¶ 13} Police apprehended Randy Smith. They found $344 in bloodstained
currency on him. Randy initially denied any knowledge of the murders. Police
allowed Randy to speak with his brother, who said, “They got us brother, everybody
is telling on us, tell the truth, that’s what I did.” Randy then explained to the police
his involvement in the crimes.
       {¶ 14} Later, after again being advised of his Miranda rights, defendant
gave the police a written confession. In his statement, defendant said that while
playing pool at the Crystal Lounge, he talked with Randy about robbing Lewis. He
borrowed Russell’s car and drove to a pool hall about half a block from the Ray
home. Defendant stated that he and his brother walked to the Rays’ house. Lewis
invited the Smiths into his home. Defendant and Lewis began to argue about
$2,500 that defendant owed Lewis. The men began to fight in the kitchen and
defendant grabbed something from the counter and struck Lewis’s head. They
continued to wrestle on the floor. Defendant knew he was going to have to kill
Lewis to keep him from telling anyone what happened. Defendant then grabbed a
knife and “sliced Louie across the throat.”
       {¶ 15} In his written confession, defendant further admitted that he took
Lewis’s wallet, then walked into the bedroom. Ruth was lying on the floor in the
doorway, and defendant had to step over her body. Defendant said he asked Randy
what had happened, and Randy said he had choked Ruth. Defendant further
admitted that he then ransacked the bedroom, taking rings, watches, and necklaces,
and placed the items in a plastic bag and left.




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                            SUPREME COURT OF OHIO




       {¶ 16} According to his signed confession, defendant went home after the
murders to shower and change clothes. He and Randy divided the money found in
Lewis’s wallet. Defendant’s share was around $625. Defendant then put his bloody
clothes, the knife, and Lewis’s wallet into a green trash bag that Randy later threw
into the river. The two men then drove to Chasteens Bar.
       {¶ 17} In his confession, defendant explained that after leaving Chasteens
Bar, he drove to the apartment where James Baker was staying and began to go
through the jewelry that the defendant and Randy had taken from the Rays’ house.
Defendant picked out some items he wanted to keep. The following morning he
placed some rings into a plastic bag and gave them to Brenda, who put them into
her purse. Defendant put the remainder of the jewelry into the trunk of his Monte
Carlo. He and James then put the jewelry into the attic of James’s grandmother’s
garage. During police questioning, defendant also admitted that the wristwatch he
was wearing had belonged to Lewis.
       {¶ 18} At trial, defendant testified that he and Randy went to the Rays,
intending only to steal saws and drills from the yard. They parked the car away
from the house, but as they walked into the yard, Lewis opened the gate and saw
them. Lewis invited them into the house, and the men began to argue about money
that defendant allegedly owed Lewis. Defendant testified that within ten minutes,
“everything got real violent.” Lewis “jumped up,” told defendant he “was going to
shoot” him, and hit defendant “upside the head with something.” Defendant
testified that he grabbed something from near the stove and struck Lewis.
Defendant testified that Lewis tried to push him down the basement steps.
Defendant then grabbed a knife and cut Lewis as he approached. Defendant bent
down, turned Lewis on his side, and grabbed his wallet. Defendant further testified
that Randy told him that he had choked Ruth. The brothers then ransacked the
bedroom, taking jewelry.
       {¶ 19} Defendant denied that he intended to kill the Rays. Defendant




                                         6
                                January Term, 1997




claimed that Lewis was his best friend, and he “wouldn’t cold blooded kill him for
nothing.” Defendant testified that he was very upset about the Rays because they
were “like family” to him. He admitted that he told James about killing Lewis, but
testified that he wasn’t laughing or joking, but instead, he was “in tears.”
       {¶ 20} Kenneth Smith was charged in two counts with the aggravated
felony-murder of Lewis Ray and Ruth Ray in violation of R.C. 2903.01(B). Each
murder charge contained three death specifications: the offense was committed to
escape detection, apprehension, trial, or punishment for other offenses, R.C.
2929.04(A)(3); the offense was part of a course of conduct involving the purposeful
killing of two or more persons, R.C. 2929.04(A)(5); and the offense was committed
during the course of an aggravated robbery, R.C. 2929.04(A)(7). He was also
charged with two counts of aggravated robbery that included the allegation of a
prior felony conviction for attempted burglary. The jury convicted defendant as
charged and recommended the death penalty on the aggravated murder counts. The
trial court sentenced defendant to death.
       {¶ 21} In case No. 96-677, defendant directly appeals his convictions and
sentence from the trial court to this court, and the state cross-appeals on an issue
related to the merger of the murder specifications. Defendant attempted to appeal
to the court of appeals, but his appeal was dismissed because the appellate court
stated that it lacked jurisdiction over death penalty appeals under the Ohio
Constitution as amended in 1994. In case No. 96-678, defendant appeals the court
of appeals’ dismissal. Upon motion, this court consolidated the cases.
                               __________________
       Betty D. Montgomery, Attorney General, and Michael L. Collyer, Assistant
Attorney General; John F. Holcomb, Butler County Prosecuting Attorney, Daniel
G. Eichel and John M. Holcomb, Assistant Prosecuting Attorneys, for appellee and
cross-appellant.
       David H. Bodiker, Ohio Public Defender, Kathleen A. McGarry and




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Stephen A. Ferrell, Assistant State Public Defenders, for appellant and cross-appellee.
       Joseph T. Deters and William E. Breyer, urging affirmance for amicus
curiae, Ohio Prosecuting Attorneys Association.
       W. Andrew Hasselbach, urging reversal for amicus curiae, Ohio
Association of Criminal Defense Lawyers.
       J. Dean Carro, urging reversal for amicus curiae, Law Professors’ Amicus
Curiae Brief Committee.
                              __________________
       LUNDBERG STRATTON, J.
       {¶ 22} In these appeals, Kenneth Smith challenges the constitutionality of
the 1994 amendments to the Ohio Constitution that provide for the direct appeal of
capital cases from common pleas courts to the Supreme Court of Ohio. Defendant
also raises nineteen propositions of law for review. For the reasons that follow, we
hold that Ohio’s appellate process for capital cases does not violate the Equal
Protection Clause or the Due Process Clause of the United States Constitution.
Upon review of each proposition of law, we find none warrants reversal of
defendant’s convictions or death sentence. Pursuant to R.C. 2929.05(A), we have
independently weighed the aggravating circumstances against the mitigating
factors, and compared the sentence to those imposed in similar cases for both counts
of aggravated murder. Accordingly, we affirm his convictions and uphold the
sentences of death.
                                          I
                CONSTITUTIONALITY OF DIRECT REVIEW
       {¶ 23} On November 8, 1994, Ohio voters approved Issue I, which
amended Section 2(B)(2)(c), Article IV of the Ohio Constitution to provide for
direct appeal to this court “as a matter of right in cases in which the death penalty
has been imposed.”      Concurrently, Section 3(B)(2), Article IV of the Ohio




                                         8
                                 January Term, 1997




Constitution was amended to eliminate any jurisdiction of the courts of appeals “to
review on direct appeal a judgment that imposes a sentence of death.” The General
Assembly enacted implementing statutory changes, e.g., amendment to R.C.
2953.02 by 1995 Am.Sub.H.B. No. 4. These changes applied only to offenses
committed on or after January 1, 1995. Sub.H. Joint Resolution No. 15, Schedule,
145 Ohio Laws, Part IV, 7811, 7814; see, also, Baldwin’s Ohio Revised Code,
Section 2, Article IV, Ohio Constitution, 1994 Editor’s Comment. Defendant’s
convictions and sentences are the first case to be considered by this court under the
1994 amendments to the Ohio Constitution. Accordingly, the first issue before this
court is whether the constitutional amendments to the Ohio Constitution allowing
for the direct appeal of capital cases from the trial court to the Supreme Court of
Ohio pass constitutional muster.       After thoroughly reviewing this issue, we
conclude that they do.
          {¶ 24} In 1802, Ohio’s first Constitution established a system of appellate
review.     Sections 2 and 4, Article III, 1802 Ohio Constitution.        The 1851
Constitution limited the Supreme Court’s original jurisdiction and introduced
intermediate appellate courts. In 1968, with the Modern Courts Amendment, Ohio
established a two-tier system of review for capital cases. See Baldwin’s Ohio
Revised Code, Section 2, Article IV, Ohio Constitution, 1990 Editor’s Comment.
When Ohio revised its death penalty statute in 1981 pursuant to the United States
Supreme Court ruling in Gregg v. Georgia (1976), 

, 

, 

, the two-tiered system was retained.
          {¶ 25} However, the general public, both in Ohio and across the nation, has
been increasingly dissatisfied with inordinate delays that pervade the death penalty
system. Since the enactment of Ohio’s present death penalty statute in 1981,
following Gregg, as of July 1997, over one hundred seventy people have been
sentenced to death. None of these is yet close to execution. Ohio’s last execution
was carried out in 1963. The public’s frustration is clearly understandable.




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                             SUPREME COURT OF OHIO




         {¶ 26} The Supreme Court of Ohio recognized the public’s frustration in
State v. Steffen (1994), 

, 

, when the court ruled that
lower courts could not stay an execution date set by the Supreme Court of Ohio.
Justice Moyer’s pronouncement at that time bears repeating:
         “The constitutions and courts of our country have established procedural
safeguards reflecting our society’s concern for the rights of citizens accused of
committing crimes. When those safeguards are used to thwart judgments rendered
pursuant to the procedures, it is predictable that citizens will lose confidence in the
ability of the criminal justice system to enforce the judgments.
…
         “Whatever one’s views regarding capital punishment, the reality is that
some thirteen [now sixteen] years ago the General Assembly adopted a death
penalty as the public policy of this state. The courts have declared the law to be
constitutional; this court has affirmed eighty-seven [now one hundred twenty-five]
death penalties, and the law has not yet been fully implemented. That fact creates
doubt about the ability of the justice system to carry out the death penalty and,
perhaps even more importantly, a perception that the entire criminal justice system
is not working. Inaccurate as those perceptions are, they do persist.
         “…
         “In Ohio, many death penalty actions are reaching the point of judicial
saturation. As in the cases presently before us, the criminal justice system has more
than satisfied the defendant’s constitutional rights to due process and fair trials.
Their convictions have been viewed and reviewed.” Id. at 406-407, 639 N.E.2d at
73-74.
         {¶ 27} Against this backdrop of extraordinary delay and loss of public
confidence in the integrity of the death penalty system, the citizens of the state of
Ohio have spoken through constitutional amendment. In November 1994, the Ohio
citizens passed amendments to the Ohio Constitution allowing for direct appeal of




                                          10
                                 January Term, 1997




cases from the trial court to the Supreme Court of Ohio. The first of the two
amendments establishes a direct right of appeal from the trial court to the Supreme
Court of Ohio, and the second amendment removes such right of appeal from the
intermediate appellate courts.
       {¶ 28} Section 2(B)(2), Article IV, Ohio Constitution now states:
       “ (2) The supreme court shall have appellate jurisdiction as follows:
       “…
       “(c) In direct appeals from the courts of common pleas or other courts of
record inferior to the court of appeals as a matter of right in cases in which the
death penalty has been imposed[.]” (Emphasis added to new material.)
       {¶ 29} Section 3(B)(2), Article IV, Ohio Constitution now reads:
       “(2) Courts of appeals shall have such jurisdiction as may be provided by
law to review and affirm, modify, or reverse judgments or final orders of the courts
of record inferior to the court of appeals within the district, except that courts of
appeals shall not have jurisdiction to review on direct appeal a judgment that
imposes a sentence of death.” (Emphasis added to new material.)
       The amendments became effective January 1, 1995 and applied to all cases
in which the crime was committed on or after January 1, 1995. In response to these
constitutional amendments, the legislature also amended R.C. 2953.02 to state:
       “In a capital case in which a sentence of death is imposed for an offense
committed on or after January 1, 1995, the judgment or final order may be appealed
from the trial court directly to the supreme court as a matter of right. The supreme
court in criminal cases shall not be required to determine as to the weight of the
evidence, except that, in cases in which a sentence of death is imposed for an
offense committed on or after January 1, 1995, and in which the question of the
weight of the evidence to support the judgment has been raised on appeal, the
supreme court shall determine as to the weight of the evidence to support the
judgment and shall determine as to the weight of the evidence to support the




                                         11
                              SUPREME COURT OF OHIO




sentence of death as provided in section 2929.05 of the Revised Code.”
        {¶ 30} Defendant     now     challenges    the   constitutionality    of   these
constitutional and statutory amendments on several bases. Defendant’s general
attack on the constitutionality of Ohio’s death penalty statute is summarily rejected.
State v. Poindexter (1988), 

, 

, syllabus; State v.
Jenkins (1984), 

, 15 OBR 311, 

.
                           Eighth Amendment Challenges
        {¶ 31} Initially, all parties concede that there is no constitutional right to an
appellate review of a criminal sentence. The United States Supreme Court in
Estelle v. Dorrough (1975), 

, 

, 

, held, “[T]here is no federal constitutional right to state appellate review
of state criminal convictions.” The Supreme Court has stated that “the right of
appeal is not essential to due process, provided that due process has already been
accorded in the tribunal of first instance.” State ex rel. Bryant v. Akron Metro. Park
Dist. (1930), 

, 

, 

. The United
States Supreme Court laid out the rationale most clearly in Ross v. Moffitt (1974),

, 

, 

, 351:
        “The defendant needs an attorney on appeal not as a shield to protect him
against being ‘haled into court’ by the State and stripped of his presumption of
innocence, but rather as a sword to upset the prior determination of guilt. This
difference is significant for, while no one would agree that the State may simply
dispense with the trial stage of proceedings without a criminal defendant’s consent,
it is clear that the State need not provide any appeal at all.”
        {¶ 32} However, once the right of appeal is established, “these avenues
must be kept free of unreasoned distinctions that can only impede open and equal
access to the courts.” Williams v. Oklahoma City (1969), 

, 

, 

; Rinaldi v. Yeager (1966), 

, 

, 

. Accord Blackledge v. Perry (1974),




                                           12
                                    January Term, 1997

, 

, 

; Lindsey v. Normet
(1972), 

, 

, 

.
        {¶ 33} Moreover, “[t]he state has a wide discretion in respect to establishing
its systems of courts and distributing their jurisdiction.” Bryant, 

, 

, 

. Accord Missouri v. Lewis (1880), 

,

. The United States Supreme Court has consistently been
“unwilling to say that there is any one right way for a State to set up its capital
sentencing scheme.” Spaziano v. Florida (1984), 

, 

, 

; Cabana v. Bullock (1986), 

, 

, 

. In Spaziano, the United States Supreme Court was
reviewing a capital sentencing structure in which a judge was permitted to override
a jury’s recommendation of a life sentence.                 In finding such a structure
constitutional, the court noted that thirty out of thirty-seven jurisdictions with
capital sentencing gave that decision to the jury, with only three allowing the judge
to overrule a recommendation of a life sentence. Spaziano, 

, 

, 

. The court stated:
        “The Eighth Amendment is not violated every time a State reaches a
conclusion different from a majority of its sisters over how best to administer its
criminal laws.” 

, 

, 

. In fact,
the thirty-eight states that now authorize capital punishment exhibit a wide variety
of appellate review procedures in criminal cases. Nine capital-punishment states
generally have only a single appellate court with statewide appellate jurisdiction in
criminal cases.1



1. Delaware [Del.Code Ann. 11-4209(g) (1996)]; Mississippi [Miss.Code Ann. 99-19-105 (1996)];
Montana [Mont.Code Ann. 46-18-308 (1995)]; Nevada [Nev.Rev.Stat.Ann. 177.055 (1997), and
S.Ct.Rule 250(1997)]; New Hampshire [N.H.Rev.Stat.Ann. 630:5(X)(1996)]; Oklahoma
[Okla.Stat.Ann. 21-701.13A (1997), Art.7, Sec.4, Okla. Constitution]; South Dakota [S.D.Codified
Laws 23(A)-27A-9(1996)]; Texas [Tex.Crim.Proc.Code Ann. Art. 37.071, Sec. 2(h)(1997)]; and
Wyoming [Wyo.Stat. 6-2-103(1996)].




                                              13
                                 SUPREME COURT OF OHIO




        {¶ 34} At least twenty-nine capital-punishment states, including Ohio, have
a two-tier appellate court system. Of these states, about twenty-five, now including
Ohio, require a capital case to be reviewed only in the state supreme court and not
in intermediate appellate courts. These states include Arizona, California, Florida,
Illinois, Indiana, Kentucky, Maryland, New York, Pennsylvania, and Virginia.2 In
addition, Massachusetts and Minnesota, which do not have capital punishment,
nonetheless specify that first-degree murder cases (but not other criminal cases)
bypass intermediate courts and go directly to the state supreme court. 3 See, e.g.,
Dickerson v. Latessa (C.A.1, 1989), 

 (discussing Massachusetts
procedures). Thus, in very few capital punishment states will a case involving a
death sentence be reviewed by two appellate courts. See, also, Bundy v. Wilson
(C.A.1, 1987), 

, 136-142.
        {¶ 35} Therefore, having reviewed the United States Supreme Court cases
and the protections afforded in other jurisdictions, we find no violation of the Eight
Amendment to the United States Constitution.




2. Arizona [Ariz.Rev.Stat.Ann. 13-4031 (1996)]; California [Cal. Const.Art.VI, Secs. 11,
12(d)(1997)]; Colorado [Colo.Rev.Stat.Ann. 16-12-101.5, 201 (1996)]; Florida [Fla. Const. Art.V,
Sec.3(b)(1)(1997)]; Illinois [Ill. Const.Art.6, Sec.4(b)(1997)]; Indiana [Ind. Const.Art.7,Sec.4
(1997)]; Kansas [Kan.Stat.Ann. 21-4627(1997)]; Kentucky [Ky. Const.Sec. 110(2)(b)(1996)];
Louisiana [La. Const.Art.V, Sec.5(D)(1997), and La.Code Crim.Proc.Art. 912.1(1997)]; Maryland
[Md. Cts. & Jud.Proc.Code.Ann.12-307(1996)]; Missouri [Mo. Const.Art.V, Sec.3(1996)];
Nebraska [Neb. Const. Art. 1,Sec.23(1995)]; New Mexico [N.M. Const.Art.VI, Sec. 2(1997)]; New
York [N.Y. CLS/CPL 450.70 (1996)]; North Carolina [N.C.Gen.Stat.7A-27(a)(1995)]; Ohio [Ohio
R.C. 2953.02 (1997)]; Oregon [Ore.Rev.Stat. 163.150(1)(g)(1996)]; Pennsylvania [42
Pa.Cons.Stats. 722 (1997)]; South Carolina [S.C.Code.Ann. 18-9-20; 16-3-25(F) (1996)]; Utah
[Utah Code Ann. 78-2-2(3)(i)(1996)]; Virginia [Va.Code.Ann. 17-110.1(1997)]; Washington
[Wash.Rev.Code 10.95.100, 2.06.030 (1997)]. Also in Idaho, Arkansas, and Connecticut, but in
those states, some cases filed in the Supreme Court can be transferred to intermediate courts. See
Idaho [Idaho Code 1-2406 (1997), Idaho App.R.11(1997)]; Arkansas [Ark.Sup.Ct. & Ct.App.Rule
1-2(a)2 (1997)]; and Connecticut [Conn.Gen.Stat.Ann. 51-199(b)(3)(1997)].

3. Mass.Gen.Laws Ann., Chapter 278, Section 33E (1997); Minn. Const.Art.6, Sec.2 (1997), and
Minn.Stat.Ann. Sec.632.14 (1997).




                                               14
                                 January Term, 1997




                                  Equal Protection
       {¶ 36} Defendant argues that the one-tier system violates the Equal
Protection Clause of the United States Constitution, or at the very least, the one-tier
system violates equal protection when other defendants are afforded a two-tier
appellate review process. First, we start with the proposition that amendments to a
state constitution and statutes, when tested against a higher authority, are entitled
to a strong presumption of legitimacy. Before a legislative enactment may be
declared unconstitutional, “it must appear beyond a reasonable doubt that the
legislation and constitutional provisions are clearly incompatible.” State ex rel.
Dickman v. Defenbacher (1955), 

, 

, 

,
paragraph one of the syllabus. Accord State v. Thompkins (1996), 

, 

. “Further, doubts regarding the validity of a
legislative enactment are to be resolved in favor of the statute.” State v. Gill (1992),

, 

, citing State ex rel. Swetland v. Kinney
(1982), 

, 

, 

.
       {¶ 37} Defendant argues that the constitutional amendments are
unconstitutional because the appellate review process no longer treats similarly
situated defendants equally. Defendant claims that someone now convicted of a
minor misdemeanor is afforded greater protection than one sentenced to death.
However, the reality is that capital and noncapital defendants were not treated
similarly even before the amendments at issue took effect. Under the prior system,
capital defendants had a guaranteed right to have all issues, capital or noncapital,
constitutional or statutory, reviewed by the Supreme Court of Ohio, a right only
discretionary with all noncapital defendants. Only two to three percent of all
noncapital defendants who seek review by this court even have their cases heard.
In 1995, defendants filed five hundred eighty-three felony discretionary appeals
and in 1996, six hundred forty-two such appeals, but this court allowed only
seventeen such appeals in 1995 and sixteen in 1996. 1995 Ohio Courts Summary




                                          15
                             SUPREME COURT OF OHIO




at Appendices A and C; The Supreme Court of Ohio Annual Report 1996 at
Appendices A and C. Therefore, a noncapital defendant rarely can hope for
Supreme Court review and has a right to only one appeal of all issues.
        {¶ 38} On the other hand, under the amendments, a capital defendant also
has one right to appeal of all issues, but all of the capital defendant’s noncapital
convictions are still reviewed by the Supreme Court of Ohio, along with his or her
capital convictions, thereby affording him or her a broader right of review than that
afforded to noncapital defendants. Capital defendants also had and still have
numerous additional rights, such as appointment of two counsel if indigent.
        {¶ 39} In addition, defendants sentenced to imprisonment are usually
already serving their terms and have a great interest in expediting their appeals.
Capital defendants, on the other hand, while seeking to overturn their convictions,
also seek to prolong the appeal process as long as possible, using every conceivable
avenue of attack, and the statistics show they have been extremely successful in
Ohio.
        {¶ 40} As a result, lengthy delays have arisen in enforcing death penalty
sentences in Ohio. See Steffen. Under these circumstances, Ohio voters had a
rational basis to decide that the Supreme Court of Ohio would—in a single appeal
as of right—directly review capital cases for crimes committed on or after January
1, 1995.
        {¶ 41} Indeed, as defendant points out, the state has taken other steps to
expedite the resolution of criminal cases, including capital cases, such as limiting
the time within which to file postconviction petitions. See R.C. 2953.21, as
amended by 1995 Am.Sub.S.B. No. 4. The United States Supreme Court has also
recognized the problem of excessive delays in capital cases. See Steffen, 

, 

. But governments are not restricted to a single
method of resolving a pervasive problem; here, the “erosion of the finality of
judgments in criminal cases undermines the deterrent effect of criminal law.” 

                                         16
                                January Term, 1997




       {¶ 42} The distinction drawn between appeal rights in capital and
noncapital cases must bear “ ‘some relevance to the purpose for which the
classification is made.’ ” See Estelle, 

, 

, 

. The state has a direct, legitimate and compelling interest in ensuring that
the final judgments of its courts are expeditiously enforced.          “When those
[procedural] safeguards are used to thwart judgments …, citizens will also lose
confidence in the ability of the criminal justice system to enforce its judgments.”
Steffen, 

, 

.
       {¶ 43} Defendant also claims that equal protection is violated because
defendants charged with crimes committed on or after January 1, 1995 are not
treated the same as preamendment defendants who still have a two-tier system of
review, even though they are similarly situated. However, to adopt defendant’s
position would be to freeze law in time and to never allow amendments to the
criminal justice system. Ohio’s death penalty statutes, enacted in 1981, treated all
criminals committing murders after enactment differently from defendants
committing murders before enactment. See Dobbert v. Florida (1977), 

, 

, 

 (Defendant sentenced to death
in case tried after the effective date of remedial statutes amending Florida’s capital
sentencing procedure in the wake of Furman v. Georgia [1972], 

, 

, 

, was not similarly situated to those tried before the
statute’s effective date, whose death sentences had been commuted to life
imprisonment — hence no equal protection violation.). The Equal Protection
Clause does not forbid statutes to have a beginning. Williams v. Walsh (1912), 

, 

, 

; Sperry & Hutchinson Co. v. Rhodes (1911),

, 

, 

. For such a reason, the constitutional
amendments apply only to crimes committed on or after the effective date, January
1, 1995, thereby avoiding ex-post-facto complications. Therefore, we find that
defendant’s position is without merit.




                                         17
                             SUPREME COURT OF OHIO




       {¶ 44} Other jurisdictions have rejected the arguments made by defendant.
The Virginia Supreme Court specifically rejected an equal protection challenge to
a single appeal to that state’s highest court. In Payne v. Commonwealth (1987),

, 

, the court held, “It was rational for the
General Assembly, given the gravity of cases involving a sentence to death, to
provide those defendants an automatic, plenary review in the Commonwealth’s
highest court.”
       {¶ 45} The Arizona Supreme Court also upheld the constitutionality of a
death penalty procedure almost identical to Ohio’s against an equal protection
challenge. In State v. Ramirez (1994), 

, 

, the Arizona
Supreme Court rejected a challenge that the statute was unconstitutional because it
limited capital defendants to one direct appeal as of right to the Supreme Court,
whereas noncapital defendants had two possibilities for appeal—direct appeal to
the court of appeals and discretionary review by the Supreme Court. In rejecting
an equal protection challenge, the Arizona Supreme Court relied on Proffitt v.
Florida (1976), 

, 

, 

,
in which the United States Supreme Court reviewed Florida’s capital sentencing
procedures, which were similar to Arizona’s.
       {¶ 46} In fact, defendant fails to cite any case holding that the Equal
Protection Clause of the United States Constitution requires two levels of state
appellate review in capital cases.
                                     Due Process
       {¶ 47} Additionally, a single-tier system does not violate the capital
defendant’s right to due process. A direct appeal to this court affords a capital
defendant significant advantages in comparison with other criminal defendants. As
stated, all of a defendant’s issues, both noncapital and capital, constitutional or
statutory, are reviewed by the Supreme Court. A court of appeals must apply this
court’s existing precedents, but this court can directly reverse its own precedents.




                                         18
                                     January Term, 1997




A defendant can still directly challenge existing precedent and seek change.
Indeed, his or her opportunities are better, as a lower court could not reexamine
precedent from the Supreme Court.
         {¶ 48} Further, this court can more readily judge both the appropriateness
and proportionality of death sentences on a statewide basis, instead of the
geographical limits of an appellate district. See, also, Payne, 

, 

. An appellate court does not have the breadth and scope of experience
that this court has to review the death sentences of all eighty-eight counties and to
measure the appropriateness and proportionality of all cases in the state.
         {¶ 49} Defendant also argues that due process is denied the capital
defendant because the Supreme Court of Ohio cannot consider weight-of-the-evidence arguments during the guilt phase (although defendants often argue that
the Supreme Court does have jurisdiction to do so). Despite some admittedly
conflicting case law on this issue, there is no provision in the Ohio Constitution or
statutes that prevents this court from reviewing weight of the evidence in capital
cases. See Article IV of the Ohio Constitution.4 Further, this court, in its prior
review of capital cases, has often responded to claims concerning evidence. For
example, in State v. Greer (1988), 

, 

, this court devoted two pages of the opinion to reviewing an argument on
weight of the evidence. See, also, State v. Montgomery (1991), 

. This court has held that it is not required to review weight-of-the-evidence claims. See State v.
Tyler (1990), 

, 

; State v. Eley (1978), 

, 

, 

; State v. Robinson (1955), 

,
487, 

, 

, 149. We have even gone so far as to say that we are not forbidden
to review weight-of-the-evidence claims. See State v. Frohner (1948), 

, 

, 

. However, we have also held that we may not review weight-of-the-evidence claims. See State v. Shoemaker (1996), 

, 

; State v. Eley (1996), 

, 

, 648; State v. Waddy
(1992), 

, 

; State v. Jenks (1991), 

,

; State v. Powell (1990), 

, 

; State v.
Cooey (1989), 

, 

. Those issues are now mooted by
the passage of the Issue I amendments to the Ohio Constitution.




                                                19
                              SUPREME COURT OF OHIO




416, 

; State v. Wickline (1990), 

,

. In fact, R.C. 2953.02 and 2929.05, even before the
adoption of Issue I, required this court to “review and independently weigh” the
evidence as to any death penalty sentence. This court has regularly done so without
objection from defendants as to its lack of constitutional power to do so. See State
v. Jenkins (1984), 

, 15 OBR 311, 341, 345, 

; State v. Claytor (1991), 

, 

.
          {¶ 50} However, the Supreme Court of Ohio has always had the
constitutional grant of “appellate jurisdiction” in capital cases. (Preamendment
Section 2[B][2], Article IV.) The phrase “appellate jurisdiction” means the power
to hear and resolve all issues necessary to determine an appeal, including weight-of-the-evidence claims.     On direct appeals, this court now assumes all roles
performed by the lower appellate courts, including a full weight-of-the-evidence
review.     The legislature has not expanded this court’s jurisdiction by the
amendment of R.C. 2953.02, but has merely spelled out the new role of the
Supreme Court as the only court of appellate review in death penalty cases.
          {¶ 51} Nor is there any requirement in the Constitution, including the
amendments, that this court must be unanimous (as a court of appeals must be) on
decisions to overturn on a weight-of-the-evidence finding (nor, certainly, would
defendant seek such a strict standard). Supreme Court review thus provides greater
protection for a capital defendant, since we can reverse on weight of the evidence
with a mere majority.
          {¶ 52} Defendant also claims that the appellate courts perform a more
thorough review than the Supreme Court, citing Poindexter, 

, 

:
          “When issues of law in capital cases have been considered and decided by
this court and are raised anew in a subsequent capital case, it is proper to summarily




                                         20
                                January Term, 1997




dispose of such issues in the subsequent case.” 

 syllabus.
       {¶ 53} However, defendant misconstrues Poindexter. Nowhere does the
court imply that it will not continue to thoroughly consider and review all issues.
Indeed, we do review all issues. We merely do not need to discuss and address, in
opinion form, settled issues of law but may deal with them in summary fashion.
“[W]e are not required to consume limited judicial resources writing opinions
which analyze time-worn legal arguments raised in a multiplicity of printed pages.”
State v. Spisak (1988), 

, 

.
                     Appellate Review of Noncapital Charges
       {¶ 54} Defendant also appeals the dismissal by the court of appeals of his
noncapital charges, arguing that only the capital charges can go directly to the
Supreme Court of Ohio. However, the plain language of the amendments speaks
of “cases in which the death penalty has been imposed” and “judgment that imposes
the sentence of death.” (Emphasis added.) Section 2(B)(2)(c), Article IV and
Section 3(B)(2), Article IV, Ohio Constitution. Thus the Supreme Court has
jurisdiction over the whole case, instead of counts, charges, or sentences.
       {¶ 55} However, “courts must interpret the Constitution broadly in order to
accomplish the manifest purpose of an amendment [to the Constitution].” Swetland,

, 23 O.O.3d at 481, 

. “In the interpretation
of an amendment to the Constitution, the object of the people in adopting it should
be given effect ….” Castleberry v. Evatt (1946), 

, 

,

, paragraph one of the syllabus. Indeed, to so separate the convictions
and appeals would lead to further delay, confusion in record transmittal, waste of
judicial resources, possible inconsistency in decisions, and a further wait for the
appeal to the Supreme Court from the appellate court on noncapital cases (albeit
now only a two to three percent chance of being accepted instead of the current
certainty of review). Such absurd consequences were surely never intended by the
voters in passing such amendments and would thwart the very purpose of




                                         21
                             SUPREME COURT OF OHIO




expeditious review of capital cases.
        {¶ 56} In conclusion, we have determined that the amendments to the Ohio
Constitution, Section 2(B)(2) and Section 3(B)(2), Article IV, and the
implementing statute, R.C. 2953.02, are constitutional. Therefore, the courts of
appeals shall not accept jurisdiction of any cases in which the sentence of death has
been imposed for an offense committed on or after January 1, 1995. Appeals in
such cases shall be made directly from the trial court to the Supreme Court of Ohio.
                                         II
                                  TRIAL ISSUES
        {¶ 57} We now address defendant’s propositions of law that pertain to the
pretrial and trial.
                           Voir Dire and Jury Selection
        {¶ 58} In Proposition of Law XII, defendant contends that the trial judge
erred by not allowing for “complete and thorough questioning in voir dire.”
However, defendant does not specify what, if any, questions the court did not
permit. A review of the transcript shows that the court placed few restrictions on
defense counsel’s questioning of the potential venire. Furthermore, the court’s
decision to question the entire jury panel and not sequester individual jurors “is a
matter of discretion within the province of the trial judge.” State v. Mapes (1985),

, 19 OBR 318, 

, paragraph three of the syllabus.
        {¶ 59} It was within the discretion of the trial court to use its own jury
questionnaire instead of the questionnaire submitted by the defense. The court
allowed counsel an opportunity to modify by agreement the court’s proposed
questionnaire. State v. Carter (1995), 

, 

; State v. Loza (1994), 

, 

.
        {¶ 60} Defendant further contends that the trial judge should have, sua
sponte, excused four jurors for cause because each one had a personal experience
or acquaintance with a victim or investigator in the case that indicated he or she




                                         22
                                  January Term, 1997




could not be fair and impartial. However, neither the defense nor the prosecution
objected to these jurors for cause. Under these circumstances, the trial judge should
be very reluctant to intervene.
       {¶ 61} Whether to disqualify a juror for cause is “a discretionary function
of the trial court … [not reversible] on appeal absent an abuse of discretion.”
Berk v. Matthews (1990), 

, 

, syllabus. “[T]he
trial judge saw and heard” the prospective jurors and could evaluate their responses.
State v. Allen (1995), 

, 

. We find no
abuse of discretion. See State v. Allard (1996), 

, 

. Furthermore, defendant waived any potential error by
failing to challenge the prospective jurors at trial. State v. Williams (1977), 

, 

, 

, paragraph one of the syllabus, vacated
on other grounds by 

, 

, 

. Accordingly,
Proposition of Law XII is without merit.
                              Admissibility of Evidence
                             A. Defendant’s Confession
       {¶ 62} In Proposition of Law XI, defendant challenges the admission of his
written confession on the basis that his initial arrest was illegal. He claims police
had no probable cause and no warrant. Thus, he claims all evidence obtained as a
direct result should be suppressed. When reviewing a ruling on a motion to
suppress, a court must remain mindful that “the weight of the evidence and
credibility of witnesses are primarily for the trier of the fact.” State v. DePew
(1988), 

, 

; State v. Fanning (1982), 

, 1 OBR 57, 

.
       {¶ 63} The trial court rejected defendant’s claim that the police lacked
probable cause to detain and arrest him. The court found that the police had ample
cause to arrest defendant based upon information supplied by Russell Baker. Police
learned from Russell that defendant had borrowed his car under suspicious




                                          23
                            SUPREME COURT OF OHIO




circumstances, had not come back for a long period of time, and had changed
clothes and been in a fight. Russell also disclosed to police that defendant had
admitted to James Baker that defendant and Randy had killed the Rays, and Russell
disclosed details about the crime scene that only the killer would have known.
Based upon the totality of the circumstances, police had specific and articulable
facts that warranted defendant’s detention and arrest. See Loza, 

, 

; State v. Comen (1990), 

, 

.
       {¶ 64} Defendant also contends that his confession to police was not
voluntary and that he did not knowingly waive his Miranda rights because he was
under the influence of drugs and alcohol at the time. There was no evidence
presented of such influence. Police advised defendant of his Miranda rights on
more than one occasion. At no time did defendant ask for counsel. The trial court
properly found that defendant “was fully advised of his constitutional rights,” and
he “knowingly, intelligently and voluntarily waived his rights to remain silent and
to have the assistance of counsel.” We find that the court properly admitted
defendant’s confession. Carter, 

, 

;
State v. Brewer (1990), 

, 

.
       {¶ 65} Defendant’s argument that his confession should be suppressed
because police did not electronically record it is also without merit. Neither the
Ohio Constitution nor the United States Constitution requires that police
interviews, or any ensuing confessions, be recorded by audio or video machines.
See State v. Rhoades (1991), 

, 

; People v. Raibon
(Colo.App.1992), 

; State v. Buzzell (Me.1992), 

; Williams v. State (Miss.1988), 

; State v. Gorton
(1988), 

, 

; State v. Kilmer (1993), 

, 

. But, see, Stephan v. State (Alaska 1985), 

 (based on Alaska Constitution).          Consequently, we reject




                                        24
                                January Term, 1997




defendant’s Proposition of Law XI.
                         B. Victims’ Character Evidence
       {¶ 66} In Proposition of Law XIV, defendant claims the trial court erred in
allowing the prosecutor to comment on and to introduce favorable character
evidence about the victims while restricting cross-examination regarding bad
character. Defendant contends it was improper to allow testimony about the
duration of the victims’ marriage, their occupations, and the number of their
children, and to admit photographs of the victims. However, proving the facts of a
murder necessarily involves disclosure of details as to the victims and their lives.
“The victims cannot be separated from the crime.” State v. Lorraine (1993), 

, 

. Accord Allard, 75 Ohio St.3d at
499-500, 

; State v. Fautenberry (1995), 

, 438-
439, 

.
       {¶ 67} Moreover, the record reflects that defendant did not object during
the prosecutor’s opening statement that foreshadowed this testimony. Neither did
he object when David Lester, the victim’s son, referred to the personal details
regarding the victims, or when the prosecutor offered the victims’ photographs into
evidence. We need not consider a claim of error that was not raised in any way in
the court below. See State v. Williams, 

, 

, 

. Having failed to object at trial, defendant waived any perceived error except
for plain error. Because the references to the victims’ background were minimal
and relatively innocuous, we find they did not constitute plain error.
       {¶ 68} As for defendant’s claim that the trial judge restricted cross-examination regarding Lewis Ray’s bad character, e.g., whether police had
previously arrested Ray, especially for dealing in food stamps, defendant was not
prejudiced by the court’s restriction because evidence that Lewis may have been
dealing in stolen merchandise and food stamps was presented to the jury through
defendant’s own testimony and the testimony of police officers. Accordingly, we




                                         25
                             SUPREME COURT OF OHIO




reject Proposition of Law XIV.
                              C. Playing of 911 Tape
       {¶ 69} In Proposition of Law XV, defendant contends that playing the 911
tape recording of the victim’s son notifying police of the homicides was
inadmissible hearsay, as well as irrelevant and highly prejudicial. The trial court
correctly ruled that the tape qualified as an excited utterance and did not constitute
inadmissible hearsay. “To be admissible under Evid.R. 803(2) as an excited
utterance, a statement must concern ‘some occurrence startling enough to produce
a nervous excitement in the declarant,’ which occurrence the declarant had an
opportunity to observe, and must be made ‘before there had been time for such
nervous excitement to lose a domination over his reflective faculties. …’ ” State
v. Huertas (1990), 

, 

, quoting paragraph
two of the syllabus in Potter v. Baker (1955), 

, 

, 

. See, also, State v. Kinley (1995), 

, 

; State v. Simko (1994), 

, 

, 352.
       {¶ 70} Defendant also contends that the relevancy of the tape and its
prejudicial impact under Evid.R. 403(A) should have precluded admission.
However, defendant failed to object on that basis at trial and, given the nature and
brevity of the relevant portion of the tape, we find that any inflammatory impact on
the jury would be slight. We find that the trial court did not abuse its discretion in
admitting the tape into evidence. See State v. Lundgren (1995), 

, 

; Allen, 

, 

.
Accordingly, we reject Smith’s Proposition of Law XV.
                  D. Gruesome Photographs and Other Exhibits
       {¶ 71} In Proposition of Law XVI, defendant argues that the trial court erred
in admitting crime-scene and autopsy photographs that were both gruesome and
cumulative in nature. The admission of photographs is left to the discretion of the
trial court. Evid.R. 403; State v. Landrum (1990), 

, 559




                                         26
                                January Term, 

, 726; State v. Maurer (1984), 

, 15 OBR 379,
401, 

. In order to be admissible, the probative value of a
photograph must outweigh the danger of material prejudice to the defendant and
the photograph must not be repetitive. See State v. Morales (1987), 

, 

; Maurer, paragraph seven of the syllabus.
       {¶ 72} Defendant urges this court to overrule DePew, in which we held that
photographs of bloodstains are generally not gruesome. “The photos of blood stains
… do not have a shock value equivalent to the photograph of a corpse. The term
‘gruesome’ in the context of photographic evidence should, in most cases, be
limited to depictions of actual bodies or body parts.” 

, 

. The photographs of blood and blood splatters in the kitchen were
not gruesome so as to preclude their admission into evidence.
       {¶ 73} Defendant claims that the twelve photographs of Lewis Ray in the
kitchen and the twelve autopsy photographs of his body were cumulative in nature
and were prejudicial. The court admitted the autopsy photographs because each
one illustrated the coroner’s testimony and demonstrated defendant’s specific intent
to kill. Details in the photographs, such as the depressed skull fracture caused by a
hammer-like object, conflicted with defendant’s version of the injuries he inflicted
upon Lewis.
       {¶ 74} The court determined that the photographs of Lewis in the kitchen
were taken from different angles and showed the condition of the kitchen. “While
it is true that the sheer number of photographs admitted may constitute error where
they are needlessly cumulative, Evid.R. 403(B), the mere fact that there are
numerous photos will not be considered reversible error unless the defendant is
prejudiced thereby. Absent gruesomeness or shock value, it is difficult to imagine
how the sheer number of photographs admitted can result in prejudice requiring
reversal.” 

 Therefore, the court did not abuse its discretion by admitting the
photographs. The probative value of the photographs outweighed any prejudicial




                                         27
                            SUPREME COURT OF OHIO




impact on the jury.
       {¶ 75} The six autopsy photographs of the body of Ruth Ray also illustrated
the coroner’s testimony. We have reviewed the photographs and determined that
they were not cumulative or inflammatory and that defendant was not prejudiced
by their admission.
       {¶ 76} We have reviewed the photographs of the crime scene and find that
the trial court’s decision to admit those photos did not constitute an abuse of
discretion.   The court’s casual reference to the photographs as “excessively
gruesome” or “excessively repetitive” does not indicate that the court used an
incorrect legal standard when deciding upon their admissibility. The probative
value of the photographs outweighed any danger of prejudice to defendant. We
find that the admission of the photographs into evidence was not an abuse of
discretion. See Morales, 

, 

; Maurer.
       {¶ 77} In Proposition of Law XVII, defendant also contends it was error to
admit numerous pieces of evidence directly connected to Randy Smith, such as
Randy’s boots, a stolen gun that was traced to Randy, photographs of Randy, and
money and money orders either seized from or traced to him. However, because
defendant and Randy jointly planned and executed the robbery and murders, this
evidence helped prove defendant’s guilt and corroborated details of defendant’s
confessions. Therefore, it was admissible.
       {¶ 78} Defendant also claims that the court should not have reintroduced
exhibits from the guilt phase of the trial during the sentencing phase. However,
these exhibits were relevant to the nature and circumstances of the specified
aggravating circumstances. See State v. Wogenstahl (1996), 

, 

; State v. Woodard (1993), 

,

; DePew, paragraph one of the syllabus. Consequently, we reject
Propositions of Law XVI and XVII.




                                       28
                                January Term, 1997




                                  Jury Instructions
       {¶ 79} In Proposition of Law X, defendant contends that the trial court
erroneously instructed the jury during both the guilt and penalty phases of the trial.
However, but for an objection during the penalty phase to an instruction on
mitigating factors, defendant did not object to the jury instructions given. Thus, he
waived all but plain error. Lundgren, 

, 

.
       {¶ 80} Defendant objected when the court denied his request to specifically
instruct jurors on seven ostensible mitigating factors, e.g., “ability to make a well
behaved and peaceful adjustment to prison life,” “victim of child abuse and
substance abuse,” “ability to lead a useful life in prison,” and “deprived of parental
nurturing.” Six of the factors fit within defendant’s “history, character, and
background,” on which the court did instruct the jury. However, the court did
instruct the jury that it could consider “other factors” in its decision. All seven of
the factors, including “remorse,” may be categorized as “other factor[s]” within the
meaning of R.C. 2929.04(B)(7). Consequently, we find no error and we reject
Proposition of Law X. See State v. Garner (1995), 

, 

; Landrum, 

, 

.
                             Prosecutorial Misconduct
       {¶ 81} In Proposition of Law VIII, defendant claims that he was denied a
fair trial and due process because of pervasive prosecutorial misconduct. However,
defendant’s failure to object at trial to much of the alleged misconduct about which
he now complains results in waiver of all but plain error. State v. Williams, 

, 

, 

.
       {¶ 82} Defendant claims that during voir dire, the prosecutor “embellished”
the phrase, “a man’s home is his castle,” making it into a legal concept. Defendant
did not object to the comment at the time. However, he now argues that he was
prejudiced by this phrase because the location of the murders was irrelevant and he
was not charged with burglary. This legal maxim relates “to the rights of an




                                         29
                              SUPREME COURT OF OHIO




individual to defend his house against violence, and his person against death.” State
v. Nieto (1920), 

, 415, 

, 664. Accord State v. Thomas
(1997), 

, 

, 1342. Defendant claimed that
Lewis Ray attacked him. Defendant robbed the Rays in their home. Reference to
the Ray home was not irrelevant, and the prosecutor’s reference to this phrase did
not result in plain or prejudicial error.
        {¶ 83} Defendant also claims that, during voir dire, the prosecutor
improperly explained the concept of weighing of aggravating circumstances and
mitigating factors during sentencing. Again, there was no objection to these
comments. Furthermore, we find that the mere reference to these legal concepts
during voir dire did not result in prejudicial or plain error. See State v. Campbell
(1994), 

, 

.
        {¶ 84} Defendant claims that the court improperly permitted the prosecutor
to ask leading questions of James Baker, a witness crucial to the state’s case.
Evid.R. 611(C) provides that “[l]eading questions should not be used on the direct
examination of a witness except as may be necessary to develop his testimony.”
Furthermore, the court exercises reasonable control over the mode of interrogation
so that its presentation will effectively ascertain the truth. Evid.R. 611(A). In a
sidebar conference, the court explained that it was exercising latitude to get at the
truth in the examination of Baker because he appeared to be nervous and “a little
slow” and “straining” with his answers. We find that the court properly exercised
its discretion and there was no error. See, generally, State v. D’Ambrosio (1993),

, 

.
        {¶ 85} We also find that the cross-examination of defendant did not
constitute prosecutorial misconduct that affected the fairness of the trial. See State
v. Benge (1996), 

, 

; Lundgren, 

, 

. During direct examination, defendant
testified that he and James drove to the homicide scene and Baker talked with the




                                            30
                                January Term, 1997




Rays’ children. Defendant also testified that Lewis was like “a daddy” to him.
Thus, the prosecutor’s reference to the Rays’ children was not outside the scope of
cross-examination.
        {¶ 86} Because defendant claimed that parts of his written confession to
police were untrue, it was not improper for the prosecutor to ask defendant to
identify those parts of his confession. Defendant’s testimony also conflicted with
the crime-scene photographs. Thus, it was not improper for the prosecutor to
question defendant about the photographs in evidence.
        {¶ 87} Defendant also claims that during closing argument in the guilt
phase of the trial, the prosecutor improperly referred to defendant’s testimony as
“concocted.” He also emphasized irrelevant information and argued that defendant
lacked remorse for these crimes. As to the comment about defendant’s “concocted”
testimony, defendant waived all but plain error by failing to timely object.
Wogenstahl, 

, 

. Later, when defendant
did object to the comment and moved for a mistrial, the court sustained the untimely
objection and gave the jury a thorough curative instruction. We presume the jury
followed the instruction. See State v. Wilson (1972), 

, 

, 

. Thus, we do not find plain error.
        {¶ 88} Prosecutors are entitled to latitude as to what the evidence has shown
and what inferences can reasonably be drawn from the evidence. State v. Lott
(1990), 

, 

; State v. Stephens (1970), 

, 

, 

. The prosecutor’s
reference to defendant’s lack of remorse may have been intended to question his
credibility.
        {¶ 89} Defendant claims there were numerous instances of prosecutorial
misconduct during the penalty phase of the trial. Upon review of the record, we
find that no misconduct occurred that would have affected the fairness of the trial.
“Prosecutors can urge the merits of their cause and legitimately argue that defense




                                         31
                             SUPREME COURT OF OHIO




mitigation evidence is worthy of little or no weight.” State v. Wilson (1996), 

, 

. See, also, State v. Steffen (1987), 

, 31 OBR 273, 

, paragraph two of the syllabus.
Further, the prosecutor could comment on the absence of defense witnesses. State
v. Bies (1996), 

, 

; D’Ambrosio, 

, 

.         Finally, defendant did not object to the
prosecutor’s closing argument. We find that no plain error exists. Loza, 

, 

; State v. Combs (1991), 

,

. Accordingly, we reject Proposition of Law VIII.
                           Effective Assistance of Counsel
       {¶ 90} In Proposition of Law IX, defendant contends that his constitutional
rights were violated because he was denied effective assistance of counsel during
pretrial and trial proceedings. Defendant provides numerous instances of his
counsel’s alleged ineffectiveness and urges this court to focus on the “totality of
the representation” in order to conclude that his counsel was ineffective.
       {¶ 91} Reversal of a conviction or sentence based upon a claim of
ineffective assistance of counsel requires that a 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), 

, 

. We find that the
performance of defendant’s counsel did not fall “below an objective standard of
reasonable representation.” 

 paragraph two of the syllabus. The cumulative
effect of the perceived errors is not “so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 

, 

, 

.
       {¶ 92} Defendant claims that his counsel did not arrange for him to undergo
a drug screening test that was ordered by the court. However, defendant failed to




                                          32
                                 January Term, 1997




demonstrate how results of a drug test taken almost a week after these crimes
occurred would be relevant to prove his intoxication the night the crimes occurred
or at the time of his arrest and confession. Defendant also claims that his counsel
should have developed evidence at a suppression hearing of defendant’s
intoxication at the time he was arrested and confessed to the crimes. Intoxication
affecting one’s state of mind, absent coercive police activity, would be an
insufficient reason to exclude his voluntary confession. See Colorado v. Connelly
(1986), 

, 

, 

.
          {¶ 93} We addressed defendant’s complaints about counsel’s actions during
voir dire under his Propositions of Law VIII and XII. The record indicates that the
court conducted a comprehensive voir dire.          We cannot now second-guess
counsel’s tactical decisions.
          {¶ 94} Defendant’s counsel planned to have defendant testify and knew that
he would have been subject to cross-examination on his 1987 conviction for
attempted burglary. Thus, counsel’s failure to seek severance of the prior offense
specification pursuant to R.C. 2941.142 did not fall below the objective standard of
representation. See Evid.R. 609; State v. Bradley, 

, 

.
          {¶ 95} We find that counsel’s tactical decisions throughout the guilt and
penalty phases of the trial did not fall below “an objective standard of
reasonableness.” Strickland, 

, 

, 

.
Defendant has not demonstrated “a reasonable probability that, were it not for
counsel’s errors, the result of the trial would have been different.” Bradley, 

, 

, paragraph three of the syllabus. We reject
Proposition of Law IX.
                        Sufficiency and Weight of the Evidence
          {¶ 96} In Proposition of Law XIII, defendant contends that the evidence is
insufficient to sustain his convictions and, further, that his convictions are against




                                          33
                               SUPREME COURT OF OHIO




the manifest weight of the evidence. Having already determined that this court has
power to assess the sufficiency and weight of the evidence, we must review those
issues.
          {¶ 97} Sufficiency of the evidence is the legal standard applied to determine
whether the case may go to the jury or whether the evidence is legally sufficient as
a matter of law to support the jury verdict, State v. Thompkins (1997), 

, 

, whereas the “[w]eight of the evidence concerns ‘the
inclination of the greater amount of credible evidence, offered in a trial, to support
one side of the issue rather than the other.’ ” (Emphasis sic.) 

, 

.
          {¶ 98} In reviewing the record for sufficiency, “[t]he relevant inquiry is
whether, after viewing 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, following Jackson v. Virginia (1979), 

, 

, 

. We find that the record contains sufficient
evidence to support the jury’s finding that defendant intended to kill both Lewis
and Ruth Ray.
          {¶ 99} The evidence indicates that, while at the Crystal Lounge, the Smith
brothers planned to rob the Rays. The Smiths also decided “they were going to
have to kill them … both” because they “didn’t want [the Rays] to tell on them.”
Later, defendant told James that he struck Lewis in the head with a hammer.
Lewis’s skull fracture was consistent with a hammer blow. Russell’s hammer later
turned up missing from the car that defendant had borrowed. Defendant also told
James that, after he killed Lewis, he kicked Ruth in the head to make sure she was
also dead. Defendant’s claim that he only intended to steal saws and drills from the
Rays’ back yard does not comport with other evidence produced at trial.
          {¶ 100} There was also sufficient evidence that defendant directly aided in




                                           34
                                January Term, 1997




Ruth’s murder with prior calculation and design. Even if defendant did not
personally strangle Ruth, the jury could reasonably find that his brother did in
accordance with their agreed plan, and Kenneth then kicked her in the head to make
sure she was dead. See State v. Ballew (1996), 

, 

. See State v. Taylor (1997), 

, 

; State v.
Cotton (1978), 

, 

, 

; State v. Robbins
(1979), 

, 

, 

.
       {¶ 101} We find there was sufficient evidence for the jury to consider each
of the three death penalty specifications. Defendant told James he had to kill both
of the Rays so that he and Randy would not be identified. R.C. 2929.04(A)(3), the
specification of purpose to escape detection, does not require the aggravated
robbery of the Rays to have preceded their murders. See Williams, 74 Ohio St.3d
at 576-577, 

; State v. Lewis (1993), 

, 

.
       {¶ 102} R.C. 2929.04(A)(5) requires only that the offense was part of a
course of conduct involving the purposeful killing of or attempt to kill two or more
persons by the offender. There was sufficient evidence that defendant planned both
murders, killed Lewis Ray, and directed and aided in the murder of Ruth Ray.
There was also abundant evidence that the murders occurred in the course of
aggravated robbery as required by R.C. 2929.04(A)(7).
       {¶ 103} In accordance with R.C. 2953.02, we also find that the greater
amount of credible evidence, or the manifest weight of the evidence, supports
defendant’s convictions. Following a review of the entire record, weighing the
evidence and all reasonable inferences, and considering the credibility of witnesses,
we find no basis to believe that the jury clearly lost its way, that a manifest
miscarriage of justice occurred, or that defendant’s convictions are against the
manifest weight of the evidence. The jury could reasonably find that defendant’s
testimony at trial lacked credibility and defendant’s oral confession to James just




                                         35
                             SUPREME COURT OF OHIO




hours after the crimes occurred and his subsequent statements to the police were
more believable than his trial testimony. The jury could also reasonably find that
defendant’s confession, corroborated by the other evidence, established the
elements of the offenses of which he was convicted. Accordingly, we reject
Proposition of Law XIII.
                                         III
                              SENTENCING ISSUES
                                Unsworn Statement
       {¶ 104} In Proposition of Law VI, defendant complains because the trial
judge informed the jury that they could take into consideration the fact that the
prosecution was not permitted to cross-examine defendant as to his unsworn
statement made during the mitigation hearing.
       {¶ 105} The court was simply attempting to explain to the jury that the state
would not be cross-examining defendant. However, we need not decide whether
the court’s comment exceeded the boundary in DePew, 

, 

, because defendant’s failure to object waived all but plain error. State
v. Underwood (1983), 

, 3 OBR 360, 

, syllabus.
See Lundgren, 

, 

; Lorraine, 

, 

. We find no plain error. Accordingly, we reject Proposition
of Law VI.
             Merger of Aggravating Circumstances and Cross-Appeal
       {¶ 106} The two murder charges filed against defendant contained three
capital specifications: murder to escape detection, multiple murder, and murder in
the course of aggravated robbery. R.C. 2929.04(A)(3), (5), and (7). At defendant’s
request, the trial court merged the three specifications into a single specification
and instructed the jury to weigh the specifications as one aggravating circumstance.
In Proposition of Law II, defendant contends that, despite the instruction, the court
continued to emphasize three separate specifications so that the instruction created




                                         36
                                 January Term, 1997




one “super” aggravating circumstance. Consequently, defendant argues it was
impossible for the jury to fairly balance the aggravating circumstances and
mitigating factors. Defendant claims the court also erroneously instructed the jury
to focus on the quality of the evidence, not the quantity.
        {¶ 107} Because the court merged those specifications at defendant’s
request, he cannot now assert error. “A party cannot take advantage of an error he
invited or induced.” State v. Seiber (1990), 

, 

; Center Ridge Ganley, Inc. v. Stinn (1987), 

, 31 OBR
587, 590, 

. Furthermore, defendant did not object at trial to
the instruction merging the three specifications. The failure to object constitutes a
waiver of any claim of error but for plain error. Underwood, at the syllabus. We
do not find that plain error exists.
        {¶ 108} The court’s repeated emphasis to the jury to consider “the quality
of the evidence and not the quantity” served to negate any prejudice to defendant.
In addition, we have independently determined that the aggravating circumstances
outweighed the mitigating factors. See Cook, 65 Ohio St.3d at 527, 605 N.E.2d at
82; Jenkins, 

, 15 OBR 311, 

, paragraph five of
the syllabus.
        {¶ 109} The state in its cross-appeal contends that the trial court improperly
merged the multiple murder specification with the other two death specifications in
both aggravated murder counts. Merger of specifications may occur when they are
duplications and arise from the same act. However, the specifications for multiple-murder and for felony-murder represent distinct and separate aggravating
circumstances. Williams, 74 Ohio St.3d at 579, 

; State v. Frazier
(1991), 

, 

. They “are not duplicative
since they did not arise from the same act or indivisible course of conduct.” 

 61
Ohio St.3d at 256, 574 N.E.2d at 490. Therefore, as to both counts, the R.C.
2929.04(A)(3) and (A)(7) specifications are merged, but the R.C. 2929.04(A)(5)




                                          37
                              SUPREME COURT OF OHIO




specification should not have merged.
       {¶ 110} Accordingly, we reject defendant’s Proposition of Law II and
sustain the state’s cross-appeal.
                               Consecutive Sentences
       {¶ 111} In Proposition of Law IV, defendant argues the trial court erred
when it refused to allow defense counsel to inform the jury that the trial judge could
impose consecutive rather than concurrent life sentences for the two murders. The
court allowed counsel to comment on possible sentences within the jury’s province,
but informed counsel that “you may not tell the jury whether they can be
consecutive or concurrent.”
       {¶ 112} In Allard, 75 Ohio St.3d at 492-493, 

, we held
the trial court properly instructed the jury, “You are not to speculate as to what
sentence the Court is actually going to impose or whether the sentences will be run
concurrent or consecutive.” Accord State v. Grant (1993), 

,

. Since a jury does not have the option of recommending whether
the life sentences should run consecutively or concurrently, it is not a matter for the
jury to determine. Allard, 

, 

.
       {¶ 113} We find the trial court did not err by refusing to allow defense
counsel to discuss consecutive versus concurrent life sentences as potential
penalties. This did not undermine the reliability of the capital sentencing process.
Accordingly, we reject Proposition of Law IV.
                           Death Penalty for Accomplice
       {¶ 114} In Proposition of Law III, defendant argues that the actions of the
accomplice, not the principal offender, must be examined when the state seeks a
death sentence for complicity. Defendant contends that for an accomplice to be
eligible for the death penalty under the felony-murder specification, the accomplice
must commit the murder with prior calculation and design. The Eighth Amendment
does not prohibit the death penalty for an accomplice whose participation in the




                                          38
                               January Term, 1997




felony murder was significant, and whose mental state is one of reckless
indifference. Tison v. Arizona (1987), 

, 

, 

.
       {¶ 115} In State v. Ballew, 

, 

, 377-
378, we held that to sustain a conviction under R.C. 2929.04(A)(7), the felony-murder specification, the defendant need not be the actual killer or “principal
offender” if the defendant acted with “prior calculation and design” in the
aggravated murder. In State v. Taylor (1993), 

, 

, we explicitly recognized that an accessory could be sentenced to death
for felony-murder. Accord State v. Brown (1988), 

, 

; R.C. 2923.03(F). Here, the jury specifically found that defendant
purposely intended to kill Ruth Ray, and that he did so with “prior calculation and
design” as an aider and abettor in her aggravated murder.
       {¶ 116} Defendant’s argument that he cannot be convicted of R.C.
2929.04(A)(5), the multiple-murder specification, because he did not personally
kill Ruth ignores the evidence that the multiple killing was a planned, concerted
effort by defendant and his brother. The jury’s findings that defendant specifically
intended to kill both Lewis and Ruth and that he acted with “prior calculation and
design” and as an aider and abettor with respect to Ruth’s murder, satisfied the
constitutional safeguards relating to an accomplice’s liability. See Tison.
       {¶ 117} Defendant’s conviction of the R.C. 2929.04(A)(3) specification of
purpose to escape detection for both murders does not violate double jeopardy
protections.   The specifications differ in detail.   One alleged that defendant
murdered Lewis to escape detection for the aggravated robbery and the second one
alleged that he murdered Ruth to escape detection for the aggravated robbery and
for the aggravated murder of Lewis. Moreover, the two murder counts involved
different persons. The specifications do not involve punishment for the same
offense. Hence, they were not duplicative. See State v. Jones (1985), 

                             SUPREME COURT OF OHIO




116, 18 OBR 148, 

. Accordingly, we reject defendant’s Proposition
of Law III.
                                 Double Jeopardy
       {¶ 118} In Proposition of Law XVIII, defendant claims that his sentences
for the two felony murders and for the underlying felonies violate the Double
Jeopardy Clause. He argues that because felony-murder contains all the elements
necessary to prove the underlying robbery, simultaneous punishment for both
crimes constitutes double jeopardy. Defendant’s argument is not persuasive. We
have held that “[a]ggravated murder … is not an allied offense of similar import
to aggravated robbery … for purposes of R.C. 2941.25(A).” State v. Bickerstaff
(1984), 

, 10 OBR 352, 

, syllabus. See, also,
Frazier, 73 Ohio St.3d at 342, 652 N.E.2d at 1016; Grant, 

,

; R.C. 2941.25. Consequently, we find there is no violation of
defendant’s constitutional rights.
       {¶ 119} Defendant also makes a double-jeopardy argument that he should
be subject to a single prison sentence under R.C. 2941.25(A) because there was a
single robbery and the two counts of aggravated robbery were allied offenses of
similar import. However, injury is an element of aggravated robbery. Because
defendant inflicted injuries on each victim, the offenses were separate. Cf. 1974
Legislative Service Commission Comment to R.C. 2941.25 (“[A] thief who …
steals different property from three separate victims … can be charged with and
convicted of all three thefts.”). Accord Jones.
       {¶ 120} Notwithstanding the above, defendant failed to object; thus, he
waived these issues. Wilson, 

, 

; Comen, 

, 

. Therefore, we reject defendant’s Proposition
of Law XVIII.
                                Trial Court Opinion
       {¶ 121} Defendant’s Proposition of Law VII, that the trial court’s written




                                         40
                                January Term, 1997




opinion imposing the death penalty diminished the weight given to mitigating
factors and inflated the significance of aggravating circumstances, lacks merit. We
have repeatedly held that “the assessment and weight to be given mitigating
evidence are matters for the trial court’s determination.” Lott, 

,

. See, also, State v. Hill (1995), 

, 

. Furthermore, our independent reassessment of the sentence will
eliminate the effect of any deficiencies found in a trial court’s sentencing decision.
State v. Eley (1996), 

, 

, 651; State v. Fox
(1994), 

, 

.
                                         IV
                  INDEPENDENT SENTENCE EVALUATION
       {¶ 122} In Proposition of Law V, defendant argues that imposing the death
penalty in his case is inappropriate, excessive, and disproportionate when compared
with other cases. Defendant points to what he regards as abundant mitigating
evidence produced at trial and also to the fact that his brother, Randy, received only
a life sentence for the murders of Lewis and Ruth Ray.
       {¶ 123} We continue to adhere to the statement set forth in Steffen, 

, 31 OBR 273, 

, at paragraph one of the syllabus, that
“[t]he proportionality review required by R.C. 2929.05(A) is satisfied by a review
of those cases already decided by the reviewing court in which the death penalty
has been imposed.” Because Randy received a life sentence and the record of his
case is not before this court, we decline to include a review of Randy’s case in our
analysis of proportionality. 

 31 Ohio St.3d at 123, 31 OBR at 283, 

. Accord State v. Green (1993), 

, 

; see, also, State v. Jamison (1990), 

, 

.
                                  Penalty Hearing
       {¶ 124} We will consider the appropriateness of the death penalty in this




                                         41
                            SUPREME COURT OF OHIO




case in the context of our independent evaluation of the sentence. At the penalty
hearing, defendant presented a variety of mitigating evidence. His wife, Brenda,
testified that she had known defendant as a child and that they had been married for
eight years. Two children were born during the marriage, Kenneth, Jr., age eight,
and Amanda, age five. Defendant treated Brenda and the children very well.
       {¶ 125} Brenda testified that since she had known defendant, he had abused
alcohol and drugs. His father was also an alcoholic. After his release from prison
in 1989, defendant stopped “shooting up” drugs, but he continued to drink heavily
and use marijuana. Aside from some “thieving to make money,” Brenda testified
that defendant also worked and drew Social Security disability benefits. She
claimed that he stayed out of trouble and was not violent. However, on cross-examination, Brenda admitted that defendant told her that he had robbed the Rays
and almost “cut Mr. Lewis Ray’s head off.” Brenda also admitted that she had
looked over the jewelry stolen from the Rays and picked out items she liked and
wanted to keep.
       {¶ 126} Psychologist Janice Ort performed a wide variety of tests on
defendant and examined numerous records. Defendant’s IQ of 77 reflected low
average intelligence. He exhibited characteristics of an antisocial personality
disorder and was dependent on alcohol and sedatives, evidenced by a history of
significant substance abuse.    At age ten, defendant was using mood-altering
substances. By age twelve, he was sniffing glue and using alcohol and marijuana.
At age thirteen, he was using Valium, and by age fourteen shooting drugs
intravenously. At age sixteen, he was using amphetamines and hallucinogens. At
age nineteen, he was using cocaine. By age twenty-one, defendant had stopped
injecting drugs, but continued to abuse sedatives, marijuana and alcohol. In April
1983, defendant was hospitalized for a week for severe depression and drug abuse
with suicidal thoughts. In 1984, he was convicted of gross sexual imposition and
served six months at a youth detention center, after which he underwent a one-




                                        42
                                 January Term, 1997




month inpatient treatment program for alcoholics, followed by outpatient drug
counseling. He was later convicted of other offenses such as trespassing, assault,
and petty theft and served short jail terms. In October 1987, he began a prison term
for attempted burglary. Upon release in January 1990, he entered another drug
counseling program; however, his drug and alcohol abuse continued.
       {¶ 127} According to Dr. Ort, defendant’s history and background suggest
drugs and alcohol have caused organic brain impairment. After attending drug
treatment programs, defendant’s drug use temporarily abated. Dr. Ort testified that
if defendant were placed in the same setting and conditions, a very great possibility
exists that he would kill again. However, if he were in prison, away from drugs
and alcohol, he could adjust and adapt well. Psychologist Jeffrey L. Smalldon
agreed with Dr. Ort’s findings that defendant suffered from a “relatively mild
degree” of “brain impairment” as a result of heavy drinking on a daily basis, his
abuse of barbiturates and antianxiety medications, and his history of sniffing
lacquer, glue, and gasoline. Despite these “profound problems,” defendant had
functioned well in jail as “an excellent worker” and was “someone who never
create[d] disturbances.”
       {¶ 128} In an unsworn statement, defendant said he was born in November
1965, making him twenty-nine at the time of the offenses. Defendant stated that by
age thirteen, he was stealing to support himself and his drug habit. He would sell
stolen bikes and other things to Lewis Ray. When he was fourteen, his mother died.
Afterward, his alcoholic father did not take care of the four children. Defendant
lived on the street or wherever he could find a place to stay. Before his arrest for
these murders, defendant stated that he had worked installing drywall and in auto
shops. He was also receiving Social Security disability payments because of his
drug addiction and alcoholism.
       {¶ 129} Defendant said he was “still in shock” over what happened because
Lewis “was just like my father.” He expressed remorse to the Rays’ family and




                                         43
                             SUPREME COURT OF OHIO




appreciation to his own family for standing by him. He said he hoped to influence
his own children in the future to stay out of trouble. Defendant explained that he
has adjusted well in jail and gets along with the guards and other inmates. When
he was in prison before, he also got along well, helped make furniture, and
participated in schooling and drug therapy programs.
                                Sentence Assessment
       {¶ 130} After independent assessment, we find that the evidence proves
beyond a reasonable doubt the aggravating circumstances charged against
defendant. Defendant killed both Lewis and Ruth Ray to escape detection for other
crimes, R.C. 2929.04(A)(3); as part of a course of conduct to kill two or more, R.C.
2929.04(A)(5); and during an aggravated robbery, R.C. 2929.04(A)(7). We have
agreed that the R.C. 2929.04(A)(3) and (A)(7) specifications are merged and
consider them as a single specification. (See discussion, Proposition of Law II.)
       {¶ 131} As to mitigating features, we find nothing in the nature and
circumstances of the offense to be mitigating. Defendant devised a plan to rob and
kill an elderly couple who had befriended him and his brother. Defendant and
Randy secured entry at night into their friends’ home, then, as they had planned,
defendant brutally murdered Lewis while his brother killed Ruth. After killing and
robbing the Rays, they rejoined their other friends in drinking and enjoying
themselves.
       {¶ 132} We find nothing in defendant’s character remotely mitigating:
even his good friends knew him as a thief. But his history and background do offer
modest mitigating features. His mother died when he was fourteen, and his
alcoholic father did not support or assist the family. At fourteen, defendant stole to
support himself and his acquired drug habit. Defendant’s very substantial history
of drug abuse and multiple drug-dependence stretching back to his preteens deserve
some weight. Landrum, 

, 

. Yet, despite the
opportunities provided to him when he underwent several drug rehabilitation




                                         44
                               January Term, 1997




programs, he never dealt effectively with his drug dependences.
       {¶ 133} We find that the statutory mitigating factors in R.C. 2929.04(B)(1)
through (B)(5) are inapplicable. As to the R.C. 2929.04(B)(1) factor, defendant
claimed that Lewis acted as a fence to buy stolen property from him. Yet Lewis
was clearly not involved in any illegal activity when defendant killed him.
Defendant also claimed that he and Lewis argued and that Lewis was the aggressor.
However, the jury rejected that claim. Accordingly, we find no basis to apply R.C.
2929.04(B)(1) as a mitigating factor. See State v. Clark (1988), 

, 

.
       {¶ 134} Defendant was not under any “duress, coercion, or strong
provocation”; hence, R.C. 2929.04(B)(2) is inapplicable. Despite testimony from
two psychologists, no evidence exists that defendant lacked substantial mental
capacity under R.C. 2929.04(B)(3). His drug dependence does not qualify as a
mental disease or defect. See State v. Slagle (1992), 

, 

. Defendant was twenty-nine at the time of the offense and had a
significant criminal record; hence, R.C. 2929.04(B)(4) and (B)(5) do not apply.
The R.C. 2929.04(B)(6) mitigating factor (degree of participation in the offense)
was relevant, but only as to the murder of Ruth Ray.
       {¶ 135} We recognize that several mitigating R.C. 2929.04(B)(7) “other
factors” exist, although their combined weight is marginal.         Psychological
testimony suggested that defendant suffered from mild brain impairment, and his
significant drug abuse over many years contributed to that problem. At trial,
defendant expressed remorse over killing his friend Lewis, but given defendant’s
remarks to James Baker shortly after the murders, we question his sincerity. The
fact that defendant has the support and love of his wife and two children militates
against the death penalty.    Defendant’s cooperation with police was also a
mitigating factor. Further, we give some slight mitigating weight to evidence that
defendant adjusts well in prison, once he is removed from the influence and




                                        45
                             SUPREME COURT OF OHIO




availability of drugs. See Skipper v. South Carolina (1986), 

, 

, 

.
       {¶ 136} As to appropriateness of the sentence, defendant argues that he
should not receive the death penalty because the jury trying Randy’s case did not
recommend the death penalty. Since both brothers had the same background and
upbringing, and committed the same offenses, defendant argues that he should not
receive a death sentence when Randy did not. However, the jury’s independent
verdict of a life sentence in Randy’s case cannot control the jury’s recommendation
in defendant’s case; nor can the verdict in Randy’s case affect our own independent
evaluation of defendant’s case. As we have said before, “disparity of sentence does
not justify reversal of a death sentence when that sentence is neither illegal nor an
abuse of discretion.” Green, 

, 

;
Jamison, 

, 

.
       {¶ 137} In addition, while the offenses were the same, the evidence before
the juries could not have been identical. Each brother’s role in the offenses differs.
Defendant’s testimony indicates that he, not Randy, came up with the initial idea to
rob and kill the Rays. Additionally, defendant showed little remorse, but Randy
may have demonstrated more remorse. In fact, we have no knowledge of what
mitigating evidence was presented in Randy’s sentencing hearing. Hence, we reject
any claim that the jury’s verdict in Randy’s case should control our decision.
       {¶ 138} As to Count One, we have concluded that the two aggravating
circumstances, R.C. 2929.04(A)(7) and (A)(5), outweigh the very modest
mitigation offered beyond a reasonable doubt. Defendant murdered and robbed his
elderly friend, Lewis, in Ruth’s presence and within the sanctity of their home.
Defendant did so brutally by nearly cutting Lewis Ray’s head off, and his motive
was greed. We find that the aggravating circumstances, weighed together, are very
strong when compared with the very modest mitigating factors offered.
       {¶ 139} In other aggravated-robbery/aggravated-murder cases, we have




                                         46
                               January Term, 1997




found the death penalty appropriate despite stronger mitigation. Compare Carter,

, 

; State v. Dunlap (1995), 

,

; Slagle, 

, 

. Also, in other cases,
we have found the multiple-murder specification to outweigh significant mitigating
evidence. See State v. Awkal (1996), 

, 

; Lorraine,

, 

.
       {¶ 140} As to Count Two, we find that the R.C. 2929.04(A)(5) and (A)(7)
aggravating circumstances also outweigh the mitigation offered beyond a
reasonable doubt, even considering the additional R.C. 2929.04(B)(6) mitigating
factor. Defendant planned, with “prior calculation and design,” the murder of frail
and elderly Ruth Ray, in her own home, at night, in the presence of her husband.
After his brother killed her, defendant said he kicked Ruth in the head to make sure
she was dead. Even though defendant only aided, abetted, and planned Ruth’s
murder, and was not the principal offender in her murder, we have still determined
that the aggravating circumstances outweigh mitigating factors and that he should
also receive the death sentence for her murder.
       {¶ 141} Imposing the death penalty in this case is neither excessive nor
disproportionate when compared with the penalty imposed in other cases of felony-murder during an aggravated robbery. Allen, 

, 

;
State v. Mack (1995), 

, 

; Hill, 

,

; Woodard, 

, 

; Lewis, 

, 

; Green, 

, 

; Mills, 

, 

, including cases cited at 62 Ohio St.3d at 377-378, 

.
       {¶ 142} The death penalty is also proportionate when compared with prior
“course of conduct” murder cases. Williams, 

, 

;
Dunlap, 

, 

; Loza, 

, 

; Grant, 

, 

; Lorraine, 

, 613




                                        47
                                SUPREME COURT OF OHIO




N.E.2d 212; State v. Hawkins (1993), 

, 

; State
v. Montgomery (1991), 

, 

; and Combs, 

, 

, including cases cited at 62 Ohio St.3d at 294, 518
N.E.2d at 1084.
          {¶ 143} Accordingly, we sustain the state’s Proposition of Law I in its
cross-appeal in case No. 96-677, by reversing the trial court’s finding that the death
penalty specifications in R.C. 2929.04(A)(5) and (A)(7) are merged.
          {¶ 144} We affirm the court of appeals judgment in case No. 96-678, which
dismissed defendant’s appeal to that court finding that the court of appeals lacked
jurisdiction over the appeal.
          {¶ 145} Otherwise, we affirm defendant’s convictions and sentence,
including the death sentences.
                                                              Judgment accordingly.
          MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ.,
concur.
                                 __________________




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