State v. Jones

[This opinion has been published in Ohio Official Reports at 

.]




              THE STATE OF OHIO, APPELLEE, v. JONES, APPELLANT.
                       [Cite as State v. Jones, 

.]
Criminal law—Aggravated murder—Death penalty upheld, when.
          (No. 98-1891—Submitted July 25, 2000—Decided December 27, 2000.)
       APPEAL from the Court of Appeals for Hamilton County, No. C-970043.
                                  __________________


         {¶ 1} During the early afternoon of Friday, September 2, 1994, Elaine
Schub and Joe Kaplan checked in as guests at the Embassy Suites Hotel in Blue
Ash. Schub was in town to see her grandson’s bar mitzvah, which was to be held
the following day. Schub’s best friend, Rhoda Nathan, flew in from New Jersey
later that afternoon also to attend the event on Saturday. Schub and Nathan shared
the bedroom of the hotel suite, while Kaplan stayed in the front room using a foldout
bed.
         {¶ 2} On Saturday morning, September 3, Schub and Kaplan awoke early
to meet relatives at the complimentary breakfast served on the first floor of the
hotel. As she and Kaplan left the room at approximately 7:28 a.m., Schub told
Nathan to go back to sleep, since she did not need to be at the temple that morning
as early as the family. Kaplan had the only room key for the group and made sure
the door was locked when he and Schub left for breakfast.
         {¶ 3} At approximately 8:08 a.m., Schub and Kaplan finished breakfast and
returned upstairs to their room. Kaplan unlocked the door and discovered Nathan
lying nude on the floor. Employees and hotel guests rushed up to Room 237, where
Schub was found screaming and shaking. A cardiologist, a respiratory therapist,
and a nurse happened to be at the hotel at the time, and they came to the room to
help resuscitate Nathan.
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       {¶ 4} Initially, witnesses thought Nathan had had a fall, perhaps brought on
by a heart attack, since there seemed to be little blood on or around Nathan.
However, further investigation revealed that Nathan’s hair was soaked with blood
and that she had suffered severe trauma to her head. When Nathan’s head was
moved, witnesses found a tooth on the floor. Later, Schub asked for and was given
her purse, which she had left in the hotel room during breakfast. Upon opening her
wallet, which was inside the purse, Schub noticed that money was missing.
       {¶ 5} During the commotion, Schub noticed that Nathan no longer had the
pendant necklace that she had been wearing earlier and that she always wore. The
pendant was a one-of-a-kind piece of jewelry that Nathan’s late husband had made
from his mother’s wedding band. It consisted of several connected gold bars, one
containing diamonds. According to Nathan’s daughter-in-law, Nathan never took
the pendant off. Nathan died that afternoon as a result of multiple traumas to her
head and body. The coroner’s office determined that the death was a homicide.
       {¶ 6} Police quickly set up a command center in a banquet room on the
second floor near the murder scene in Room 237. Police canvassed the rooms at
the hotel and took statements from guests and hotel employees working that day.
Police then began to concentrate their investigation on three particular hotel
employees who had prior criminal histories. Police cleared two of the employees
through further investigation and narrowed their investigation to defendantappellant, Elwood “Butch” Jones. Police discovered from interviews with other
hotel employees that appellant had injured his hand on the day Nathan was killed.
This fact pointed to appellant as a suspect because the crime at the hotel involved a
violent assault. Appellant had filed a claim for workers’ compensation for medical
benefits. The police thereafter subpoenaed and received the medical records for the
treatment of appellant’s hand injury.
       {¶ 7} On September 12, 1994, Sgt. Robert Lilley of the Blue Ash Police
Department spoke with one of appellant’s treating physicians, Dr. John




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McDonough.       Lilley learned through another police investigator that Dr.
McDonough had classified appellant’s injury as a fist-to-mouth injury and that Dr.
McDonough had asked appellant if he received the injury by punching someone in
the mouth. That same day, police went to the residence of Earlene Metcalfe in
Loveland. Metcalfe worked at the hotel and was a girlfriend of appellant, in
addition to being listed as a witness to appellant’s hand injury on his workers’
compensation claim form. Upon arriving at Metcalfe’s residence, police found
appellant there, and both he and Metcalfe voluntarily agreed to answer questions at
the Blue Ash Police station concerning the homicide at the hotel.
       {¶ 8} At the police station, appellant was advised of his Miranda rights and
signed a waiver form. During the interview with Sgt. Lilley and Blue Ash Police
Officer Larry Stokes, appellant stated that he and Metcalfe arrived at the hotel on
September 3 at approximately 5:00 a.m. At that time, appellant signed out a hotel
master key at the front desk as he did every day at work. Since appellant was not
due to clean the hotel banquet rooms until 10:00 a.m., he began to help Metcalfe
set up the complimentary breakfast area. Shortly after 6:00 a.m., appellant learned
that a coworker would not be in to work that morning, so he went to the second
floor of the hotel to begin cleaning the banquet rooms. Appellant stated that at
around that time, he slipped on steps outside the hotel and fell, cutting his left hand
while taking trash out to the hotel dumpster. He then finished cleaning the Maple
banquet room and went downstairs to help with the hotel’s complimentary
breakfast.
       {¶ 9} According to Lilley, appellant was forceful and almost defensive
when he claimed that he worked at the breakfast from approximately 6:30 a.m. to
8:00 a.m. that day. Appellant further claimed that he was cleaning tables in the
restaurant dining area when he heard screams from the second floor as well as a
trouble call over a coworker’s employer-provided walkie-talkie.




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       {¶ 10} Appellant told Lilley that he again hurt his hand in a banquet room
later that day and that he really thought nothing more of the injury until it started
bothering him several days later on September 6. Appellant reiterated that he never
left the restaurant on September 3 between 6:30 and 8:00 a.m. and asserted that he
was never inside Room 237, since he had no reason to be in any of the guest rooms
at the hotel. Lilley asked if he was involved in the murder, and appellant declared
that he wanted to talk to an attorney before he answered any more questions. At
that point, the interview ceased.
       {¶ 11} The police secured Metcalfe’s consent to search her residence and
also obtained a warrant to search a vehicle owned by appellant, which was parked
in Metcalfe’s driveway in Loveland. In addition, police obtained a search warrant
for appellant’s residence on Morman Avenue in Cincinnati. While police seized
many items of apparel from the two residences, none of them yielded any trace
evidence of blood. However, the search of appellant’s car produced several items
of evidence. Inside the toolbox in the trunk of appellant’s car was the unique
pendant belonging to Nathan. Also recovered from the toolbox was a master key
to the hotel, which could open Room 237, where the murder took place. Police also
recovered door security chains, which were later used in attempting to match marks
on Nathan’s body found on autopsy photos.
       {¶ 12} The last test results on the seized items came back in August 1995,
and the case was later submitted to the grand jury. On September 27, 1995, the
grand jury indicted appellant on two counts of aggravated felony-murder (during
an aggravated burglary and during an aggravated robbery), and separate counts of
aggravated burglary and aggravated robbery. Death-penalty specifications attached
to each aggravated murder count alleged that appellant was the principal offender
in the aggravated murder during a burglary and the principal offender in the
aggravated murder during a robbery or committed the offenses with prior
calculation and design. Ultimately the prosecution proceeded only on the first




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alternative, that appellant was the principal offender. R.C. 2929.04(A)(7). Police
arrested appellant at his place of employment in downtown Cincinnati later that day
and took him to the District 1 police station for processing.
        {¶ 13} While at the District 1 headquarters, appellant was shown a copy of
the indictment and told he was under arrest for the murder of Rhoda Nathan, as well
as for burglary and the robbery involving her pendant necklace. At that point,
appellant inquired, “What necklace?” Sgt. Lilley then produced a photo sheet of
the pendant recovered from appellant’s car and placed it on the table. Appellant
then stated that he had never seen it before in his life. Sgt. Lilley told appellant that
the pendant had been recovered from the trunk of his car. Appellant declared, “Not
in my fucking car.”
        {¶ 14} A jury trial was held wherein numerous witnesses were called by
both the prosecution and defense. Among the prosecution witnesses was Dr. John
McDonough, who was appellant’s physician during his hand surgery.                    Dr.
McDonough testified that he took a culture from the wound in appellant’s left hand
and that testing indicated a “mixed flora” of organisms. One of the organisms
detected was eikenella corrodens, an organism usually found in dental plaque,
which Dr. McDonough described as extremely rare in hand injuries.                    Dr.
McDonough testified that, within a reasonable degree of medical certainty, the
infection to appellant’s hand was caused by a fist-to-mouth injury because of the
presence of eikenella corrodens. This type of injury is sometimes referred to as a
“fight bite.” The defense put into evidence the testimony of an expert, Dr. Joseph
Solomkin, who questioned the likelihood of Dr. McDonough’s conclusion. Dr.
Solomkin testified that it was possible that the eikenella corrodens had come from
some source other than an assault victim’s mouth.
        {¶ 15} After deliberation, the jury found appellant guilty as charged.
        {¶ 16} At the mitigation hearing, appellant maintained his innocence and
refused to allow defense counsel to present any mitigation witnesses. Appellant




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permitted counsel to argue only residual doubt on his behalf at the mitigation
hearing. The trial judge specifically asked, “Mr. Jones, is that accurate, sir?”
Appellant replied, “Yes, it is, Your Honor.”
       {¶ 17} The defense requested an instruction on residual doubt, but the court
refused to instruct based on State v. Garner (1995), 

, 

, which held that a defendant is not entitled to an instruction
identifying residual doubt as a mitigating factor.
       {¶ 18} The jury recommended death, and the court adopted the jury’s deathsentence recommendation. At his sentencing hearing, appellant indicated that he
twice refused to plead guilty to a charge of manslaughter and that he did not kill
Nathan.
       {¶ 19} Upon appeal, the court of appeals affirmed the convictions and death
sentence.
       {¶ 20} The cause is now before this court upon an appeal as of right.
                               __________________
       Michael K. Allen, Hamilton County Prosecuting Attorney, and Ronald W.
Springman, Jr., Assistant Prosecuting Attorney, for appellee.
       Elizabeth E. Agar and Roxann H. Dieffenbach, for appellant.
                               __________________
       ALICE ROBIE RESNICK, J.
       {¶ 21} Appellant, Elwood Jones, has raised twenty-six propositions of law.
We have reviewed each and have determined that none justifies reversal of
appellant’s conviction for aggravated murder. Pursuant to R.C. 2929.05(A), we
have also independently weighed the aggravating circumstances against the
mitigation evidence, and reviewed the death penalty for appropriateness and
proportionality. For the reasons that follow, we affirm appellant’s conviction and
death sentence.
                          INEFFECTIVE ASSISTANCE




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                                January Term, 2000




       {¶ 22} In his first four propositions of law, appellant contends that trial
counsel provided ineffective representation, thereby depriving him of a fair trial in
both phases. 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), 

, 

, 

. Accord State v. Bradley (1989), 

,

.
                   Failure to Assert Physician-Patient Privilege
       {¶ 23} In his first proposition of law, appellant argues that trial counsel were
ineffective in failing to object to or prevent testimony protected by the physician-patient privilege of R.C. 2317.02(B). Appellant contends that his trial counsel
simply missed the issue of physician-patient privilege and that his trial counsel
never deliberately made a tactical decision not to raise the issue.
       {¶ 24} During trial, the prosecution called Dr. John McDonough to testify
concerning appellant’s hand injury. This testimony was incriminating to appellant,
since other evidence elicited at trial revealed that Nathan was struck in the face with
a “considerable amount of force” that broke her jaw. One of Nathan’s teeth was
found in her stomach during the autopsy. Another tooth was found under Nathan’s
head on the hotel room floor. Dr. McDonough concluded that appellant’s injury to
his hand was a fist-to-mouth injury due to the presence of the eikenella corrodens
organism found almost always in dental plaque.            This evidence was a key
component of the state’s circumstantial case against appellant and pointed to him
as the killer. The other key component was the discovery of Nathan’s pendant in
the toolbox in the trunk of appellant’s car.
       {¶ 25} Although defense counsel lodged several objections during Dr.
McDonough’s testimony, none of these objections attempted to assert the
physician-patient privilege. Nor did defense counsel file a motion in limine to




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prevent Dr. McDonough’s testimony or to prevent use of appellant’s medical
records. In addition, defense counsel did not file a motion to quash the subpoena
requesting appellant’s medical records. If defense counsel had used one of these
avenues to assert the physician-patient privilege, the issue would have been directly
before the trial court, and the trial court would have ruled on the applicability of the
privilege. Since no issue regarding the physician-patient privilege was raised at
trial, we must consider the question in the context of ineffective assistance of
counsel.
        {¶ 26} We find that trial counsel were not ineffective in failing to raise the
issue of physician-patient privilege, because we determine that the privilege was
inapplicable in the circumstances of this case. For the following reasons, even if
counsel had objected to Dr. McDonough’s testimony, the trial court would have
been required to overrule the objection and allow Dr. McDonough to testify.
        {¶ 27} R.C. 2921.22(B) requires that physicians and certain others giving
aid to an injured person report to law enforcement personnel gunshot or stab
wounds and further requires reporting “any serious physical harm to persons that
the physician … knows or has reasonable cause to believe resulted from an
offense of violence.”
        {¶ 28} The statute applies here even though Dr. McDonough did not report
the injury. Dr. McDonough suspected that the injury was a fist-to-mouth injury
when tests revealed the presence of the eikenella corrodens, and he questioned
appellant’s version of how he received the injury. Dr. McDonough’s opinion of a
fist-to-mouth injury was substantiated when the police contacted him with the
information that appellant was a suspect in the murder investigation. At that point,
Dr. McDonough’s suspicions about the injury and the police information conveyed
to him coalesced to support his belief that the injury was caused by an offense of
violence. If Dr. McDonough had learned that appellant was a suspect from a source
other than the police (e.g., a news report), he would have been required to report




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                                 January Term, 2000




the injury pursuant to R.C. 2921.22, given his personal suspicions about the nature
of the injury. As it was, he was already in contact with the police, so the reporting
was no longer required. The situation is no different than if Dr. McDonough had
reported appellant’s injury on his own initiative.
        {¶ 29} Appellant urges that, even assuming that Dr. McDonough had a duty
to report the injury under R.C. 2921.22(B), there is a further question of whether
the statute leads to waiver of the physician-patient privilege. Appellant argues that
the privilege remains intact even if the injury is reported to the police.
        {¶ 30} In State v. Antill (1964), 

, 

, 

, paragraph four of the syllabus, this court, in considering the predecessor statute
to R.C. 2921.22(B), held, “Where a physician is required by [the former statute] to
report to a law-enforcement officer a gunshot wound or wound inflicted by a deadly
weapon, the former may testify, without violating the physician-patient privilege,
as to the description of the wounded person, as to his name and address, if known,
and as to the description of the nature and location of such wound, obtained by
examination, observation and treatment of the victim.”
        {¶ 31} We see no reason to distinguish between a report of a “gunshot
wound or wound inflicted by a deadly weapon” as specified in Antill and a report
of “serious physical harm” pursuant to R.C. 2921.22 at issue in the present case.
The policies implicated in the statutory duties to report are identical in the two
situations. If the details of the wound have already been reported, “[t]he only
purpose that sustaining the privilege can now serve is to obstruct the course of
justice.” Antill, 176 Ohio St. at 65, 26 O.O.2d at 368, 197 N.E.2d at 552. We find
that the holding of Antill is applicable to the situation in the instant case.
        {¶ 32} Appellant argues that in State v. Smorgala (1990), 

, 

, this court established that there is no public policy exception
to the privilege statute regarding evidence sought by the state in criminal
prosecutions. Appellant’s citation of Smorgala is inapposite. In that case, this court




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held at paragraph one of the syllabus that “[c]ourts may not create a public policy
limitation upon the physician-patient privilege in order to allow otherwise clearly
inadmissible evidence to be received in drunk driving cases.” The situation in the
case at bar, and in Antill, is different from that in Smorgala, where a judicially
created policy limiting the physician-patient privilege was found inapplicable
because it conflicted with the statute giving rise to the privilege, R.C. 2317.02(B).
At issue instead in the instant case, as in Antill, is the interplay of two statutes, the
physician-patient privilege statute, R.C. 2317.02(B), and the medical personnel
reporting statute, now R.C. 2921.22(B). In this case we are dealing with a statute,
R.C. 2921.22, not judicially created policy; hence, the rule of Smorgala is not
implicated.
        {¶ 33} Our conclusion is bolstered by the Legislative Service Commission
1973 comment to Am.Sub.H.B. No. 511. The portion of R.C. 2921.22(B) at issue
in this case—the requirement that medical personnel report “serious physical harm”
when they know or have reasonable cause to believe the harm resulted from an
offense of violence—is essentially unchanged from the 1972 enactment of R.C.
2921.22(B). See Am.Sub.H.B. No. 511, 134 Ohio Laws, Part II, 1951. The 1973
comment to H.B. No. 511 provides:
        “This section also requires doctors …, and others who give aid to the sick
or injured, to report gunshot and stab wounds, and other serious injuries which they
know or have reasonable cause to believe resulted from a crime of violence, such
as the ‘battered child syndrome.’ The reporting requirement under this part of the
section is absolute, i.e., no privilege attaches in the cases covered.”
        {¶ 34} Even if appellant’s counsel had raised the physician-patient
privilege, they would not have been successful. Appellant’s trial counsel, therefore,
were not deficient in failing to raise the physician-patient privilege as an issue. The
requirements of Strickland are not met. Appellant’s first proposition is overruled.
                                   Failure to Object




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                                 January Term, 2000




        {¶ 35} Under his second proposition of law, appellant asserts ineffective
assistance where trial counsel failed to interpose a specific objection to the
admission of statements made to police after appellant invoked his right to counsel.
In particular, appellant complains that counsel failed to raise the issue of
“constructive interrogation” concerning statements he made at District 1
headquarters after his arrest.
        {¶ 36} This proposition lacks merit. Appellant concedes that counsel filed
a motion to suppress statements that he made to police on three different occasions.
In fact, a suppression hearing was held, at the close of which the court ruled that all
statements made by appellant, both before and after his arrest, were voluntary.
Even assuming counsel could have raised the issue of constructive interrogation
more specifically, there is no reasonable probability that the result of the trial would
have been different but for counsel’s errors. Bradley, 

, 

, paragraph three of the syllabus.           There was no interrogation,
constructive or otherwise, after appellant was arrested and booked at District 1
headquarters. Moreover, the statements made by appellant were at worst only
marginally incriminating. See Rhode Island v. Innis (1980), 

, 298-
302, 

, 

, construing the meaning
of “interrogation” for purposes of Miranda v. Arizona (1966), 

, 

, 

. Accordingly, we find appellant’s second proposition
is not well taken.




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                           Failure to Rehabilitate Jurors
       {¶ 37} In his third proposition of law, appellant contends that counsel failed
to attempt rehabilitation of jurors who opposed the death penalty during voir dire.
Appellant also asserts that counsel failed to challenge for cause a juror (Hamilton),
who admitted that he might be unable to put aside his experience as a police officer
and objectively consider the evidence presented. Appellant’s claims of ineffective
assistance in this context are unfounded.
       {¶ 38} Appellant cites six jurors whom counsel should have rehabilitated:
Chavez, Noe, Cripe, Baker, Brooks, and Cook. However, voir dire revealed that
all were unalterably opposed to the death penalty and that their strong views “would
prevent or substantially impair the performance” of their duties as jurors. See State
v. Rogers (1985), 

, 17 OBR 414, 

, paragraph three
of the syllabus. Moreover, the failure to probe views of jurors who were excused
for cause under death qualification, does not constitute ineffective assistance, since
trial counsel is in a better position to determine if jurors can be rehabilitated.
Bradley, 

, 

.
       {¶ 39} With respect to the failure to challenge Juror Hamilton for cause, the
transcript reveals no ground that counsel could have successfully asserted as a
challenge. Hamilton indicated that he would follow the law: “I may not agree with
it but it’s my job and I have to do it.” Therefore, we overrule appellant’s third
proposition.
                      Failure to Present Mitigating Evidence
       {¶ 40} In his fourth proposition of law, appellant alleges ineffective
assistance based on counsel’s failure to present available mitigation evidence. At
the beginning of the mitigation hearing, defense counsel informed the court that
appellant had always maintained he was innocent in the murder of Nathan and that
the only mitigation he wanted counsel to present was residual doubt. The trial judge
specifically asked appellant if that was accurate, and appellant replied, “Yes, it is,




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                                 January Term, 2000




Your Honor.” On the second day of the mitigation hearing, the court informed the
defense that it would not instruct the jury on residual doubt based on the decision
in Garner, 

, 

.
        {¶ 41} As we noted recently in State v. Ashworth (1999), 

, 

, even if the court attempted to require an attorney to
present mitigating evidence, it cannot force an unwilling defendant to provide that
evidence to his attorney. Moreover, where the defendant does not want to present
mitigating evidence, no societal interest counterbalances the defendant’s right to
control his own defense. State v. Tyler (1990), 

, 

.
        {¶ 42} Here, nothing suggests that appellant was not competent to forgo
presenting any mitigating evidence. Nor did appellant ever indicate a change of
heart after the court’s refusal to instruct on residual doubt. In fact, at his sentencing
hearing appellant again maintained his innocence and indicated that he had twice
refused to accept a plea bargain on manslaughter. In light of all the foregoing,
counsel were not ineffective for failing to present available mitigating evidence.
We overrule appellant’s fourth proposition.
                          VOIR DIRE/PRETRIAL ISSUES
                                  Suppression Issues
        {¶ 43} In his eleventh proposition of law, appellant complains that the
affidavit of Officer Stokes in support of the warrant to search appellant’s vehicle
contained material misstatements of fact. Consequently, appellant submits that the
warrant was invalid and that evidence seized pursuant to the warrant should have
been suppressed. In particular, appellant contends that Stokes grossly misstated his
experience in the affidavit, because the Nathan murder case was his first homicide
investigation. In addition, appellant asserts that police “had no reason to believe
they would find bloody clothes or traces of blood on Defendant’s clothing or
possessions.”




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          {¶ 44} In the affidavit supporting the request for a warrant, Officer Stokes
stated:
          “The affiant is a trained and experienced police officer who knows through
his training and experience that when a victim is beaten as badly as Nathan was in
this offense, there will be a transfer of blood from the victim to the assailant, and a
transfer of that blood from the assailant to items in a vehicle or a residence that he
would come in contact with.”
          {¶ 45} Contrary to appellant’s assertions, the above paragraph does not
constitute a gross misstatement of fact for an officer with twenty years of police
experience. Simply because this was Stokes’s first homicide investigation does not
mean that he would be ignorant of the probability of trace evidence of blood on the
clothing or possessions of a murder suspect who allegedly committed a violent
assault. In fact, his years of experience would indicate otherwise.
          {¶ 46} In reviewing a similar claim, we noted that under Franks v.
Delaware (1978), 

, 

, 

, an
affidavit supporting a warrant enjoys a presumption of validity. State v. Roberts
(1980), 

, 

, 

. In order
to overcome the presumption, the defendant has “the task of supporting his
allegations by more than conclusional accusations, or the mere desire to cross-examine.” 

, 

, 

. Although this was
Stokes’s first homicide investigation, appellant has not shown that Stokes lacked
experience in investigating assaults or other crimes where blood was transferred.
In addition, appellant does not show that police suspected that trace blood would
not appear on appellant’s clothing or personal possessions. Appellant’s eleventh
proposition is not well taken.
          {¶ 47} In his twelfth proposition of law, appellant argues that statements he
made on the day he was arrested, after he invoked his right to counsel, should have
been suppressed.




                                           14
                                 January Term, 2000




         {¶ 48} During the suppression hearing, Officer Stokes testified that when
appellant was being booked at the District 1 headquarters in Cincinnati after his
arrest, appellant asked Sgt. Lilley: “What’s going on? What am I being charged
with?” Lilley responded: “You’re charged with aggravated murder of Rhoda
Nathan, the aggravated burglary of Rhoda Nathan’s room.” Appellant then asked
Lilley: “What burglary, what theft are you talking about?” Lilley then placed a
photo of the pendant on the desk in front of appellant. Appellant then asked: “What
necklace?” Appellant looked at the photo and claimed that he had never seen it
before in his life. Lilley then stated: “It was in the trunk of your car.” Appellant
then denied it had been in his car. The conversation between appellant and the
police ceased. The trial court ruled that appellant’s statements were voluntarily
given.
         {¶ 49} The police advised appellant of his Miranda rights during the
voluntary questioning on September 12, 1994, at the close of which he declared he
wanted an attorney, and on the day of his arrest on September 27, 1995. Sgt. Lilley
acknowledged at the suppression hearing that the police knew they could not
interrogate appellant on the day he was arrested, since he had previously invoked
his rights to remain silent and to obtain counsel a year earlier.
         {¶ 50} At a suppression hearing, the evaluation of evidence and the
credibility of witnesses are issues for the trier of fact. State v. Mills (1992), 

, 

, citing State v. Fanning (1982), 

, 1 OBR 57, 58, 

. See, also, State v. DeHass (1967), 

, 

, 

, paragraph one of the syllabus;
State v. DePew (1988), 

, 

. Here,
appellant initiated the conversation by asking the police what he was being charged
with. Appellant was not asked any questions. Therefore, the trial court could
legitimately conclude that appellant’s statements to police after he was arrested
were not the result of a police interrogation, but were voluntary and not elicited in




                                           15
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violation of his constitutional rights. See Oregon v. Bradshaw (1983), 

, 

, 

 (plurality
opinion), construing Edwards v. Arizona (1981), 

, 

, 

. Even assuming error in the admission of appellant’s statements, we
find that any error was harmless. See State v. Richey (1992), 

, 

. Appellant’s twelfth proposition is overruled.
                                   Voir Dire Issues
        {¶ 51} In his nineteenth proposition of law, appellant contends that the
systematic exclusion of jurors opposed to the death penalty violated his right to a
fair and impartial jury. In his twentieth proposition of law, appellant argues that
the exclusion of jurors opposed to the death penalty resulted in a jury biased in
favor of guilt and of death.
        {¶ 52} Appellant’s arguments are not well taken. The voir dire transcript
reveals that the trial court used the correct standard for death qualification of jurors
established in Wainwright v. Witt (1985), 

, 

, 

. See, e.g., State v. Wilson (1996), 

, 

. Moreover, the trial judge properly determined that the death-penalty views of
those excused “would prevent or substantially impair” their performance of their
duties as jurors. Rogers, 

, 17 OBR 414, 

,
paragraph three of the syllabus. We overrule appellant’s nineteenth and twentieth
propositions of law.
                                   TRIAL ISSUES
                                 Admissibility Issues
        {¶ 53} In his ninth proposition of law, appellant asserts that he was
prejudiced when the trial court failed to exclude from evidence the portion of the
police officer’s notes where appellant invoked his right to counsel. Appellant
submits that even though the trial court issued a curative instruction, the danger




                                          16
                                 January Term, 2000




remained that the challenged portion attracted the jury’s attention to an improper
inference that could be drawn from its admission.
        {¶ 54} Clearly, it is improper for evidence to be admitted that a defendant
invoked his or her right to counsel. See Doyle v. Ohio (1976), 

, 618-
619, 

, 

; State v. Chinn (1999), 

, 

. However, after the officer testified that
appellant wanted to talk to an attorney, the trial court immediately reminded the
jury that anyone has the right to invoke the right to counsel. In addition, the court
charged the jury that “[appellant] also has a constitutional right to stop talking to
the police and request counsel at any time. … The fact that he stopped talking
to the police and invoked his right to counsel must not be considered for any
purpose.”
        {¶ 55} Juries are presumed to follow the court’s instructions, including
instructions to disregard testimony. See State v. Zuern (1987), 

, 

; State v. Henderson (1988), 

, 

; State v. Loza (1994), 

, 

. Any error was rendered harmless by the trial court’s curative instructions.
We reject appellant’s ninth proposition.
        {¶ 56} In his tenth proposition of law, appellant raises two arguments
concerning the testimony of Dr. McDonough. In the first instance, appellant claims
that it was error for the trial court to allow Dr. McDonough to testify as an expert
for the state and to offer an expert opinion that appellant’s injury was caused by a
fist-to-mouth injury due to the presence of eikenella corrodens. However, the
determination of an expert’s qualifications to testify on a particular subject is within
the sound discretion of the trial court. State v. Awkal (1996), 

, 

. Accordingly, any question concerning the admission or
exclusion of expert testimony is measured by the abuse-of-discretion standard. See
State v. Bidinost (1994), 

, 

, 322.




                                           17
                             SUPREME COURT OF OHIO




       {¶ 57} The trial court did not abuse its discretion by permitting Dr.
McDonough to testify as an expert on appellant’s injury. Dr. McDonough teaches
a course at the University of Cincinnati dealing with human bites and infections of
the hand caused by bite or fist-to-mouth injuries. While Dr. McDonough does not
specialize in infectious diseases, his expertise in the area of clenched-fist or bite
injuries to hands made him well qualified to testify on this subject. His lack of
expertise in infectious diseases would relate only to the weight of the evidence, not
its admissibility. State v. Jells (1990), 

, 

.
Moreover, we believe that such testimony is properly admitted where the expert
merely observed the medical procedure and testified as to its results. See State v.
Eley (1996), 

, 

, 648-649.
       {¶ 58} In the second instance, appellant claims that the trial court erred in
overruling defense counsel’s objection to Dr. McDonough’s testimony derived
from appellant’s medical records. Under this argument, appellant asserts that since
Dr. Cherney prepared the medical records in issue, Dr. McDonough should not have
been allowed to testify as to their contents, since the records themselves were never
admitted into evidence and Dr. McDonough had no personal knowledge of the
matters discussed by Dr. Cherney with appellant. State v. Chapin (1981), 

, 

, 

. Although Dr. Cherney
prepared the medical reports, Dr. McDonough supervised the surgery of appellant’s
hand and signed the reports prepared by Dr. Cherney. Moreover, Dr. McDonough
was personally involved in the treatment and diagnosis of appellant’s hand injury.
The trial court did not err in permitting Dr. McDonough to testify as to the contents
of appellant’s medical reports, since the reports reflected matters within his
personal knowledge. Appellant’s tenth proposition is overruled.
       {¶ 59} Under his thirteenth proposition of law, appellant complains that the
trial court erred in admitting expert opinion testimony concerning the correlation
between wound patterns on the victim’s body and the shape of objects allegedly




                                         18
                                January Term, 2000




used in the murder of Nathan. Appellant asserts that the expert opinion testimony
of FBI specialist William J. Stokes and Dr. William Oliver of the Armed Forces
Institute of Pathology was not based upon widely accepted knowledge, facts, and
principles, in violation of Evid.R. 702(C)(1).
       {¶ 60} In his video deposition, FBI specialist Stokes testified that he used a
“rectifying enlarger,” the only one he knew of being used for forensic photography,
to correct the plane of the reference scale on autopsy photos of Rhoda Nathan.
Stokes explained that the scale on the autopsy photos was not on the same level as
the wounds on the victim’s body.        The rectifying enlarger compensates for
perspective by making the wounds on the different plane properly match the scale
that is on the autopsy photos. Stokes used State Exhibit 6, a walkie-talkie available
to appellant while he was working at the hotel, to help establish the scale of the
wounds on the autopsy photo. Stokes then opined that the characteristics of the
radio matched up with certain wounds on Nathan’s body depicted on State Exhibit
5.
       {¶ 61} Lieutenant Colonel William Oliver, a medical doctor and forensic
pathologist with the Armed Forces Institute of Pathology, also testified in a video
deposition. Dr. Oliver was provided autopsy photos of Nathan to evaluate pattern
injuries on her body. He converted the photos to digital images to compare certain
wounds with physical evidence linked to the homicide, i.e., metal door chains found
in appellant’s toolbox and the walkie-talkie. Dr. Oliver opined that there was “a
correspondence in shape and scale” between the door chains and marks on the
victim’s body and that he could not rule out “a correspondence” with markings on
the victim and the walkie-talkie.
       {¶ 62} Because neither expert offered an opinion with any reasonable
degree of scientific certainty, appellant claims that the testimony should not have
been admitted as expert testimony.




                                         19
                             SUPREME COURT OF OHIO




       {¶ 63} Both Stokes and Dr. Oliver were presented as experts in their fields.
The standard for determining the admissibility of expert testimony is set forth in
Evid.R. 702: whether expert testimony is admissible depends on whether it will
assist the trier of fact to understand matters “beyond the knowledge or experience
possessed by lay persons.” See, generally, State v. Buell (1986), 

, 22 OBR 203, 207, 

. The state claims that in any event,
the opinions were nevertheless admissible, at least as lay witness testimony under
Evid.R. 701. See Jells, 

, 

. In addition,
the state cites State v. D’Ambrosio (1993), 

, 

, where we held that experts could testify as to possibility rather than only
probability, and that such testimony becomes an issue of sufficiency and not
admissibility.
       {¶ 64} Agent Stokes’s testimony was admissible under Evid.R. 702(C).
The comparisons he made between the walkie-talkie and wounds on Nathan’s body
were similar to techniques used to compare shoeprints and fingerprints in other
cases. The reliability of the comparison in this case was in fact called into question
by defense counsel during cross-examination. The reliability of Dr. Oliver’s
conclusions was also effectively challenged on cross-examination when he
conceded that he could not say for certain that a walkie-talkie or hotel door chains
made the wound markings on Nathan’s body.
       {¶ 65} Since counsel was permitted to fully cross-examine the expert
witnesses, and since the trial court properly instructed the jury that they were to
decide what weight to give such testimony, no abuse of discretion by the trial court
occurred. Buell, 

, 22 OBR at 203, 

.
Accordingly, we overrule appellant’s thirteenth proposition.
                              Sufficiency of the Evidence




                                         20
                                January Term, 2000




       {¶ 66} In his twenty-first proposition of law, appellant argues that the trial
court should have granted his motions for acquittal, pursuant to Crim.R. 29(A),
because the evidence presented was insufficient to support his convictions.
       {¶ 67} When reviewing a claim of insufficient evidence, the relevant
inquiry is whether any rational factfinder, viewing the evidence in a light most
favorable to the state, could have found the essential elements of the crime proven
beyond a reasonable doubt. Jackson v. Virginia (1979), 

, 

, 

; State v. Jenks (1991), 

, 

, paragraph two of the syllabus. The verdict will not be disturbed unless
the reviewing court finds that reasonable minds could not reach the conclusion
reached by the trier of fact. 

, 

.
       {¶ 68} In its brief before this court, the state sets forth nine facts that
collectively provide substantial evidence of appellant’s guilt. Four of the nine facts
cited by the state derive from Dr. McDonough’s testimony and medical records,
which revealed that appellant’s hand wound was infected by the eikenella
corrodens organism that is usually found in dental plaque. At the crime scene, a
tooth of Nathan’s was discovered lying under her head. Another tooth was
recovered from her stomach during the autopsy.
       {¶ 69} Looking at the remaining facts set forth by the state, appellant was
working at the hotel at the time of the murder. Appellant also had possession of a
master key that could open the hotel room where Nathan was murdered.
       {¶ 70} In addition, appellant’s statement as to his whereabouts at the time
of the murder could not be substantiated. Moreover, the wound markings on the
victim were consistent with objects issued to appellant by the hotel. Testimony at
trial noted a similarity between wound markings on Nathan’s body and the shape
of objects (walkie-talkie and hotel door chains) that appellant possessed or had
access to.




                                         21
                              SUPREME COURT OF OHIO




        {¶ 71} Most damaging was the fact that the victim’s unique pendant was
found in the trunk of appellant’s car. This crucial piece of evidence plainly linked
appellant to the murder. Given all of the foregoing, sufficient evidence exists to
support appellant’s conviction under the test set forth in Jenks. Therefore, we
overrule appellant’s twenty-first proposition.
                                   Jury Instructions
        {¶ 72} In his twenty-third proposition of law, appellant asserts that the
court’s instruction on reasonable doubt based on the definition in R.C. 2901.05(D)
constitutes reversible error. However, beginning with State v. Jenkins (1984), 

, 15 OBR 311, 

, paragraph eight of the syllabus, we
have uniformly upheld use of the statutory definition of reasonable doubt in capital
case jury instructions. See, e.g., State v. Moore (1998), 

, 

. We overrule appellant’s twenty-third proposition.
                               SENTENCING ISSUES
                                   Jury Instructions
        {¶ 73} In his fourteenth proposition of law, appellant asserts error in the
trial court’s failure to instruct on residual doubt, which led the state to argue that
appellant had forfeited any right to a weighing of aggravating circumstances against
mitigating factors, since no mitigating evidence was presented. Appellant further
contends that the trial court erred in repeatedly instructing the jury that their verdict
was a “recommendation.”
        {¶ 74} Both of these arguments lack merit. Residual doubt is not an
acceptable mitigating factor. State v. McGuire (1997), 

, 

, syllabus. In addition, use of the term “recommendation” does not
diminish the jury’s sense of responsibility, accurately reflects Ohio law, and does
not constitute error. State v. Woodard (1993), 

, 

. We overrule appellant’s fourteenth proposition.




                                           22
                                January Term, 2000




       {¶ 75} In his twenty-fourth proposition of law, appellant argues that the
court erred in using the statutory definition of reasonable doubt during penalty-phase instructions. Admittedly, the trial court’s reference to the “truth of the
charge” is not the preferred language for a penalty-phase reasonable-doubt
instruction. Moore, 

, 

. However, any such
error is harmless where the trial court clearly instructs the jury that, before
recommending death, it must be convinced beyond a reasonable doubt that the
aggravating circumstances outweigh the mitigating factors, and that the prosecution
has the burden of proof on the issue. State v. Taylor (1997), 

, 29-
30, 

. Since the trial court clearly instructed the jury in this
manner, appellant’s twenty-fourth proposition is not well taken.
                              Proportionality Review
       {¶ 76} In his sixteenth proposition of law, appellant claims that his sentence
is disproportionately severe in relation to the crime committed, and to sentences
imposed in similar cases, and thus violates the Eighth Amendment to the United
States Constitution. In his seventeenth proposition of law, appellant asserts that his
sentence is disproportionately severe when compared to other death penalty cases
in Ohio and Hamilton County. In his twenty-fifth proposition of law, appellant
contends that proportionality review as currently employed does not comport with
either federal or state constitutional law, nor does it follow the plain language of
R.C. 2929.05.
       {¶ 77} None of appellant’s propositions warrants a reversal. We have
consistently rejected these same arguments because (1) there is no federal
constitutional requirement for proportionality review in capital cases, see, e.g.,
Moore, 

, 

; and (2) the statutorily required
proportionality review entails comparing only those cases where death is imposed.
State v. Steffen (1987), 

, 31 OBR 273, 

, paragraph
one of the syllabus.     Proportionality review of appellant’s sentence will be




                                         23
                             SUPREME COURT OF OHIO




accomplished as part of our independent sentence review. We overrule appellant’s
sixteenth, seventeenth, and twenty-fifth propositions.
                         Failure to Merge Murder Counts
       {¶ 78} In his eighteenth proposition of law, appellant contends that the
submission to the jury of two counts of aggravated murder, where only one
conviction could lawfully be entered, tainted the jury’s consideration of its
sentencing recommendation. Appellant submits that his death sentence must be set
aside, since it cannot be determined whether the inclusion of a second count of
aggravated murder affected the jury’s decision to recommend the death penalty.
       {¶ 79} Clearly, since both counts of aggravated murder involved the same
victim, the trial court should have merged these counts, State v. Huertas (1990), 

, 

, instead of merely imposing “concurrent”
death sentences. We confronted this same argument in Moore, 

,

, where we held that although imposing death sentences on both
counts constitutes error, the error is procedural and harmless beyond a reasonable
doubt. See State v. Brown (1988), 

, 

. Moreover, merger of the death sentences as part of our independent
assessment can readily cure any error that taints the jury’s sentencing verdict. See
State v. Cook (1992), 

, 

. Accordingly, we
reject appellant’s eighteenth proposition.
                              Consecutive Sentencing
       {¶ 80} In his twenty-second proposition of law, appellant claims that a trial
court cannot legally impose a term of imprisonment to be served consecutively to
a death sentence. However, the issue is rendered moot either by the execution of
the death sentence or by the failure to execute the death sentence. See, e.g., State
v. Davie (1997), 

, 

; Moore, 

, 

. Appellant’s twenty-second proposition is overruled.
                                 Cumulative Error




                                         24
                                January Term, 2000




       {¶ 81} Under his twenty-sixth proposition of law, appellant contends that
individual and collective errors, whether raised by counsel or not, necessitate
reversal of his conviction and death sentence. Nevertheless, appellant received a
fair trial, and any error is found to be nonprejudicial. “Such errors cannot become
prejudicial by sheer weight of numbers.” State v. Hill (1996), 

, 

. Accordingly, we overrule appellant’s twenty-sixth
proposition.
                       PROSECUTORIAL MISCONDUCT
       {¶ 82} In his fifth, sixth, seventh, and eighth propositions of law, appellant
asserts a number of instances of prosecutorial misconduct throughout trial.
Appellant argues that when the alleged misconduct is considered individually and
collectively, the result must be a reversal of his convictions and death sentence.
Appellant’s fifth proposition of law is essentially a summary introductory argument
of the other three propositions submitted by appellant.
       {¶ 83} The test for prosecutorial misconduct is whether remarks were
improper and, if so, whether they prejudicially affected substantial rights of the
accused. State v. Smith (1984), 

, 14 OBR 317, 318, 

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

, 

,

.
       {¶ 84} In the first group of comments cited by appellant under his sixth
proposition, he claims that the prosecutor improperly appealed to the jurors’
passions when he criticized defense counsel for attempting to shift culpability for
the murder to other hotel employees: “It’s very unfortunate. Their names have been
dragged through the mud in front of the cameras, in front of the press, as being
accused of murder. A murder that Elwood Jones did.” Defense counsel objected,
but the court simply instructed the jury: “[Y]ou heard the evidence as well as I did.
I’ll let you decide what was said about McCall and Henry.” The prosecutor’s




                                          25
                             SUPREME COURT OF OHIO




comment appears to be a fair rebuttal to the defense strategy of shifting suspicion
of the murder to others who worked at the hotel, and can hardly be characterized as
an improper appeal to the jurors’ passions.
       {¶ 85} Appellant also complains that the prosecutor misstated the evidence
in asserting that only the banquet department had the kind of walkie-talkie used for
comparison to the victim’s wounds. Defense counsel’s objection was not ruled
upon, but one prosecution witness did in fact testify that State Exhibit 6, a walkie-talkie of that kind, was one used by the banquet department, in which appellant
worked. Although one defense witness asserted that different departments at the
hotel had walkie-talkies of that kind, the prosecutor’s statement was harmless.
       {¶ 86} Appellant next cites comments where the prosecutor argued that the
defense “conceded that a radio made that mark” on the victim’s body, and where
the prosecutor asserted and further intimated that appellant’s girlfriend, Earlene
Metcalfe, lied for him. Both comments were objected to, and the trial court
sustained both objections.     However, the prosecutor continued to claim that
Metcalfe lied, even though she never testified at trial. In addition, the prosecutor
argued that shoes found during the search of her residence belonged to appellant,
even though no evidence at trial supported that assertion. We agree with the court
of appeals that the comments concerning Metcalfe and the shoes were improper
because they alluded to facts not in evidence. However, these isolated comments
were not outcome-determinative and did not deprive appellant of a fair trial.
       {¶ 87} Appellant next argues under his seventh proposition of law that the
prosecutor denigrated the role and trial tactics of defense counsel, and suggested
that defense counsel were attempting to hide the truth. Here, appellant is referring
to the prosecutor’s remarks on defense counsel’s attempt to cast suspicion for the
murder on other hotel employees. During trial, defense counsel elicited testimony
from hotel employee Lisa Dietz that another hotel employee, Bill McCall, who left
the hotel on the day of the murder, had access to master keys and radios at the hotel.




                                         26
                                 January Term, 2000




After the defense rested, the state called Bill McCall as a rebuttal witness, and he
refuted the implication that he had been involved in the murder. During closing
argument, the prosecutor commented on defense counsel’s “search for doubt, not a
search for the truth.” This remark, not objected to, was not outcome-determinative
and did not deprive appellant of a fair trial.
        {¶ 88} In addition, appellant points to comments made during the
prosecutor’s closing argument concerning defense expert Dr. Solomkin’s testimony
regarding the nature of appellant’s hand injury. Defense counsel’s objection to the
comments was overruled.        Appellant argues that the prosecutor’s comments
improperly implied that the defense expert would say whatever defense counsel
wanted him to say. However, these comments were made during argument. Given
the substantial evidence submitted in this case, we find that these isolated comments
made during argument were nonprejudicial.
        {¶ 89} Appellant also claims that the prosecutor misrepresented defense
counsel’s closing argument during the mitigation phase, and that the defense had
“forfeited at this stage of the trial. … They are asking you to fill in these blanks
that are their mitigation. There is none. They have presented none and now they
want you to basically fill in some things for them, to create evidence as it were.”
However, these comments constituted fair comment by the prosecutor and were
neither improper nor prejudicial. Appellant chose not to present any mitigation
except for residual doubt.
        {¶ 90} Under his eighth proposition of law, appellant asserts prosecutorial
misconduct in the prosecutor’s use of the nature and circumstances of the offense
as an aggravating circumstance. During the rebuttal closing argument at the
mitigation phase, the prosecutor said:
        “What is worth more to him at that point, the life of this lady who has
absolutely done nothing to him or a trinket? He could have left her alive. What’s
his choice? Right here. (Indicating)




                                           27
                             SUPREME COURT OF OHIO




        “And thankfully it was that greed that tripped him up in this case. Had he
left [sic] that go, maybe he would have never been caught but he decided at that
point and that’s the weighing process that he went through. That’s the value he put
on that lady’s life.
        “I trust when you weigh that aggravating circumstance you will give Miss
Nathan’s life more worth than he did.”
        {¶ 91} Defense counsel’s objection that the prosecutor was arguing the
nature and circumstances of the offense as an aggravating circumstance was
overruled. The court of appeals found this statement to be improper and erroneous,
but found the comment to be nonprejudicial. This type of prosecutorial argument
was directly proscribed in State v. Wogenstahl (1996), 

, 

, paragraph two of the syllabus:
        “It is improper for prosecutors in the penalty phase of a capital trial to make
any comment before a jury that the nature and circumstances of the offense are
‘aggravating circumstances.’ “
        {¶ 92} Unlike Wogenstahl, the defense attorney did object immediately
after the comment was made. The comment violated the law enunciated in
Wogenstahl. But in view of the entire penalty-phase proceedings, we find the error
was harmless. See State v. Williams (1983), 

, 6 OBR 345, 

.
        {¶ 93} In the foregoing consideration, we have found several instances of
error that were not outcome-determinative. A similar situation arose in State v. Lott
(1990), 

, 

. In Lott, 

, 555
N.E.2d at 301, this court, quoting United States v. Hasting (1983), 

, 

, 

, observed that “ ‘given the
myriad safeguards provided to assure a fair trial, and taking into account the reality
of the human fallibility of the participants, there can be no such thing as an error-




                                          28
                                January Term, 2000




free, perfect trial, and that the Constitution does not guarantee such a trial. …
[Citations omitted.] …
       {¶ 94} “ ‘ … [I]t is the duty of a reviewing court to consider the trial
record as a whole and to ignore errors that are harmless including most
constitutional violations.’ ” In sum, we overrule appellant’s fifth, sixth, seventh,
and eighth propositions.
                             CONSTITUTIONALITY
       {¶ 95} In his fifteenth proposition of law, appellant challenges Ohio’s death
penalty scheme on numerous constitutional grounds. However, we have previously
found these arguments to lack merit. See, e.g., State v. Zuern (1987), 

, 

; Jenkins, 

, 15 OBR 311, 

;
State v. Watson (1991), 

, 

; State v. Coleman (1988),

, 

; and Buell, 

, 22 OBR 203,

. Therefore, these claims may be summarily rejected. State v.
Poindexter (1988), 

, 

, syllabus. We summarily
overrule appellant’s fifteenth proposition.
            INDEPENDENT REVIEW AND PROPORTIONALITY
       {¶ 96} Appellant was charged with and convicted of being the principal
offender in the aggravated murder of Rhoda Nathan during the course of an
aggravated burglary and aggravated robbery. R.C. 2929.04(A)(7). These counts
are now merged for sentencing purposes. See Moore, 

, 

.
       {¶ 97} Nothing in the nature and circumstances appears mitigating. On the
morning of September 3, 1994, appellant was working at the Embassy Suites Hotel
in Blue Ash, when he used his master key to open the hotel room where Rhoda
Nathan was staying. Upon encountering Nathan, appellant beat her to death with
his hands, a walkie-talkie radio, and other items. Before leaving the scene of the




                                         29
                             SUPREME COURT OF OHIO




crime, he stole money out of Elaine Schub’s purse and stole the diamond pendant
necklace that Nathan always wore around her neck.
       {¶ 98} Since appellant chose not to present any mitigating evidence, there
is little evidence for us to review. Nothing about appellant’s history, character, or
background, as reflected in the record, suggests mitigating factors other than that
he was employed, and was married.               Appellant maintained his innocence
throughout his trial, and claimed to have twice turned down offers to plead guilty
to a lesser offense. The only mitigating factor appellant has presented is residual
doubt, which is not an acceptable mitigating factor under R.C. 2929.04(B). See
McGuire, 

, 

, syllabus. Accordingly, we hold
that the merged aggravating circumstances outweigh any mitigating factors beyond
a reasonable doubt.
       {¶ 99} We find the death penalty in this case to be both appropriate and
proportionate when compared with similar capital cases combining murder with
aggravated burglary, see, e.g., Wogenstahl, 

, 

;
State v. Campbell (1994), 

, 

; and murder with
aggravated robbery, see, e.g., State v. Green (1993), 

, 

; Davie, 

, 

.
       {¶ 100} Based on all the foregoing, we affirm appellant’s convictions and
sentences, including the death sentence.
                                                                 Judgment affirmed.
       DOUGLAS, F.E. SWEENEY and LUNDBERG STRATTON, JJ., concur.
       MOYER, C.J., PFEIFER and COOK, JJ., concur separately.
                                _______________
       COOK, J., concurring.
       {¶ 101} I concur in the majority’s affirmance of the conviction and death
sentence. I disagree, however, with the resolution of Jones’s first proposition of
law, in which Jones argues that his trial lawyers performed ineffectively in failing




                                           30
                                January Term, 2000




to object to Dr. McDonough’s testimony on grounds of physician-patient privilege.
See R.C. 2317.02(B). The majority finds no ineffective assistance because the trial
court “would have been required to overrule” any objection to Dr. McDonough’s
testimony. This conclusion stems from the belief that Dr. McDonough could have
disclosed Jones’s injury to the authorities under R.C. 2921.22(B), thereby resulting
in the loss of any evidentiary privilege. I cannot join in the majority’s analysis
because I view it as misapplying the reporting and privilege statutes.
       {¶ 102} R.C. 2317.02(B)(1) states that a physician shall not testify
“concerning a communication made to the physician … by a patient in that
relation or the physician’s … advice to a patient.” In turn, “communication” is
broadly defined to include “acquiring, recording, or transmitting any information,
in any manner, concerning any facts, opinions, or statements necessary to enable a
physician … to diagnose, treat, prescribe, or act for a patient.”          R.C.
2317.02(B)(4)(a). Thus, the privilege covers a patient’s mere exhibition of an
injury to his physician as well as any oral or written communications between
patient and physician. Baker v. Indus. Comm. (1939), 

, 

, 

, paragraph one of the syllabus.             A physician-patient
“communication” also includes records, charts, laboratory results, and the
physician’s diagnosis. R.C. 2317.02(B)(4)(a); see, also, State v. Webb (1994), 

, 

.          This broad definition of the
“communication” covered by the physician-patient privilege encompasses much of
the evidence and testimony elicited from Dr. McDonough. The testimony and
evidence about Jones suffering a hand injury, the diagnosis of it, the surgery
performed, and the laboratory results concerning the eikenella corrodens organism
were all protected by the privilege.
       {¶ 103} The majority decides that R.C. 2921.22(B) provides a statutory
exception to the physician-patient privilege and that the evidence and testimony
obtained from Dr. McDonough were therefore admissible.            R.C. 2921.22(B)




                                         31
                                  SUPREME COURT OF OHIO




imposes a duty upon physicians “to report to law enforcement authorities any
gunshot or stab wound treated or observed by the physician … or any serious
physical harm to persons that the physician … knows or has reasonable cause to
believe resulted from an offense of violence.” Because Dr. McDonough suspected
that fist-to-mouth contact caused Jones’s hand injury, the majority determines that
R.C. 2921.22(B) applies even though Dr. McDonough did not actually report the
injury to law enforcement authorities.1
         {¶ 104} In support of its conclusion, the majority relies on State v. Antill
(1964), 

, 

, 

, which interpreted the
predecessor statute to R.C. 2921.22(B) as permitting physician testimony without
violating the physician-patient privilege. In Antill, this court explained that the
purpose of the physician-patient privilege is to encourage patients to disclose fully
all their symptoms to their physicians “without fear that such matters will later
become public.” Antill, supra, 176 Ohio St. at 64-65, 26 O.O.2d at 368, 197 N.E.2d
at 551. The court noted, however, that this purpose has already been undermined
when a physician performs the statutory duty to disclose treatment of a person
injured by a deadly weapon. Id. at 65, 26 O.O.2d at 368, 197 N.E.2d at 552.
Because the main purpose of the privilege had already been compromised, “[t]he
only purpose that sustaining the privilege can now serve is to obstruct the course of
justice.” Id. The court thus found no reason to recognize the privilege as a basis for
excluding a physician’s testimony at trial.




1. The threshold requirement for triggering R.C. 2921.22(B)’s reporting duty is the physician’s
observation of any gunshot wound, stab wound, or serious physical harm that the physician knows
or believes to have resulted from an offense of violence. As Jones had no gunshot or stab wounds,
the only remaining predicate for claiming a duty to report on the part of Dr. McDonough is serious
physical harm. Dr. McDonough arguably treated Jones for “serious physical harm” within the
statutory definition of that term; Jones was hospitalized and underwent surgery for his hand injury.
See R.C. 2901.01(A)(5)(a) and (c).




                                                32
                                January Term, 2000




       {¶ 105} The majority applies the Antill reasoning to this case despite the
fact that Dr. McDonough did not report Jones’s injury to police under R.C.
2921.22(B).    But Antill’s reasoning suggests only that the physician-patient
privilege is lost when there has been an actual report pursuant to the physician’s
statutory duty. Indeed, the Antill court emphasized that “[t]he publicity against
which the privilege is supposed to protect has already taken place” because the
details of the wound “must have been reported by the physician to a law-enforcement officer.” (Emphasis added.) Antill, 176 Ohio St. at 65, 26 O.O.2d at
368, 197 N.E.2d at 552. In this case, however, because Dr. McDonough did not
report Jones’s injury, no “publicity” of it had yet taken place. The majority’s
reasoning therefore extends the Antill rationale to a situation where the purpose of
the privilege could have been, but was not actually, compromised by disclosure.
       {¶ 106} Even assuming that the majority’s extension of Antill is a logical
one, Antill is itself flawed and deserves reconsideration. The Antill court basically
concluded that the duty to disclose under R.C. 2921.22’s predecessor created an
exception to the physician-patient privilege in R.C. 2317.02.         This view is
unsupported by either the disclosure statute or the privilege statute.          R.C.
2317.02(B) provides a testimonial privilege that allows a patient to prevent his or
her doctor from testifying on certain matters arising out of the physician-patient
relationship. It is subject to numerous built-in exceptions, none of which is
applicable here. See R.C. 2317.02(B)(1)(a) to (c). In contrast, R.C. 2921.22(B)
commands a doctor to report patient information to law enforcement that would
otherwise be confidential. The disclosure statute does not, however, command the
doctor to testify about those matters in court. The extension of R.C. 2921.22(B)’s
reporting duty into an exception to the R.C. 2317.02(B) privilege mistakenly blurs




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the distinction between the duty of confidentiality, which the duty of disclosure
supersedes, and an evidentiary privilege, which is unaffected by disclosure.2
         {¶ 107} What the Antill court created, and what the majority endorses today,
is an additional exception to the testimonial privilege (based on the public interest
in detecting crime) that the General Assembly has not specifically provided by
statute. But the General Assembly does not need judicial assistance in this regard.
Significantly, it has recognized exceptions to the physician-patient privilege in
situations involving a duty to disclose. For example, R.C. 2921.22(E)(5) expressly
states that “the physician-patient relationship is not a ground for excluding evidence
regarding a person’s burn injury or the cause of the burn injury in any judicial
proceeding” arising from the duty to report burn injuries under R.C. 2921.22(E).
Similarly, R.C. 2921.22(F)(2) also states that “information regarding the report” of
domestic violence under R.C. 2921.22(F)(1) is admissible and shall not be excluded
by the physician-patient privilege. Thus, the legislature apparently recognizes that
a duty to disclose does not necessarily destroy the physician-patient testimonial
privilege. Other states have likewise recognized the distinction between a reporting
duty and an evidentiary privilege, enacting statutes or evidentiary rules that exempt
information and testimony (such as that given by Dr. McDonough in this case) from
the physician-patient privilege. See, e.g., Kan.Stat.Ann. 60-427(e) (no privilege for


2. The majority cites the Legislative Service Commission’s Commentary to Am.Sub.H.B. No. 511
(which enacted R.C. 2921.22[B]) to support its conclusion that the disclosure statute codifies an
exception to the physician-patient testimonial privilege. The majority emphasizes the commission’s
comment that “[t]he reporting requirement under this part of the section is absolute, i.e., no privilege
attaches in the cases covered.”
         While at first glance the phrase “no privilege attaches” seems compelling, it becomes
increasingly less so when examined in context. Indeed, the phrase comes at the end of a sentence
describing the nature of the reporting requirement. The commission’s comment makes clear that no
privilege applies when a doctor is required to report to law enforcement under R.C. 2921.22(B). In
other words, there is no “privilege” to prevent a doctor from making the report required by R.C.
2921.22(B). Whether the testimonial privilege of R.C. 2317.02(B) remains, however, is an entirely
different matter. The majority’s view to the contrary inappropriately elevates the commission’s
comment from an explanation of R.C. 2921.22(B) to a codified exception to R.C. 2317.02(B). And
no such exception appears in the statutory language.




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                                January Term, 2000




information required to be reported by physician or patient); Vt.R.Evid. 503(d)(6)
(no privilege extends to medical conditions required to be reported by statute);
Alaska R.Evid. 504(d)(5) (no privilege applies to information that physician,
psychotherapist, or patient is required to report) and 504(d)(7) (no physician-patient
privilege applies in a criminal proceeding); West’s Ann.Cal.Evid.Code 994 and 998
(no physician-patient privilege in a criminal proceeding).          While I do not
necessarily disagree with the Antill court’s balancing of the physician-patient
privilege with the public interest in criminal justice, the Constitution commits that
balancing to the General Assembly and not to this court. See State v. Smorgala
(1990), 

, 

. Accordingly, I
would hold that R.C. 2921.22(B) is not a statutory exception to the physician-patient privilege in R.C. 2317.02(B).
       {¶ 108} I therefore disagree with the majority that the trial court would have
been required to overrule an objection to Dr. McDonough’s testimony based on
physician-patient privilege. I also believe that Jones’s trial counsel performed
deficiently in failing to raise this objection. By failing to object, Jones’s trial
counsel in effect waived the privilege and allowed Dr. McDonough to offer a link
in the state’s circumstantial case. Dr. McDonough’s testimony about the presence
of the eikenella corrodens organism in Jones’s hand wound corroborated the
prosecution’s theory of a fist-to-mouth injury. This testimony and the medical
evidence along with it tied Jones to the fatal blows inflicted upon Nathan.
       {¶ 109} Nevertheless, I do not believe that, but for the deficient
performance by trial counsel in failing to raise the physician-patient privilege, there
is a reasonable probability that Jones would have been acquitted. Even if Jones’s
trial counsel had raised the objection, they would not have been successful in
completely barring Dr. McDonough from testifying. Dr. McDonough’s testimony
that he treated Jones was not privileged. See Jenkins v. Metro. Life Ins. Co. (1961),

, 562, 

, 17, 

, 125 (physician-patient




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privilege does not bar testimony regarding the fact of professional consultation by
a person on a certain date). This fact of consultation, coupled with the police’s
discovery from hotel employees that Jones had injured his hand on the morning of
Nathan’s murder, provided circumstantial evidence of Jones’s identity as the killer.
Further, there was evidence that Nathan’s wounds were inflicted by objects
consistent with door chains found in Jones’s car and a walkie-talkie that Jones used
while working at the hotel. Another key component of the state’s case was that
Nathan’s missing pendant was discovered in Jones’s car. Given all of the evidence
against Jones, I cannot conclude that exclusion of Dr. McDonough’s testimony
about Jones’s injury would have led to a different trial outcome. I would therefore
reject the appellant’s first proposition of law on that basis.
       {¶ 110} While expressing these reservations, I concur in the judgment of
the majority.
       MOYER, C.J., and PFEIFER, J., concur in the foregoing concurring opinion.
                           __________________




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