State v. Keene

[This opinion has been published in Ohio Official Reports at 

.]




             THE STATE OF OHIO, APPELLEE, v. KEENE, APPELLANT.
                       [Cite as State v. Keene, 

.]
Criminal law—Aggravated murder—Selective-prosecution claim is not defense on
        the merits to criminal charge—Statistical evidence of racial disparity is
        insufficient to infer discriminatory purpose—Constitutional right to
        discovery not established, when—Purposeful discrimination not shown,
        when—Death penalty upheld, when.
      (No. 96-2455—Submitted January 21, 1998—Decided May 13, 1998.)
     APPEAL from the Court of Appeals for Montgomery County, No. 14375.
                                  __________________
        {¶ 1} Defendant-appellant, Marvallous Keene, was sentenced to death for
the aggravated murders of five victims. The offenses occurred on December 24
and 26, 1992. He appeals his convictions and death sentences.
        {¶ 2} In December 1992, appellant was consorting with a group of people,
including several juveniles, who at various times stayed at Bill McIntire’s
apartment at 159 Yuma Avenue, Dayton. This group included Laura Taylor,
DeMarcus Smith, Nicholas Woodson, Heather N. Mathews, Wendy Cottrill,
Marvin Washington, and Jeffrey Wright.
        {¶ 3} On December 24, 1992, appellant and Taylor enlisted Mathews to
help them rob Joseph Wilkerson, an acquaintance of Taylor’s. Taylor told Mathews
that she had arranged for the three of them to go to Wilkerson’s house on the pretext
of having an orgy with Wilkerson. Mathews agreed to take part in the robbery.
        {¶ 4} Appellant, Taylor, and Mathews walked to Wilkerson’s house. After
a drink, Wilkerson and Taylor went to the bedroom. After waiting briefly, appellant
and Mathews followed them. Wilkerson began to take his clothes off. Taylor and
Mathews pretended to do the same.
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         {¶ 5} Appellant began to remove his own pants, then pulled them back up
and drew a gun. He ordered Wilkerson onto the bed, then commanded Taylor and
Mathews to tie Wilkerson’s hands to the bed.
         {¶ 6} While appellant watched Wilkerson, Taylor and Mathews went
through the house, looking for things to steal. They took a microwave oven, a TV,
a cordless phone, a curling iron, and a blow dryer, which they loaded into
Wilkerson’s Buick. Wilkerson told appellant that he kept a .32-caliber derringer in
the garage. Appellant found it and brought it back to the bedroom.
         {¶ 7} Appellant subsequently confessed that he shot Wilkerson in the chest
with the derringer, after covering him with blankets to muffle the noise.
         {¶ 8} Taylor and Mathews, hearing the shot, returned to the bedroom and
saw appellant holding the derringer. Wilkerson’s feet were shaking. Appellant
handed the derringer to Taylor, but it would not fire again. So appellant gave Taylor
his own gun, and Taylor shot Wilkerson in the head. Wilkerson stopped shaking.
Appellant and his accomplices then left in the Buick. Appellant warned his
accomplices not to tell Cottrill and Washington.
         {¶ 9} Later that evening, appellant, Taylor, and Smith went walking.
Appellant and Smith were carrying guns. Appellant later confessed to police that,
as they were walking, they saw Danita Gullette at a public telephone. Smith and
appellant drew their guns, and Smith forced Gullette at gunpoint to take her shoes
off. Smith and appellant then shot Gullette. Smith took her shoes and jacket. When
they returned to the apartment, Taylor was wearing Gullette’s jacket and Smith was
carrying Gullette’s shoes.
         {¶ 10} Later that night, Smith shot Mathews’s boyfriend, Jeffrey Wright,
outside 159 Yuma. Appellant, Mathews, Taylor, and Smith then left in Wilkerson’s
Buick.




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                               January Term, 1998




       {¶ 11} On December 25, appellant returned to Wilkerson’s house and stole
more items, including Wilkerson’s other car, a Pontiac. Also on December 25,
Taylor robbed and murdered her former boyfriend, Richmond Maddox.
       {¶ 12} Early in the morning of December 26, Mathews drove the Pontiac to
a BP service station, where appellant and Smith stole Kathie Henderson’s car at
gunpoint. Appellant and Smith drove off in Henderson’s car; Mathews followed in
the Pontiac.
       {¶ 13} Later that morning, Mathews drove the Pontiac to the Short Stop
Mini-Mart, with appellant, Smith, and Taylor in the car. Taylor went into the store,
then came back to report that there were only two people inside. Mathews handed
a .32-caliber revolver to Smith; Smith and appellant were also carrying .25-caliber
automatic pistols. Appellant and Smith went into the store.
       {¶ 14} Sarah Abraham, whose family owned the store, was working behind
the cash register. Appellant ordered her at gunpoint to open it. Abraham did so
and removed $40, which she handed to appellant. Appellant shot Abraham in the
head. Several days later, Abraham died of her wound. Smith also shot at two other
people, Jones Pettus, a customer, wounding him, and Edward Thompson, a helper,
both of whom survived and testified against appellant.
       {¶ 15} Later that day, Taylor and Mathews discussed “jumping” Cottrill
because they “thought she was telling on us.” According to Mathews’s testimony,
there was no discussion of shooting her. However, in a subsequent conversation
with appellant, Taylor, Mathews, and Woodson, Smith said that “he was going to
unload a clip in [Marvin Washington’s] ass.” According to appellant’s confession,
Smith “thought that Wendy and Marvin were going to snitch about [Smith]
shooting Jeff Wright.” The group discussed picking Washington and Cottrill up
and taking them “to a park or something.”
       {¶ 16} The group drove to 159 Yuma and picked up Washington and
Cottrill. They dropped Woodson off at his home, then drove to a gravel pit. At the




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gravel pit, Smith ordered Washington out of the car, and appellant dragged Cottrill
out. Washington and Cottrill protested that they had not gone to the police or
“snitched.” Appellant and Smith forced them at gunpoint to walk behind a pile of
gravel. There, appellant shot Cottrill, and Smith shot Washington.
       {¶ 17} The grand jury indicted appellant on eight counts of aggravated
murder—two counts each for Wilkerson, Washington, and Cottrill; one count each
for Gullette and Abraham.       The Wilkerson counts each carried six death
specifications (course of conduct, escaping detection, two aggravated robbery, two
aggravated burglary). The Cottrill counts each carried four death specifications
(course of conduct, witness-murder, two kidnapping). The Washington counts each
carried three death specifications (course of conduct, witness murder, kidnapping).
The Gullette and Abraham counts each carried two death specifications (course of
conduct, aggravated robbery).
       {¶ 18} The indictment also included six counts of aggravated robbery, one
count of aggravated burglary, one count of burglary, two counts of kidnapping, and
two counts of attempted aggravated murder.         All counts carried a firearm
specification.
       {¶ 19} Waiving a jury, appellant was tried to a three-judge panel, which
found him guilty on all counts. The panel found four death specifications as to
Wilkerson’s aggravated murder counts (course of conduct, escaping detection,
aggravated robbery, aggravated burglary); however, the panel merged the
“escaping detection” and felony-murder specifications.
       {¶ 20} The panel found three death specifications on the Cottrill murder
(course of conduct, kidnapping-principal offender, witness murder), three on the
Washington murder (same), and two on the Gullette and Abraham murders (course
of conduct, aggravated robbery).      The Wilkerson, Washington, and Cottrill
aggravated murder counts were merged so that only one remained for each victim,




                                        4
                                January Term, 1998




a total of five. After a mitigation hearing, the panel sentenced appellant to death
on each of the five counts. The court of appeals affirmed.
                              __________________
       Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, and
Carley J. Ingram, Assistant Prosecuting Attorney, for appellee.
       David H. Bodiker, Ohio Public Defender, Tracey A. Leonard and J. Joseph
Bodine, Jr., Assistant State Public Defenders, for appellant.
                              __________________
       ALICE ROBIE RESNICK, J.
       {¶ 21} R.C. 2929.05(A) requires us to undertake a three-part analysis of
capital cases. First, we must review the specific issues raised by the appellant with
respect to the proceedings below “in the same manner that [we] review other
criminal cases.”     Second, we must independently weigh the aggravating
circumstances found by the trier of fact against the mitigating factors existing in
the case.    Finally, we must consider whether the sentence of death is
disproportionate to penalties imposed in similar cases.
       {¶ 22} In this appeal, appellant raises twenty-six propositions of law.
Finding that none of these claims affords a basis for reversing appellant’s
convictions or sentences, we overrule all twenty-six propositions of law. We have
also independently reviewed appellant’s death sentences, as required by R.C.
2929.05(A). As a result, we affirm the death sentences imposed herein.
                                          I
                            Discriminatory Prosecution
       {¶ 23} Appellant filed a motion in the trial court to dismiss the death
specifications from the indictment for “discriminatory enforcement.” Appellant
claimed that the Montgomery County Prosecuting Attorney discriminates against
black defendants in exercising his discretion to seek the death penalty. The trial




                                         5
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court denied the motion to dismiss, and also denied appellant’s requests for
discovery and an evidentiary hearing on his discriminatory-prosecution claim.
       {¶ 24} In his first proposition of law, appellant claims that the trial court
should have afforded discovery and a hearing on his discriminatory-prosecution
claim. He relies on both Crim.R. 16 and federal constitutional law. We begin by
analyzing his Crim.R. 16 claim.
       {¶ 25} Crim.R. 16(B)(1)(f) requires the prosecutor to disclose “all evidence
… favorable to the defendant and material either to guilt or punishment.”
According to appellant, evidence that the prosecuting attorney has discriminated
against black defendants in seeking the death penalty would be both “favorable” to
him and “material to … punishment.” Such evidence, appellant contends, would
be “favorable” because it would support his claim of discriminatory prosecution.
And it would be “material to … punishment,” he contends, because it has to do
with the prosecuting attorney’s charging practices in seeking the death penalty.
Appellant therefore contends that any evidence in the prosecutor’s possession that
supports his claim of discrimination is discoverable under Crim.R. 16(B)(1)(f).
       {¶ 26} However, the history of the rule’s language, “favorable to the
defendant and material to guilt or punishment,” suggests a different interpretation.
That phrase comes directly from Brady v. Maryland (1963), 

, 

, 

, which requires the state to disclose
“evidence favorable to an accused … where the evidence is material either to
guilt or to punishment.” We therefore conclude that the terms “favorable” and
“material” in Crim.R. 16(B)(1)(f) have the same meaning as they do in Brady and
its progeny.
       {¶ 27} Under Brady, “evidence favorable to an accused [and] … material
either to guilt or to punishment” is generally construed to encompass only
exculpatory, mitigating, and impeachment evidence. “Thus the principles of Brady




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                                      January Term, 1998




do not apply unless the evidence is material to mitigation, exculpation or
impeachment.” Calley v. Callaway (C.A.5, 1975), 

.
         {¶ 28} Appellant’s selective-prosecution claim does not fall within those
categories. “A selective-prosecution claim is not a defense on the merits to the
criminal charge itself, but an independent assertion that the prosecutor has brought
the charge for reasons forbidden by the Constitution.” United States v. Armstrong
(1996), 

, 

, 

. Similarly,
appellant’s selective-prosecution claim is not a “defense on the merits” to the death
penalty; that is, the claim goes neither to appellant’s eligibility for the death penalty
nor to whether his offenses merit death. Instead, his claim is that the death penalty
may not be applied because the prosecutor sought it “for reasons forbidden by the
Constitution.” 

         {¶ 29} We conclude that evidence relevant to a selective-prosecution claim
is not “favorable to an accused [and] … material either to guilt or to punishment”
within the meaning of Brady and Crim.R. 16(B)(1)(f); therefore, such evidence is
not discoverable under the rule.
         {¶ 30} Having rejected appellant’s state-law claim, we must assess
appellant’s claim that the trial judge had a constitutional obligation to allow
discovery.
         {¶ 31} In United States v. Armstrong, the court held that a defendant, in
order to obtain discovery on a selective-prosecution claim, must “produce some
evidence that similarly situated defendants of other races could have been
prosecuted, but were not ….”1 

, 

, 

. Armstrong does not expressly state that the right to discovery on a claim of racially discriminatory
prosecution is grounded in the Constitution (and hence applicable to state as well as federal
prosecutions). However, the parties to this case have proceeded on the assumption that the discovery
right is constitutionally grounded. We think that assumption correct, since the discovery right
outlined in Armstrong derives from, and is meant to enforce, the Fourteenth Amendment’s
prohibition of racially discriminatory prosecutions.




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at 701. The standard is deliberately “rigorous,” 

, 116 S.Ct. at 1488,
134 L.Ed.2d at 701, because “the showing necessary to obtain discovery should
itself be a significant barrier to the litigation of insubstantial claims.” Id. at 464,
116 S.Ct. at 1486, 134 L.Ed.2d at 698.
       {¶ 32} Appellant failed to produce some evidence that similarly situated
defendants could have been prosecuted but were not.
       {¶ 33} Appellant points to the treatment of his white co-defendant,
Mathews. Mathews was indicted with death specifications, but the prosecutor
dropped the specifications in exchange for Mathews’s testimony against appellant.
Why, appellant asks, did the prosecutor not bargain with him and seek the death
penalty for Mathews?
       {¶ 34} Appellant was the triggerman in four of the five aggravated murders
involved here. Mathews was charged with only two of these murders. In neither
case did Mathews pull the trigger. Indeed, the record discloses no clear evidence
that Mathews actually intended the deaths of Wilkerson and Abraham. Mathews,
therefore, is not a “similarly situated” defendant.
       {¶ 35} Appellant also cites the case of three white defendants who went on
what appellant describes as a killing spree involving the robbery, burglary, and
murder of two victims. Appellant alleges that “the same” death specifications could
have been lodged, yet the Montgomery County Prosecutor did not seek the death
penalty. However, the state contends that the evidence against these defendants
was significantly weaker than the evidence against appellant.             Two of the
defendants received plea bargains and testified against the third; in spite of this, the
third defendant was acquitted of one of the two murders.
       {¶ 36} Appellant claims that sixty-four percent of capital indictments in
Montgomery County since 1981 have been lodged against black defendants, while
the county’s population was only seventeen percent black. However, as the court
of appeals noted, this statistic creates no inference of discrimination by itself.



                                           8
                                 January Term, 1998




Appellant did not show the percentage of black and white defendants in potentially
capital cases who were indicted without capital specifications. Without that, there
can be no meaningful comparison.
       {¶ 37} Appellant’s contrary argument appears to rest on a presumption that,
if seventeen percent of the county’s population is black, then blacks must have
committed about seventeen (or, at any rate, substantially less than sixty-four)
percent of potentially capital crimes. Appellant argues that even to question that
presumption would constitute forbidden racial stereotyping. However, that cannot
be correct, for the Armstrong court itself rejected a presumption “ ‘that people of
all races commit all types of crimes.’ ” (Emphasis sic.) 

, 116 S.Ct.
at 1488, 134 L.Ed.2d at 701, quoting United States v. Armstrong (C.A.9, 1995), 

, 1516-1517.
       {¶ 38} In any event, statistical evidence does not satisfy Armstrong’s
requirement that the defendant identify similarly situated defendants who could
have been prosecuted, but were not. “[T]he general rule [is] that in cases involving
discretionary judgments ‘essential to the criminal justice process,’ statistical
evidence of racial disparity is insufficient to infer that prosecutors in a particular
case acted with a discriminatory purpose.” United States v. Olvis (C.A.4, 1996),

, quoting McCleskey v. Kemp (1987), 

, 

, 

. The state has no duty to explain such a
statistical disparity. Olvis, 

.
       {¶ 39} Appellant also points out that the Montgomery County Prosecuting
Attorney has never obtained a death sentence against a white defendant. This is
quite irrelevant, however, since appellant claims discrimination in charging
practices.
       {¶ 40} We conclude that appellant failed to show “some evidence” that
similarly situated defendants of other races could have been charged with death




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penalty specifications but were not. Therefore, he did not establish a constitutional
right to discovery on his claim.
       {¶ 41} Appellant also claims that he was entitled to an evidentiary hearing
on his due-process claim. Again, he raises both a federal constitutional claim and
a state-law claim.
       {¶ 42} Citing United States v. Hazel (C.A.6, 1983), 

,
appellant contends that due process entitled him to a hearing because he presented
sufficient facts to raise a reasonable doubt as to the prosecutor’s purpose. However,
for the same reasons that he was not entitled to discovery, he was not entitled to a
hearing.   The facts he presented do not raise a reasonable doubt as to the
prosecutor’s purpose.
       {¶ 43} Appellant further argues that Ohio law entitles a defendant to a
hearing on any pretrial motion that “states the motion’s legal and factual bases with
sufficient particularity to place the prosecutor and the court on notice of the issues
to be decided.” For this assertion, he cites Crim.R. 12(B) and State v. Shindler
(1994), 

, 

, syllabus.
       {¶ 44} However, Shindler involved a motion to suppress evidence found in
a warrantless search. In that situation, the prosecutor bore the burden of proving
the legality of the search. With a selective-prosecution claim the burden is upon
the defendant; the prosecutor is presumed not to have discriminated. “In order to
dispel [that] presumption … , a criminal defendant must present ‘clear evidence
to the contrary.’ ” Armstrong, 

, 

, 

, quoting United States v. Chem. Found., Inc. (1926), 

,

, 

. We agree with the court of appeals that Shindler
is distinguishable. Appellant’s first proposition of law is overruled.
       {¶ 45} In his fourteenth proposition of law, appellant argues that the
evidence he submitted was by itself enough to show racial bias on the part of the




                                         10
                                    January Term, 1998




county prosecutor. Therefore, he argues, his convictions should be reversed.2 Yet,
appellant candidly admits that he “did not prove that the prosecutor purposefully
intended to discriminate against him. Therefore, he has not met the burden for this
type of claim as enunciated in McCleskey v. Kemp … .”
        {¶ 46} This concession would seem fatal to appellant’s claim. However,
appellant argues that—despite McCleskey—he was not required to prove
purposeful discrimination against him.
        {¶ 47} First, he argues that the state, by successfully opposing his motion
for discovery and a hearing, made it impossible to establish discriminatory purpose.
Thus, he argues, the prosecutor “waived the McCleskey requirements.” But we can
see no sense in penalizing the prosecutor for successfully opposing appellant’s
motion.
        {¶ 48} Next, appellant tries to distinguish McCleskey on its facts. But the
requirement of proving purposeful discrimination was not a novel creation of the
McCleskey court and cannot be limited to the specific facts of McCleskey. Rather,
it is a basic and generally applicable principle of Fourteenth Amendment equal
protection analysis that a party claiming an equal protection violation has the
burden of proving purposeful discrimination. McCleskey, 

, 

, 

, quoting Whitus v. Georgia (1967), 

, 

, 

. See, also, Armstrong, 

, 

, 

, quoting Wayte v. United States
(1985), 

, 

, 

.
        {¶ 49} Finally, appellant argues that we should construe the Ohio
Constitution to require a finding of racially biased charging decisions in capital
cases “upon a showing of disparate impact, without a need to prove the prosecutor’s



2. Presumably, appellant means his death sentences should be reversed; he makes no claim that the
prosecutor’s decision to prosecute him in the first place was tainted by discrimination.




                                               11
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subjective intent.” But appellant offers no textual analysis of the state constitutional
provisions he purports to rely upon (Ohio Constitution, Article I, Sections 1, 9, 10,
16, and 20), cites no precedent construing those provisions as he suggests, and
states no reason why we should so construe them.
        {¶ 50} Appellant concedes that he has not met his burden of proving that
the prosecutor purposely discriminated against him in charging him with capital
offenses, and he offers no persuasive reason to relieve him of this burden. We
therefore overrule his fourteenth proposition of law.
                                           II
                               Evidentiary Sufficiency
        {¶ 51} In his sixth proposition of law, appellant contends that the state failed
to adduce sufficient evidence to prove his guilt of certain death specifications.
                     A. Wendy Cottrill—Marvin Washington
        {¶ 52} Counts Sixteen, Seventeen, Nineteen, and Twenty charged appellant
with the aggravated murders of Cottrill and Washington. Each count carried a death
specification under R.C. 2929.04(A)(8), charging that appellant murdered the
victims “to prevent [their] testimony in any criminal proceeding.” Appellant claims
that the state failed to prove the (A)(8) specifications. However, his claim is based
on a patent misreading of R.C. 2929.04(A)(8).
        {¶ 53} Under R.C. 2929.04(A)(8), it is an aggravating circumstance that
“[t]he victim … was a witness to an offense who was purposely killed to prevent
his testimony in any criminal proceeding … or … in retaliation for his
testimony in any criminal proceeding.” (Emphasis added.)
        {¶ 54} The state’s evidence showed that appellant murdered Cottrill and
Washington because they had seen Smith shoot Wright. However, appellant claims
that, if he killed the victims to prevent their testimony against Smith, the (A)(8)
specification does not apply. According to appellant, the specification would apply
only if he killed them to prevent them from testifying against appellant.



                                          12
                               January Term, 1998




        {¶ 55} Appellant’s argument is inconsistent with the plain language of the
statute. R.C. 2929.04(A)(8) says “any criminal proceeding.” No language limits it
to cases where the victim witnessed a crime committed by his killer. Nor would
such a limitation make sense: appellant’s reading of R.C. 2929.04(A)(8) would
shield an organized-crime assassin who murdered witnesses to protect his fellow
gangsters.
        {¶ 56} Appellant argues, “Under the State’s logic, anyone could be charged
with a capital specification as long as the individual they [sic] murdered, at one
time, was a witness to a crime.” That is incorrect. The (A)(8) specification applies
only where the murder was committed “to prevent [the victim’s] testimony … or
… in retaliation for his testimony.” (Emphasis added.)
        {¶ 57} The state adduced sufficient evidence to permit a finding that
appellant killed Cottrill and Washington to prevent them from testifying against
Smith. Therefore, the evidence supports appellant’s conviction on the (A)(8)
specifications.
                               B. Joseph Wilkerson
        {¶ 58} Appellant contends that he was not proven to be the principal
offender in this murder because the coroner did not testify that his bullet caused
Wilkerson’s death. Appellant appears to assume that the state had to prove
appellant’s bullet was the sole cause of death. We disagree. We have said that
“principal offender” means “the actual killer.” State v. Penix (1987), 

, 

. However, we have never held that it means “the
sole offender.” There can be more than one actual killer—and thus more than one
principal offender—in an aggravated murder. See State v. Joseph (1995), 

, 

 (Moyer, C.J., dissenting in part and concurring
in part).
        {¶ 59} The coroner testified that Wilkerson died of multiple gunshot
wounds and that appellant’s shot to Wilkerson’s heart would by itself have killed




                                        13
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Wilkerson. Thus, the fact that Taylor finished Wilkerson off does not alter
appellant’s role as a principal offender.
                                 C. Danita Gullette
       {¶ 60} Some evidence indicates that the shots fired by appellant in this
killing may not have been fatal by themselves. Appellant said in his confession
that he fired “not that many” shots at Gullette. The two bullets recovered from
Gullette’s body were fired from two different guns, which means appellant shot her
at least once, but it is unknown which gun he fired. The coroner stated that only
one of Gullette’s wounds would have been immediately fatal by itself.
       {¶ 61} Nonetheless, the coroner testified that Gullette died of “multiple”
gunshot wounds. His testimony supports an inference that appellant’s shots at least
contributed to Gullette’s death. Thus, we hold that the evidence was sufficient to
prove that appellant was a principal offender in the Gullette murder.          See
Holsemback v. State (Ala.Crim.App.1983), 

; Cox v.
State (1991), 

, 

; People v. Bailey (1996),

, 

.
                               D. Kathie Henderson
       {¶ 62} Finally, appellant contends that the state failed to prove the
attempted aggravated murder of Kathie Henderson. However, appellant was never
charged with that crime. Only Counts Twelve and Fourteen of the indictment
charged appellant with attempted aggravated murder. The bill of particulars shows
that those counts related to the attempted aggravated murders of Pettus and
Thompson, respectively. The only count charging appellant with a crime against
Henderson was Count Eight, which charged aggravated robbery—not aggravated
murder. We overrule all aspects of appellant’s sixth proposition of law.
                                            III
                                 Suppression Issues




                                            14
                                January Term, 1998




       {¶ 63} On December 26, 1992, appellant was arrested. At the police station,
he was taken to an interrogation room, where he sat for about three hours, until
Detectives Tom Lawson and Wade Lawson arrived. Tom Lawson administered
Miranda warnings. Appellant stated orally that he understood his rights. After the
warnings were completed, appellant agreed to answer questions and signed a
Dayton Police Department waiver form to signify that he understood his rights and
was willing to answer questions. He answered questions for forty-five minutes.
After that, the detectives recorded appellant’s statement on videotape. The next
day, the detectives re-advised appellant of his rights and interviewed him again.
       {¶ 64} In his fifth proposition of law, appellant claims that the trial court
should have suppressed his confessions of December 26 and 27, 1992, because the
state did not prove that his waiver of Miranda rights on December 26 was
voluntary, knowing, and intelligent.
       {¶ 65} Voluntariness is a legal question for a reviewing court to determine
independently. See, e.g., Beckwith v. United States (1976), 

, 

, 

. However, this court must defer to the trial
court’s factual findings, if those are supported by the record. See, e.g., State v.
Wilson (1996), 

, 

.
       {¶ 66} Appellant argues that police misconduct, combined with his own
intoxication and “psychological deficits,” rendered him unable to voluntarily waive
his rights. He claims that, on the day of his arrest, he ingested two fifths of wine,
eighty ounces of beer, and several pills (Valium, Xanax, and Dalmane). He claims
that, despite his repeated requests, police denied him permission to use the
bathroom for seven hours on December 26, until they were through interrogating
him.
       {¶ 67} As to police misconduct and intoxication, appellant’s claims are
based wholly upon his own self-serving testimony at the suppression hearing.
However, appellant’s testimony was contradicted by several Dayton police officers.




                                         15
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The trial court accepted the police testimony as true and found that appellant’s
testimony was not credible.
       {¶ 68} The court specifically rejected appellant’s testimony that he was
intoxicated. The court noted that appellant had displayed a “lucid memory” in his
own testimony. Moreover, appellant was driving Henderson’s car when he was
arrested. The trial court pointed out that, if appellant “had ingested the amount of
wine and pills which he claims, … he would be unconscious and certainly not
able to operate a motor vehicle.”
       {¶ 69} Based on police testimony and appellant’s videotaped confession,
the court found that appellant appeared “normal, alert … lucid and oriented”;
that he “was in full command of his senses” and “aware of the seriousness of the
charges”; and that he showed no signs of intoxication.
       {¶ 70} Moreover, the trial court found, contrary to appellant’s testimony,
that appellant was permitted, at his request, to use the bathroom before the
December 26 interrogation. This finding was supported by the testimony of
Detective Sergeant John Huber and Patrolman Herb Rogers, who escorted appellant
to the bathroom about one-half hour after he was brought in. Also, Detective Wade
Lawson testified that he permitted appellant to use the bathroom during his
interrogation.
       {¶ 71} Since the hearing record supports the trial court’s findings of fact,
we are bound thereby. Thus, to the extent appellant’s arguments rest on his own
testimony, which the trial court disbelieved, they are invalid. See State v. Otte
(1996), 

, 

.
       {¶ 72} Appellant also claims that his waiver was not knowing and
intelligent. On this issue, appellant relies upon the testimony of Dr. Eugene S.
Cherry, a psychologist.
       {¶ 73} Dr. Cherry felt that appellant’s waiver was not knowing and
intelligent because the Dayton Police waiver form contains only one signature line.



                                        16
                                January Term, 1998




By signing, the suspect both acknowledges understanding of his rights and waives
them.   Because appellant is a “passive, dependent” personality, Cherry felt
appellant could not be assumed to have understood his rights unless someone
“required [him] to actively assert his understanding … .” To ensure that appellant
really understood his rights instead of just going along, Cherry felt the police should
have had appellant acknowledge his rights separately from waiving them.
        {¶ 74} Here again, however, the trial court rejected Dr. Cherry’s testimony.
The court had ample grounds to do so; Cherry admitted his opinion was “really not
well established.” Moreover, Cherry assumed that appellant’s claim of intoxication
was true; that claim was ultimately rejected by the trial court. Since we cannot
second-guess the trial court’s factual findings, appellant’s reliance on Cherry’s
testimony is misplaced. Appellant’s fifth proposition of law is overruled.
        {¶ 75} In his tenth proposition of law, appellant claims the testimony of
Henderson, identifying appellant as the man who pointed a gun at her on December
26, was tainted by an improper photographic lineup and should have been
suppressed. See Neil v. Biggers (1972), 

, 

, 

.
        {¶ 76} We note that, even if appellant were to prevail on this issue,
Henderson’s testimony was relevant only to Count Eight, which charged appellant
with aggravated robbery for stealing Henderson’s car at gunpoint. Although
appellant seems to contend otherwise, this issue does not affect his death sentences.
        {¶ 77} Henderson had described her assailant as having a “box” haircut.
Appellant was the only suspect in the photo lineup with such a haircut. Appellant
argues, with some persuasiveness, that it was unnecessarily suggestive to arrange a
lineup with only one distinctive box haircut in it.
        {¶ 78} The state argues that, even if the lineup was suggestive, Henderson’s
identification of appellant was reliable under the totality of the circumstances, and
hence admissible.




                                          17
                            SUPREME COURT OF OHIO




       {¶ 79} We find reliability to be a close question on the facts of this case.
However, assuming that the identification was erroneously admitted, the error was
harmless. Appellant confessed that he stole a car at the BP service station on the
morning of December 26. Mathews testified that she saw him do it. Appellant was
actually in Henderson’s car when he was arrested. Moreover, the plates on that car
belonged to Wilkerson’s Pontiac, which appellant also admitted he stole; the
Pontiac, in turn, was found with one of Henderson’s plates on it. On this evidence,
it is clear beyond a reasonable doubt that appellant would have been convicted on
Count Eight even without Henderson’s identification.             Appellant’s tenth
proposition of law is overruled.
                                        IV
                                   Jury Waiver
       {¶ 80} A waiver of a defendant’s jury trial right must be voluntary,
knowing, and intelligent. State v. Ruppert (1978), 

, 

, 236, 

. In his ninth proposition of law, appellant argues
that his jury trial waiver was invalid because of his “propensity to acquiesce to
authority figures.”
       {¶ 81} The trial judge conducted the following colloquy with appellant:
       “THE COURT: First of all, do you understand that you are entitled to have
your case tried to a jury of twelve people?
       “MR. KEENE: Yes, sir.
       “THE COURT: Do you understand that in that event you could not be
convicted of any one or more of these charges unless all twelve jurors were to agree
on your guilt?
       “MR. KEENE: Yes, sir.
       “THE COURT: Now, you have the right under the statutes and the
Constitution of the State of Ohio to waive or give up that right by jury [sic] and
have your case tried to a court consisting of three judges. Do you understand that?



                                         18
                                 January Term, 1998




        “MR. KEENE: Yes, sir.
        “THE COURT: Now, after your discussion with your attorneys, do you
understand that this is a constitutional as well as a statutory right to trial by jury?
        “MR. KEENE: Yes, sir.
        “THE COURT: And … you fully understand this right?
        “MR. KEENE: Yes, sir.
        “THE COURT: And you have discussed this with your attorneys on more
than one occasion, I’m sure. Is that right?
        “MR. KEENE: Yes, sir.
        “THE COURT: And after giving careful consideration to it, is it your desire
to waive — and again by that I mean give up your right to trial by jury and proceed
before a three-judge panel?
        “MR. KEENE: Yes, sir.
        “THE COURT: Do you understand that the panel will consist of the Court—
this Court … and two other judges to be designated by the Chief Justice          …
*?
        “MR. KEENE: Yes, sir.”
        {¶ 82} Appellant signed a jury waiver in open court. The trial judge then
continued:
        “THE COURT: Before the Court accepts these waivers, Mr. Keene, has
anyone promised you anything in order to get you to give up that right?
        “MR. KEENE: No, sir.
        “THE COURT: Has anyone threatened you or otherwise brought pressure
upon you, twisted your arm, to get you to give up that right?
        “MR. KEENE: No, sir.
        “THE COURT: … I understand, therefore, that it’s under careful
consideration, consultation … with your attorneys that you feel it is in your best
interests to proceed in this manner? …




                                           19
                              SUPREME COURT OF OHIO




        “MR. KEENE: Yes, sir.”
        {¶ 83} Appellant claims that this colloquy, and the written waiver that
accompanied it, are insufficient to prove that he voluntarily, knowingly, and
intelligently waived his right to a jury trial. Appellant bases this argument on Dr.
Cherry’s testimony from the suppression hearing regarding appellant’s “personality
style.” Cherry had testified that appellant was a “follower” and a “passive,
dependent type.” Therefore, Cherry believed, appellant could not be assumed to
have understood his rights unless someone “required [him] to actively assert his
understanding … .”
        {¶ 84} Based on Dr. Cherry’s opinion, appellant argues that the trial court
should have conducted the colloquy so as to require him to “actively assert his
understanding” of his jury trial right. Appellant claims that the trial court’s “yes or
no” questions elicited mere “mechanical responses” that do not demonstrate a
genuinely knowing and intelligent decision on appellant’s part.
        {¶ 85} Yet the trial court had already rejected Cherry’s testimony as illfounded. Cherry’s testimony, rejected by the trial court, is simply not a sufficient
basis for impeaching appellant’s waiver.
        {¶ 86} Even if Cherry’s opinion had been accepted, appellant cites no
precedent requiring a trial court to take a defendant’s individual “personality style”
into account when inquiring into the validity of his jury waiver. Indeed, a trial court
may accept a defendant’s jury waiver without any such inquiry at all. “There is no
requirement for a trial court to interrogate a defendant in order to determine whether
he … is fully apprised of the right to a jury trial.” State v. Jells (1990), 

, 

, paragraph one of the syllabus. Accord United States v.
Martin (C.A.6, 1983), 

. Appellant’s ninth proposition of law is
overruled.
                                           V
                                  Evidentiary Issues



                                          20
                                January Term, 1998




       {¶ 87} Appellant claims in his seventh proposition of law that the state used
“other acts” evidence to attack his character, violating Evid.R. 404(B), which reads,
“Evidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show that he acted in conformity therewith. It may, however,
be admissible for other purposes … .”
       {¶ 88} Appellant claims that the state erred by introducing evidence
involving Taylor’s murder of Maddox. Appellant had agreed to help Taylor rob
Maddox, but there was no evidence that he was involved in the murder, and he was
not charged with any crimes against Maddox.
       {¶ 89} We agree that this uncharged crime was irrelevant. However, we
find the error harmless. Appellant confessed to the five murders he was charged
with. Evidence of his minor participation in Taylor’s scheme to rob Maddox could
not have done much further damage to appellant’s character. Moreover, the
prosecutor did not use the evidence to show that appellant was a person of bad
character. Finally, the trier of fact was a three-judge panel. See State v. Post
(1987), 

, 

.
       {¶ 90} Appellant also claims that evidence involving the shooting of Wright
was “other acts” evidence. But this crime was clearly introduced for a valid purpose
having nothing to do with appellant’s character. One of the death specifications for
the Cottrill-Washington murders alleged that the victims were killed because they
were witnesses to a crime—and Smith’s shooting of Wright was the crime they
witnessed. Therefore, the state did not violate Evid.R. 404(B) by proving that
Smith shot Wright.
       {¶ 91} Woodson testified that he saw appellant shoot an unidentified
robbery victim, and that appellant told him about yet another shooting. The defense
did not object, so these issues are waived. Appellant’s seventh proposition of law
is overruled.




                                         21
                            SUPREME COURT OF OHIO




       {¶ 92} Appellant’s sixteenth proposition of law reargues issues raised in his
seventh proposition of law with regard to Woodson’s testimony. Appellant’s
sixteenth proposition of law is overruled.
       {¶ 93} In his eleventh proposition of law, appellant argues that the state
introduced “victim impact” evidence in the guilt phase, where such evidence is
inadmissible. See, e.g., State v. Tyler (1990), 

, 

.
However, appellant objected to only one of the alleged errors.
       {¶ 94} Over objection, Gullette’s friend, Angela Martin, testified that she
had a close relationship with Gullette and that they borrowed each other’s clothes.
However, the panel properly overruled the objection. Gullette had borrowed
Martin’s jacket the night she was killed; that was the same jacket stolen from
Gullette, and Martin identified it. Martin’s relationship with Gullette explains how
Martin could identify the jacket and why Gullette was wearing it. Thus, it was
relevant for a nonvictim-impact purpose.
       {¶ 95} As to other alleged “victim impact” testimony, appellant did not
object, so these issues are waived. We overrule appellant’s eleventh proposition of
law.
       {¶ 96} In his seventeenth proposition of law, appellant argues that
Gullette’s Fila sneakers should have been excluded due to the state’s failure to
prove an unbroken chain of custody. However, the state was not required to prove
a perfect, unbroken chain of custody. The break identified by appellant was minor.
We find no error in the admission of the sneakers. (The alleged error would be
harmless in any event. Appellant confessed to shooting Gullette while robbing her,
and specifically described to police how Smith stole Gullette’s sneakers after
forcing her to take them off.) Appellant’s seventeenth proposition of law is
overruled.
       {¶ 97} In capital cases, gruesome photographs are inadmissible if their
probative value is outweighed by the danger of unfair prejudice, or the photos are



                                         22
                               January Term, 1998




repetitive or cumulative. See, e.g., State v. Morales (1987), 

, 

. Appellant argues in his eighteenth proposition of law that State’s
Exhibits 117, 118, 119, 138, 139, 140, and 148, which are autopsy slides, were
unfairly prejudicial and/or cumulative. However, appellant did not object to these
slides at trial, so this issue is waived.    We overrule appellant’s eighteenth
proposition of law.
                                        VI
                                Sentencing Issues
                              A. Sentencing Opinion
       {¶ 98} In his second proposition of law, appellant argues that the three-judge panel failed to conduct a proper sentencing analysis.
       {¶ 99} Appellant argues that the panel erred by referring to “the cold and
calculated plans that were developed, the deliberate execution of those plans and
the manner and means by which five people were killed … .” Appellant claims
that   these   were   “non-statutory    aggravating    circumstances”     and   are
unconstitutionally vague under Maynard v. Cartwright (1988), 

, 

, 

, and Godfrey v. Georgia (1980), 

, 

, 

.
       {¶ 100} However, the panel’s opinion recited the specific statutory
aggravating circumstances of which appellant was convicted.           There is no
indication that the panel believed the “calculated,” “deliberate” nature of these
murders or the “manner and means” of their commission were aggravating
circumstances. See, e.g., State v. Moreland (1990), 

, 

.      Rather, the panel was explaining why the aggravating
circumstances outweighed the mitigating factors. See State v. Stumpf (1987), 

, 

, paragraph one of the syllabus.
       {¶ 101} Appellant also argues that the trial court weighed a statutory
aggravating circumstance, R.C. 2929.04(A)(3), “that did not exist in this case.”




                                        23
                             SUPREME COURT OF OHIO




Appellant was found guilty of an (A)(3) “escaping detection” specification and an
(A)(7) felony-murder specification as to each of the Wilkerson aggravated murder
counts. However, the panel merged the (A)(3) specifications into the (A)(7)
specifications.
       {¶ 102} Later in its opinion, the panel wrote, “The panel having previously
found the Defendant guilty of specifications under R.C. 2929.04(A)(3), (5), (7) and
(8), it is necessary to address all mitigation circumstances developed by the
evidence … .” (Emphasis added.)
       {¶ 103} Appellant argues that this meant the panel was weighing the (A)(3)
specifications—which, having merged with the (A)(7) specifications, should not
have been weighed. We disagree. On its face, the quoted sentence says nothing
about weighing or considering the (A)(3) specifications. Rather, the panel was
simply reciting the specifications of which it had found appellant guilty. Only a
few pages earlier, the panel had stated that the (A)(3) specifications merged into
the (A)(7) specifications. It cannot be rationally believed that the panel forgot about
that and weighed the (A)(3) specifications.
       {¶ 104} Appellant’s Eighth Amendment vagueness claim lacks merit. See
Tuilaepa v. California (1994), 

, 

,

; State v. Gumm (1995), 

, 

.
       {¶ 105} In State v. Cooey (1989), 

, 

,
paragraph three of the syllabus, this court held, “Only the aggravating
circumstances related to a given count may be considered in assessing the penalty
for that count.” Appellant claims that the panel weighed all the aggravating
circumstances collectively against the mitigating factors, rather than assessing the
penalty for each individual count separately as Cooey requires.
       {¶ 106} The sentencing opinion states, “In conclusion, after fully and
carefully considering all the evidence presented, … we unanimously find …



                                          24
                                January Term, 1998




that the aggravating circumstances found with respect to each aggravated murder
count outweigh the several mitigating factors … .” (Emphasis added.)
       {¶ 107} The “with respect to each” language suggests that each count was
evaluated separately. If any ambiguity remains, the verdict forms clarify it. The
panel signed a separate verdict for each victim. The verdict on Count Four states,
“We do find that the aggravating circumstances in the aggravated murder of Joseph
Wilkerson outweigh the mitigating circumstances [sic].” (Emphasis added.) The
same language is used with respect to Counts Six (Gullette), Ten (Abraham),
Seventeen (Cottrill), and Twenty (Washington). Thus, as to each individual
aggravated murder, the panel made a specific finding that the aggravating
circumstances present with respect to that aggravated murder outweighed the
mitigating factors.
       {¶ 108} Finally, as part of his second proposition of law, as well as in his
twenty-fifth proposition of law, appellant argues that the panel incorrectly believed
that the death penalty was mandatory. The opinion states, “In conclusion … we
unanimously find beyond a reasonable doubt that the aggravating circumstances
found with respect to each aggravated murder count outweigh the several mitigating
factors established by a preponderance of the evidence.            Following these
conclusions, the law of this State requires the imposition of the death penalty …
.” (Emphasis added.)
       {¶ 109} Clearly, the panel did not incorrectly believe that the death penalty
was mandatory. Rather, it correctly believed that, having found aggravation to
outweigh mitigation, it was required to impose the death penalty. See State v.
Lawson (1992), 

, 

.
       {¶ 110} Appellant’s second and twenty-fifth propositions of law are
overruled.
       {¶ 111} In his third proposition of law, appellant claims that the death
sentence should not have been imposed in this case. Appellant argues that the




                                         25
                                   SUPREME COURT OF OHIO




mitigating factors outweigh the aggravating circumstances so that the death penalty
is inappropriate, and asks this court to reverse the sentence of death.                          Our
independent sentence determination, infra, will resolve this issue.
                       B. Duplicative Aggravating Circumstances
         {¶ 112} In his fourth proposition of law, appellant argues that Count Four
was invalid because it charged him with murder during a “burglary and/or
robbery.” (Emphasis added.) However, he concedes that he never raised this issue
at trial. Consequently, it is waived. There is no plain error, because appellant was
separately convicted of both aggravated burglary (Count One) and aggravated
robbery (Count Two) with respect to Wilkerson. Therefore, the outcome would not
clearly have been otherwise had the indictment been worded differently. See, e.g.,
State v. D’Ambrosio (1993), 

, 

.
         {¶ 113} Appellant argues that this alleged error is “plain error per se,” and
cannot be waived by lack of objection. We reject this claim, which is inconsistent
with our precedents holding that similar alleged errors were waived.3 Appellant’s
fourth proposition of law is overruled.
         {¶ 114} One of the specifications to Count Four alleged murder during an
aggravated burglary; another alleged murder during an aggravated robbery. In
appellant’s thirteenth proposition of law, he argues that if this court rejects his
fourth proposition of law on the ground that the aggravated robbery and aggravated
burglary “were in fact the same event,” then the aggravating circumstances based
on them should have merged into one. However, we have rejected appellant’s




3. Appellant’s claim is based on a misreading of United States v. Beros (C.A.3, 1987), 

, and State v. Johnson (1989), 

, 

. In Beros, the
question of waiver and plain error never came up because “a sufficient objection was made … to
preserve [the duplicity] issue for appeal.” 

; see, also, 

. Johnson
does not discuss waiver or plain error at all with regard to the duplicity issue. See 46 Ohio St.3d at
104-105, 

.




                                                 26
                                  January Term, 1998




fourth proposition of law on other grounds. Consequently, appellant’s thirteenth
proposition of law lacks merit.
                             C. Length of Deliberations
        {¶ 115} The record shows that the three-judge panel retired to deliberate at
3:37 p.m. and returned with a sentencing decision at 4:55 p.m., one hour and
eighteen minutes later. In his twenty-first proposition of law, appellant claims that
the panel completed its deliberations too quickly. But he cites no authority for the
proposition that an appellate court may second-guess whether the trier of fact
deliberated long enough.
        {¶ 116} In his twenty-second proposition of law, appellant claims that the
panel actually returned at 4:40 p.m., not 4:55. It is undisputed that, pursuant to
App.R. 9(E), appellant filed a motion in the trial court to correct the record; in
support, he adduced an affidavit by trial counsel stating that the panel returned at
4:40 p.m. The trial court denied the motion. Noting that the record was made
“contemporaneously,” the court declined to modify it based on the year-old
recollection of trial counsel. Appellant argues that the trial court violated App.R.
9(E) by denying his motion.
        {¶ 117} App.R. 9(E) states in part, “If any difference arises as to whether
the record truly discloses what occurred in the trial court, the difference shall be
submitted to and settled by the court and the record made to conform to the truth.”
Thus, “it is within the province of the trial court to resolve disputes about the record
on appeal.” State v. Schiebel (1990), 

, 

.
Here, the trial court did resolve the dispute; it found the year-old recollection of the
former counsel for an interested party insufficiently persuasive to impeach the
stenographic record. “Where it is supported by competent, reliable evidence, such
ruling will not be reversed by a reviewing court absent an abuse of discretion.” 

, 

. Appellant’s twenty-first and twenty-second propositions
of law are overruled.




                                          27
                             SUPREME COURT OF OHIO




                                        VII
                                      Recusal
       {¶ 118} In his eighth proposition of law, appellant claims that Judge Robert
Brown, who presided over the suppression hearing, should have recused himself
from the three-judge panel that tried the case.
       {¶ 119} During the suppression hearing, appellant testified on his own
behalf. On cross-examination, the prosecutor asked appellant several questions
relating to the facts of the charged offenses. Judge Brown overruled a defense
objection, noting that appellant’s testimony could not be used against him at trial.
(See Simmons v. United States [1968], 

, 

, 

.) At one point defense counsel informed the judge that “there
is a potential of having a three-judge panel.” The judge said, “In that event I’ll
remove myself.” Ultimately, the case was indeed tried to a panel, but Judge Brown
did not recuse himself and sat on the panel.
       {¶ 120} Appellant never filed a motion for Judge Brown’s recusal. This
failure alone would waive this issue. Furthermore, appellant’s written jury waiver,
signed and filed while Judge Brown was presiding, specifically states, “I …
consent to be tried by a Court to be composed of three Judges, consisting of the
Judge presiding at this time and two other Judges to be designated by the Chief
Justice … .” (Emphasis added.) We reject appellant’s eighth proposition of law.
                                        VIII
                             Prosecutorial Misconduct
       {¶ 121} In his fifteenth proposition of law, appellant claims prosecutorial
misconduct.
       {¶ 122} In guilt-phase closing arguments, the prosecutor described the
crimes as “brutal, heinous, violent,” and stated that “only a person without regard
for or concern for or appreciation of the value of human life could commit” such




                                         28
                                January Term, 1998




crimes. But a prosecutor may denounce the defendant’s wrongdoing. See State v.
Bissantz (1982), 

, 3 OBR 123, 129, 

.
       {¶ 123} The prosecutor described Edward Thompson as “one of the best
witnesses any of us has seen in quite awhile.” Appellant claims the prosecutor was
improperly “vouching” for Thompson’s credibility. However, the prosecutor’s
statement was not a voucher: it neither implied knowledge of facts outside the
record nor placed the prosecutor’s personal credibility in issue.
       {¶ 124} The prosecutor’s allegedly improper statement concerning Jones
Pettus was not objected to, and any issue was therefore waived.
       {¶ 125} Finally, the prosecutor stated that “we are left here with those
witnesses given to us by this defendant,” and the prosecution “would have loved to
have put on” Wilkerson, Gullette, Abraham, and Cottrill as witnesses. We see
nothing improper in this statement.
       {¶ 126} Appellant further argues that the prosecutor introduced “victim
impact” evidence in the guilt phase. This claim, which simply reargues appellant’s
eleventh proposition of law, was waived at trial, and lacks merit.
       {¶ 127} Finally, appellant argues that the prosecutor made improper
comments during penalty-phase closing arguments. As appellant did not object to
any of the arguments to which he objects here, the issue is waived. None of the
alleged errors amounted to plain error. Appellant is therefore not entitled to an
adjudication on the merits of his arguments in this regard.
       {¶ 128} In sum, appellant’s fifteenth proposition of law is overruled.
                                         IX
                                Ineffective Counsel
       {¶ 129} In his nineteenth proposition of law, appellant claims that his trial
counsel rendered ineffective assistance. To demonstrate ineffective assistance, an
appellant must show that counsel’s performance fell “below an objective standard
of reasonable representation.” State v. Bradley (1989), 

, 538




                                         29
                              SUPREME COURT OF OHIO




N.E.2d 373, paragraph two of the syllabus. He must also demonstrate prejudice—
i.e., “a reasonable probability that, were it not for counsel’s errors, the result of the
trial would have been different.” 

 paragraph three of the syllabus. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Strickland v. Washington (1984), 

, 

, 

.
        {¶ 130} Appellant lists various objections he thinks his counsel should have
made at trial. However, he fails to show that any of these omissions constituted
ineffective assistance.
        {¶ 131} Appellant argues that his counsel should have moved to dismiss
Count Four, the felony-murder of Wilkerson, because the averment was worded in
the alternative (“[aggravated] burglary and/or [aggravated] robbery”). However,
failure to so move was nonprejudicial. Appellant was also charged with murdering
Wilkerson under Count Three (prior calculation and design). Dismissal of Count
Four would have left Count Three intact, and the panel ultimately found appellant
guilty on that count. Thus, dismissal would have meant only that appellant would
have been sentenced on Count Three instead of on Count Four.
        {¶ 132} Appellant also argues that counsel should have requested the court
not to consider Count Four in the penalty phase, because of the “and/or” language.
However, by then—after Count Three had been merged into Count Four—it was
too late to make such a request, which would have provoked justifiable charges of
“sandbagging.”
        {¶ 133} Appellant’s other claims also fail.         It was not deficient for
appellant’s counsel to forgo a double jeopardy claim that was inconsistent with
binding precedent. See, e.g., State v. Moss (1982), 

, 

, 

, infra. Nor was it deficient performance not to request Judge
Brown’s recusal just because he presided over the suppression hearing. See State




                                           30
                                January Term, 1998




v. Gillard (1988), 

, 

; cf. Withrow v.
Larkin (1975), 

, 

, 

.
       {¶ 134} Declining to interrupt the prosecutor’s argument with objections,
or failing to object to certain evidence, was not deficient performance, especially
in a bench trial. “A trial is not a law-school examination. … [N]o one will reward
you for making every possible objection.” McElhaney, Clutter (Mar.1991), 77
A.B.A.J. 73. See State v. Campbell (1994), 

, 43-44 and 52-53,

, 347 and 352-353; State v. Holloway (1988), 

, 

. Nor do such failures undermine one’s confidence in a
verdict supported by extensive forensic evidence, eyewitness testimony, and
appellant’s videotaped confession.
       {¶ 135} Failing to argue that the death penalty violates international law is
not ineffective assistance, given the dearth of legal authority supporting that
argument. (See discussion of twenty-fourth proposition of law, infra.)
       {¶ 136} Appellant has shown neither deficient performance nor prejudice
with respect to any of his ineffective-assistance allegations.        Therefore, his
nineteenth proposition of law is overruled.
                                          X
                                   Settled Issues
       {¶ 137} In his twelfth proposition of law, appellant claims it is double
jeopardy to sentence him for both felony-murder and the underlying felony, as the
trial court did with respect to the Wilkerson, Gullette, and Abraham murders.
However, felony-murder under R.C. 2903.01(B) is not an allied offense of similar
import to the underlying felony. See, e.g., State v. Moss (1982), 

, 

, 450, 

; State v. Bickerstaff (1984), 

, 10 OBR 352, 355-356, 

; State v. Henderson
(1988), 

, 

. That being the case, R.C.
2941.25 authorizes punishment for both crimes, and no double jeopardy violation




                                         31
                             SUPREME COURT OF OHIO




occurs. See Moss at 521-522, 23 O.O.3d at 451, 

, and
paragraph one of the syllabus. Appellant’s twelfth proposition of law is overruled.
       {¶ 138} In his twenty-third proposition of law, appellant challenges the
statutory definition of “reasonable doubt,” R.C. 2901.05(D). We have previously
rejected his position, State v. Van Gundy (1992), 

, 

, and reject it again here.
       {¶ 139} In his twenty-sixth proposition of law, appellant raises
constitutional challenges to the Ohio death penalty statutes. We have repeatedly
rejected each of appellant’s arguments, and summarily overrule them here. We also
overrule appellant’s twentieth proposition of law, which reargues issues raised in
his fourth and sixth propositions of 

       {¶ 140} Appellant’s twenty-fourth proposition of law raises questions of
international law, which appellant did not raise at trial. They are thereby waived,
and appellant’s twenty-fourth proposition of law is overruled.
                                        XI
            Independent Sentence Review and Proportionality Analysis
       {¶ 141} Having affirmed appellant’s aggravated-murder convictions, we
now must independently determine whether the evidence supports the aggravating
circumstances, whether the aggravating circumstances outweigh the mitigating
factors beyond a reasonable doubt with respect to each murder, and whether the
death sentences are proportionate to those affirmed in similar cases.
       {¶ 142} After merger, Wilkerson’s murder had three aggravating
circumstances: course of conduct, aggravated robbery, and aggravated burglary.
Cottrill’s murder and Washington’s murder each had three aggravating
circumstances: course of conduct, kidnapping, and witness murder. Gullette’s
murder and Abraham’s murder each had two aggravating circumstances: course of
conduct and aggravated robbery.




                                         32
                                January Term, 1998




       {¶ 143} We find that the evidence supports each of these aggravating
circumstances. All specifications were proven by appellant’s confession, by strong
physical evidence, and by the testimony of such eyewitnesses as Pettus, Thompson,
Woodson, and Mathews.
       {¶ 144} In weighing aggravation against mitigation, we note that the
penalty for each aggravated murder must be assessed separately; the aggravating
circumstances attached to a given count may be considered only with respect to that
count. Cooey, paragraph three of the syllabus.
       {¶ 145} Appellant was nineteen years old at the time of the murders and
appears to have been relatively immature. His youth is entitled to some weight
under R.C. 2929.04(B)(4).
       {¶ 146} The trial court found that appellant lacked a significant history of
criminal convictions or delinquency adjudications. This factor is entitled to weight
under R.C. 2929.04(B)(5).
       {¶ 147} Dr. Robert Smith, a psychologist, testified that appellant has a
“passive-aggressive personality disorder.” He also diagnosed appellant with posttraumatic stress disorder (“PTSD”). Smith believed that appellant could adjust well
to prison with support and counseling. In the county jail, appellant had a good
disciplinary record and socialized with other inmates.
       {¶ 148} Under R.C. 2929.04(B)(3), a mitigating factor exists if “at the time
of committing the offense, the offender, because of a mental disease or defect,
lacked substantial capacity to appreciate the criminality of his conduct or to
conform his conduct to the requirements of law.” Appellant claims his personality
disorder and his PTSD qualify under this factor. We disagree. A personality
disorder is not a “disease or defect.” However, we accord this factor some weight,
as the trial court did, under R.C. 2929.04(B)(7) (the catchall provision).
       {¶ 149} With respect to Cottrill and Washington, appellant argues that R.C.
2929.04(B)(1) applies, “Whether the victim of the offense induced or facilitated it.”




                                         33
                              SUPREME COURT OF OHIO




Appellant states that “there was evidence that both Wendy Cottrill and Marvin
Washington were involved in criminal activities.” Even if this was true, they were
not involved in any of the crimes in this case. (They witnessed the shooting of
Wright, but did not participate in that crime.) It is clear that Cottrill and Washington
in no way “induced or facilitated” their own murders.
       {¶ 150} Appellant did not play the role of a follower with respect to
Wilkerson’s murder. Even if Taylor suggested the robbery, appellant was the
leader during the robbery and murder. He was the only one who brought a gun. He
ordered Taylor and Mathews to tie Wilkerson up. It was appellant who decided to
kill Wilkerson—Taylor and Mathews were not in the bedroom when he fired the
first bullet at point-blank range into Wilkerson’s heart. Appellant handed Taylor
his gun to fire a second bullet. When that gun would not fire, appellant handed her
another. When appellant, Taylor, and Mathews left, appellant drove the stolen car.
He suggested taking the car to Detroit to sell it, and he told the others not to say
anything to Cottrill and Washington.
       {¶ 151} As for the other murders, it is true that appellant did not instigate
them. He did not begin shooting in the mini-mart robbery until Smith did. Smith
also suggested robbing Gullette. We accord these circumstances some mitigating
weight. However, appellant overstates his case by claiming that he “was not the
principal offender in most of the murders.” He was in fact a principal, as we have
defined that term—i.e., the actual killer, not a mere accomplice—in four of the five
murders.
       {¶ 152} Appellant was born in 1973. On the day appellant’s mother was
released from the hospital after giving birth to him, appellant’s father left home.
       {¶ 153} Appellant’s mother married three times. Her second husband,
James Douglas, habitually abandoned the family, disappearing for months at a time.
This upset appellant, who “had really gathered a love [for] Douglas.” When
appellant’s mother finally divorced her second husband (after he had been gone for



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a year), appellant was devastated. Her third husband drank to excess, gambled, and
inflicted unspecified verbal and physical abuse on appellant’s mother and her
children.
       {¶ 154} Appellant developed a close relationship with his older brother,
Maurice. However, Maurice was shot to death in 1991. Appellant became
depressed and withdrawn and began to fail academically, although his grades had
been better before.
       {¶ 155} After his brother was killed, appellant moved to California to live
with his father. However, their relationship soured because appellant’s father felt
appellant was behaving irresponsibly.          Appellant’s father ultimately threw
appellant out of his house.
       {¶ 156} Appellant did display some remorse: he wept during his confession.
Retrospective remorse, however, is entitled to little weight. Indeed, we are inclined
to doubt the sincerity of appellant’s remorse, which slumbered while he murdered
five people in succession, and awoke only after his arrest.
       {¶ 157} We find that several mitigating factors exist here, including
appellant’s youth, clean record, mental disorders, his remorse and confession, and
the repeated, traumatic loss of father figures from his life.
       {¶ 158} Yet, we are faced with a defendant who murdered five people in
three days. The course of conduct specification is common to all five murders, and
it has great weight with respect to each. And while his family life has been troubled,
he has also had the advantage of a hardworking, churchgoing mother and family.
His mental disorders are entitled to some weight, but they did not substantially
diminish his capacity to understand the criminality of his actions or to choose
between right and wrong.
       {¶ 159} The aggravating circumstances are strongest with respect to the
Cottrill-Washington murders. Murdering a witness to prevent his or her testimony
strikes at the heart of the criminal justice system. Combined with the course of




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                            SUPREME COURT OF OHIO




conduct and the kidnapping, these crimes clearly merit the death penalty; beyond a
reasonable doubt, the aggravation outweighs the mitigation presented by appellant.
       {¶ 160} In the Wilkerson murder, the aggravating circumstances are
aggravated burglary, aggravated robbery, and course of conduct. With respect to
the two felony-murder factors, we find especially noteworthy the cynical deception
by which appellant and his accomplices induced Wilkerson to allow them into his
home. Moreover, the mitigating factors with respect to Wilkerson’s murder are
weaker, because appellant played the leading role in that crime. We find, beyond
a reasonable doubt, that the aggravating circumstances attached to Wilkerson’s
murder outweigh the mitigating factors.
       {¶ 161} Gullette’s murder combined aggravated robbery with a course of
conduct involving the murder of five people. In this case, we conclude that these
two aggravating circumstances outweigh the mitigating factors beyond a
reasonable doubt.   Finally, Abraham’s murder has the same two aggravating
circumstances as Gullette’s. Again, we find beyond a reasonable doubt that
aggravation outweighs mitigation.
       {¶ 162} Moreover, the death penalty for the Wilkerson, Gullette, and
Abraham murders is proportionate in comparison with death sentences we have
affirmed in cases combining multiple-murder specifications with aggravated
robbery and/or aggravated burglary specifications. See, e.g., State v. Gillard
(1997), 

, 

 (two victims); State v. Lorraine (1993),

, 

 (nineteen-year-old defendant; two victims);
State v. Hawkins (1993), 

, 

 (two victims); State
v. Montgomery (1991), 

, 

 (two victims;
twenty-year-old defendant with “violent and unstable family environment”); State
v. Dickerson (1989), 

, 

 (two victims; defendant
proved diminished capacity).




                                          36
                                     January Term, 1998




         {¶ 163} Also, the death penalty for the Cottrill-Washington murders is
proportionate to State v. Lundgren (1995), 

, 

(multiple murder and kidnapping). Indeed, we have frequently affirmed death
sentences in cases where multiple murder was the sole death specification. See,
e.g., State v. Williams (1997), 

, 

; State v. Kinley
(1995), 

, 

; State v. Sowell (1988), 

, 

 (one victim; one intended victim).4
         {¶ 164} Accordingly, the judgment of the court of appeals is affirmed.
                                                                            Judgment affirmed.
         MOYER, C.J., DOUGLAS, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG
STRATTON, JJ., concur.
                                    __________________




4. This court did reject the death sentence in the multiple-murder case of State v. Lawrence (1989),

, 

. However, in Lawrence there were only two murders, each
aggravated murder count carried only one death specification, and the mitigating factors were far
stronger.




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