[This opinion has been published in Ohio Official Reports at
89 Ohio St.3d 323.]
THE STATE OF OHIO, APPELLEE, v. SMITH, N.K.A. MAHDI, APPELLANT.
[Cite as State v. Smith, 2000-Ohio-166.]
Criminal law—Aggravated murder—Death penalty upheld, when.
(No. 98-552—Submitted March 7, 2000—Decided July 26, 2000.)
APPEAL from the Court of Appeals for Lucas County, No. L-94-093.
__________________
{¶ 1} On the evening of May 26, 1993, defendant-appellant, Vernon Smith,
n.k.a. Abdullah Sharif Kaazim Mahdi, and Herbert Bryson robbed the Woodstock
Market located at the corner of Woodstock and Avondale in Toledo. During the
robbery, Smith fired a single shot at the upper chest of Sohail Darwish, causing his
death. Approximately two weeks later, Smith was arrested and then indicted on
one count of aggravated murder with a firearm specification, and a death penalty
specification alleging that Smith was the principal offender in committing
aggravated murder during an aggravated robbery. Smith was also indicted on three
counts of aggravated robbery. Subsequently, Smith was found guilty as charged by
a jury and sentenced to death.
{¶ 2} During the afternoon of May 26, 1993, Smith met up with Herbert
Bryson and Lamont Layson at a dirt basketball court in a park at Highland and
Maplewood in Toledo. The trio discussed “hitting a lick,” i.e., committing a
robbery. The group got in Bryson’s car, and Smith directed them to the corner of
Woodstock and Avondale, where the Woodstock Market was located. Layson
remained in the car while Smith and Bryson headed toward the carryout. Jeremiah
Bishop, who was two houses down from the Woodstock Market at that time, saw
Smith and another person enter the carryout.
{¶ 3} Bryson testified that after he and Smith entered the carryout, they
noticed only two people in the store, both of whom were behind the counter.
SUPREME COURT OF OHIO
Bryson asked about a type of beer, and the storeowner, Sohail Darwish, came
around the counter and walked over to the cooler to assist him. Darwish retrieved
a forty-ounce beer bottle from the cooler and placed it on the counter. Bryson did
the same. As Darwish was ringing up the sale on the cash register, Smith
brandished a black gun and ordered Darwish to “[o]pen the cash register,
motherfucker.”
{¶ 4} Darwish, who was standing next to Bryson, put his hands up in the air
and did not resist. Bryson went behind the counter and hit several buttons on the
cash register, trying to open it. Bryson then ordered Darwish to open the cash
register, which he did. Darwish then put his hands back up in the air.
{¶ 5} Osand Tahboub, a former co-worker who was visiting Darwish at the
carryout at that time, testified that the gunman then told Darwish to “[m]ove and
empty your wallet, motherfucker.” As Darwish was reaching for his wallet, Smith
fired a single shot, hitting Darwish in the chest. Smith then ordered Tahboub to
empty his wallet as well, and the two assailants then fled the scene. Darwish was
able to push the alarm button before he fell to the floor. As a result of the single
gunshot wound to the upper left side of his chest, Darwish bled to death.
{¶ 6} After Smith and Bryson left the carryout, Layson, who was waiting in
Bryson’s car, noticed Smith holding a gun in his hand when he and Bryson climbed
back into the automobile. According to Layson, Smith exclaimed, “[D]ang, I forgot
the beer.” When Bryson asked Smith “why did he do it,” Smith replied that he shot
the man “in the arm” because “he moved too slow,” and that “[h]e took too long *
… [o]pening the cash register.”
{¶ 7} According to Layson, Smith then said, “[F]uck him, he in our
neighborhood anyway. He shouldn’t be in our neighborhood with a store no way.”
Later, Smith and Bryson split the money taken in the robbery, which was apparently
over $400. They also gave Layson all the stolen food stamps from the robbery plus
$50.
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{¶ 8} On June 9, approximately two weeks after the murder, police
detective Dennis Richardson received information that persons possibly involved
in a homicide were incarcerated in the Sandusky County Jail. Based on this and
other information he received from sources, Richardson made up an eight-man
photo array, including a photo of Herbert Bryson, to show to Tahboub. The next
day, upon viewing the array, Tahboub selected Bryson’s photo as “[n]ot the guy
with the gun, but the other guy.” Based on this information and the fact that
computer records showed Smith as a known associate of Bryson, Richardson
compiled a second photo array that included a picture of Smith. Richardson showed
Tahboub the second photo array, and Tahboub immediately selected Smith’s photo
as that of the gunman.
{¶ 9} Consequently, Smith was arrested, and along with Bryson and
Layson, was indicted by the grand jury in the Darwish murder. In count one, Smith
was charged with aggravated felony-murder during an aggravated robbery. A death
penalty specification attached to this count alleged that Smith was the principal
offender in the aggravated murder during a robbery, R.C. 2929.04(A)(7). The
second count charged Bryson and Layson with aggravated felony-murder during
an aggravated robbery. Counts three through five charged all three defendants with
aggravated robbery of the carryout, of Darwish, and of Tahboub respectively. All
five counts also carried firearm specifications.
{¶ 10} Prior to trial, defense counsel informed the trial judge that the
prosecution had offered Smith a plea bargain to avoid the death penalty. However,
Smith declined the plea offer contrary to the advice of defense counsel. At an in-chambers conference, Smith reiterated his desire to decline the plea bargain and
proceed to trial.
{¶ 11} A jury trial was held wherein both Bryson and Layson testified for
the state as a result of plea agreements. Bryson, who was in the carryout at the time
of the shooting, testified that Smith fired the gunshot that caused Darwish’s death.
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Layson testified that Smith exhibited no remorse when he admitted that he had shot
the carryout owner. Tahboub also testified and identified Smith as the murderer.
The defense presented no witnesses and made no closing argument at the
conclusion of trial. After deliberation, the jury found Smith guilty as charged.
{¶ 12} At the mitigation hearing, several witnesses testified on Smith’s
behalf, including his wife, mother, and a psychologist, Robert Kahl, who evaluated
Smith. In Kahl’s opinion, Smith suffers from a mental illness, but Kahl was unable
to identify it specifically, since he was unable to complete his evaluation due to
Smith’s lack of cooperation during the interview process. Smith’s mother testified
that Smith’s biological father was never around during Smith’s childhood. In
addition, Smith’s stepfather physically abused the mother in front of the children,
including Smith. Smith’s wife, Grace Smith, testified that Smith broke down and
cried one or two days after the murder and told her that it was an accident, and that
he didn’t mean to do it. The jury recommended death, and the court imposed the
death sentence on Smith.
{¶ 13} Upon appeal, the court of appeals affirmed the convictions and death
sentence in a split decision. While agreeing with the decision to affirm the
convictions, the dissenting appellate judge found substantial residual doubt as to
Smith’s intent which, when combined with the other mitigating factors, “outweighs
the aggravating circumstance proven.” The dissent reasoned that it was
“fundamentally unfair” to retroactively apply State v. McGuire (1997), 80 Ohio
St.3d 390,
686 N.E.2d 1112, syllabus, since Smith was tried before McGuire was
announced, when residual doubt was still a legitimate mitigating factor. The dissent
further observed that “[t]he unfairness occurs because the defense withheld certain
evidence going to [Smith’s] intent in the guilt phase, undoubtedly believing it to be
more persuasive as going toward residual doubt in the penalty phase.”
{¶ 14} The cause is now before this court upon an appeal as of right.
__________________
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January Term, 2000
Julia R. Bates, Lucas County Prosecuting Attorney, and Craig T. Pearson,
Assistant Prosecuting Attorney, for appellee.
David H. Bodiker, Ohio Public Defender, J. Joseph Bodine, Jr., Angela
Greene and Richard J. Vickers, Assistant State Public Defenders, for appellant.
__________________
MOYER, C.J.
{¶ 15} Appellant Smith raises ten propositions of law. We have reviewed
each one and have determined that none justifies reversal of Smith’s conviction for
aggravated murder and the other crimes he committed. Pursuant to R.C.
2929.05(A), we have also independently reviewed the record, weighed the
aggravating circumstance against the mitigating factors, and reviewed the death
penalty for appropriateness and proportionality. For the reasons that follow, we
affirm Smith’s convictions and death sentence.
Inquiry on Racial Bias/Effective Assistance
{¶ 16} In his first proposition of law, Smith asserts that counsel were
ineffective for failing to question the venire concerning religious or racial bias,
since the crimes in issue were interracial in nature. Smith contends that counsel’s
ineffectiveness throughout trial, including the presentation of “racially charged
evidence,” can be traced to counsel’s failure to examine the jurors on racial bias
prior to trial.
{¶ 17} Since Smith failed to raise this issue before the court of appeals, we
consider this issue to be waived. State v. Williams (1977), 51 Ohio St.2d 112,
5
O.O.3d 98,
364 N.E.2d 1364, paragraph two of the syllabus.
{¶ 18} Smith argues, albeit in a footnote, that if his argument is considered
waived, his appellate counsel gave him ineffective assistance.1 However, we find
that Smith has failed to demonstrate ineffective assistance of trial counsel.
1. This argument will be addressed under Smith’s Proposition of Law No. 6.
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{¶ 19} Reversal of a conviction for ineffective assistance requires that the
defendant show, first, that counsel’s performance was deficient and, second, that
the deficient performance prejudiced the defense so as to deprive the defendant of
a fair trial. Strickland v. Washington (1984), 466 U.S. 668, 687,
104 S.Ct. 2052,
2064,
80 L.Ed.2d 674, 693. Accord State v. Bradley (1989),
42 Ohio St.3d 136,
538 N.E.2d 373.
{¶ 20} Smith asserts many conclusions, one of which is that the trial was
racially charged, since the murder was committed by a black man and the victim
was “a man of Arabic descent who operated a grocery store in the inner city.”
Characteristic of Smith’s arguments under this proposition is his conclusion that
“[b]ecause the conflict between blacks and the immigrant newcomers envelops the
overall debate on black/white relations, racism may have been a factor in the jury’s
decision to convict [Smith] of aggravated murder.” (Footnote omitted.) Other
examples of Smith’s argument that the entire trial was fraught with racially charged
evidence include trial counsel’s strategy during the mitigation phase to highlight
the black “gangsta” movie “Menace II Society,” relying on the testimony of an
Islamic jail counselor, citing the movie “Malcolm X,” and relating defendant’s
story of life in the inner city.
{¶ 21} Smith relies on Turner v. Murray (1986), 476 U.S. 28, 36-37,
106
S.Ct. 1683, 1688-1689,
90 L.Ed.2d 27, 37, for the proposition that a capital
defendant accused of an interracial crime is entitled to have the venire questioned
so as to reveal any possible racial bias. Smith contends that, in the racially charged
atmosphere of this case, competent counsel would have taken advantage of that
entitlement.
{¶ 22} In our view, Smith’s arguments are purely speculative and
unconvincing. We have held that “[t]he conduct of voir dire by defense counsel
does not have to take a particular form, nor do specific questions have to be asked.”
State v. Evans (1992), 63 Ohio St.3d 231, 247,
586 N.E.2d 1042, 1056. Moreover,
6
January Term, 2000
as we noted in State v. Watson (1991), 61 Ohio St.3d 1, 13,
572 N.E.2d 97, 108,
under Turner v. Murray, the actual decision to voir dire on racial prejudice is a
choice best left to a capital defendant’s counsel.
Id.,476 U.S. at 37,
106 S.Ct. at
1688,
90 L.Ed.2d at 37, and fn. 10.
{¶ 23} Here, the mitigation transcript indicates that counsel elicited
testimony that Smith saw the movie “Menace II Society” earlier on the day of the
shooting. In the beginning of the movie, a black man shoots and kills a nonblack
storeowner. However, this fact was evidently elicited to support the expert
testimony that Smith suffered a mental defect that caused him to become psychotic
for a temporary period of time. In the defense psychologist’s professional opinion,
it was no coincidence that, after seeing what occurred in the movie, Smith
committed a similar crime later that day. Clearly, counsel were attempting to
portray Smith as someone who was unstable and prone to psychotic displays such
as the murder of Darwish, which reprised a scene in the film Smith had seen earlier
that day. Far from creating a racially charged atmosphere, it appears that trial
counsel attempted to explain Smith’s murder of Darwish in a way that could lead
jurors to view Smith as less blameworthy for his actions.
{¶ 24} Counsel’s chronicling of Smith’s life story in the inner city does not
indicate ineffective assistance. It was likely designed to portray Smith as a victim
of his background and upbringing, and thus not deserving of death. The testimony
of the Islamic jail counselor attempted to show Smith as a person who has now
turned to religion. The references to Malcolm X were raised by defense counsel
during examination of the Islamic counselor. As brought out in the trial transcript,
such questions appear to have been designed to elicit testimony that the type of
Islamic belief Smith was turning to was not the “nationalistic brand” of Islamic
belief once espoused by Malcolm X. Moreover, Smith’s troubled inner city
background and his religious conversion are unquestionably valid mitigating
factors, and it was not ineffective assistance to bring them to the jury’s attention.
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{¶ 25} Counsel could have properly determined that the examination of
jurors’ racial views during voir dire would be unwise, since the subject of racial
prejudice is sensitive to most people, and raising it during voir dire could cause
some jurors to be less candid if confronted with direct questions attempting to
discern any hint of racial prejudice. In addition, our reading of the record leads us
to conclude, contrary to Smith’s assertions, that racial issues were not “woven into
the fabric of trial.”
{¶ 26} Yet, even if we viewed counsel’s trial strategy as questionable, such
a strategy should not compel us to find ineffective assistance of counsel. In these
situations, we normally defer to counsel’s judgment. State v. Clayton (1980), 62
Ohio St.2d 45, 49,
16 O.O.3d 35, 37,
402 N.E.2d 1189, 1192. Since we find no
legitimate basis for Smith’s assertions that counsel were ineffective for not
examining the venire on racial or religious bias, this proposition is not well taken.
Competency Evaluation
{¶ 27} In Proposition of Law No. 5, Smith contends that the trial court erred
in failing to order a competency evaluation sua sponte. Smith claims that numerous
incidents, when considered together, should have alerted the trial court that
defendant was mentally incompetent. Among the incidents cited are Smith’s
refusal to heed counsel’s advice to accept a plea bargain prior to trial; his refusal to
waive a jury trial in favor of a three-judge panel; his insistence on appearing at trial
in jail clothes and a kuffa (prayer cap); his waiver of a potentially valid Batson
claim; his declaration in chambers that he did not want any family members
testifying at his mitigation hearing; his decision not to give an unsworn statement
during the mitigation phase and his refusal to speak at his sentencing hearing; and
his refusal to continue cooperating with the defense expert psychologist.
{¶ 28} It has long been recognized that “a person [who] lacks the capacity
to understand the nature and object of the proceedings against him, to consult with
counsel, and to assist in preparing his defense may not be subjected to a trial.”
8
January Term, 2000
Drope v. Missouri (1975), 420 U.S. 162, 171,
95 S.Ct. 896, 903,
43 L.Ed.2d 103,
113. “Fundamental principles of due process require that a criminal defendant who
is legally incompetent shall not be subjected to trial.” State v. Berry (1995),
72
Ohio St.3d 354, 359,
650 N.E.2d 433, 438, citing Pate v. Robinson (1966),
383 U.S.
375,
86 S.Ct. 836,
15 L.Ed.2d 815.
{¶ 29} In Ohio, R.C. 2945.37(B) requires a competency hearing if a request
is made before trial. But “[i]f the issue is raised after the trial has commenced, the
court shall hold a hearing on the issue only for good cause shown or on the court’s
own motion.” Id. Thus, “the decision as to whether to hold a competency hearing
once trial has commenced is in the court’s discretion.” State v. Rahman (1986),
23
Ohio St.3d 146, 156, 23 OBR 315, 325,
492 N.E.2d 401, 410. The right to a hearing
“rises to the level of a constitutional guarantee where the record contains ‘sufficient
indicia of incompetence,’ such that an inquiry … is necessary to ensure the
defendant’s right to a fair trial.” State v. Berry,
72 Ohio St.3d at 359,
650 N.E.2d
at 439, citing Drope and
Pate, supra.
{¶ 30} However, the record in this case does not reflect “sufficient indicia
of incompetence” to have required the trial court to conduct a competency hearing.
During the mitigation hearing, defense psychologist, Robert Kahl, testified that
Smith suffers a mental illness, but he was not certain how to categorize it. Yet,
Kahl also opined that Smith was competent to stand trial. “The term ‘mental
illness’ does not necessarily equate with the definition of legal incompetency.”
Berry, supra,72 Ohio St.3d 354,
650 N.E.2d 433, syllabus. “A defendant may be
emotionally disturbed or even psychotic and still be capable of understanding the
charges against him and of assisting his counsel.” State v. Bock (1986),
28 Ohio
St.3d 108, 110, 28 OBR 207, 209,
502 N.E.2d 1016, 1018.
{¶ 31} In addition, we note that defense counsel did not enter an insanity
plea or suggest that Smith lacked competence. Counsel had ample time to become
familiar with Smith, since they represented him from their appointment in June or
9
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July 1993, through the March 1994 sentencing. While Smith may have lacked
judgment in rejecting his attorneys’ advice, his competence was never an issue,
either before, during, or after trial. If counsel had some reason to question Smith’s
competence, they surely would have done so. See State v. Spivey (1998), 81 Ohio
St.3d 405, 411,
692 N.E.2d 151, 157.
{¶ 32} It is true that defense counsel twice requested in-chambers
conferences: (1) prior to trial they informed the court that Smith rejected their
advice to accept a plea agreement to avoid a possible death sentence, and (2) during
the mitigation phase when they informed the court that Smith did not want to
present mitigation witnesses. However, at neither time did counsel or the trial judge
think that Smith’s behavior raised any question as to his competence. See State v.
Cowans (1999), 87 Ohio St.3d 68, 84,
717 N.E.2d 298, 313.
{¶ 33} Accordingly, neither Smith’s behavior at trial nor the expert
testimony proffered on his behalf provided “good cause” or “sufficient indicia of
incompetence.” Thus, we find that the trial court did not abuse its discretion by
declining, sua sponte, to direct such a hearing. See Berry, supra,72 Ohio St.3d
354,
650 N.E.2d 433;
Rahman, supra,23 Ohio St.3d at 156, 23 OBR at 323,
492
N.E.2d at 410. Deference on such issues should be granted to those “who see and
hear what goes on in the courtroom.”
Cowans, supra,87 Ohio St.3d at 84,
717
N.E.2d at 312. Therefore, we overrule Proposition of Law No. 5.
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January Term, 2000
Jury Instructions
{¶ 34} In Proposition of Law No. 3, Smith argues that the trial court erred
in refusing to instruct the jury on the lesser included offense of involuntary
manslaughter. Smith asserts that the fact that the jury struggled with intent during
deliberations fortifies the conclusion that the evidence “reasonably supported” the
defense request for the lesser included offense instruction.
{¶ 35} Involuntary manslaughter is a lesser included offense of aggravated
murder. State v. Thomas (1988), 40 Ohio St.3d 213,
533 N.E.2d 286, paragraph
one of the syllabus. The difference between the two offenses is that aggravated
murder requires a purpose to kill, while involuntary manslaughter requires only that
a killing occurred as a proximate result of committing or attempting to commit a
felony. State v. Jenkins (1984),
15 Ohio St.3d 164, 218, 15 OBR 311, 357,
473
N.E.2d 264, 310.
{¶ 36} However, “[e]ven though an offense may be statutorily defined as a
lesser included offense of another, a charge on such lesser included offense is
required only where the evidence presented at trial would reasonably support both
an acquittal on the crime charged and a conviction upon the lesser included
offense.” Thomas, supra,40 Ohio St.3d 213,
533 N.E.2d 286, paragraph two of
the syllabus; State v. Palmer (1997),
80 Ohio St.3d 543, 562,
687 N.E.2d 685, 702.
In making this determination, the court must view the evidence in the light most
favorable to the defendant. State v. Wilkins (1980),
64 Ohio St.2d 382, 388,
18
O.O.3d 528, 532,
415 N.E.2d 303, 308; State v. Campbell (1994),
69 Ohio St.3d
38, 47-48,
630 N.E.2d 339, 349.
{¶ 37} While the trial record indicates that the jury twice submitted
questions to the court during deliberations regarding purpose and intent, Smith’s
assertion that the jury must have struggled with such terms is purely speculative.
A more reasonable explanation for these specific inquiries was the fact that the trial
11
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judge did not give a copy of the jury instructions to the jurors during deliberations
because of “the hen scratching that’s all throughout them.”
{¶ 38} Here, we believe the evidence presented at trial did not compel an
involuntary manslaughter instruction. Smith helped plan the robbery and directed
his accomplices to Woodstock Market to achieve that goal. Once inside the
carryout, Smith brandished a loaded weapon, pointed it at Darwish, and shot him
once in the chest. According to eyewitnesses to the shooting, Darwish was totally
cooperative with Smith and offered no resistance whatsoever. Smith never claimed
during trial that the shooting was accidental or unintentional, although he did tell
Bryson and Layson that he shot Darwish “in the arm.” Moreover, when his
accomplices asked him why he shot Darwish, Smith displayed no hint of remorse
in replying that Darwish took too long opening the cash register, and “fuck him, *
… [h]e shouldn’t be in our neighborhood with a store no way.”
{¶ 39} This evidence is clearly at odds with Smith’s assertion that evidence
of purpose or intent to kill was lacking. Smith’s claims that the evidence
“reasonably supported” an involuntary manslaughter instruction do not withstand
scrutiny. See State v. Raglin (1998), 83 Ohio St.3d 253, 258,
699 N.E.2d 482, 488,
and State v. Sheppard (1998),
84 Ohio St.3d 230, 236-237,
703 N.E.2d 286, 293,
where we upheld similar refusals by a trial court to instruct on involuntary
manslaughter.
{¶ 40} In view of the evidence presented during the trial phase, even when
viewed in a light most favorable to Smith, the trial court did not err in refusing to
instruct on involuntary manslaughter. No specific evidence submitted at trial raised
the issue of involuntary manslaughter. We believe that under any reasonable view
of the evidence proffered during the trial phase, the killing of Darwish was
purposeful. Raglin, supra,83 Ohio St.3d at 257-258, 699 N.E.2d at 488.
Accordingly, we reject Smith’s third proposition of law.
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January Term, 2000
{¶ 41} In Proposition of Law No. 9, Smith argues that the jury instructions
on reasonable doubt, patterned after the language of R.C. 2901.05, allowed the jury
to find him guilty based on a degree of proof below that required by due process.
This issue was waived because Smith failed to object to the instructions, State v.
Underwood (1983), 3 Ohio St.3d 12, 3 OBR 360,
444 N.E.2d 1332, syllabus, and
because Smith failed to raise it before the court of appeals.
Williams, supra,51
Ohio St.2d 112,
5 O.O.3d 98,
364 N.E.2d 1364, paragraph two of the syllabus.
Even if we were to consider the issue, we have rejected similar arguments in a
number of cases. See, e.g., State v. Van Gundy (1992),
64 Ohio St.3d 230, 232-
233,
594 N.E.2d 604, 606; State v. Stojetz (1999),
84 Ohio St.3d 452, 467,
705
N.E.2d 329, 343.
SENTENCING ISSUES
Jury Instructions/Sentencing Opinion
{¶ 42} In Proposition of Law No. 2, Smith contends that the trial court erred
in instructing the jury to weigh the aggravating circumstance against each
mitigating factor, instead of all the mitigating factors raised at the mitigation
hearing. Smith further asserts that the trial court committed the same error in parts
of its sentencing opinion. Smith also claims that the trial court incorrectly identified
the aggravating circumstance by stating at trial that Smith was the “principal
offender in the aggravated robbery” rather than principal offender in the aggravated
murder.
{¶ 43} Smith is correct in asserting that the jury instructions were erroneous
under R.C. 2929.03(D)(2) and R.C. 2929.04(A)(7). However, Smith failed to
object to either instruction at trial. Moreover, he failed to complain about the
defective instructions before the court of appeals as well. Smith thus waived any
error unless, but for the error, the outcome of the trial clearly would have been
otherwise. Underwood, supra,3 Ohio St.3d 12, 3 OBR 360,
444 N.E.2d 1332,
syllabus;
Williams, supra,51 Ohio St.2d 112,
5 O.O.3d 98,
364 N.E.2d 1364,
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paragraph two of the syllabus. (Smith also failed to object to the incorrect use of
the plural “aggravating circumstances” on the verdict form, and thereby waived that
error as well.)
{¶ 44} The errors Smith alleges were not outcome-determinative, and hence
did not amount to plain error. State v. Long (1978), 53 Ohio St.2d 91,
7 O.O.3d
178,
372 N.E.2d 804, paragraph two of the syllabus. In fact, the record indicates
that the trial court corrected its erroneous instruction concerning the weighing
process by providing the correct standard when it reread the sentencing instructions
at the outset of the second day of deliberations upon a specific request by the jury.
Moreover, the verdict form signed by all the jurors set forth the correct weighing
standard.
{¶ 45} The error in the specification instruction given during the sentencing
phase (“principal offender in the aggravated robbery”) did not appear on the verdict
form signed by all the jurors at the close of guilt-phase deliberations. Nor did any
evidence at trial suggest that anyone else but Smith shot the victim. Thus, the
instructional error at the close of the sentencing phase was, under these
circumstances, inconsequential, since the jury had already convicted Smith of the
aggravating circumstance employing the correct language. Overall, we believe that
the jury understood the proper sentencing standard as well as its sentencing
responsibility. See State v. Hill (1995), 73 Ohio St.3d 433, 438,
653 N.E.2d 271,
277-278.
{¶ 46} We therefore hold that none of these alleged errors resulted in a clear
miscarriage of justice, State v. Slagle (1992), 65 Ohio St.3d 597, 608,
605 N.E.2d
916, 928, especially upon viewing the instructions in the context of the overall
charge. State v. Price (1979),
60 Ohio St.2d 136,
14 O.O.3d 379,
398 N.E.2d 772,
paragraph four of the syllabus. They do not amount to plain error sufficient to
defeat the waiver rule.
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January Term, 2000
{¶ 47} With regard to Smith’s assertion that the trial court committed error
in the weighing process in its sentencing opinion, that error was in fact raised and
found to be well taken by the court of appeals. However, the appellate court found
it could cure this error by its own independent review. This court has held that
errors in the trial court’s weighing process may be cured by our own independent
review. See, e.g., State v. Lott (1990), 51 Ohio St.3d 160, 170,
555 N.E.2d 293,
304; State v. Hill (1996),
75 Ohio St.3d 195, 211,
661 N.E.2d 1068, 1083.
Likewise, errors in the court of appeals’ reweighing may also be cured by our own
independent review. State v. Frazier (1995),
73 Ohio St.3d 323, 343,
652 N.E.2d
1000, 1017.
{¶ 48} The court of appeals also stated that “[o]ur independent analysis of
the evidence leads us to find that the mitigating factors do not outweigh the
aggravating circumstance.” This statement was erroneous. The proper standard in
capital cases is that the aggravating circumstance(s) must outweigh the mitigating
factors before a death sentence may be affirmed. R.C. 2929.05(A). However,
independent review can also cure that error. Id.
{¶ 49} In sum, the errors alleged by Smith were waived, and we find that
these alleged errors were not outcome-determinative and, therefore, not plain error.
In addition, the errors in both lower court opinions are curable by independent
review. Accordingly, Proposition of Law No. 2 is not well taken.
Sentence Appropriateness
{¶ 50} In Proposition of Law No. 8, Smith contends that his death sentence
is inappropriate and disproportionate because the aggravating circumstance does
not outweigh the cumulative effect of the mitigation present here. We will consider
Smith’s arguments during our independent review of the sentence.
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Effective Assistance
{¶ 51} Under Proposition of Law No. 6, Smith claims ineffective assistance
of trial counsel. In Proposition of Law No. 7, Smith asserts ineffective assistance
of appellate counsel before the court of appeals.
{¶ 52} With respect to the claims of ineffective assistance of trial counsel,
Smith cites five areas where counsel allegedly provided deficient representation.
However, in no instance does Smith demonstrate deficient performance by counsel,
or that the allegedly deficient performance prejudiced him so as to deprive him of
a fair trial. See Strickland v. Washington, supra, 466 U.S. at 687,
104 S.Ct. at 2064,
80 L.Ed.2d at 693;
Bradley, supra,42 Ohio St.3d 136,
538 N.E.2d 373. Moreover,
in no instance does Smith demonstrate prejudice, i.e., “a reasonable probability that,
were it not for counsel’s errors, the results of the trial would have been different.”
Id. at paragraph three of the syllabus.
{¶ 53} The first instance listed by Smith (counsel’s failure to explore racial
or religious bias during jury selection) is fully explored in our discussion under
Proposition of Law No. 1. None of the instances raised by Smith constituted
deficient performance by defense counsel. The second instance Smith cites is trial
counsel’s failure to object to erroneous jury instructions. Yet, as discussed under
Proposition of Law No. 2, none of these alleged deficiencies prejudiced Smith so
as to deprive him of a fair trial.
{¶ 54} Likewise, the third and fourth instances in which Smith alleges
deficient representation—failing to request a psychiatric evaluation for Smith, and
failing to object to the reasonable doubt instruction—did not deprive Smith of a fair
trial. As we discussed under Proposition of Law No. 5, Smith did not display
sufficient “indicia of incompetence,” Berry, 72 Ohio St.3d at 359,
650 N.E.2d at
439, to warrant a competency hearing. Counsel’s failure to object to the reasonable
doubt instruction was of no consequence, since such an instruction based on the
16
January Term, 2000
language of R.C. 2901.05 is proper. State v. Stojetz, supra, 84 Ohio St.3d at 467,
705 N.E.2d at 343.
{¶ 55} In the final instance of alleged ineffectiveness, Smith claims
prejudice in trial counsel’s failure to assert a defense or to make a closing argument
at the end of the guilt phase. Yet it is plausible in this case that counsel’s trial
strategy to forgo closing argument prevented the prosecution from making a strong
rebuttal. The compelling evidence submitted during trial established that Smith
was the killer, especially given the fact that two eyewitnesses to the murder and
another accomplice testified that Smith shot Darwish during the robbery. In the
face of overwhelming evidence of Smith’s guilt, defense counsel apparently chose
to concentrate on avoiding a death sentence and making a strong case for mitigation
and residual doubt.
{¶ 56} By doing so, counsel did not fall below an objective standard of
reasonable representation. This case was tried in March 1994, more than three
years prior to our decision in State v. McGuire (1997), 80 Ohio St.3d 390,
686
N.E.2d 1112, syllabus, where we held residual doubt to be “irrelevant to the issue
of whether the defendant should be sentenced to death.” Unfortunately for the
defense, neither the jury nor the trial judge was persuaded that sufficient residual
doubt existed to prevent imposing a death sentence. Even assuming that defense
counsel’s trial strategy was questionable, such a strategy did not constitute
ineffective assistance of counsel. See State v. Clayton, supra,
62 Ohio St.2d at 49,
16 O.O.3d at 37,
402 N.E.2d at 1192.
{¶ 57} Smith’s claim that counsel failed to assert a defense to the charges
does not appear to be totally accurate. While counsel chose not to present any
defense witnesses during the trial phase, they did vigorously cross-examine several
key prosecution witnesses. Accordingly, we overrule Proposition of Law No. 6.
{¶ 58} Under Proposition of Law No. 7, Smith claims that appellate counsel
were ineffective in failing to assign as errors (1) trial counsel’s failure to question
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SUPREME COURT OF OHIO
the venire on any racial or religious biases (see Proposition of Law No. 1), (2) the
court’s use of the reasonable doubt instruction patterned after R.C. 2901.05 (see
Proposition of Law No. 9), and (3) the vagueness defect in Ohio’s death sentencing
scheme (see Proposition of Law No. 10). Given our rejection of all three claims
elsewhere in this opinion, none of these alleged instances of ineffective assistance
of appellate counsel compels reversal. Moreover, as we have held in prior cases,
“[c]ounsel need not raise all nonfrivolous issues on appeal.” State v. Campbell
(1994), 69 Ohio St.3d 38, 53,
630 N.E.2d 339, 353, citing Jones v. Barnes (1983),
463 U.S. 745, 751,
103 S.Ct. 3308, 3312-3313,
77 L.Ed.2d 987, 993. In addition,
“[t]his process of ‘winnowing out weaker arguments on appeal and focusing on’
those more likely to prevail … is the hallmark of effective appellate advocacy.”
Smith v. Murray (1986),
477 U.S. 527, 536,
106 S.Ct. 2661, 2667,
91 L.Ed.2d 434,
445, quoting Barnes,
463 U.S. at 751-752,
103 S.Ct. at 3312-3313,
77 L.Ed.2d at
994. Therefore, we reject Smith’s Proposition of Law No. 7.
Constitutionality
{¶ 59} In Proposition of Law No. 10, Smith asserts that Ohio’s death
penalty laws are unconstitutional for various reasons, both facially and as applied.
However, these arguments lack merit. See, e.g., Jenkins, supra,15 Ohio St.3d 164,
15 OBR 311,
473 N.E.2d 264; State v. Zuern (1987),
32 Ohio St.3d 56,
512 N.E.2d
585; State v. Carter (1992),
64 Ohio St.3d 218,
594 N.E.2d 595; State v. Steffen
(1987),
31 Ohio St.3d 111, 31 OBR 273,
509 N.E.2d 383; State v. Buell (1986),
22
Ohio St.3d 124, 22 OBR 203,
489 N.E.2d 795; and State v. Lewis (1993),
67 Ohio
St.3d 200,
616 N.E.2d 921. Therefore, we summarily reject them here. State v.
Poindexter (1988),
36 Ohio St.3d 1,
520 N.E.2d 568, syllabus.
18
January Term, 2000
Appellate Review
{¶ 60} In Proposition of Law No. 4, Smith contends that the court of
appeals’ refusal to consider residual doubt as a mitigating factor denied him two
levels of meaningful appellate review, since the offense was committed prior to
January 1, 1995.
{¶ 61} While the jury was instructed on residual doubt, such a factor is no
longer mitigating. McGuire, supra,80 Ohio St.3d 390,
686 N.E.2d 1112, syllabus.
Accord State v. Goff (1998),
82 Ohio St.3d 123, 131,
694 N.E.2d 916, 923; State v.
Mason (1998),
82 Ohio St.3d 144, 165,
694 N.E.2d 932, 954. Moreover, we have
specifically rejected the argument that it is error to apply McGuire retroactively.
State v. Bey (1999),
85 Ohio St.3d 487, 508-509,
709 N.E.2d 484, 503. Thus,
Proposition of Law No. 4 is not well taken.
INDEPENDENT REVIEW AND PROPORTIONALITY
{¶ 62} In Proposition of Law No. 8, Smith submits that his death sentence
is inappropriate and must be vacated because the aggravating circumstance does
not outweigh the mitigating factors in this case, especially the mitigating factor of
residual doubt.
{¶ 63} The facts show that on the day of the murder and robbery, Smith and
others discussed “hitting a lick.” Smith then directed Bryson and Layson to the
Woodstock Market to accomplish their goal of committing a robbery. When Smith
and Bryson went into the store, only Smith possessed and produced a weapon.
Although Darwish and Tahboub fully cooperated with Smith during the robbery,
Smith fired a single shot at Darwish because “he took too long … opening the
cash register.” After the robbery and shooting, Smith’s only expressed regret was
that he had forgotten the beer he had intended to steal. When Smith’s two
accomplices pressed him as to why he shot the store owner, Smith replied, “[F]uck
him, he in our neighborhood anyway. He shouldn’t be in our neighborhood with a
store no way.”
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SUPREME COURT OF OHIO
{¶ 64} Even if defense counsel had attempted to contest the intent element
of aggravated murder, it seems unlikely that the jury would have believed his
witnesses (if any), as opposed to Smith’s accomplices, who participated in the
criminal activity. This conclusion would appear to be reasonable, especially since
the testimony of Darwish’s friend, Tahboub, was largely corroborative of Bryson’s
testimony as to the circumstances of the robbery and shooting.
{¶ 65} After independent assessment, we find that the evidence supports
beyond a reasonable doubt the aggravating circumstance that Smith, as the principal
offender, killed Darwish while committing aggravated robbery. R.C.
2929.04(A)(7).
{¶ 66} The nature and circumstances of the offense provide nothing in
mitigation. Prison Islamic religious counselor, Jurry Taalib-Deen, testified that
Smith confided with him that he was “nervous and scared and the trigger went off”
when he shot Darwish. Yet, such statements seem less credible than those given
by Smith to his accomplices immediately after the shooting. While Smith’s
statements to his accomplices after the shooting could be characterized as street
bravado, his statements to the religious counselor could be viewed as a jail house
conversion, and thus lacking in credibility. The fact remains that Smith helped plan
and then specifically directed the robbery at the Woodstock Market. He was the
only one of the three defendants who had a gun. The robbery-murder of Darwish
was a senseless, unprovoked, and tragic crime.
{¶ 67} Smith’s history, character, and background provide some mitigating
features. Smith’s wife, Grace, testified that she married Smith while he was in jail
in October 1990. At that time, Smith already had fathered a child, who was about
three years old. The couple moved to Texas because they wanted a different
environment, but they struggled on welfare and thereafter moved back to Toledo.
Meanwhile, Grace became pregnant, and their baby was born after the murder.
Grace stated that Smith’s mother treated her well and showed her love. On the day
20
January Term, 2000
of the murder, Grace and Smith went to the movie “Menace II Society,” which
depicted a robbery and shooting similar to the crime Smith acted out later that
evening. One or two days later, Smith broke down and told Grace that he shot
Darwish, but he added that it was an accident and that he didn’t mean to do it.
Grace pleaded with the jury to spare Smith’s life.
{¶ 68} Smith’s mother, Verna Smith, chronicled Smith’s childhood
beginning with a biological father who was “not really” around, and who did not
provide financial support. Verna later married Willie Smith, Sr., who took Smith
as his son, and whom she described as a good father to Smith and his younger
brother. However, the elder Smith beat Verna on different occasions in front of the
children, which left her with black eyes and bruises. After several years, Verna
separated from the elder Smith because of the physical abuse, but she felt that the
separation “was devastating” to defendant Smith. After the divorce, Verna
supported her children while on welfare. Smith and his brother occasionally visited
the elder Smith until his death around 1989. Verna further testified that Smith got
suspended from school about six times for fighting when he was twelve or thirteen
years old and that his experience at school was “not too good.” Verna also asked
the jury to spare her son’s life.
{¶ 69} Smith’s aunt, Patricia Dickerson, felt that Smith had a “very hard
life” in the ghetto and that he only knew about life in the streets and how to survive
in that environment. Dickerson stated that her sister, Verna, did the best she could
in raising Smith given the circumstances of his upbringing. She also asked the jury
to spare Smith from a death sentence.
{¶ 70} Smith’s uncle, Ronald Dickerson, opined that Smith was a victim of
society, who, like a lot of other young people, got cast to the side. In spite of
Smith’s hard life, Dickerson felt that Smith “always seemed like a nice young man.”
{¶ 71} Robert Kahl, the defense psychologist, interviewed and evaluated
Smith to determine his emotional and psychological functioning. He also
21
SUPREME COURT OF OHIO
administered several tests to Smith. Kahl met and interviewed Smith’s wife and
mother. At his first session with Kahl, Smith was very cooperative. However, at
their third meeting, Smith became distant with Kahl and indicated he was not going
to participate in further evaluations. In one written exercise Kahl left at the jail for
Smith to complete, an “Incomplete Sentences” test, Smith wrote in almost every
answer that someone or something, usually Kahl, was “bothering” him. Kahl
described Smith as being of average intelligence and initially thought Smith was
“fairly normal.” According to Kahl, Smith knows right from wrong, but appeared
to show signs of depression, which hampered his intellectual functioning. In Kahl’s
opinion, when Smith is confronted with situations that aroused intense feelings,
Smith could lose contact with reality and be self-destructive.
{¶ 72} In reviewing Smith’s background, Kahl noted that Smith had been
suspended from school for fighting a number of times, beginning at the age of ten.
Smith fathered a child when he was fourteen and attended a great number of
schools. Kahl concluded that part of Smith’s problems was due to a lack of proper
parenting and to the presence of significant physical violence in the home. In
addition to having only a father substitute in the home, Kahl felt that Smith’s mother
lacked the skills to raise a child in terms of emotional functioning and how to handle
feelings. Kahl further opined that it is clear that Smith learned early on to solve
any problems with people by physically intimidating them into doing what he
wanted them to do.
{¶ 73} Kahl also noted that it was significant that Smith and his wife
watched the movie “Menace II Society” on the day of the murder. In Kahl’s
opinion, what Smith saw in the movie was related to the similar crime he acted out
later that day at the Woodstock Market. Kahl opined to a reasonable degree of
psychological certainty that Smith “has a defect in his ability to handle feelings and
stress, and when he gets in situations where feelings are high and stress is high, …
* he becomes psychotic for a temporary period of time.”
22
January Term, 2000
{¶ 74} In Kahl’s view, Smith was not able to conform his conduct to the
requirements of law on the evening of the shooting. Kahl also stated that Smith has
a mental illness or some defect in personality, but he could not be more specific,
since he was unable to complete his evaluations of Smith, due to Smith’s refusal to
cooperate any further.
{¶ 75} With regard to the statutory mitigating factors of R.C. 2929.04(B),
factor (3) would appear to be implicated, since the defense psychologist, Robert
Kahl, stated that at the time of the shooting, Smith was unable to conform his
conduct to the requirements of law. However, we do not find that Kahl’s
conclusion supports finding the (B)(3) mental disease/defect factor, since Kahl
admitted that he was unable to complete his evaluation of Smith. Kahl’s inability
to define a specific mental disease or defect for Smith’s condition detracts from
finding the presence of the (B)(3) statutory mitigating factor in this case.
Nevertheless, Kahl’s findings that Smith suffered from psychotic episodes,
including an episode on the day of the murder, must be given some weight as a
(B)(7) factor. Yet, the weight we apply to this factor is tempered by the fact that
Kahl’s evaluation was incomplete due to Smith’s refusal to cooperate further in the
evaluation process.
{¶ 76} Smith’s age of the time of the offense (twenty-one years old) is
entitled to some weight under R.C. 2929.04(B)(4). See, e.g., State v. White (1999),
85 Ohio St.3d 433, 454,
709 N.E.2d 140, 160. No other specific statutory
mitigating factors appear to be applicable except for those under R.C.
2929.04(B)(7).
{¶ 77} In addition to Smith’s psychological problems discussed earlier,
Smith’s upbringing where he witnessed physical violence inflicted on his mother is
entitled to some mitigating weight under (B)(7). See, e.g., State v. Getsy (1998),
84 Ohio St.3d 180, 207,
702 N.E.2d 866, 891. Also mitigating is the love and
support Smith enjoys from his wife and family members. See, e.g., State v. Mason
23
SUPREME COURT OF OHIO
(1998), 82 Ohio St.3d 144, 170,
694 N.E.2d 932, 957. However, residual doubt
would be entitled to very little weight in mitigation, even if we had not rejected it
as an acceptable mitigating factor in
McGuire, supra,80 Ohio St.3d 390,
686
N.E.2d 1112, paragraph one of the syllabus. The testimony of the defense
mitigation witnesses that Smith claimed the shooting was accidental or
unintentional is not persuasive. In our view, eyewitness testimony by Smith’s
accomplices and Tahboub clearly negates the notion that Smith did not intend to
kill Darwish.
{¶ 78} Upon independent weighing, we hold that the aggravating
circumstance outweighs the mitigating factors beyond a reasonable doubt. The
robbery-murder of Darwish was an unprovoked and senseless act. The death
penalty in this case is both appropriate and proportionate when compared to similar
cases of murder combined with aggravated robbery where there was the same or
even more evidence in mitigation. See State v. Eley (1996), 77 Ohio St.3d 174,
672
N.E.2d 640 (devotion and care from family, remorse); State v. Raglin (1998),
83
Ohio St.3d 253,
699 N.E.2d 482 (eighteen years old, poor background, mild brain
damage, remorse, cooperation with police); State v. Sheppard (1998),
84 Ohio St.3d
230,
703 N.E.2d 286 (close and religious family background, eighteen years old,
mental disease/defect); and State v. Goodwin (1999),
84 Ohio St.3d 331,
703
N.E.2d 1251 (difficult childhood, nineteen years old, apology to victim’s family).
{¶ 79} Based on all the foregoing, we affirm Smith’s convictions and
sentences, including the death sentence.
Judgment accordingly.
DOUGLAS, WALTERS, F.E. SWEENEY, PFEIFER and COOK, JJ., concur.
LUNDBERG STRATTON, J., dissents.
SUMNER E. WALTERS, J., of the Third Appellate District, sitting for Resnick,
J.
__________________
24
January Term, 2000
LUNDBERG STRATTON, J., dissenting.
{¶ 80} Because I believe that the defendant was denied his Sixth
Amendment right to the effective assistance of counsel due to counsel’s failure to
voir dire the jury on racial issues, I respectfully dissent.
{¶ 81} I agree with the majority’s proposition that “ ‘[t]he conduct of voir
dire by defense counsel does not have to take a particular form, nor do specific
questions have to be asked,’ “ quoting State v. Evans (1992), 63 Ohio St.3d 231,
247,
586 N.E.2d 1042, 1056. Further, I agree, in general, with the proposition that
the decision to voir dire on racial prejudice is a choice best left to a capital
defendant’s counsel. See State v. Watson (1991),
61 Ohio St.3d 1, 13,
572 N.E.2d
97, 108, citing Turner v. Murray (1986),
476 U.S. 28, 37,
106 S.Ct. 1683, 1688,
90
L.Ed.2d 27, 37, and fn. 10. However, I believe that in situations where racial issues
have the potential to permeate the entire trial, failure to voir dire the venire
regarding racial issues can constitute ineffective assistance of counsel.
{¶ 82} The facts presented at trial demonstrate that racial issues did
permeate this trial. The defendant, an African-American from the inner city, was
accused of shooting a man of Arabic descent who operated a grocery in the inner
city. When asked what defendant’s reasons were for shooting the victim, codefendant Layson testified that after shooting the victim, the defendant told him,
“[F]uck him, he in our neighborhood anyway. He shouldn’t be in our neighborhood
with a store no way.”
{¶ 83} During mitigation, defense counsel elicited testimony from
defendant’s wife, Grace Smith, about the film “Menace II Society,” a movie about
a group of inner city young men (referring to themselves as “black gangsters”) who
enter a neighborhood grocery store in the inner city and shoot the non-African-American clerks. Mrs. Smith, who had viewed the movie with her husband earlier
on the day of the shooting, described the film as follows: “Well, it was two guys,
you know, who thought they were kind of bad …. [T]hey was just going to buy
25
SUPREME COURT OF OHIO
some beer and the guy, the owners of the store … were looking at them very
strange like you shouldn’t belong in here because they were black. … [O]ne of
the boys in the carryout and the store man … had a little words or discrepancy *
… and … caused a shooting ….”
{¶ 84} The parallels between the movie and the facts of this case lead to
unavoidable conclusions about racial hatred with regard to the shooting of this
Arabic grocery store clerk. Dr. Robert Kahl, a clinical psychologist who testified
on behalf of defendant, opined that defendant was depressed and had a great deal
of trouble talking about his feelings and that when confronted with situations that
aroused intense feelings, he could get out of contact with reality. Dr. Kahl believed
that defendant “has a defect in his ability to handle feelings and stress, and when
he gets in situations where feelings are high and stress is high, that he becomes
psychotic for a temporary period of time.” Regarding the movie “Menace II
Society,” Dr. Kahl opined that “it cannot be coincidence. That this thing happened
in the movie and this thing happened later. It cannot—I cannot believe it is
coincidence.”
{¶ 85} Also during the mitigation phase of the trial, defense counsel elicited
testimony regarding another film, “Malcolm X.” According to the testimony of an
Islamic counselor at the Lucas County Jail, Jurry Taalib-Deen, “Malcolm X”
highlights the Nation of Islam, an Islamic splinter group which, according to
Taalib-Deen, preaches a “hatred doctrine of blacks being Gods and whites being
devils.” In addition, Taalib-Deen testified that “Malcolm X” was “nationalistic,”
and testified that “before [defendant] came in [to the Lucas County Jail], he was
into nationalistic.”
{¶ 86} Throughout the trial and mitigation phase, the defendant, a follower
of the Islamic faith, wore a prayer cap. Counsel attempted to make the jury aware
that defendant no longer subscribed to the ideology of the Nation of Islam
movement mentioned in the movie “Malcolm X,” but rather the peaceful tenets of
26
January Term, 2000
the Islamic religion. It is possible that defense counsel’s tactic of eliciting this
religious testimony was an attempt to evoke the sympathy of the jurors by showing
that defendant’s religious conversion made him a gentler, more peaceful man today.
{¶ 87} Further, the evidence regarding the racial aspects of the films,
combined with the psychological evidence from Dr. Kahl, could have been an
attempt to demonstrate that defendant’s psychological defects permitted him to be
influenced by the films, causing him to act in conformity with the violence depicted
in the films.
{¶ 88} But I believe that issues of race and religion so infected this trial that
the failure to voir dire the jury venire on those issues made counsel’s performance
so deficient that counsel were not functioning as the counsel guaranteed by the
Sixth Amendment, and that counsel’s errors prejudiced the defendant and deprived
him of a trial whose result was reliable. Strickland v. Washington (1984), 466 U.S.
668, 687,
104 S.Ct. 2052, 2064,
80 L.Ed.2d 674, 693. If counsel consciously chose
these tactics, they had a duty also to choose a jury free of prejudice so that such a
tactic would not cause an unfavorable reaction.
{¶ 89} These topics, involving highly charged and controversial racial and
religious issues, could evoke strong emotional reactions in a jury. Without a careful
voir dire of the venire’s views and biases on these issues, there is no way to know
whether the violent imagery of these two movies (and whether, in fact, any jurors
had ever seen them) prejudiced the jury’s verdict. Some people believe, rightly or
wrongly, that the tenets of the Nation of Islam urge militant violence, a powerful
image that could have infected the jury’s deliberation. Without a careful rooting
out of any potential juror who harbored prejudicial racial or religious views, or who
had formed preconceived prejudices about either of the movies or the Islamic
movement, there is no way to be sure that the jurors who deliberated were truly fair
and impartial.
27
SUPREME COURT OF OHIO
{¶ 90} “Because of the range of discretion entrusted to a jury in a capital
sentencing hearing, there is a unique opportunity for racial prejudice to operate but
remain undetected.” Turner, 476 U.S. at 35,
106 S.Ct. at 1687,
90 L.Ed.2d at 35.
Further, the “risk of racial prejudice infecting a capital sentencing proceeding is
especially serious in light of the complete finality of the death sentence.”
Id. at 35,
106 S.Ct. at 1688,
90 L.Ed.2d at 36.
{¶ 91} The standard is whether “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694,
104 S.Ct. at 2068,
80 L.Ed.2d at 698. I
believe that evidence of guilt was so overwhelming that the verdict of guilt would
not have been affected. However, I cannot so find as to the sentence of death.
{¶ 92} No juror was questioned regarding his or her views on racial issues,
ethnic issues, or the politics of the Nation of Islam, Muslims in general, or the
Islamic religion itself. With the evidence of mitigation present in this case, I do not
believe that we can find a reasonable probability that the emotional issues of race,
both African-American and Arabic, suffused with religious overtones, did not
affect the outcome of the sentencing phase of trial.
{¶ 93} Accordingly, I respectfully dissent and would reverse in part the
judgment of the court of appeals and vacate the sentence of death.
__________________
28
