State v. Bey

[This opinion has been published in Ohio Official Reports at 

.]




               THE STATE OF OHIO, APPELLEE, v. BEY, APPELLANT.
                        [Cite as State v. Bey, 

.]
Criminal law—Aggravated murder—Death penalty upheld, when.
      (No. 97-2247—Submitted February 9, 1999—Decided May 19, 1999.)
       APPEAL from the Court of Appeals for Lucas County, No. L-94-003.
                                  __________________
        {¶ 1} This appeal stems from the conviction and death sentence of Gregory
L. Bey, alias Gregory L. Bryant-Bey, defendant-appellant, for the aggravated
murder and the aggravated robbery of Dale Pinkelman.
        {¶ 2} Pinkelman’s body was found near a back office inside Pinky’s
Collectibles (“Pinky’s”), a retail store opened by Pinkelman that sold various items,
including watches. His shoes were lying next to his body, but his trousers were
missing. Deputy Coroner Cynthia Beisser concluded that Pinkelman died within a
few minutes “as a result of a [single] stab wound to the chest.”
        {¶ 3} Although when found Pinkelman’s body still wore a gold necklace
and a ring and a watch on each hand, merchandise was missing from the store’s
inventory. And despite the fact that Pinkelman customarily left $100 in loose
currency in the register drawer and then placed the drawer in a storage room, the
register was open, and the cash drawer, still in the register, had no visible currency.
Additionally, Pinkelman’s station wagon, which had been parked in front of the
store the previous day, was missing.
        {¶ 4} Police found an unknown fingerprint and palmprint on top of a glass
display case approximately three feet in front of Pinkelman’s body. Police also
recovered Pinkelman’s abandoned station wagon.                  But police never found
Pinkelman’s trousers or the murder weapon.
                             SUPREME COURT OF OHIO




       {¶ 5} The Pinkelman homicide remained unsolved until Toledo police
arrested Bey three months after the Pinkelman murder for the aggravated murder
of Peter Mihas. Police were called to a Toledo restaurant, after Mihas, the
restaurant owner, was found stabbed to death. Toledo Detective William Gray
immediately noticed similarities between the Mihas homicide and the unsolved
Pinkelman homicide. The trousers of both victims had been removed, and their
shoes were lying next to their bodies. And both victims were owners of small
businesses who were robbed and killed by being stabbed in the chest when they
were evidently alone at their businesses. Additionally, both victims still had
jewelry on their persons.
       {¶ 6} Police interviewed Bey regarding the Mihas homicide, and Bey
admitted that he had killed Mihas. Then, after Bey’s fingerprints and palm prints
were taken, his prints were found to match the latent prints found on top of the glass
case in Pinky’s.    And Bey lived two blocks from where police had found
Pinkelman’s station wagon.
       {¶ 7} The next day, police interviewed Bey concerning the Pinkelman
homicide. Bey at first denied ever meeting Pinkelman and ever being in Pinky’s.
Then Bey admitted that he had purchased a watch at Pinky’s as a gift for his wife.
He stated that he “owed” Pinkelman around $300 for the watch and that he “was
asking [Pinkelman] for some time,” but that Pinkelman “dogged” him for money.
When asked if he had harmed Pinkelman or if he had taken his car, Bey said that
he did not remember. Bey then refused to talk any further.
       {¶ 8} The grand jury indicted Bey on four counts. Counts I and III charged
the aggravated murder of Pinkelman and Mihas, respectively, under R.C.
2903.01(B), and both counts contained a death-penalty specification under R.C.
2929.04(A)(7), charging aggravated murder in the course of an aggravated robbery
and naming Bey as the principal offender. Counts II and IV charged the aggravated




                                          2
                               January Term, 1999




robbery against Pinkelman and Mihas, respectively, and each contained a prior
felony-conviction specification. The trial court granted Bey’s motion to sever.
       {¶ 9} Bey was then separately tried for and convicted of the aggravated
felony-murder and aggravated robbery of Mihas and sentenced to life
imprisonment. See State v. Bryant-Bey (Mar. 10, 1995), Lucas App. No. L-93-184,
unreported, 

, discretionary appeal denied (1995), 

, 

, certiorari denied (1996), 

, 

, 

. In the case now pending before us, the jury convicted Bey of the
aggravated murder of Pinkelman, including a felony-murder death-specification, as
well as aggravated robbery. Following a penalty hearing, the jury recommended
the death penalty. The trial court agreed and sentenced Bey to death and to a prison
term for the aggravated robbery. At sentencing, the trial court found Bey guilty of
the prior felony-conviction specification attached to the aggravated robbery charge.
The court of appeals affirmed the convictions and death sentence. Bey now appeals
here as a matter of right.
                              __________________
       Craig T. Pearson, Lucas County Assistant Prosecuting Attorney, for
appellee.
       Jeffrey M. Gamso and Spiros P. Cocoves, for appellant.
                              __________________
       COOK, J.
       {¶ 10} In this appeal, Bey advances twenty-two propositions of law. (See
Appendix, infra.)     We have considered each of Bey’s propositions of law,
independently weighed the aggravating circumstance against mitigating factors,
and reviewed the death penalty for appropriateness and proportionality. For the
reasons that follow, we affirm Bey’s convictions and the sentence of death.




                                         3
                             SUPREME COURT OF OHIO




                                I. Other Acts Issues
                              A. Proposition of Law I
       {¶ 11} In proposition of law I, Bey asserts that the trial court erred by
admitting “other acts” evidence under Evid.R. 404(B) that Bey murdered Mihas.
Bey argues that the trial court’s pretrial judgment entry on Bey’s motion to exclude
any evidence relating to other crimes, wrongs, or acts failed to include an explicit
Evid.R. 403 analysis regarding whether the prejudicial impact of the “other acts”
evidence outweighed its probative value. Bey argues that the evidence of the Mihas
murder should not have been admitted for any Evid.R. 404(B) reason because it is
too prejudicial.
       {¶ 12} Evid.R. 403(A) establishes a standard but does not require a trial
court to explicitly state in its judgment entry that the probative value of the “other
acts” evidence outweighs its prejudicial impact.
       {¶ 13} As for whether the trial court should have excluded the evidence of
the Mihas murder, we first note that “[t]he admission or exclusion of relevant
evidence rests within the sound discretion of the trial court.” State v. Sage (1987),

, 31 OBR 375, 

, paragraph two of the syllabus.
See State v. Finnerty (1989), 

, 

; State
v. Hymore (1967), 

, 

, 

. For the following reasons, we determine that the trial court did not abuse that
discretion by admitting the “other acts” evidence in this case.
       {¶ 14} Under Evid.R. 404(B), “[e]vidence of other crimes, wrongs, or acts
is not admissible to prove” a defendant’s criminal propensity.          “Other acts”
evidence is admissible, however, if “(1) there is substantial proof that the alleged
other acts were committed by the defendant, and (2) the evidence tends to prove
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” State v. Lowe (1994), 

, 

; see, also, Evid.R. 404(B). Identity can be proven by establishing a modus




                                          4
                                January Term, 1999




operandi applicable to the crime with which a defendant has been charged. See
Lowe, 

, 

. But in order “[t]o be admissible to
prove identity through a certain modus operandi, other acts evidence must be
related to and share common features with the crime in question.” Lowe, 

, 

, paragraph one of the syllabus; see, also, State v.
Jamison (1990), 

, 

, syllabus (“Other acts forming
a unique, identifiable plan of criminal activity are admissible to establish identity
under Evid.R. 404[B].”). For example, “evidence of ‘other acts’ to prove … the
identity of the perpetrator is admissible where two deaths occur under almost
identical circumstances.” State v. Smith (1990), 

, 

, syllabus.
       {¶ 15} First, in this case, substantial proof existed that Bey committed the
“other act” because Bey admitted that he had killed Mihas and was convicted of
that crime. Second, the “other act” evidence established a “behavioral fingerprint”
linking the appellant to the crime due to the common features shared by the Mihas
homicide and the Pinkelman homicide. See Lowe, 

, 

. The deaths of Mihas and Pinkelman occurred under practically
identical circumstances. As the trial court noted, both victims were businessmen
who were killed at their place of business, evidently in the absence of customers or
employees. Both died after being stabbed in the chest by a knife. Uniquely, both
men had their trousers removed and their shoes were placed next to their bodies.
And although both businesses were robbed, jewelry was left on each person.
       {¶ 16} Admittedly, some differences existed because, unlike Pinkelman,
Mihas suffered other stab wounds and the knife was left in Mihas’s body. Also,
Mihas’s trousers, with the pockets turned out, were found at the crime scene.
Nonetheless, “[a]dmissibility is not adversely affected simply because the other
robberies differed in some details.” Jamison, 

, 

. Bey had the opportunity to argue the different details to the jury, and the jury




                                         5
                             SUPREME COURT OF OHIO




was to decide the weight to be accorded those differences. Accordingly, these facts
demonstrate a similar method of operation and therefore the “other acts” evidence
is probative of identity.
        {¶ 17} Bey’s contention that the “other acts” evidence was unnecessary
because other evidence was available to prove identity is meritless because we have
recognized that “need is irrelevant to an Evid.R. 404(B) objection.” State v.
McNeill (1998), 

, 

. And the prejudicial
impact of the “other acts” evidence was minimized because the trial court, at Bey’s
request, twice instructed the jury that it could consider the Mihas homicide evidence
only on the disputed issue of Bey’s identity as Pinkelman’s killer. Absent evidence
to the contrary, we must presume that the jury followed these instructions. See
State v. Woodard (1993), 

, 

. Accordingly,
the trial judge did not abuse his discretion in admitting the “other acts” evidence
because the Mihas homicide shared sufficient characteristics with the Pinkelman
homicide to have probative value that outweighs any unfair prejudicial impact.
Bey’s proposition of law I is overruled.
                              B. Proposition of Law II
        {¶ 18} In proposition of law II, Bey argues that the trial court erred in
admitting the “other acts” evidence regarding the Mihas homicide because his
conviction for the Mihas homicide was obtained on the basis of evidence that
should have been suppressed.          During the Mihas trial and appeal, Bey
unsuccessfully sought to suppress his confession that he killed Mihas and to
suppress evidence from a hotel search. Bey attempts to resurrect this claimed
suppression error in order to prevent the admission in this case of his Mihas
conviction. We, however, find that Bey’s argument lacks merit.
        {¶ 19} Bey is collaterally estopped from relitigating the issue of whether the
evidence admitted at the Mihas trial was admitted in error because this issue was
already fully and finally litigated by the same parties involved in this case — the




                                           6
                                     January Term, 1999




state and Bey. State v. Bryant-Bey, supra. See Thompson v. Wing (1994), 

, 

 (“Collateral estoppel [issue preclusion]
prevents parties … from relitigating facts and issues in a subsequent suit that
were fully litigated in a prior suit.”); Scholler v. Scholler (1984), 

,
10 OBR 426, 

, paragraph three of the syllabus; see, also, Ashe v.
Swenson (1970), 

, 

, 

,
cited with approval in State v. Lovejoy (1997), 

, 

 (establishing that collateral estoppel is relevant in criminal
cases).
          {¶ 20} Even if Bey were not collaterally estopped from relitigating this
issue, the record in this case does not contain the evidence necessary to review his
claim that the trial court erred in the Mihas trial by failing to suppress certain
evidence.1 And “[a] reviewing court cannot add matter to the record before it
….” State v. Ishmail (1978), 

, 

, 

,
paragraph one of the syllabus.            Accordingly, Bey’s proposition of law II is
overruled.
                                 C. Proposition of Law III
          {¶ 21} In proposition of law III, Bey asserts that his counsel during the
Mihas trial was ineffective in failing to raise certain suppression arguments and
that, due to the ineffectiveness, Bey was prejudiced not only in the Mihas trial but
also in this case because he was convicted in the Mihas trial based on the admitted
evidence and because the evidence of his conviction was presented in this case. We
reject Bey’s assertion.




1. Bey did file an oral motion to suppress his statements about Pinkelman. The transcript at page 3
of the September 27, 1993 suppression hearing refers vaguely to a stipulation as to the “testimony
taken and the evidence in the previous hearing.” That evidence and testimony, however, are not
included in this record of trial.




                                                7
                              SUPREME COURT OF OHIO




        {¶ 22} Bey is collaterally estopped from relitigating this issue.             See
Scholler, 

, 10 OBR 426, 

, paragraph three of the
syllabus. The court of appeals in the Mihas case already disposed of Bey’s
ineffective-assistance claim relating to the suppression issue when it addressed his
assignment of error VIII. See State v. Bryant-Bey, supra. Moreover, even if the
issue were not barred by collateral estoppel, we would decline to review it because
Bey failed to raise it at the court of appeals in this case. See State v. Jester (1987),

, 

; State v. Abrams (1974), 

, 

, 31, 

, 825; Toledo v. Reasonover (1965),

, 

, 

, paragraph two of the syllabus.
Bey’s proposition of law III is therefore overruled.
                               D. Proposition of Law IV
        {¶ 23} In proposition of law IV, Bey argues that the trial court erred in
instructing the jury during voir dire to limit consideration of the “other acts”
evidence “for the sole purpose relating to the element of identity.” But the trial
court issued the instruction at Bey’s request. We find no error.
        {¶ 24} Trial courts customarily give this type of instruction when “other
acts” evidence is introduced to ensure that juries understand the limited purpose of
such evidence. See 4 OJI (1997) 30, Section 402.61; State v. Flonnory (1972), 

, 

, 

. The fact
that the trial court gave this instruction during voir dire is of no consequence
because a trial court may give preliminary instructions to the jury before taking
evidence, see State v. Comen (1990), 

, 

, paragraph
one of the syllabus, and “the scope of voir dire falls within a trial court’s discretion.”
State v. Lundgren (1995), 

, 

; State v.
Bedford (1988), 

, 

. We therefore
conclude that the trial court acted properly and within its discretion in instructing
the jury regarding “other acts” evidence during voir dire.




                                            8
                                January Term, 1999




       {¶ 25} Even if the trial court had erred by instructing the jury, Bey could
not complain because he invited the error by requesting the instruction. Under the
invited-error doctrine, “[a] party will not be permitted to take advantage of an error
which he himself invited or induced.” Hal Artz Lincoln-Mercury, Inc. v. Ford
Motor Co. (1986), 

, 28 OBR 83, 

, paragraph one
of the syllabus; State v. Seiber (1990), 

, 

.
As a result, Bey’s proposition of law IV is overruled.
                             E. Proposition of Law V
       {¶ 26} In proposition of law V, Bey claims that he received ineffective
assistance of counsel based upon his counsel’s decision to request that the “other
acts” instruction be given to the jury during voir dire. We determine that Bey’s
claim is without merit.
       {¶ 27} First, counsel’s decision to request such a cautionary instruction
represented a reasonable professional judgment. The trial judge had already ruled
the “other acts” evidence admissible. Counsel understood the impact that the “other
acts” evidence might have in this case, knew that the prosecution would introduce
such evidence, and chose to take the “sting” out of the evidence by disclosing it
early. See State v. Tyler (1990), 

, 

. Under
these circumstances, counsel made a reasonable tactical decision that we do not
second-guess. See State v. Mason (1998), 

, 

 (Court “will not second-guess trial strategy decisions.”); Strickland v.
Washington (1984), 

, 

, 

(“[A] court must indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.”).
       {¶ 28} But even assuming that Bey’s counsel was ineffective, Bey’s claim
must still fail because Bey has failed to demonstrate prejudice. “The defendant
must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”




                                          9
                             SUPREME COURT OF OHIO




Strickland, 

, 

, 

; see, also, State
v. Bradley (1989), 

, 

, paragraph three of the
syllabus. Because Bey offers no argument supporting the prejudice prong of
Strickland, his proposition of law V is overruled.
                            II. Prosecutorial Misconduct
                             A. Proposition of Law VI
        {¶ 29} In proposition of law VI, Bey alleges that the prosecutor committed
misconduct based on his remarks during guilt-phase closing arguments. We
initially note that Bey failed to object to some of the instances of alleged
prosecutorial misconduct, thereby waiving all but plain error. Crim.R. 52(B).
Regarding the remarks to which Bey did object, we must determine (1) whether the
prosecutor’s remarks were improper, and if so, (2) whether the remarks
prejudicially affected Bey’s substantial rights. State v. Smith (1984), 

, 14 OBR 317, 318, 

.
        {¶ 30} First, Bey asserts that the prosecutor “made a plea to the jury on the
effect that a conviction would have on the community” and that this call for the jury
to convict in response to public demand is forbidden. In fact, the prosecutor simply
and correctly noted, without defense objection, that “[t]he effects of this murder *
… are far reaching, not only to the family members, but throughout our
community. But the faith in justice, the faith in the justice system depends on all
of you doing your jobs … as sworn jurors … to follow the law.” Prosecutors
can legitimately call for justice or ask jurors to do their duty. See State v. Slagle
(1992), 

, 

; State v. Hicks (1989), 

, 

. This argument does not rise to
the level of plain error.
        {¶ 31} Second, Bey complains that the prosecutor improperly commented
on opposing counsel when he said, “When a skilled attorney, much like Mr.
Wingate [Bey’s counsel], is stuck with this overwhelming evidence … he is left




                                         10
                               January Term, 1999




with only one alternative, to try to create or implant some doubt …, confuse
issues, create a cloud of doubt.” At the outset, counsel objected to the “skilled
attorney” reference. The prosecutor’s remarks about confusing the issues or
creating doubt arguably denigrated defense counsel. See State v. Keenan (1993),

, 

. Yet even if improper, Bey has failed
to show that he was prejudiced by the remarks. “Not every intemperate remark by
counsel can be a basis for reversal.” State v. Landrum (1990), 

, 

.
       {¶ 32} Third, Bey alleges misconduct based on the prosecutor’s remark:
“[T]his detective knows [that Bey] is guilty, and don’t let Mr. Wingate [Bey’s
counsel] have any of you think otherwise.” Bey, however, objected to the remark,
and the trial court sustained the objection. Thereafter, Bey never asked for a
cautionary instruction.
       {¶ 33} Fourth, Bey asserts that the prosecutor wrongly referred to facts not
in evidence by asserting that an event happened “approximately four hours after the
Pinkelman homicide occurred.”      Yet, the trial court correctly rejected Bey’s
objection. The time of the victim’s death could be inferred. See State v. Smith
(1997), 

, 

, 689 (“Prosecutors are entitled to
latitude as to what the evidence has shown and what inferences can reasonably be
drawn from the evidence.”); State v. Grant (1993), 

, 

. The remark was not improper, and Bey was not prejudiced by it.
       {¶ 34} Fifth, Bey claims that the prosecutor explicitly argued Bey’s bad
character by commenting on the Mihas murder and thereby violated Evid.R.
404(A). Yet, the context shows that the prosecutor referred to the Mihas murder—
the “other acts” evidence—only as proof of identity. And we note that Bey did not
object to these remarks. We find that no plain error resulted from the remarks,
given the trial court’s instructions on “other acts” evidence. See State v. Loza




                                        11
                             SUPREME COURT OF OHIO




(1994), 

, 

; Woodard, 

, 

.
       {¶ 35} Finally, we review the closing argument in its entirety to determine
prejudicial error. State v. Frazier (1995), 

, 

; State v. Moritz (1980), 

, 

, 

. The touchstone of this analysis “is the fairness of the trial, not the
culpability of the prosecutor.” Smith v. Phillips (1982), 

, 

, 

. Here, misconduct by the prosecutor did not
permeate his argument so as to deny Bey a fair trial. Cf. Landrum, 

, 

; State v. Johnson (1989), 

, 

. Bey’s proposition of law VI is overruled.
                            B. Proposition of Law VII
       {¶ 36} In proposition of law VII, Bey alleges that the prosecutor committed
misconduct based on various remarks made during sentencing-phase opening and
closing arguments. Bey, however, failed to object at trial on most of the issues he
now raises and thus waived all but plain error. See Slagle, 

,

; Crim.R. 52(B). Nonetheless, “[n]either alone nor in the
aggregate did these [asserted] errors have an arguable effect on the outcome of the
trial.” Slagle, 

, 

.
       {¶ 37} First, in preliminary remarks, the prosecutor opined without
objection that a life sentence was appropriate, “if this defendant presents enough of
these mitigating factors to outweigh the sheer horridness of his conduct when he
took Mr. Pinkelman’s life, the aggravating circumstances.” With this remark, the
prosecutor wrongly described the weighing process because the state has the burden
of proof. The prosecutor also wrongly suggested that weighing hinges on the
number of mitigating factors. Later in his argument, again without objection, the
prosecutor stressed the facts of the crime as “obviously an aggravating set of
circumstances.” We condemn such remarks because they improperly suggested




                                         12
                                January Term, 1999




that “the nature and circumstances of the offense are ‘aggravating circumstances.’
” See State v. Wogenstahl (1996), 

, 

, paragraph
two of the syllabus.
       {¶ 38} The trial court correctly instructed the jury on the weighing process
and correctly and explicitly identified the relevant aggravating circumstance. The
court’s instructions on the law cure alleged misstatements of law by the parties.
See Loza, 

, 

; Wogenstahl, 

, 

.
       {¶ 39} Second, Bey argues that the prosecutor should not have referred to
the jury’s verdict as a “recommendation,” since the trial court had discouraged the
use of that term. We agree; however, the prosecutor’s reference did not violate the
Constitution and no prejudicial error occurred. See State v. Carter (1995), 

, 

; Woodard, 

, 

; State v. Henderson (1988), 

, 

.
We also note that the trial court is positioned to thwart such misconduct with
sanctions.
       {¶ 40} Third, Bey contends that the prosecutor’s references to Pinkelman
and his family turned victim-impact commentary into an aggravating circumstance.
The prosecutor commented that “Dale Pinkelman will not be able to run his
business anymore or engage in life’s little pleasures, and … spend the rest of [his
life] … with his family.” Later, the prosecutor stated that “the loss experienced
by the family and the community … as it relates to Dale Pinkelman can’t be
described.” Again, Bey did not object. As we have held before, “brief, general
statements by the prosecutor that [a victim] had a life, a job, and a family” are not
outcome-determinative plain error. McNeill, 

, 

; accord State v. Lorraine (1993), 

, 

.




                                          13
                              SUPREME COURT OF OHIO




         {¶ 41} Fourth, contrary to Bey’s claim, the prosecutor did not “treat
appellant’s future dangerousness as a non-statutory aggravating circumstance.”
Instead, the prosecutor reviewed the defense evidence as to Bey’s “history,
character, and background” in responding to defense arguments regarding Bey’s
rehabilitation potential. A prosecutor may state an opinion based on evidence at
trial, Tyler, 

, 

, and respond to defense
arguments. See, e.g., State v. Rogers (1986), 

, 28 OBR
480, 485-486, 

, reversed on other grounds (1987), 

, 

.
         {¶ 42} Fifth, the prosecutor did not act improperly by referring to Bey’s
emotional outburst during sentencing argument. The prosecutor commented that
“[e]ven in a structured environment, [Bey] … can still not cope with stress.
We’ve all seen that.” A prosecutor may comment on a defendant’s physical
appearance and likewise may make relevant comments upon a defendant’s
emotional outburst in open court before the jury. See State v. Lawson (1992), 

, 

; State v. Brown (1988), 

, 

. See, also, discussion on proposition of law XI,
infra.
         {¶ 43} As in State v. Mills (1992), 

, 

, here “the prosecutor did err by referring to statutory mitigating factors not
raised by the defense, when he explained why those statutory mitigating factors
were not present.” As we have repeatedly noted, the trial court should instruct, and
counsel should comment, only on mitigating factors specifically raised by an
accused. See Hicks, 

, 

; State v. DePew
(1988), 

, 

. Again, if counsel
exceeded the limits established by the cases from this court or as counseled by the
trial judge, it is the trial court’s role to discourage such misstep with sanctions when
appropriate.




                                          14
                                 January Term, 1999




        {¶ 44} More than ten years ago in DePew, we noted that “R.C. 2929.04(B)
and (C) deal with mitigation and were designed to enable the defendant to raise
issues in mitigation and to facilitate his presentation thereof. If the defendant
chooses to refrain from raising some of or all of the factors available to him, those
factors not raised may not be referred to or commented upon by the trial court or
the prosecution. When the purpose of these sections is understood, it is clear that
such comment is appropriate only with regard to those factors actually offered in
mitigation by the defendant.” (Emphasis sic.) DePew, 

, 

. Here, the trial court sustained the defense objection.
        {¶ 45} When viewed in its entirety, the prosecutor’s sentencing argument
did not contribute unfairly to the death verdict and did not create outcome-determinative plain error. Cf. Landrum, 

, 

; State v. Hill (1996), 

, 

.
Bey’s proposition of law VII is overruled.
                             III. Sentencing Instructions
                             A. Proposition of Law VIII
        {¶ 46} In proposition of law VIII, Bey argues that the trial court committed
prejudicial error in its sentencing-phase instructions. Bey complains that the trial
court improperly (1) defined mitigating factors, (2) listed all statutory mitigating
factors, and (3) informed the jury that it could consider life imprisonment sentences
only after it had rejected a death sentence or could not agree on the sentence. Bey
concedes, however, that he did not object to the instructions as given. And his
failure to object to the jury instructions constituted a waiver of all but plain error.
State v. Underwood (1983), 

, 3 OBR 360, 

, syllabus
(The “failure to object to a jury instruction constitutes a waiver of any claim of error
… unless, but for the error, the outcome of the trial clearly would have been
otherwise”).




                                          15
                             SUPREME COURT OF OHIO




       {¶ 47} In explaining mitigating factors, the judge stated, “[m]itigating
factors are factors that, while they do not justify or excuse the crime, nevertheless,
in fairness and mercy, may be considered by you as extenuating or reducing the
degree of the defendant’s blame of [sic] punishment.” In State v. Lawrence (1989),

, 

, we criticized similar penalty
instructions and found that the reference to blame, when combined with other
errors, was prejudicial. Mitigation is not about blame or culpability, but rather
about punishment. See State v. Holloway (1988), 

, 

. Nonetheless, the overall sentencing instructions in this case told the jury that
the issue was punishment, not culpability. Thus, the “instructional error on this
point was harmless.” State v. Taylor (1997), 

, 

. Accord State v. Phillips (1995), 

, 

; State v. Joseph (1995), 

, 

;
Woodard, 

, 

.
       {¶ 48} The trial court also erred by referring to all the statutory mitigating
factors, even though the evidence related only to one factor—R.C. 2929.04(B)(7)
“other factors.” See Hicks, 

, 

; DePew,

, 

. We, however, find that this
instructional deficiency did not constitute plain error. See State v. Keith (1997), 

, 

; State v. Combs (1991), 

, 

.
       {¶ 49} Third, Bey complains that the trial court did not instruct the jury that
a single juror could prevent a death-penalty recommendation in accordance with
State v. Brooks (1996), 

, 

. Although
the jury in this case did not receive the exact instruction from Brooks, no plain error
occurred here because the jury received the information it needed in the charge
given and the trial court did not commit the Brooks error. It did not instruct that
the jury must unanimously determine that the death penalty is inappropriate before




                                          16
                                January Term, 1999




considering a life sentence. See Brooks, 

, 

.
See, e.g., State v. Goff (1998), 

, 

, 921-
922; State v. Mitts (1998), 

, 

; Taylor,

, 

. Bey’s proposition of law VIII is overruled.
                             B. Proposition of Law IX
       {¶ 50} In proposition of law IX, Bey argues that his trial counsel’s failure
to object to the erroneous sentencing instructions, as discussed in proposition VIII,
constitutes ineffective assistance of counsel. Bey failed, however, to demonstrate
prejudice, namely, “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. Bey has not shown that counsel’s
failure to object affected the outcome of the case. Bey’s proposition of law IX is
overruled.
                             IV. Proposition of Law X
       {¶ 51} In proposition of law X, Bey argues that he was denied his due
process rights because the trial court did not, sua sponte, “conduct an inquiry as to
whether he knowingly and intelligently waived his right to testify at trial.”
       {¶ 52} Generally, the defendant’s right to testify is regarded both as a
fundamental and a personal right that is waivable only by an accused. See, e.g.,
Rock v. Arkansas (1987), 

, 

, 

; Jones v.
Barnes (1983), 

, 

, 

;
Brown v. Artuz (C.A.2, 1997), 

. But in Ohio, courts of appeals have
held that a trial judge is not required to conduct an inquiry with the defendant about
the decision whether to testify. See, e.g., State v. Oliver (1995), 

, 

. In fact, most courts have ruled that neither the United States
Constitution nor applicable rules require the trial judge to ask the defendant about
the decision not to testify. See, e.g., Artuz, 

; State v. Walen
(Minn.1997), 

; State v. Gulbrandson (1995), 

, 906




                                         17
                             SUPREME COURT OF OHIO




P.2d 579, 597; Phillips v. State (1989), 

, 

;
Aragon v. State (1988), 

, 

;
Commonwealth v. Hennessey (1987), 

, 

. We agree and hold that a trial court is not required to conduct an
inquiry with the defendant concerning the decision whether to testify in his defense.
       {¶ 53} Reasons vary for rejecting the requirement. Such an inquiry is
thought to be simply unnecessary. Alternatively, it may be thought harmful. As
Chief Justice Erickson of the Colorado Supreme Court noted, an inquiry “unduly
interfere[s] with the attorney-client relationship.” People v. Curtis (Colo.1984),

 (concurring opinion). An inquiry “places the judge between the
lawyer and his client and can produce confusion as well as delay.” Underwood v.
Clark (C.A.7, 1991), 

. For example, questioning can lead into
the judge’s evaluation of the wisdom of the defendant’s decision, the substance of
the testimony, or simply evoke a dramatic change in a previously carefully
considered trial strategy. See, e.g., United States v. Goodwin (C.A.7, 1985), 

. “Whether the defendant is to testify is an important tactical decision
as well as a matter of constitutional right.” Brooks v. Tennessee (1972), 

, 

, 

.
       {¶ 54} In this case, nothing in the record suggests that Bey misunderstood
or was unaware of his right to testify or that Bey’s counsel failed to advise him of
his right.   Nothing suggests that Bey wanted to testify and was denied the
opportunity to do so. In fact, the trial judge in this case instructed the jury about
Bey’s constitutional right not to testify. Because we have determined that a trial
court is not required to advise a defendant of his right to testify, the trial court’s
failure to do so cannot constitute error. Bey’s proposition of law X is overruled.




                                         18
                                January Term, 1999




                               V. Accused’s Outburst
                             A. Proposition of Law XI
       {¶ 55} In proposition of law XI, Bey argues that the trial court erred by
failing to grant a mistrial or to voir dire jurors after an emotional outburst by him
during the prosecutor’s sentencing-phase closing argument.
       {¶ 56} Bey’s outburst occurred when the prosecutor was responding to the
testimony of Bey’s expert witness and to the content of Bey’s unsworn statement.
The prosecutor stated that, when Bey read his written statement to the jury, he was
“attempting to show remorse for what happened, blaming his mother and his
family.” Despite the fact that the trial judge had previously cautioned counsel about
Bey’s in-court behavior, Bey interrupted the prosecutor’s sentencing argument and
asserted, “Hey, don’t you talk about my mother.” After the trial judge cautioned
him, Bey responded, “You would have me … removed. You don’t talk about
my mother.”
       {¶ 57} The jury was then removed, and Bey’s counsel asked for (1) a
mistrial, (2) an individual voir dire, and (3) an opportunity to apologize to the jury.
The trial court denied a mistrial and denied any further voir dire of the jury, but
allowed the defense to apologize to the jury.
       {¶ 58} We cannot determine that the trial judge erred in denying Bey’s
request. The trial judge could best determine whether Bey’s right to a fair trial was
compromised or whether voir dire of the jury was necessary. We have long
recognized that for witnesses and spectators, the “impact of emotional outbursts
… cannot be judged … on a cold record.” Hill, 

, 

. The same principle also applies to outbursts by an accused.
Whether the jury was “ ‘disturbed, alarmed, shocked or deeply moved …
depend[s] on facts which no record can reflect.’ ” 

 quoting State v. Bradley
(1965), 

, 

, 

. “ ‘[Absent]
clear, affirmative evidence to the contrary, the trial court’s determination will not




                                          19
                              SUPREME COURT OF OHIO




be disturbed.’ ” State v. Benge (1996), 

, 

, quoting State v. Morales (1987), 

, 

. Accord Bradley, 

, 

, 

, syllabus.
        {¶ 59} In addition, the judge did not need to instruct the jury to disregard
the outburst. Bey created the outburst, so he may not persuasively argue that he is
entitled to a mistrial or an instruction to the jury to disregard his own behavior. “A
party cannot take advantage of an error he invited or induced.” Seiber, 

, 

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

, 31 OBR 587, 590, 

. Bey’s proposition of law
XI is overruled.
                             B. Proposition of Law XII
        {¶ 60} In proposition of law XII, Bey argues his counsel was ineffective for
failing to request that the court instruct the jury to disregard Bey’s outburst. But
counsel did “request an admonition to the jurors that the outburst should not be
considered … in any form.” And the trial judge denied it. Bey’s counsel did not
fail to act and, thereby, cause him prejudice. See Strickland, 

, 

, 

; Bradley, 

, 

.
Accordingly, Bey’s proposition of law XII is overruled.
                            VI. Proposition of Law XIII
        {¶ 61} In proposition of law XIII, Bey argues that the trial court erred in
rejecting various pretrial motions. Those motions lacked merit, as set forth below,
and therefore the trial court did not err.
        {¶ 62} First, Bey argues that the trial court erred by denying his motion to
“prohibit death qualification of the jury unless and until the state shows probable
cause to believe the case will go to a mitigation hearing.” But the trial court need
not defer the process of death qualification of a jury until the sentencing phase. See
State v. Jenkins (1984), 

, 15 OBR 311, 

, paragraph
two of the syllabus. Second, Bey argues that the trial court erred in denying his




                                             20
                                January Term, 1999




motion to order the prosecutor’s office to produce its entire case. The trial court
properly decided to deny that motion. See Lawson, 

, 

; State ex rel. Steckman v. Jackson (1994), 

, 

. Third, Bey argues that the trial court erred in denying his
motion to prohibit the use of peremptory challenges in order to exclude jurors who
express concerns about capital punishment. But the state may use a peremptory
challenge based on opposition to the death penalty. State v. Ballew (1996), 

, 

; Seiber, 

, 

.
       {¶ 63} Fourth, Bey argues that the trial court erred in denying his motion to
dismiss the death specification because Ohio’s death penalty law is
unconstitutional. But the trial court did not err in refusing to dismiss the death-penalty specification because we have repeatedly held that Ohio’s death penalty
statute is not unconstitutional. See, e.g., Jenkins, 

, 15 OBR 311,

; State v. Maurer (1984), 

, 15 OBR 379, 

; State v. Buell (1986), 

, 22 OBR 203, 

; State v. Zuern (1987), 

, 

; State v. Davis (1992),

, 

. We need not address this issue again. See
State v. Poindexter (1988), 

, 

, syllabus. Within his
arguments to this court regarding the constitutionality of the death penalty statute,
Bey claims that Ohio’s death penalty statute violates international law and treaties
to which the United States is a party.        Bey, however, failed to raise those
international law claims at trial and thereby waived those arguments. See State v.
Keene (1998), 

, 

. Nonetheless, this
court rejected the argument that Ohio’s death penalty statutes are in violation of
treaties to which the United States is a signatory, and thus offends the Supremacy
Clause of the United States Constitution, in Phillips, 

, 

.




                                         21
                             SUPREME COURT OF OHIO




       {¶ 64} Finally, Bey argues that the trial court erred by substantially denying
his motions for pretrial disclosure of witness statements and for individually
sequestered voir dire. The trial court, however, does not need to require pretrial
disclosure of witness statements. See Crim.R. 16; State ex rel. Steckman, 

, 

. Moreover, “whether a voir dire in a capital case
should be conducted in sequestration is a matter of [the trial court’s] discretion.”
Brown, 

, 

, paragraph two of the syllabus.
Accordingly, we find no error in the trial court’s decisions to reject Bey’s pretrial
motions, and Bey’s proposition of law XIII is overruled.
                              VII. The Death Penalty
                       A. Propositions of Law XIV and XV
       {¶ 65} In propositions of law XIV and XV, Bey argues that imposing the
death penalty upon him is cruel and unusual punishment and that, in his case, it
“can only be viewed as freakish, capricious and arbitrary.” Bey’s argument relies
on three main facts: the death penalty had not been carried out in over thirty years
in Ohio; no one had even been sentenced to die in Lucas County for seven years;
and he received a life sentence in the Mihas trial, but a death sentence in this trial.
Despite these facts, we reject both propositions as lacking merit.
       {¶ 66} Ohio’s death penalty statute is constitutional “in all respects,” State
v. Evans (1992), 

, 

, and the expressed
public policy is to execute those deserving the death penalty. But delay has resulted
because, “[h]aving assumed the power to take life, we have striven for a level of
assurance in our decisions that is probably not humanly possible” and “[w]e have
created a web of procedures so involved that they threaten to engulf the penalty
itself.” State v. Steffen (1994), 

, 

. The
delay, however, in carrying out the death penalty does not mean that it is
unenforceable.




                                          22
                                January Term, 1999




       {¶ 67} Additionally, the fact that the death penalty was not imposed by a
court in a Lucas County case between 1986 and 1993 does not affect Bey’s death
sentence. A “finding that the death penalty is imposed in a discriminatory fashion
[cannot occur] absent a demonstration of specific discriminatory intent.” Zuern, 

, 

, syllabus. See, also, State v. Byrd (1987), 

, 

; State v. Steffen (1987), 

,
31 OBR 273, 

, paragraph one of the syllabus. Bey has not asserted
specific discriminatory intent in this case.
       {¶ 68} Finally, the fact that Bey received a life sentence in the Mihas case
does not mean that he cannot receive a death sentence in this case. The Mihas
jury’s finding that aggravation did not outweigh mitigation for that crime does not
compel the same finding as to this crime. The Pinkelman jury knew that Bey had
also murdered Mihas, and Bey’s record of criminal behavior is relevant to
consideration of the mitigating value of his history, character, and background. See
State v. Waddy (1992), 

, 

. Based
on this, the sentencing jury could have found more mitigating history in the Mihas
trial than in this trial. Bey’s propositions of law XIV and XV are overruled.
                            B. Proposition of Law XVI
       {¶ 69} In proposition of law XVI, Bey argues that the trial judge erred in
sentencing Bey to death by electrocution because R.C. 2949.22 gives Bey a choice
between death by lethal injection and death by electrocution. The trial judge did
order “death by electrocution,” but the trial judge also included the language “in
the manner and place directed by the provisions of Section 2949.22 of the Revised
Code.” (Emphasis added.) R.C. 2949.22(A) provides that a death sentence shall
be executed by electrocution; however, R.C. 2949.22(B)(1) provides that any
person sentenced to death may “elect” to be executed by lethal injection. Bey’s
statutory right to elect lethal injection was not precluded by the trial judge’s order,
especially considering the trial judge’s express statement that Bey’s execution




                                          23
                             SUPREME COURT OF OHIO




comply with R.C. 2949.22.        Accordingly, Bey’s proposition of law XVI is
overruled.
                            C. Proposition of Law XVII
       {¶ 70} We summarily reject Bey’s proposition of law XVII, which
challenges Ohio’s system of proportionality review. State v. Moore (1998), 

, 

; Steffen, 

, 31 OBR 273, 

, paragraph one of the syllabus; Poindexter, 

, 

, syllabus.
                           D. Proposition of Law XVIII
       {¶ 71} In proposition of law XVIII, Bey argues that his trial counsel
provided ineffective assistance by failing to raise the proportionality review issue,
thereby waiving that review. But Bey is mistaken; counsel raised the issue before
trial. Bey’s counsel therefore did not act improperly. Nonetheless, we have
summarily rejected the challenge of Ohio’s system of proportionality review supra.
Bey’s proposition of law XVIII is overruled.
                            E. Proposition of Law XIX
       {¶ 72} In proposition of law XIX, Bey makes generalized claims that his
counsel provided ineffective assistance based on the failure to raise legitimate
objections at trial and that Bey thereby suffered serious prejudice. Bey, however,
fails to cite any specific failure to object and fails to explain how he was prejudiced
beyond what we have already addressed. By failing to cite examples of asserted
ineffectiveness, Bey has failed to demonstrate either his counsel’s deficient
performance or prejudice arising from the deficient performance. Both are required
to prove ineffective assistance of counsel. See Bradley, 

, 

. Moreover, the record reflects competent assistance of counsel. Here,
as in Ballew, 

, 

, Bey’s counsel presented
“strong, vigorous, and competent representation at the guilt phase.” Counsel also




                                          24
                                 January Term, 1999




provided competent representation at the sentencing hearing. Bey’s proposition of
law XIX is overruled.
                        VIII. Previous Sentencing Opinions
                             A. Proposition of Law XX
        {¶ 73} In proposition of law XX, Bey argues that the court of appeals erred
in affirming the death penalty for Bey because it applied the wrong standard when
weighing the specified aggravating circumstance against the mitigating factors and
failed to appropriately consider the mitigating factors offered.
        {¶ 74} Although the court of appeals did mistakenly comment that “the
combined [mitigating] factors … are insufficient to outweigh the aggravating
circumstance,” the error is harmless. The court of appeals correctly acknowledged
the state’s burden to prove that the aggravating circumstance outweighed the
mitigating factors. Moreover, the entire opinion shows that the court of appeals
understood and applied the correct standard. See State v. Hill (1995), 

, 

.
        {¶ 75} Also we find unpersuasive Bey’s argument that the court of appeals
did not consider and give appropriate weight to Bey’s mitigating factors—his
existing life sentence for the Mihas murder, his remorse, and his prospects for
serving a useful role during incarceration. “ ‘ The process …, as well as the
weight, if any, to assign a given factor is a matter for the discretion of the individual
decisionmaker.’ ” Taylor, 

, 

, quoting State
v. Fox (1994), 

, 

. And a “court of
appeals is not required to explain its reasons in finding that the aggravating
circumstances outweigh the mitigating factors.” State v. McGuire (1997), 

, 

; R.C. 2929.05(A). We cannot conclude that
the court of appeals failed to give proper consideration to Bey’s mitigating factors
or abused its discretion in assessing the weight to be accorded such factors.




                                           25
                              SUPREME COURT OF OHIO




        {¶ 76} Even if the court of appeals did err, “[t]he independent weighing
process at each appellate level … provides a procedural safeguard against the
arbitrary imposition of the death penalty.” Holloway, 

, 

, paragraph two of the syllabus. Our independent sentence evaluation
and reweighing can cure the effect of errors in previous death-penalty sentencing
decisions, including those by the court of appeals. See McGuire, 

, 

; Hill, 

, 

; Hill, 

, 

. Bey’s proposition of law XX is overruled.
                             B. Proposition of Law XXI
        {¶ 77} In proposition of law XXI, Bey asserts, inter alia, deficiencies in the
trial court’s sentencing opinion. First, Bey argues that the trial court did not
understand mitigating factors because it explained that Bey’s history and
background “did not control or compel the Defendant into his life of crime and
violence.” Second, Bey complains that the trial court wrongfully discounted his
remorse and intent to change his life. Third, Bey complains that the trial court did
not give “any weight” to his already existing life sentence.
        {¶ 78} We find these arguments to lack merit. The trial court’s evaluation
of the mitigating factors falls within the trial court’s sentencing discretion, and just
because an item of evidence is admissible does not mean that the trial court must
give it weight. See Steffen, 

, 31 OBR 273, 

,
paragraph two of the syllabus; State v. Lott (1990), 

, 

 (“[T]he assessment and weight to be given mitigating evidence are
matters for the trial court’s determination.”). Accord Taylor, 

-
32, 

; Fox, 

, 

. We cannot
determine that the trial court failed to give proper consideration to Bey’s mitigating
factors because the trial court discussed the mitigating factors presented by Bey in
its opinion.




                                          26
                                January Term, 1999




       {¶ 79} Last, Bey argues that the trial court turned the facts of the crime into
an aggravating circumstance. The trial court, in explaining why the aggravating
circumstance outweighed the mitigating factors, dramatized the murder when it
wrote: “Without warning, [Bey] thrust his silent and deadly knife into the heart of
the victim. As the victim’s life blood drained into his chest cavity, [Bey] then
dehumanized the helpless dying victim by removing his trousers and ritualistically
placing his shoes near the body as if the deceased were an object or trophy. [Bey]
seized the spoils of his violent and deadly act and then fled the scene.”
       {¶ 80} But the trial court’s description, though colorful, was accurate. And
the trial court has the responsibility to examine the nature and circumstances of the
offense to determine whether they are mitigating. See Wogenstahl, 

, 

. Here, the court’s narrative description “on the
gruesome and vicious nature of the murder” may be viewed as “justifying its
conclusion that no mitigating” features could be found. 

, 

. When a court correctly identifies the aggravating circumstance, “that court is
presumed to rely only on that circumstance, and not on nonstatutory aggravating
circumstances.” Hill, 

, 

; State v. Rojas
(1992), 

, 

. We therefore reject Bey’s
contention that the trial court’s explanation evidences prejudicial error.
       {¶ 81} Moreover, we have stated in several previous cases that any alleged
error in the trial court’s sentencing opinion can be cured by this court’s independent
review of the death sentence. See, generally, Lott, 

, 

. See, also, Fox, 

, 

;
State v. Reynolds (1998), 

, 

.




                                         27
                             SUPREME COURT OF OHIO




   IX. Appropriateness of Death Penalty—Propositions of Law XXI and XXII
       {¶ 82} In propositions of law XXI and XXII, Bey argues that the
aggravating circumstance does not outweigh the mitigating factors and that the
death penalty is inappropriate and disproportionate. We will consider Bey’s
arguments as part of the independent sentence evaluation, infra.
                       X. Independent Sentence Evaluation
       {¶ 83} We independently review Bey’s death sentence for appropriateness
and proportionality.
       {¶ 84} We find that the evidence proves beyond a reasonable doubt the
aggravating circumstance charged against Bey, R.C. 2929.04(A)(7). The evidence
demonstrates that Bey, as the principal offender, purposely killed Pinkelman and
that he did so during an aggravated robbery.
       {¶ 85} In mitigation, Dr. Barbara McIntyre, a psychologist, testified on
Bey’s behalf.    She was able to interview Bey and testified that, although
apprehensive at first, Bey was polite and cooperative throughout the interview. The
interview revealed information about Bey’s history and background. Bey was born
in Toledo, but his birth mother abandoned him as a baby. He was then adopted by
a woman he thought was his birth mother and raised in New York. His adoptive
mother was very strict, very demanding, and very abusive, physically and
emotionally. She beat him regularly. In the fourth grade, Bey ran away and
attempted to walk back to Toledo. When he was thirteen, his birth mother traveled
to New York in order to take Bey back to Toledo. But shortly after arriving in
Toledo, she again abandoned him, leaving him with her former husband who was
not Bey’s father. Bey later learned of the identity of his father, but not until after
his father had died. Although Bey was part of a rather large family, many of whom
lived in Toledo, he still always felt alone in the world and as if there was no one
whom he could trust.




                                         28
                                  January Term, 1999




          {¶ 86} Bey graduated from high school and “attended some college courses
off and on,” but did not complete a degree program. He was married twice and
fathered two children, but neither marriage was successful. He has been employed
in many fields and at many places, rarely being unemployed for more than several
weeks at a time. Bey spent two years in the Air Force, but was apparently
discharged for “inability to cope with stress” and “verbal belligerence.”
          {¶ 87} Bey admitted that he began using drugs while a junior in high school.
He stated that he turned to drugs and alcohol in an effort to control the anger he felt
at everybody. Although Bey worked steadily at a succession of jobs, he admitted
stealing to support his drug habit and for the adventure of stealing. McIntyre noted
that Bey “has no juvenile criminal record.” But she further noted that his criminal
record as an adult included convictions for felonious assault and for stealing, which
was upgraded to a felony due to his many misdemeanors.
          {¶ 88} McIntyre administered a battery of psychological tests and
concluded that Bey had no major mental illness or psychiatric problems. She noted,
however, that the tests showed that he was suffering from “long term, chronic, lowlevel depression” and that he had a serious personality disorder with antisocial and
paranoia features. She further noted that Bey had few resources for coping with
stress, was very impulsive, and became overwhelmed with negative emotions such
as anger or pain. McIntyre testified in sum that Bey was a “man with a near lifelong history of psychological and behavioral problems.” Yet she believed that Bey
could change and that he wanted to get rid of the hate and anger in his life. Bey
had been reading The Bible, The Autobiography of Malcolm X, and psychology
and philosophy books and stated that they had been helpful in changing his
attitudes. He expressed his desire to accomplish something with his life and hoped
to be of help to younger men in prison. McIntyre concluded that Bey had work to
do in order to change, but that he is interested in doing the work for himself and for
others.




                                           29
                            SUPREME COURT OF OHIO




       {¶ 89} In addition, Bey gave an unsworn statement. He stated that he “was
sorry for all the hurt” that he had caused and that his life had been “nothing but a
struggle … a struggle that [he had] lost.” Further he stated, “[w]ith my deepest
sympathy to those whose lives have been touched by this tragedy, I ask God for his
forgiveness. I’m sorry for the incident and my heart will always have to regret it.”
At the time of sentencing, Bey expressed sorrow for the Pinkelman family and
stated again that he wanted to live and help others in prison. Bey also appeared to
question whether the evidence proved that he killed Pinkelman.
       {¶ 90} After reviewing the evidence in mitigation, we find that the nature
and circumstances of the offense do not reveal any mitigating value. The evidence
shows that Bey attacked, robbed, and killed a defenseless shopkeeper on a Sunday
evening. As Pinkelman lay on the floor, bleeding to death, Bey ransacked his store,
taking money from the register, merchandise from the store, and finally the victim’s
car from the parking lot.
       {¶ 91} We now review the mitigating value of Bey’s history, character, and
background. In light of Bey’s criminal history disclosed in McIntyre’s testimony,
we find nothing mitigating in Bey’s character. In contrast, Bey’s history and
background reflect some mitigating features entitled to modest weight. Bey,
abandoned as a baby and raised in an abusive atmosphere, lacked parental
nurturing, a stable home, and the parental love and affection needed for proper
development.    Nonetheless, Bey graduated from high school, attended some
college, and worked steadily in a succession of jobs. Although he had no mental
disease or defect qualifying under R.C. 2929.04(B)(3), he suffered from long-term
depression and had a serious personality disorder with antisocial and paranoia
features. Eventually, Bey turned to drugs and alcohol in an effort to alleviate his
problems, but these only made matters worse.
       {¶ 92} As for the statutory mitigating factors listed in R.C. 2929.04(B),
first, the R.C. 2929.04(B)(1) and (2) statutory mitigating factors are inapplicable




                                        30
                                 January Term, 1999




given the record before us.      R.C. 2929.04(B)(3) is inapplicable because the
testimony from McIntyre, the defense psychologist, did not attempt to establish the
“mental disease or defect” mitigating factor. Additionally, we do not find that
Bey’s mental disorder caused him to lack substantial capacity to appreciate the
criminality of his conduct or to conform his conduct to the requirements of the law.
R.C. 2929.04(B)(4) is inapplicable because, at the time of the offense, Bey was
thirty-seven years old. R.C. 2929.04(B)(5) is not applicable to this case and,
because there is no evidence in the record suggesting another principal offender,
neither is R.C. 2929.04(B)(6).
       {¶ 93} Bey, however, argues that “other” R.C. 2929.04(B)(7) factors exist
in his case and that these factors are strong mitigating factors that render the death
penalty both inappropriate and disproportionate. The factors, however, on which
Bey relies are not compelling.
       {¶ 94} First, Bey argues that residual doubt is a strong mitigating factor in
this case. Bey contends that such doubt should not be discounted because his
conviction predates McGuire, 

, 

, which rejected
residual doubt as a mitigating factor. McGuire, however, applies retroactively. See
State v. Webb (1994), 

, 

;
Peerless Elec. Co. v. Bowers (1955), 

, 210, 

, 411, 

, 468. See, also, Goff, 

, 

.
       {¶ 95} Second, Bey argues that his life sentence for the Mihas murder
should be considered a strong mitigating factor. Bey is correct that we should
consider as a relevant sentencing factor that he has had already been sentenced to
life with no parole eligibility for thirty years for aggravated murder and to fifteen
to twenty-five years for robbery in the Mihas case. See Bradley, 

, 

. But the fact that Bey has already been convicted of
killing another person—Mihas—is also relevant to the weighing process to rebut
mitigating evidence offered as “history, character, and background.” See Waddy,




                                         31
                            SUPREME COURT OF OHIO




63 Ohio St.3d at 428-429, 

; State v. Richey (1992), 

, 

. We therefore find that, on balance, Bey’s life
sentence for the murder of Mihas is not entitled to significant mitigating weight.
       {¶ 96} Third, Bey urges his remorse and willingness to change as weighty
mitigating factors. Remorse, expressed desire to change, and drug and alcohol
problems can be considered mitigating factors under R.C. 2929.04(B)(7).
Landrum, 

, 

; Rojas, 

,

. But we accord only modest weight to Bey’s remorse and
willingness to change expressed in his unsworn statement. See, e.g., State v. Raglin
(1998), 

, 

, 498. Also, Bey’s drug and alcohol
problems, which apparently stem from his “personality disorder,” are entitled to
“some, but very minimal, weight in mitigation.” See, e.g., State v. Palmer (1997),

, 

, 712; State v. Biros (1997), 

, 

.
       {¶ 97} We conclude, after weighing the evidence presented in mitigation
against the R.C. 2929.04(A)(7) aggravating circumstance—aggravated murder
committed as the principal offender in the course of aggravated robbery, that the
aggravating circumstance outweighs the modest mitigating factors beyond a
reasonable doubt.    Accordingly, the death sentence in this case is statutorily
appropriate. Bey’s proposition of law XXI is overruled.
       {¶ 98} Last, we find that the death penalty imposed in this case is neither
excessive nor disproportionate when compared with similar cases in which the
offender committed aggravated murder in the course of aggravated robbery,
especially considering that many comparable cases have had stronger mitigating
evidence. See, e.g., McNeill, 

, 

 (troubled
upbringing, nineteen years old, borderline intelligence); Raglin, 

, 699 N.E.2d at 494-498 (troubled upbringing, eighteen years old, mental
problems); Benge, 

, 

 (troubled upbringing, prior




                                         32
                                 January Term, 1999




good character, hard worker, lack of prior criminal convictions); Woodard, 

, 

 (troubled upbringing, nineteen years old); State v. Green
(1993), 

, 

 (very difficult childhood, IQ of 66).
Accordingly, Bey’s proposition of law XXII is overruled.
        {¶ 99} For the foregoing reasons, we affirm Bey’s convictions and death
sentence.
                                                                    Judgment affirmed.
        DOUGLAS, GRADY, F.E. SWEENEY and LUNDBERG STRATTON, JJ., concur.
        MOYER, C.J., and PFEIFER, J., concur in judgment only.
        THOMAS J. GRADY, J., of the Second Appellate District, sitting for RESNICK,
J.
                                __________________
                                     APPENDIX
        {¶ 100} “FIRST PROPOSITION OF LAW: A trial court errs when it
permits the State to introduce evidence that a criminal defendant committed another
offense, under Evid.R. 404(B), without first conducting an analysis of whether the
prejudicial impact of the evidence outweighed its probative value.
        {¶ 101} “SECOND PROPOSITION OF LAW: A trial court errs in
admitting evidence of a defendant’s involvement in another criminal offense when
the conviction in that offense was obtained on the basis of evidence which should
have been suppressed.
        {¶ 102} “THIRD PROPOSITION OF LAW:                       A criminal defendant
receives ineffective assistance of counsel when his trial attorney does not object to,
and actually assents to, admission of prejudicial evidence which should have been
suppressed.
        {¶ 103} “FOURTH PROPOSITION OF LAW: A trial court commits
prejudicial error when it instructs the jury, during individual voir dire, of the State’s
intention to use other acts evidence during its case in chief.




                                           33
                             SUPREME COURT OF OHIO




        {¶ 104} “FIFTH PROPOSITION OF LAW:                       When a criminal
defendant’s trial counsel encourag[e] the trial court to instruct the venire, during
individual voir dire, of the State’s intention to use other acts evidence during its
case in chief, trial counsel violat[e] the constitutional duty to provide their client
with effective assistance of counsel.
        {¶ 105} “SIXTH PROPOSITION OF LAW: A prosecutor in a capital
case commits misconduct resulting in denying a criminal defendant a fair trial
when, during closing argument at the guilt or innocence phase of the trial, he (1)
urges the jury to consider the effect on the community of the offense and of their
verdict; (2) improperly lauds the skill of defense counsel; (3) states his personal
view of the veracity of a witness; (4) argues matters not in evidence; and (5) plays
to the passions and emotions of the jury.
        {¶ 106} “SEVENTH PROPOSITION OF LAW: A prosecutor commits
misconduct and violates the rights of a capital defendant under the Fifth, Sixth,
Eighth, Ninth, and Fourteenth Amendments to the United States Constitution and
under Sections 1, 2, 5, 9, 10, 16, and 20, Article I of the Ohio Constitution when,
during the State’s opening and closing statements at the mitigation phase of the
trial, the prosecutor:
        “(1) improperly tells the jury that they should make their determination
        based on the number of mitigation factors appellant presented;
        “(2) improperly tells the jury that it should treat the nature and
        circumstances of the offense as an aggravating circumstance;
        “(3) repeatedly refers to the ‘aggravating circumstances’ to be weighed
        against the mitigating factors although there was but a single aggravating
        circumstance;
        “(4) despite an order to the contrary, tells the jury that their verdict at
        mitigation will be a recommendation;




                                         34
                                 January Term, 1999




        “(5) urges the jury to sentence appellant to death because the victim was a
        good man and appellant dared to cause harm to the victim’s family;
        “(6) suggests to the jury that it treat the likelihood of appellant’s future
        dangerousness as a non-statutory aggravating circumstance;
        “(7) indicates that appellant’s outburst in response to his closing argument
        should be treated as a non-statutory aggravating circumstance; and
        “(8) directs the jury’s attention to appellant’s failure to produce evidence
        regarding the mitigating factors set forth in R.C. 2929.04(B)(1), (2), (3), (4),
        (5), and (6).
        {¶ 107} “EIGHTH PROPOSITION OF LAW: A trial court commits
prejudicial error in its instructions to the jury at the mitigation phase of a capital
trial in violation of appellant’s rights under the Fourth, Fifth, Sixth, Eighth, Ninth,
and Fourteenth Amendments to the United States Constitution and Sections 1, 2, 5,
9, 10, 16, and 20, Article I of the Ohio Constitution. Specifically, the trial court:
        “(1) improperly defined mitigating factors;
        “(2) improperly listed each of the mitigating factors identified in R.C.
        2929.04(B) although evidence was provided only in regard to the catchall
        provision of R.C. 2929.04(B)(7); and
        “(3) improperly informed the jury that it could consider imposing one of the
        life imprisonment sentences only if it had first either determined that a death
        sentence should not be imposed or determined that it was unable to reach a
        unanimous decision as to a sentence of death.
        {¶ 108} “NINTH PROPOSITION OF LAW:                       A capital defendant
receives constitutionally ineffective assistance of counsel and his death sentence
constitutes cruel and unusual punishment when his trial counsel fail to object to
significant and repeated error in the trial court’s instructions to the jury.
        {¶ 109} “TENTH PROPOSITION OF LAW: A trial court denies a
capital defendant his rights to due process under the constitutions of the United




                                           35
                              SUPREME COURT OF OHIO




States and the State of Ohio when it fails to conduct an inquiry as to whether he
knowingly and intelligently waived his right to testify at trial.
       {¶ 110} “ELEVENTH PROPOSITION OF LAW: A trial court commits
prejudicial error when, after an in-court outburst by a defendant in a capital trial, it
refuses to grant a mistrial and refuses to individually voir dire the jurors, and when
it indicates to the jury that they may consider the outburst in weighing the
aggravating circumstance against the mitigating factors.
       {¶ 111} “TWELFTH PROPOSITION OF LAW:                           Counsel at the
mitigation phase of a capital trial renders ineffective assistance by waiving error
regarding the court’s failure to instruct the jury to disregard an outburst by the
defendant.
       {¶ 112} “THIRTEENTH PROPOSITION OF LAW: A trial court errs
by denying a capital defendant’s motions to:
       “(1) prohibit death qualification of the jury unless and until the state has
       shown probable cause to believe the case will go to a mitigation hearing;
       “(2) order a prosecutor’s office to turn over to the court its entire case file;
       “(3) prohibit the use of peremptory challenges to exclude jurors who express
       concerns about capital punishment;
       “(4) dismiss the death specifications because Ohio’s death penalty law is
       unconstitutional both in the abstract and as applied;
       “and also by denying in substantial part a capital defendant’s motions for
       “(1) pretrial disclosure of witness statements; and
       “(2) individually sequestered voir dire.
       {¶ 113} “FOURTEENTH PROPOSITION OF LAW: A death penalty
law which has not been effectuated in over thirty years is, by definition cruel and
unusual.
       {¶ 114} “FIFTEENTH PROPOSITION OF LAW: Imposition of the
death penalty in this case can only be viewed as freakish, capricious, and arbitrary.




                                          36
                                 January Term, 1999




        {¶ 115} “SIXTEENTH PROPOSITION OF LAW: A [t]rial court may
not order a sentence of electrocution in light of R.C. 2949.22.
        {¶ 116} “SEVENTEENTH PROPOSITION OF LAW: A trial court errs
in imposing a death sentence when the death penalty law as applied in Ohio violates
R.C. 2929.05(A) by requiring appellate courts and the Supreme Court, in
conducting their R.C. 2929.05(A) review of ‘similar cases’ for proportionality, to
review only those in which a sentence of death was imposed and ignore those in
which a sentence of life with parole eligibility after twenty full years or life with
parole eligibility after thirty full years was imposed. The current method also
violates the rights to fair trial and due process and results in the imposition of cruel
and unusual punishment as set forth in the Fifth, Sixth, Eighth, Ninth and
Fourteenth Amendments to the United States Constitution and in Sections 1, 2, 5,
9, 10, 16, and 20, Article I of the Ohio Constitution.
        {¶ 117} “EIGHTEENTH PROPOSITION OF LAW: Trial counsel in a
capital case provide ineffective assistance when they fail to raise substantial matters
for later review, thereby waiving that review.
        {¶ 118} “NINETEENTH PROPOSITION OF LAW: A defendant who
is sentenced to death following a trial and mitigation hearing in which his counsel
was deficient has been denied his rights to fair trial and due process and is subjected
to cruel and unusual punishment, all as set forth in the Fifth, Sixth, Eighth, Ninth
and Fourteenth Amendments to the United States Constitution and in Sections 1, 2,
5, 9, 10, 16, and 20, Article I of the Ohio Constitution.
        {¶ 119} “TWENTIETH PROPOSITION OF LAW: Because Ohio’s
death penalty scheme permits a sentence of death only when the aggravating
circumstances of which a capital defendant is convicted outweigh beyond a
reasonable doubt the mitigating factors, a court of appeals errs to the defendant’s
prejudice and denies him his rights to a fair appellate tribunal and due process and
subjects him to cruel and unusual punishment when, in conducting its statutorily




                                          37
                            SUPREME COURT OF OHIO




mandated independent weighing, it ignores mitigation evidence introduced and
affirms the death sentence because the mitigating factors are insufficient to
outweigh the aggravating circumstance.
       {¶ 120} “TWENTY-FIRST PROPOSITION OF LAW:                        A death
sentence must be reversed when this Court’s independent weighing of the
aggravating circumstance against the mitigating factors proved by a preponderance
of the evidence reveals that the death sentence was wrongly given.
       {¶ 121} “TWENTY-SECOND PROPOSITION OF LAW: A sentence
of death is wrongly imposed when it is inappropriate and not proportional to the
sentence imposed in similar cases.”




                                         38