State v. Hessler

[This opinion has been published in Ohio Official Reports at 

.]




            THE STATE OF OHIO, APPELLEE, v. HESSLER, APPELLANT.
                       [Cite as State v. Hessler, 

.]
Criminal law—Multiple aggravated murders—Death penalties upheld, when.
(Nos. 96-2819 and 97-52—Submitted February 9, 2000—Decided September 27,
                                           2000.)
  APPEALS from the Court of Common Pleas of Franklin County, No. 95CR-11-
    6906, and the Court of Appeals for Franklin County, No. 96APA12-1664.
                                  __________________
        {¶ 1} Defendant-appellant, Jerry F. Hessler, appears before this court as a
result of his actions on November 19, 1995. On that date, appellant fatally shot
four people (Brian, Tracey, and Amanda Stevens, and Paul Thane Griffin), and
attempted to murder three or four others (Mark Campolito, Ruth Canter, and Judy
and/or Douglas Stanton). The facts leading up to these tragic events are as follows.
                                    The Relationships
        {¶ 2} Appellant met Judy Stanton in the mid-1970s through their
association with the Mormon Church. The two dated off and on for several years.
At some point, the relationship became serious, and the couple discussed marriage.
In 1980, the appellant left for National Guard training. Upon his return, he
discovered that Judy had been dating his friend, Doug Stanton. In fact, Judy and
Doug’s relationship had progressed to the point where they had decided to marry.
When appellant heard this news, he was devastated. He described Doug as “Judas”
and made several threats of physical harm to him. In one such threat, appellant told
Doug, “I’m going to make you a nonentity, you will cease to exist, you will not
know where, you will not know when, and you will not know how, but it will
happen.” Doug and Judy married in January 1981 and eventually moved away from
Columbus. They asked appellant on numerous occasions to leave them alone.
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However, appellant always managed to track them down and consistently sent cards
and packages to Judy. The Stantons’ last move was from Michigan to Ashland,
Ohio. They left no forwarding address. In addition, they told their families and
friends not to give out their address. Finally, the cards and packages stopped.
       {¶ 3} After his breakup with Judy, appellant was hospitalized several times
for mental illness. From April through June 1981, appellant spent several weeks in
day treatment at Riverside Methodist Hospital for severe depression. In August
1982, appellant spent ten days at Riverside for severe depression and was diagnosed
with borderline personality disorder.         In September 1982, appellant was
hospitalized at Ohio State University Medical Center for major affective disorder,
major depression, and dependent personality. In February 1983, following four
weeks at the Central Ohio Psychiatric Hospital (“COPH”), appellant was diagnosed
as having mixed personality disorder with hysterical, dependent, and passive-aggressive features. Appellant received outpatient care from other mental health
professionals during this time as well.
       {¶ 4} Appellant also met Laura Griffin through the Mormon church. Their
relationship began in the mid-1980s. Appellant viewed Laura as his “best buddy.”
Laura began dating David Stacey, another Mormon church member and appellant’s
good friend. At some point, appellant and Stacey had a serious falling out, and
appellant became very aggressive toward Stacey. Appellant began harassing
Stacey and Griffin. They asked appellant to leave them alone. The two married in
1988 and moved from Columbus. Because appellant frightened them, Griffin asked
her parents not to disclose their location. Despite their desire, appellant managed
to locate them and learned their Hawaii address.
       {¶ 5} In 1991, appellant was hired as a customer service representative for
Bank One in Columbus. Through work, he met Tracey Myers, who began working
for Bank One in 1993. Tracey quickly became the object of his affections.
Appellant told his mother that he thought he had finally found a replacement for




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Judy. At first, Tracey was receptive to appellant’s advances. Yet eventually she
asked him to leave her alone. Tracey turned her attentions to Brian Stevens, another
Bank One employee. Tracey and Brian married in 1995. Appellant continued to
shower Tracey with small gifts and unwanted attention. Tracey complained to
Bank One management. Fellow bank employee Amy Wells, married to Doug
Wells, made similar complaints about appellant.
       {¶ 6} Management met with appellant. In August 1994, appellant signed a
document stating that he would not have contact with Tracey. He agreed that if he
did, it would constitute grounds for his termination. When appellant violated the
terms of the document, his supervisor, Mark Campolito, supported by bank
managers (Kim Ogilbee and Mary Freeh), fired appellant in October 1994.
       {¶ 7} As he had been after his breakup with Judy Stanton, appellant was
devastated by his termination. After he was fired, appellant started damaging his
mother’s house and became verbally abusive to her. His mother was so frightened
by appellant’s behavior that she moved out of her house and moved in with her
mother for a time. When appellant’s youngest brother came to the house to retrieve
some camping gear, appellant chased him with a gun. These events prompted
appellant’s family to contact the police, a lawyer, the Columbus prosecutor’s office,
and community health personnel in the spring of 1995 in an effort to get help for
appellant.
       {¶ 8} In May 1995, appellant was involuntarily committed to COPH.
COPH records show that appellant was diagnosed as having delusional disorder,
persecutory type, a possible intermittent explosive disorder, and dependent
personality. When he was discharged from the facility on July 20, 1995, appellant’s
prognosis was only fair. After August 1995, appellant failed to keep followup
psychiatric appointments and may have stopped taking his medication.
       {¶ 9} After his discharge from COPH, appellant returned to his job at
Ameritech, and his family bought a car for him. However, some time in the fall,




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appellant cried to his mother, “I’m back to doing the same things that I did before
I went to the hospital.”
        {¶ 10} In fall 1995, appellant’s mother discovered appellant combing
through a garbage bag in her garage. Appellant told her to stay away. Yet when
appellant left, his mother went through the bag and found items discarded by
Tracey, such as her bank statements and diapers. Appellant’s mother became
worried and she told her daughter-in-law of her findings. On November 14, her
daughter-in-law telephoned Bank One officials to warn them about appellant.
        {¶ 11} On November 12, Karen McNelis, a casual friend, saw appellant at
their health spa. He told her he was going to settle the score with the people
responsible for his firing at Bank One. He appeared determined and said that he
had been thinking about it for over a year.
        {¶ 12} Also, some time in October or November, another friend, Laura
Agaristi, had contact with appellant. He asked her to go target-shooting with him.
He told her that he had a new gun. During one of their conversations, appellant
told her that he was going to bake a cake for Tracey and if she did not accept, it was
“not going to be very pretty.” Earlier that summer, appellant had asked Agaristi to
be his alibi. He said, “You will know when I need it. … Just say that I spent
the night with you.”
                            The Events of November 19
        {¶ 13} In the afternoon hours of November 19, appellant stopped over at his
mother’s house. Before he left, he hugged her and told her, “Mom, everything will
be all right.”
        {¶ 14} Around 5:00 p.m., Roger and Sherry Bartz, neighbors of Brian and
Tracey Stevens, saw a suspicious man walking and then running near the Stevens
house on Tulane Road in Columbus, Ohio. Eventually, this man, whom they later
identified as appellant, drove away in a dark blue Chevrolet Nova with a loud




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muffler. A few minutes before 7:00 p.m., Karen McCoy noticed a “real angry”
man, later identified as appellant, sitting in a parked car near the Stevenses’ home.
        {¶ 15} Shortly after 7:00 p.m., Ruth Canter, Brian and Tracey’s friend,
looked out the Stevenses’ front window and saw a red plastic gas can on the front
porch. When Brian learned of this, he went outside to investigate. Once outside,
Brian saw appellant. He warned appellant to go away or he would call the police.
Brian hurried back inside the house and closed and locked the door. Canter heard
banging on the door. She then heard popping sounds and felt her leg getting hot.
She ran upstairs and hid in Brian and Tracey’s closet. After she heard the screen
door shut and the noise from a loud car, she walked downstairs and found Brian,
Tracey, and their infant daughter, Amanda, lying on the floor. Brian’s seven-yearold son, Reid, was wandering around the downstairs area.
        {¶ 16} At 7:12 p.m., the first police officer arrived at the Stevenses’ home
and found a nearly hysterical Canter, who informed him that people had been shot.
Inside the house, police discovered Brian, Tracey, and Amanda, still alive. Canter
had been shot in the leg. She told the police that appellant was responsible. At the
scene, police recovered eight 9-mm shell casings, as well as five 9-mm bullets or
fragments. Later, coroners also recovered 9-mm bullets from the bodies of Brian,
Tracey, and Amanda. Police noticed that the front door had been knocked off its
frame and that a gasoline container was sitting in the living room.
        {¶ 17} Brian died as a result of a bullet that perforated his intestines and
abdominal aorta. Tracey, shot five to six times, died as a result of two gunshot
wounds. One bullet perforated her skull and brain. Another injured internal
abdominal organs. Tracey had been holding Amanda, and Amanda was shot twice,
possibly by bullets that passed through her mother. The bullet causing Amanda’s
death perforated her colon and small intestine, and injured the spleen, kidney, and
lung.




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       {¶ 18} Appellant left the Stevenses’ home and traveled a few blocks to
another residence. Sometime between 7:20 and 7:30 p.m., he knocked on the door.
When Kera Mechim answered the knock, a man who “seemed very friendly,” later
identified as appellant, asked to speak with Mark Campolito. Mechim explained
that Campolito no longer lived there but that his phone number was the same.
Appellant responded that he did not want to call Campolito, as he was a friend from
out of town and he wanted to surprise him. Appellant asked Mechim two times
whether she was related to Campolito.
       {¶ 19} Somehow appellant discovered Campolito’s address, and around
7:30 p.m., appellant knocked on his Indianola Avenue apartment door. Campolito
looked outside and saw appellant pacing back and forth. When Campolito opened
the door, a nervous appellant told Campolito that he was fine, that he had another
job, and that he felt bad because the two had parted on bad terms. Feeling sorry for
appellant, Campolito invited appellant in to talk. When Campolito went into his
bedroom to quickly put something on his feet, appellant followed him and fired
several shots, one of which hit Campolito in the arm. While lying on the floor,
Campolito retrieved a rifle, and managed to call 911.
       {¶ 20} Police and medics arrived. Campolito told the police that appellant
had shot him, which prompted a statewide alert for appellant. Medics then
transported Campolito to the hospital, where he was hospitalized for eight days.
Despite two operations, at trial Campolito had only limited use of his arm. The
police recovered three 9-mm shell casings and bullet fragments from the apartment.
       {¶ 21} Just after 8:00 p.m., Susan and Paul Thane Griffin, who lived in
Worthington, were talking on the telephone with their daughter, Laura. The
doorbell rang, and Thane went to answer it. Susan heard three loud noises and went
to the foyer. Susan found the front door open and Thane lying in the entryway with
a severe head wound and a bullet wound to the chest.




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                                 January Term, 2000




       {¶ 22} Mary Terminello, a neighbor, heard several popping sounds that
evening and saw a man in his thirties walk from the Griffins’ home and get into a
dark blue or black Chevrolet and drive away. William Gahagan, another neighbor,
also heard three gunshots and saw a dark-colored car drive away. The car’s muffler
made a noticeable rumbling noise. Gahagan went to the Griffins’ house and saw
Thane, bleeding, lying in the entryway.
       {¶ 23} The police and medics arrived around 8:15 p.m.             The medics
transported Griffin to the hospital although he had no pulse. Griffin died as a result
of multiple gunshot wounds. One bullet grazed his liver, and passed through his
intestines, pancreas, and a back muscle, and another bullet fractured his skull,
causing extensive damage to the brain. The coroner recovered two 9-mm bullets
from his body. Police found three spent 9-mm shell casings and a bullet fragment
at the scene.
       {¶ 24} Sergeant Denise Reffitt was working that night monitoring the police
radio. She heard about the multiple homicides and the suspect. She knew appellant
from church. She contacted appellant’s older brother and sister-in-law to determine
other potential victims. The sister-in-law mentioned Judy Stanton and Laura
Griffin.
       {¶ 25} Around 10:00 p.m., Judy Stanton received phone calls from her
brother and Reffitt, urging her to flee her house in Ashland because appellant was
on a shooting rampage. Judy’s husband, Doug, grabbed two guns, and then he and
Judy herded their four children into the kitchen. Doug turned off the lights and
went outside to see if it was safe to leave.
       {¶ 26} After Doug saw appellant approach the house, he retreated, locked
the door, and told Judy and the children to lie down on the kitchen floor. Over the
years, Doug had performed “bad man” drills with the children because of their fear
of appellant. So the children knew what to do and did as Doug instructed.
Appellant knocked on the kitchen door and, in a disguised voice, said he needed




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help. Doug told him to go away. Appellant asked for help three times. Finally,
Doug told appellant that he was armed. Appellant fired three shots through the
back door, kicked the door open, and fired four more shots into the kitchen. Doug,
armed with a Walther .380 and a Colt .45 caliber pistol, saw a silhouette in the
doorway. Doug crouched and returned fire with seven rounds from his Colt .45.
Appellant left.
       {¶ 27} When police arrived, they found several 9-mm bullets or fragments.
They also found bullet holes throughout the kitchen, including three in the back
door. Police recovered seven 9-mm shell casings on the back steps, porch, and
yard. Police also found Doug’s empty Colt .45 lying on the kitchen floor. None of
the Stantons was shot.
       {¶ 28} By 10:30 p.m., Ashland police officers, in response to a statewide
police bulletin, had stopped appellant’s blue Chevrolet Nova.              Appellant
immediately obeyed police directions to get out, and was “calm, polite and
courteous.” He told police that his weapon was still in the car. Although he had
been shot and was bleeding slightly, the bulletproof vest he was wearing had
prevented serious injury. He had $625 and two loaded 9-mm magazines in his
pockets. Appellant told the police, “The guy is good, … he got me from a cross
position, center mass, just like they teach you.” Appellant said, “I was aiming high
and I did not expect him to crouch.” At the hospital, appellant also told a nurse that
he had been taught that “you can do anything you want to do as long as you accept
the consequences.”
       {¶ 29} On the front seat of the car, police found a loaded Smith & Wesson
semiautomatic 9-mm pistol. Appellant had bought this weapon from a Westerville
gun shop on October 27, 1995.
       {¶ 30} Ballistics tests confirmed that this weapon had fired bullets and
shells recovered from the crime scenes and from the victims. Almost all of the




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bullets were hollow-point ammunition. This type of ammunition causes the most
tissue damage.
        {¶ 31} In searching the vehicle, the police found appellant’s passport, pages
from an address book, binoculars, a knife, a sledge hammer, ear plugs, and eleven
books of matches.        Inside the trunk, police found four red plastic gasoline
containers, three of which held gasoline. Under the seats, police found additional
boxes of 9-mm ammunition. Altogether, appellant had around two hundred eighty
lead bullets, fifty-five full metal jacket bullets, and forty hollow-point bullets.
        {¶ 32} On the front passenger floorboard, police found a piece of paper
listing, in appellant’s handwriting, the names and addresses of Kim Ogilbee, Thane
Griffin, Mark Campolito, Mary Freeh, Tracey Stevens, and Doug and Amy Wells.
With the exception of Griffin, every person on the list was associated with Bank
One.
        {¶ 33} In August and September 1996, appellant was tried and convicted.
In November 1996, appellant was sentenced to death for the aggravated murders.
Appellant also received sentences for the attempted aggravated murders and other
charges.1 Appellant appealed both to this court and to the court of appeals. The
court of appeals dismissed the appeal for lack of jurisdiction.
        {¶ 34} This cause is now before the court upon an appeal as of right from
the common pleas court and a motion to dismiss the appeal from the court of
appeals.
                                  __________________



1. Appellant was charged in a twelve-count indictment. He was convicted of six counts of
aggravated murder with death penalty specifications, one count of the lesser included charge of
murder (Amanda Stevens), three counts of attempted aggravated murder, one count of burglary, and
one count of improperly discharging a firearm, all with gun specifications. Counts I and IV were
merged with Count IV surviving, Counts II and V were merged with Count V surviving, and Counts
III and VI were merged with Count III surviving, leaving appellant with a total of four death
sentences. For the remaining offenses, appellant was also sentenced in accordance with law.




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       Ron O’Brien, Franklin County Prosecuting Attorney, and Joyce Anderson,
Assistant Prosecuting Attorney, for appellee.
       David H. Bodiker, Ohio Public Defender, J. Joseph Bodine, Jr. and Kelly
Culshaw, Assistant Public Defenders, for appellant.
                               __________________
       FRANCIS E. SWEENEY, SR., J.
       {¶ 35} The appeal from the court of appeals is dismissed. State v. Smith
(1997), 

, 

.
       {¶ 36} Appellant presents nine propositions of law for our consideration.
See Appendix. We have carefully considered each proposition, independently
weighed the aggravating circumstances against the evidence presented in
mitigation, and reviewed the death penalties for appropriateness and
proportionality. For the following reasons, we affirm the convictions and uphold
the death penalties.
                           Reasonable-Doubt Instruction
       {¶ 37} In his first proposition of law, appellant finds fault with the
reasonable-doubt instruction. This court has repeatedly rejected appellant’s general
complaint about the statutory definition of “reasonable doubt.” See State v. Van
Gundy (1992), 

, 

. Moreover, since appellant
failed to object to the instructions as given, he has waived all but plain error. State
v. Underwood (1983), 

, 3 OBR 360, 

, syllabus.
       {¶ 38} Admittedly, as to Count XI, which dealt with the attempted
aggravated murder of the Stantons, the court did erroneously instruct, “If you find
that the state proved beyond a reasonable doubt any of the elements of attempted
aggravated murder … your verdict must be guilty of that offense.” Although that
statement was wrong, no plain error occurred. The instructions as a whole clearly
conveyed the state’s burden to prove every element of the offenses charged to
permit a guilty finding. Additionally, the evidence of appellant’s guilt as to all the




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offenses, which trial counsel all but admitted in closing argument, was compelling.
No other result could have occurred with a different instruction. Proposition I is
rejected.
                           Jury Misconduct in Sentencing Phase
         {¶ 39} In Proposition II, appellant argues that juror misconduct “infected
the jury’s deliberations and polluted its recommendation.” Appellant asserts that
the trial court erred by not holding a hearing in the presence of all interested parties
to determine whether the jury panel was unfair and biased. Appellant also believes
that the court was required to explain the consequences of a jury deadlock. Finally,
he contends that the court erroneously denied his post-trial motion for a new trial
and an evidentiary hearing based on the alleged misconduct. For the following
reasons, we reject these contentions.
         {¶ 40} As a reviewing court, we show deference to the trial judge, who sees
and hears the events and thus is in a better position to accurately evaluate the
situation and determine the appropriate scope of inquiry. State v. Huertas (1990),

, 

; United States v. Ramos (C.A.5,
1995), 

. Therefore, we employ an abuse-of-discretion
standard and will not reverse the trial court unless it has handled the alleged juror
misconduct or ruled upon the post-trial motion in an “unreasonable, arbitrary, or
unconscionable” manner. State v. Adams (1980), 

, 

, 

. We now consider the relevant facts.
         {¶ 41} The jury began penalty deliberations on Friday morning, October 4.
That night, at 10:15 p.m., the jury reported that it had reached a verdict.2 The judge
assembled the attorneys and appellant, and asked if there was anything further
before he brought the jury back into the courtroom. It was at this point that the


2. The trial court and counsel in their briefs repeatedly refer to “the verdict” or “verdicts” despite
the fact that the decisions rendered by a jury after the mitigation phase are properly termed
“sentencing recommendations.” Semantics aside, we understand what they mean.




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bailiff asked to approach the bench, and informed the judge of a problem.
Thereupon, the judge accompanied the bailiff into the hallway and discovered a
distraught juror. She was crying and saying, “I cannot go back into this courtroom”
and “I will not go into that room anymore with those people, I cannot go any further.
I just cannot do any more.” The judge did not address her. Instead, he returned to
the courtroom and explained the situation to the attorneys. The attorneys agreed
with the judge’s suggestion that he question the juror to find out the problem. The
judge returned to the hallway with the court reporter.
       {¶ 42} The judge asked her if the jury had reached a decision. She said yes.
The judge then asked her whether she would be able to return to the courtroom.
She replied, “I don’t think so, no. I can’t.” The judge then inquired whether she
had signed the verdict forms. After she said that she had, the judge told her she
must return to the courtroom. In reply, the juror stated, “Then I guess I have to, but
I’m going crazy, I do not agree with any of the people in there. They’re all like—
and you know, I cannot handle that pressure. You know, I cannot be around that,
okay. Let’s just do it. Okay, I’m upset, I don’t want to do it. I cannot do it.” After
hearing these remarks, the judge told her he needed to speak with the attorneys.
       {¶ 43} Following consultation with counsel, the judge went back and again
talked privately with the juror. This colloquy appears on the record:
       “The court: [Juror], this is a very important matter and I want you to be
relaxed. I want you—
       “[The juror]: I am not relaxed.
       “The court: Now, you are with the judge and the court reporter—would you
like to have a cup of water?
       “[The juror]: No, no.
       “The court: I want you to relax now. I want to tell you that as a judge, it is
my responsibility to make sure that this trial runs in an appropriate way. Do you
understand that?




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       “[The juror]: Yes.
       “The court: I know you do. Now, [juror], it was indicated to me over an
hour ago, in fact, that this jury had reached a verdict—
       “[The juror]: I’ll go back in there. I’ll go back in.
       “The court: Now, [juror], what has to be done is, you must go into the
courtroom and take your seat, and then, of course, the court will obtain the verdict
forms, okay?
       “[The juror]: Yes, okay.
       “The court: And then—and then it will be the responsibility of [the bailiff],
who you have seen and have known for more than a few days—and then I have to
ask each juror at the appropriate time, at the appropriate time, I have to ask is this
in fact—and then I say the name of each individual juror, and then I ask is this your
verdict? And then you respond in the appropriate way. Do you understand that,
[juror]? You have to respond accordingly. Do you understand that?
       “[The juror]: What if I don’t agree, then what?
       “The court: Well, I cannot say—
       “[The juror]: All right, all right, I will go in there, it’s just that, you know,
I just—you know, the people are so rude and so mean I cannot stand it.
       “The court: I’ll tell you this, [juror]. You are bound by an oath to tell the
truth, you are bound by an oath to tell the truth. And the court—the court and the
parties expect you to abide by your oath. Do you understand that?
       “[The juror]: Yes.
       “The court: Now, the bailiff will ask the question ‘Is this your verdict?’ and
nobody else can answer that, nobody else can answer that. You must answer that.
You have to answer it truthfully and you cannot, you cannot lie about anything. Do
you understand?
       “[The juror]: Yes, okay. Okay.




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       “The court: [Juror], you have taken an oath to tell the truth. Do you
understand?
       “[The juror]: Everyone is yelling at you, okay. All right, fine. Okay, I’m
all right. I’m all right—
       “The court: Wait, wait. I want to make sure you understand that you must
be honest, you must tell the truth, you cannot let somebody else make a decision
for you. Do you understand that? Do you understand that, [juror]?
       “[The juror]: Yes.
       “The court: Would you like a cup of water?
       “[The juror]: No.
       “The court: I want to give you every opportunity to be relaxed and get your
thoughts together so that you are at ease and so that you are comfortable and so you
will answer according to what is true to you, to what is true to you, as to what’s the
truth for you, what is the truth for you. I am only interested in what the truth is for
you. Do you understand that, [juror]?
       “[The juror]: Yes, yes.
       “The court: Do you need more time?
       “[The juror]: I’m okay, I’m okay.
       “The court: If you need more time—
       “[The juror]: No, no, I’m okay.
       “The court: We’re going to go back into the courtroom now, but I want to
make sure you understand and that’s the reason I’m taking this time for you. I want
to make sure you understand.
       “[The juror]: Thank you.
       “The court:     You are more than welcome, [juror].          I understand the
significance of any decision that this jury has to make, and I want to make sure that
you understand that when you go into that courtroom, that you only answer for
yourself, answer only for yourself and no one else. Not for this judge or anyone




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else, no one else is going to put words in your mouth or pressure you. This is your
decision and only your decision, and I cannot emphasize any more than the
importance of you to be truthful and honest with your own convictions. Now, do
you understand that, [juror]?
         “[The juror]: Yes.
         “The court: There is no pressure on you, no one, no one is going to pressure
you into making any kind of decision other than the decision that you yourself are
going to make. Do you understand that, [juror]?
         “[The juror]: I’ll be here forever.
         “The court: [Juror], time is not consequential. What is important, [juror]—
         “[The juror]: It is to me.
         “The court: —what is important is that you make the decision and you alone
can only make the decision that you will be asked in that courtroom. Do you
understand that?
         “[The juror]: Yes. But I have to go home, I need to go home for my kids.
Okay, I guess I’m as ready as I’ll ever be.
         “The court: Are there any questions that you want to ask me about?
         “[The juror]: Yes. I just – okay, if I don’t agree, then what?
         “The court: That’s for me to worry about, not you. You make the decision
as to—
         “[The juror]: Everyone will think I’m crazy, okay. I—okay, I understand.
         “The court: Do you understand, [juror]?
         “[The juror]: Yes.
         “The court: Do you understand when we go into the courtroom what will
happen?
         “[The juror]: Yes.
         “The court: When we go into the courtroom, I will ask the foreperson,
whoever it is, if in fact the jury has reached a verdict. And if in fact, that foreperson




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says yes, we have reached a verdict, then I will ask the question, ‘Does anybody
disagree with the verdict or verdicts that have been signed?’ Do you understand,
[juror], I will ask that question? Do you understand?
       “[The juror]: Yes. Are you going through everybody?
       “The court: Then after the verdicts are given to me, I will review the
verdicts and then the bailiff will read the verdicts forms. Do you understand,
[juror]?
       “[The juror]: Then you ask if everybody agrees with them first?
       “The court: Yes. If anyone disagrees with the verdict or verdicts that have
been reached, [the bailiff], at the appropriate time, will go through and ask each
juror by name, is this your verdict? Is this your verdict? That is the procedure. Do
you understand that?
       “[The juror]: Yes.
       “The court: Are you clear on that?
       “[The juror]: Yes. If I would disagree before that, what would we do?
       “The court: I have to make that decision, I am the judge.
       “[The juror]: Okay, I’m fine, I’m fine.
       “The court: But you have to make that decision, you and only you can make
that decision. Do you understand that?
       “[The juror]: Yes.
       “The court: Okay. Are you sure you’re okay?
       “[The juror]: Yes.
       “The court: All right. I have to go and talk to counsel now. [The bailiff]
will stay with you now.”
       {¶ 44} Following a discussion with counsel, the jury was brought back into
the courtroom and its decision was announced. When individually polled, the juror
stated that she agreed with the recommendations.




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                                January Term, 2000




       {¶ 45} Appellant contends that this dialogue shows that the juror wanted to
vote for life sentences but was unfairly coerced and pressured to vote for death.
Thus, appellant believes he was denied the right to a fair and impartial jury because
of juror misconduct. He asks that his death sentences be vacated, that the matter be
remanded to the trial court for the imposition of life sentences, and that the matter
be remanded for an evidentiary hearing. However, in light of this record, we cannot
say that juror misconduct occurred.
       {¶ 46} “The very object of the jury system is to secure unanimity by a
comparison of views, and by arguments among the jurors themselves.” Allen v.
United States (1896), 

, 

, 

. The
requirement of a unanimous decision, however, does not come without a price.
Heightened emotions and intense feelings are part and parcel of this process.
Experience tells us that during deliberations, it is not unusual to find heavy-handed
influencing, browbeating, and even bullying to a certain extent. For always there
is the possibility that “articulate jurors may intimidate the inarticulate, the
aggressive may unduly influence the docile.” People v. De Lucia (1967), 

, 

, 

; People v. Redd
(1990), 

, 

 (both cases providing policy
reasons for rule prohibiting jurors to impeach their own verdicts).
       {¶ 47} Here, the judge’s entire questioning of the juror appears on the
record. When the court initially confronted the juror, she was upset and unnerved
by the deliberations, thought the other jurors were “mean” and “rude,” and wanted
to go home. The court took great pains to calm her down and carefully reminded
her of the importance of the proceeding and her part in it. Moreover, he repeatedly
told her she must be true to her voir dire oath and vote her conscience, and asked if
she understood his instructions. Several times, the court told her there was “no
pressure” on her and to “answer only for yourself,” and stated, “No one else is going
to put words in your mouth or pressure you.” The juror stated that she understood




                                         17
                              SUPREME COURT OF OHIO




that she would be individually questioned and answered that she knew that she must
be true to her convictions. At the end of the dialogue, the juror said, “I’m fine, I’m
fine.”
         {¶ 48} Furthermore, if there was any chance that she did not agree with the
death sentences announced in court, she had the chance to say so during the
individual jury polling. A jury poll’s purpose is to “give each juror an opportunity,
before the verdict is recorded, to declare in open court his assent to the verdict
which the foreman has returned and thus to enable the court and the parties to
ascertain with certainty that a unanimous verdict has in fact been reached and that
no juror has been coerced or induced to agree to a verdict to which he has not fully
assented.” Miranda v. United States (C.A.1, 1958), 

. Crim.R. 31(D).
Here, the juror was given the chance to declare in open court her assent to or dissent
from the recommendations. Thus, she was given the opportunity to change her mind
if she desired.     However, each time she was individually polled about a
recommendation, she answered that she agreed with it, and she registered no further
complaints. Under these circumstances, we conclude that the juror exercised her
free will and that she agreed with the sentencing recommendations announced in
court. Thus, we do not find that juror misconduct “infected the jury’s deliberations
and polluted its recommendation” as alleged by appellant.
         {¶ 49} Moreover, we do not find the trial court abused its discretion in
proceeding as it did. First, we note that appellant agreed to the procedure employed,
thus waiving all but plain error. State v. Hill (1995), 

, 

.
         {¶ 50} Second, the fact that the questioning occurred in appellant’s absence
is not plain error. An accused’s presence “is a condition of due process to the extent
that a fair and just hearing would be thwarted by his absence, and to that extent
only.” Snyder v. Massachusetts (1934), 

, 

,

, overruled on other grounds, Duncan v. Louisiana (1968), 391




                                          18
                                January Term, 

, 

, 

 (accused not prejudiced by absence from
jury view although prosecutor directed jury to view particular items).
       {¶ 51} We also reject appellant’s contention that the court was required to
hold an evidentiary hearing into the matter according to Remmer v. United States
(1954), 

, 

, 

.
       {¶ 52} In Remmer, the Supreme Court held that when improper contacts
with a jury are discovered by the parties after the verdict, the trial court must
conduct a hearing to determine the effect of those contacts. However, more recent
cases have determined that the complaining party must show actual prejudice. See
Smith v. Phillips (1982), 

, 

, 

;
United States v. Olano (1993), 

, 

, 

; United States v. Sylvester (C.A.5, 1998), 

.
       {¶ 53} In this case, the court did not abuse its discretion in interviewing this
juror as it did in order to make sure that she understood that the choice was hers
and hers alone. No further Remmer hearing was required. The parties knew about
the communications between the court and the juror before they occurred, and did
not suddenly discover them after the trial. Moreover, appellant never asked to
question the juror before the sentence recommendations were announced, nor
immediately thereafter. The lack of prejudice to appellant is manifest. The
discussion at issue was recorded, and occurred after the jury had already reached a
decision and the juror had already signed the sentencing forms. Moreover, in
questioning the juror, the court used appropriate caution in investigating the claim
of misconduct. The judge was careful not to discuss the evidence or substantive
issues and never injected himself into jury deliberations. Since those deliberations
had concluded, nothing said or done by the trial judge could have affected the
deliberations. See State v. Allen (1995), 

, 

; Bostic v. Connor (1988), 

, 

, 886-887




                                         19
                                 SUPREME COURT OF OHIO




(cases finding prejudice “involved the possibility that the jury’s verdict might have
been influenced by the judge’s response”).
        {¶ 54} Nor was the court obligated to instruct this juror as to the
consequences of a breakdown in the deliberative process. See Jones v. United States
(1999), 

, 

, 

, 381-
383. We find that the trial court adequately answered the juror’s concerns in this
regard. The judge correctly told the juror that it was not her concern and that it was
up to him to make a decision if she changed her mind. This explanation is
reasonable because a court has several different options when faced with a hung
jury. For instance, the court could give the Howard3 charge and send the jury back
for further deliberations. Another option is that the court could instruct the jury to
consider life sentences. Or, another possibility, the court could discharge the jury
and impose life sentences. Thus, the court was not faced with just one solution and
was correct in explaining to the juror that it was its responsibility to decide how to
handle the situation.
        {¶ 55} Finally, we consider whether the trial court abused its discretion in
refusing to grant a new trial or to conduct a later evidentiary inquiry.
        {¶ 56} Two weeks after the jury was discharged but before sentences were
imposed, appellant moved for a new trial and an evidentiary hearing on the basis of
the alleged juror misconduct. In support of this motion, appellant presented two
affidavits: one from the distraught juror and the other, submitted after denial of the
motion, from an alternate juror.
        {¶ 57} In her affidavit, the juror asserted that she voted for the death penalty
only after being demeaned and chastised by other jurors for voting for life. She
claimed that she signed solely to avoid further harassment and that she did not
understand the ramifications of signing. She also averred that she was confused by

3. See State v. Howard (1989), 

, 

, paragraph two of the syllabus.




                                               20
                                   January Term, 2000




the judge’s instructions and was afraid of being punished for not going along with
the other jurors. Although she disagreed with the death penalty, she was afraid to
say so in public. The alternate juror, who observed the deliberations, asserted that
there was coercion on the holdouts from jurors favoring the death penalty. She also
averred that the jury disregarded mitigating evidence and did not properly weigh
aggravating circumstances against mitigating factors.
        {¶ 58} The trial court did not err in refusing to consider this evidence. A
firmly established common-law rule flatly prohibits the admission of juror
testimony to impeach a jury verdict. State v. Robb (2000), 

,

, 1043. Reflecting that principle, Evid.R. 606(B), the aliunde rule,
governs the competency of a juror to testify at a subsequent proceeding concerning
the original verdict. It states:
        “Upon an inquiry into the validity of a verdict or indictment, a juror may
not testify as to any matter or statement occurring during the course of the jury’s
deliberations or to the effect of anything upon his or any other juror’s mind or
emotions as influencing him to assent to or dissent from the verdict or indictment
or concerning his mental processes in connection therewith. A juror may testify on
the question whether extraneous prejudicial information was improperly brought to
the jury’s attention or whether any outside influence was improperly brought to
bear on any juror, only after some outside evidence of that act or event has been
presented. However a juror may testify without the presentation of any outside
evidence concerning any threat, any bribe, any attempted threat or bribe, or any
improprieties of any officer of the court.”
        {¶ 59} The purpose of the aliunde rule is to maintain the sanctity of the jury
room and the deliberations therein. State v. Rudge (1993), 

, 

. The rule is designed to ensure the finality
of jury verdicts and to protect jurors from being harassed by defeated parties. The
rule requires a foundation from nonjuror sources. Thus, we have held that “the




                                           21
                             SUPREME COURT OF OHIO




information [alleging misconduct] must be from a source which possesses firsthand
knowledge of the improper conduct. One juror’s affidavit alleging misconduct of
another juror may not be considered without evidence aliunde being introduced
first.” State v. Schiebel (1990), 

, 

.
       {¶ 60} First, we do not consider the alternate juror’s affidavit as outside
evidence. State v. Reiner (2000), 

, 

. Despite the
Crim.R. 24(F) prohibition, the alternate juror was permitted to be present during
deliberations. Since counsel did not object and alleges no error based on her
presence, we consider her as part of the jury. Therefore, her affidavit is not outside
evidence of alleged misconduct.
       {¶ 61} Second, we find that these affidavits do not offer evidence of any
improper extraneous influence (i.e., threats, bribes, or attempted threats or bribes
or improprieties by a court officer); hence, the exceptions to Evid.R. 606(B) do not
apply. Instead, we determine that the affidavits offer internal evidence of the jury’s
deliberations in order to impeach the sentencing recommendations.             This is
precisely what Evid.R. 606(B) prohibits. Thus, the trial court did not abuse its
discretion in overruling the motion for a new trial or an evidentiary hearing.
       {¶ 62} In conclusion, we find that the trial court did not abuse its discretion
in its handling of the alleged improper misconduct or in its ruling on the later
motion for a new trial or an evidentiary hearing. Proposition of Law II is rejected.
                  Admissibility of Evidence in the Penalty Phase
       {¶ 63} In the fourth proposition of law, appellant contends that words he
wrote on the walls of a holding cell after the guilty verdicts were rendered were
erroneously admitted into evidence during the sentencing phase of his trial. These
words were “mercilessly plan, relentlessly prepare, violently execute, ruthlessly
finish.” In sentencing instructions, the court advised the jury to consider this
evidence only with respect to the multiple-murder specifications as rebuttal




                                         22
                                  January Term, 2000




evidence to the mitigating factor as to the lack of the substantial capacity to conform
his conduct to the requirements of the law.
          {¶ 64} The trial court did not abuse its discretion by admitting these
writings as rebuttal evidence. Seldom do a defendant’s own words so cogently
portray his motives, plans, and state of mind.           The evidence thus counters
appellant’s claims that he lacked substantial capacity to conform his conduct to the
requirements of the law. R.C. 2929.04(B)(3). It suggests that he focused his
thoughts on careful planning, preparation, and ruthless execution, and such thinking
tends to contradict clinical psychologist Dr. Jeffrey Smalldon’s testimony about
appellant’s impaired ability to conform his behavior to law. The state was entitled
to introduce relevant evidence rebutting the existence of any mitigating factor first
asserted by the defense. State v. Raglin (1998), 

, 

, 490.
                              Competency to Stand Trial
          {¶ 65} In Proposition V, appellant contends that the trial court, sua sponte,
should have ordered a competency examination and conducted a competency
hearing. We reject this contention.
          {¶ 66} Due process principles require that a criminal defendant who is
legally incompetent may not be tried. State v. Berry (1995), 

, 

. R.C. 2945.37 requires a competency hearing if a request
is made before trial. If the issue is raised after trial has begun, the court will hold a
hearing only if good cause is shown. Therefore, the decision whether to hold a
competency hearing once trial has begun is in the court’s discretion. State v.
Rahman (1986), 

, 23 OBR 315, 323, 

.
The right to a hearing rises to the level of a constitutional guarantee where the
record contains sufficient “indicia of incompetence” to necessitate inquiry to ensure
the defendant’s right to a fair trial. 

, 

.




                                           23
                             SUPREME COURT OF OHIO




       {¶ 67} Here, the record does not reflect indicia of incompetence requiring a
competency hearing. First, although appellant was hospitalized several times for
mental illness, mental illness is not necessarily legal incompetency.        Berry,
syllabus. Moreover, “[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 OBR 207, 210, 

.
       {¶ 68} Second, counsel did not suggest that appellant lacked competence.
If counsel had some reason to question his competence, they would have done so.
       {¶ 69} Third, Dr. Smalldon’s testimony offered no reason to question
appellant’s competence. Smalldon testified that he always began evaluations by
asking, “Is there any reason to question whether this individual is competent to
stand trial?” Yet Smalldon never volunteered any reservations about appellant’s
competence to stand trial. Appellant was articulate, had superior intelligence with
no brain impairment, reported no hallucinations, was oriented as to time and place,
and knew why he was in jail. (In fact, his remark at the hospital after he was
arrested is particularly telling. He stated that he had been taught that “you can do
anything you want to do as long as you accept the consequences.”) We find that
appellant fully cooperated with Smalldon, discussed the offenses and his
preparations for committing them, and was capable of making logical and rational
decisions. The trial court did not abuse its discretion.
                  Prosecutorial Misconduct in Closing Argument
       {¶ 70} In Proposition VI, appellant argues that the prosecutor’s sentencing
argument was “saturated with emotion and served to inflame the jury.” As stated in
State v. Smith (1984), 

, 14 OBR 317, 318, 

, the test regarding prosecutorial misconduct in closing arguments is “whether
the remarks were improper and, if so, whether they prejudicially affected
substantial rights of the defendant.”




                                          24
                                January Term, 2000




       {¶ 71} We have applied this test when considering the claimed improper
comments. We find that when the sentencing argument is viewed in its entirety,
the prosecutor was fair, did not improperly appeal to the jury’s emotion, and did
not create prejudicial error. We reject this proposition of law.
                       Irregular Penalty Recommendations
       {¶ 72} In Proposition VII, appellant argues that based on the jury’s penalty
recommendations, double jeopardy precludes the death penalty.
       {¶ 73} During the penalty hearing, appellant requested individual penalty
recommendations for each aggravating circumstance. The trial court granted the
request and instructed the jury to return separate recommendations as to each
aggravating circumstance in each count. The jury recommended the death penalty
for the R.C. 2929.04(A)(5) multiple-murder specifications in Counts I through V
and Count X, and life sentences for the felony-murder specifications in Counts I
through V.
       {¶ 74} The trial court erroneously instructed the jury to consider each
aggravating circumstance separately. Aggravating circumstances in a single count
are considered collectively in assessing the penalty for that count, and a defendant
is sentenced only on individual criminal counts, not on specifications of
aggravating circumstances. State v. Reynolds (1998), 

, 

; State v. Cooey (1989), 

, 

,
paragraph three of the syllabus. However, appellant cannot complain, since he
asked for these sentencing forms, which were more favorable to him than correct
forms and instructions would have been. “A party will not be permitted to take
advantage of an error which he himself invited or induced.” Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co. (1986), 

, 28 OBR 83, 

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

, 

.




                                         25
                               SUPREME COURT OF OHIO




         {¶ 75} Additionally, we find that appellant’s contention that double
jeopardy prevents the death penalty lacks merit. Appellant relies on Bullington v.
Missouri (1981), 

, 

, 

, which held that
double jeopardy principles precluded the death penalty during a retrial after the jury
recommended and the defendant was sentenced to life imprisonment at his first
trial.
         {¶ 76} In this case, however, no retrial is involved, and the court is not asked
to approve changing an original life sentence to a death sentence. Thus, other
precedents are more relevant. For instance, in Schiro v. Farley (1994), 

, 

, 

, the Supreme Court declined to
“treat the sentencing phase of a single prosecution as a successive prosecution for
purposes of the Double Jeopardy Clause.” Schiro also held that collateral estoppel
would apply only if the record established that an issue was actually and necessarily
decided in a defendant’s favor.
         {¶ 77} The individual sentences in Counts I through V as to the multiple-murder and felony-murder specifications are consistent. The weight to be given an
aggravating circumstance in the R.C. 2929.04 weighing process obviously depends
upon the specific aggravating circumstance involved. The jury could reasonably
find that appellant’s course of conduct in carrying out multiple murders was far
more grave and serious, and thus merited the death penalty, while the felony-murder death specifications did not deserve capital punishment. Cf. State v. Hicks
(1989), 

, 

 (two aggravating
circumstances need not be weighed equally).
         {¶ 78} In this case, the jury recommended death in six different counts, i.e.,
those relating to the multiple-murder specifications in Counts I through V and in
Count X (the aggravated murder of Griffin, which did not include a felony-murder
specification).    No jeopardy attached and no inconsistency exists as to the
recommendations. Proposition VII is rejected.




                                           26
                                January Term, 2000




                          Trial Court Sentencing Opinion
       {¶ 79} In Proposition VIII, appellant argues that the trial court in its
sentencing opinion improperly considered nonstatutory aggravating circumstances
and victim-impact evidence, and failed to give appropriate weight to evidence of
mental impairment.     However, any such errors can be readily cured by our
independent review of appellant’s death sentences. See State v. Lott (1990), 

, 

; State v. Johnson (2000), 

, 

. This proposition is without merit.
                               Constitutional Issues
       {¶ 80} Appellant’s     Proposition       IX   presents   challenges   to   the
constitutionality of Ohio’s death-penalty statutes. These challenges are summarily
rejected. See, e.g., State v. Raglin, 

, 699 N.E.2d at 490; State
v. Poindexter (1988), 

, 

, syllabus; State v. Jenkins
(1984), 

, 15 OBR 311, 

.                   Appellant’s
constitutional challenge to the system of direct Supreme Court review from the trial
court is also rejected. State v. Smith, 

, 

, syllabus.
                         Independent Sentence Evaluation
       {¶ 81} Having considered appellant’s propositions of law, we now review
appellant’s death sentences for appropriateness (also raised in appellant’s third
proposition of law) and proportionality.
       {¶ 82} In mitigation, appellant presented the testimony of several witnesses.
Carlene Hessler, appellant’s mother, testified that appellant was the oldest of three
sons. Her husband and appellant’s father, Earl, was an alcoholic for many years.
Earl would verbally, and sometimes physically, abuse the entire family. However,
his worst abuse of his sons was directed toward appellant. Earl did not have a close
relationship with his sons and never attended any school functions.
       {¶ 83} Appellant was an average student in school and was an avid reader.
He graduated from high school, was active in the Mormon church, and went on his




                                           27
                              SUPREME COURT OF OHIO




church mission to Louisville, Kentucky, for two years. After he returned from his
mission, he lived at home. Appellant did not drink or smoke, and his frequent
exercise kept him in good shape. Appellant was in the National Guard, which he
loved, until his arrest in 1995.
        {¶ 84} Following his breakup with Judy Stanton, appellant was hospitalized
several times in 1981, 1982, and 1983 because of his mental condition. After he
was released, he lived with his maternal grandmother for a period of time.
        {¶ 85} After his hospitalizations, appellant worked steadily for JC Penney,
Metropolitan Insurance, and Bank One. When his father died in 1986, appellant
moved back home. However, this was not a good arrangement, because appellant
took over the house. In addition, appellant had horrible nightmares and cried a lot.
        {¶ 86} Appellant was devastated after he was fired from Bank One. He
became increasingly unstable. His mother was so scared of him that she moved out
of her house. After she left, appellant severely damaged the house. Appellant broke
mirrors, punched holes in many walls, emptied drawers, removed a whole wall and
back door, and scattered dirty dishes and garbage everywhere.
        {¶ 87} Appellant’s mother also testified regarding the family’s efforts to get
help for him in 1995. Various records document the family’s attempts to secure
help from the authorities.
        {¶ 88} Appellant’s youngest brother, Russell Hessler, confirmed that Earl
was an alcoholic and abusive father. Although Earl would verbally and physically
abuse them, Earl seemed angrier with appellant. While growing up, Russell and
appellant had a “stormy relationship.” After Russell left the Marine Corps, both he
and appellant lived at home, but appellant would stay up all night and make noises,
making it difficult for others to sleep. Appellant was inconsiderate of his family
members and would not take responsibility for his actions.          When appellant
returned home in 1986 after his father’s death, he took over the house and objected
when Russell stopped by to visit.




                                          28
                                January Term, 2000




       {¶ 89} In the spring of 1995, appellant became more violent. He destroyed
the house and left it ankle deep in trash and debris. Once, when Russell stopped
over to get camping gear, appellant appeared “very excited, agitated, wild looking”
and chased him with a metal pipe and gun.
       {¶ 90} Dr. Randy Otto, a clinical psychologist, reviewed appellant’s mental
health records and found that his behavior before the offenses was “alarming and
disturbing” and presented a high risk of violence to others. In his view, the 1995
COPH records lacked a plan to decrease this risk. Otto believes that appellant’s
July 1995 discharge from COPH was “ill conceived and poorly planned.”
       {¶ 91} Dr. Jeffrey Smalldon, a clinical psychologist, reviewed case records
and conducted comprehensive interviews and tests.           Appellant was always
“unfailingly polite and cooperative,” but at times was “very depressed,” and at other
times his mood was elevated. Appellant was bright, with an IQ of 121, but was an
underachiever in school. Appellant was “very serious, very earnest, intense and
rigid” and his life’s dominant theme concerned “his history of relationships.”
Appellant’s relationship with his mother was ambivalent; at times it was “highly
confrontational” and he spoke contemptuously of her although he had a “strong
dependency on her.” He hated his father. In his twenties, his strongest relationship
was with Judy Stanton, and later, Laura Griffin.          His recurring pattern in
relationships was to idolize a woman and give her a lot of attention, which
ultimately would be viewed as “excessive and suffocating and intrusive.”
       {¶ 92} Because of his father’s abuse, appellant suffered from chronic
feelings of inadequacy, low self-esteem, and uselessness, and grew up as a lonely,
isolated individual with few friends and limited social skills. His relationship with
the Mormon church ended in 1986 or 1987 because of his “unchristian conduct,”
and that also devastated him. He joined the National Guard in 1980, which served
as one area of success in his life. He also remained steadily employed in the
customer-service field.




                                         29
                            SUPREME COURT OF OHIO




       {¶ 93} According to Smalldon, all the clinicians who evaluated appellant at
COPH agreed that appellant was very seriously mentally ill and dangerous. Yet
appellant lacked insight into his mental illness and had a long history of
noncompliance with outpatient treatment. Appellant’s profile indicated chronic
maladjustment and extreme emotional immaturity with strong feelings of
persecution. Smalldon believed that appellant suffers from borderline personality
disorder, passive-aggressive disorder, caffeine-related disorder, narcissistic and
obsessive compulsive traits, and possibly bipolar disorder.
       {¶ 94} In Smalldon’s opinion, appellant’s “severe and longstanding mental
illness” substantially impaired his ability to conform his behavior to the
requirements of the law and constituted a mitigating factor under R.C.
2929.04(B)(3). Smalldon testified that appellant never expressed remorse, or
exhibited guilt or shame for what he had done, was oriented as to time and place,
reported no hallucinations, and was capable of making logical and rational
decisions.   He stated that appellant does very well in a highly structured
environment like prison.
       {¶ 95} After independent assessment, we find that the evidence proves
beyond a reasonable doubt the aggravating circumstance charged against appellant
in Counts III, IV, V, and X. As to each count, appellant engaged in a “course of
conduct involving the purposeful killing of or attempt to kill two or more persons.”
R.C. 2929.04(A)(5). We find that the evidence establishing appellant’s intent to
kill several persons is compelling and was proven beyond reasonable doubt.
       {¶ 96} Considering mitigation, nothing in the nature and circumstances of
the offenses is mitigating. The evidence shows that appellant methodically planned
to kill several victims that Sunday evening in several different locations. Although
not the target of his aggressions, innocent children were endangered. In fact,
Amanda Stevens was murdered simply because she happened to be in her mother’s
arms. Appellant’s purchase of a weapon three weeks before and his conversations




                                        30
                                January Term, 2000




with family and friends indicate that he had thought about his revenge for a long
time before he acted. Moreover, by using hollow-point ammunition, he clearly
intended to inflict maximum injuries on his victims.
       {¶ 97} Nothing in appellant’s character and his relationships with other
people suggests mitigation. However, appellant’s history and background do have
mitigating features. As a youth, appellant suffered mental and physical abuse from
his alcoholic father. His mother’s dependent personality did little to shield him
from this abuse. In fact, she suffered right along with appellant and his brothers.
Appellant’s abusive father and dependent mother undoubtedly contributed to his
mental difficulties. His family background provides some mitigation. See State v.
Berry, 

, 

; State v. Awkal (1996), 

, 

.
       {¶ 98} Appellant did work steadily throughout his life and thereby
contributed to society, a fact deserving weight in mitigation. State v. Mitts (1998),

, 

; State v. Awkal, 

,

. Appellant also served honorably in the Ohio National Guard
for over fifteen years, earning promotion to the rank of sergeant first class.
       {¶ 99} R.C. 2929.04(B)(3) sets forth the following mitigation factor:
“Whether, at the time of committing the offense, the offender, because of a mental
disease or defect, lacked substantial capacity to appreciate the criminality of the
offender’s conduct or to conform the offender’s conduct to the requirements of the
law.” Dr. Smalldon believed that appellant met the criteria for this mitigating
factor. We give weight to that opinion.
       {¶ 100} Unquestionably, appellant has serious mental problems that
contributed to his conduct that Sunday evening. His mental problems necessitated
extensive hospitalization in 1981 through 1983, when he was suffering from
adjustment reaction and severe depression. In the late spring and summer of 1995,
he was involuntarily committed to COPH for psychiatric care and diagnosed with




                                          31
                             SUPREME COURT OF OHIO




a “delusional disorder, persecutory type,” and possible “intermittent explosive
disorder.” Seen by many mental health professionals, appellant was repeatedly
diagnosed with disorders including mixed personality disorder, borderline
personality, and dependent personality. Also, Dr. Smalldon believed that appellant
suffered from a bipolar disorder and a caffeine disorder (caused by abuse of caffeine
pills), and may have suffered from a delusionary disorder of a persecutory type.
However, Dr. Smalldon did find that appellant was oriented as to time and place,
reported no hallucinations, and was capable of making logical and rational
decisions. In fact, Dr. Smalldon believed that appellant could choose to kill. On
balance, we find that the (B)(3) factor was proven.
       {¶ 101} The mitigating factors found in R.C. 2929.04(B)(1), (2), (4), (5),
and (6) were not proven.
       {¶ 102} Based on the evidence, the aggravating circumstance in Count III
(the felony murder of Amanda Stevens) outweighs the mitigating evidence beyond
a reasonable doubt. Appellant’s course of conduct in multiple killings is a grave
circumstance.    Appellant’s mitigating evidence pales in significance when
compared with the aggravating circumstance in Count III.
       {¶ 103} The multiple-murder aggravating circumstance in Count IV
(murder of Brian Stevens with prior calculation and design) also outweighs
appellant’s mitigation. Appellant deliberately planned and executed Brian simply
because he married a woman appellant liked. The aggravating circumstance in
Count V (murder of Tracey Stevens with prior calculation and design) also
outweighs appellant’s mitigation. Appellant planned Tracey’s murder and stalked
her for over a year after she told him she wanted nothing to do with him. Then he
killed her in a course of conduct that also ended the lives of her husband and infant
daughter. Appellant’s mitigation is insignificant in light of the multiple-murder
aggravating circumstance.




                                         32
                               January Term, 2000




       {¶ 104} As to Count X (murder of Griffin with prior calculation and
design), the multiple-murder specification also outweighs appellant’s mitigation.
Again, appellant’s mitigation counts for little when considered against his course
of conduct in executing multiple victims.
       {¶ 105} The death penalty imposed for each aggravated murder is
appropriate and proportionate when compared with the death penalty for other
murders that were part of a course of conduct involving multiple murders or
attempted murders. See, e.g., State v. Cornwell (1999), 

, 

; State v. Clemons (1998), 

, 

; State
v. Mitts, 

, 

; State v. Keith (1997), 

, 

.
       {¶ 106} Accordingly, we affirm the judgment of the trial court.
                                                                Appeal dismissed
                                                            in case No. 97-52 and
                                                               judgment affirmed
                                                             in case No. 96-2819.
       RESNICK, COOK and LUNDBERG STRATTON, JJ., concur.
       MOYER, C.J., and PFEIFER, J., dissent.
       DOUGLAS, J., concurs in part and dissents in part.
                              __________________
       MOYER, C.J., dissenting.
       {¶ 107} I concur with the decision of the majority affirming appellant’s
conviction for aggravated murder. However, for the following reasons, I would
reverse the death sentence imposed by the trial court.
       {¶ 108} The majority concludes that the distraught juror exercised her own
free will and that she agreed with the sentencing recommendations announced by
the jury. However, while the juror in question did state that she agreed with the
recommendations of the jury when individually polled by the court, the mental




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anguish she exhibited to the trial judge before the announcement of the jury
recommendations required further inquiry into possible jury misconduct during the
sentencing deliberations.
        {¶ 109} When speaking with the distraught juror in the hallway, the trial
judge informed her that, as a juror, she was required to return to the courtroom if
she had signed the verdict form. The juror responded, “Then I guess I have to, but
I’m going crazy, I do not agree with any of the people in there. They’re all like—
and you know, I cannot handle that pressure. You know, I cannot be around that,
okay. Let’s just do it. Okay, I’m upset, I don’t want to do it. I cannot do it.”
        {¶ 110} Later, in the judge’s chambers, the juror made several references to
the conduct of the other jurors participating in the sentencing deliberations. At one
point she stated, “All right, all right, I will go in there, it’s just that, you know, I
just—you know, the people are so rude and so mean I cannot stand it.” She went
further to say, “Everyone is yelling at you, okay. All right, fine. Okay, I’m all
right. I’m all right.”
        {¶ 111} The trial judge did take measures to ensure that the juror agreed
with the verdict she indicated on the verdict form. However, it is apparent from the
nature of her comments that she was extremely distraught over the events that had
occurred during the sentencing deliberations. Her comments also suggested that
the other jurors may have threatened or coerced her during the sentencing
deliberations.
        {¶ 112} Evid.R. 606(B) strictly prohibits challenging a jury verdict based
on jury misconduct without some outside evidence of misconduct. Here, however,
the judge became aware of the possibility of juror misconduct before the
announcement of the jury’s sentencing recommendations. “[J]urors are observable
by each other, and may report inappropriate juror behavior to the court before they
render a verdict.” (Emphasis sic.) Tanner v. United States (1987), 

, 

, 

. Therefore, I conclude that the




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prohibitions embodied in Evid.R. 606(B) do not preclude inquiry into the conduct
of jurors during sentencing deliberations, as long as the inquiry takes place before
the announcement of the jury’s recommendations.
       {¶ 113} One could reasonably conclude from the distraught juror’s
responses to the trial judge that her signing of the jury verdict form was not her free
and willing act. She told the judge that she did not agree with the other jurors; she
wanted to know the consequences of her failure to agree with the other jurors; and
she expressed an urgent desire to go home “for my kids.”
       {¶ 114} Although the trial judge earnestly and repeatedly attempted to
assure the juror that her decision should be hers alone, her responses to his
admonitions and assurances created at least the appearance that she probably had
voted for the death penalty under some form of duress.
       {¶ 115} Section 5, Article I of the Ohio Constitution guarantees the right to
a trial by jury, and this right “carries with it by necessary implication the right to
trial by a jury composed of unbiased and unprejudiced jurors.” Lingafelter v.
Moore (1917), 

, 

, paragraph one of the syllabus. Under
the facts of this case, the principles embodied in Section 5, Article I of the Ohio
Constitution required further inquiry by the trial judge into the conduct of the jurors
during sentencing deliberations.
       {¶ 116} It is the responsibility of the highest court of this state to carefully
review the record and determine whether the proceedings in the trial court stand the
test, not of perfection, but of fundamental fairness. In reviewing a record we
determine fairness by applying the statutory scheme and rules for criminal
procedure adopted by this court. The General Assembly has provided that “[i]f the
trial jury unanimously finds, by proof beyond a reasonable doubt, that the
aggravating circumstances the offender was found guilty of committing outweigh
the mitigating factors, the trial jury shall recommend to the court that the sentence
of death be imposed on the offender.” (Emphasis added.) R.C. 2929.03(D)(2).




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        {¶ 117} The very nature of the death penalty requires that every measure be
taken to ensure that the penalty is given only to those meeting the statutory
requirements. The jury’s recommendation regarding the sentence to be imposed
for aggravated murder is an essential element in the sentencing scheme. A court
may not sentence a defendant to death without a unanimous jury recommendation
for the death penalty.
        {¶ 118} For these reasons, I conclude that the trial judge, when confronted
with such substantial evidence that a juror’s signature on the verdict form was not
given freely and without duress, was obligated to conduct an evidentiary hearing to
determine whether misconduct had occurred. Given the serious nature of the
comments and conduct of the distraught juror, I further conclude that the failure to
conduct such an evidentiary hearing was prejudicial error. For this reason, I would
hold that appellant’s death sentence should be reversed and the case remanded to
the trial court for resentencing.
        PFEIFER, J., concurs in the foregoing opinion.
                                __________________
        DOUGLAS, J., concurring in part and dissenting in part.
        {¶ 119} I concur with the judgment of the majority affirming appellant’s
conviction for aggravated murder. I respectfully dissent from the judgment of the
majority affirming the death sentence imposed by the trial court. As for my reasons
for doing so, I join in the comments of Chief Justice Moyer.
                                __________________


                                    APPENDIX
        {¶ 120} Proposition of Law No. 1: When a capital jury is given reasonable
doubt instructions that relieve the state of proving every element of an offense or
specification, a resulting conviction is void. U.S. Const. Amend. V, VI and XIV;
Ohio Const. Art. I, §§ 2, 9, 10 and 16.




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                                January Term, 2000




        {¶ 121} Proposition of Law No. 2: When evidence of juror misconduct is
presented to a trial court prior to the return of the jury’s recommendation and prior
to sentencing, a hearing must be held to determine if the jury misconduct proves
that the jury panel was unfair and biased or that the outcome of the sentencing
determination was invalid.
        {¶ 122} Proposition of Law No. 3:        Jerry Hessler’s death sentence is
inappropriate. His abusive childhood and military service coupled with a mental
illness that substantially impaired his ability to conform his conduct to the
requirements of the law and Central Ohio Psychiatric Hospital’s disregard of its
irresponsibility [sic] to protect society from the dangerously mentally ill mitigate
in favor of a life sentence.
        {¶ 123} Proposition of Law No. 4: Admission of irrelevant and highly
prejudicial evidence during the sentencing phase of a capital trial violates a capital
defendant’s right to reliable sentencing and due process as guaranteed by the Eighth
and Fourteenth Amendments to the United States Constitution and §§ 9 and 16,
Article I of the Ohio Constitution.
        {¶ 124} Proposition of Law No. 5: When a trial judge is confronted with
indicia that a defendant is incompetent to stand trial, a trial court must sua sponte
order a competency evaluation and conduct a hearing. U.S. Const. Amend. VI,
VIII, and XIV; Ohio Const., Art. I, §§ 2, 9 and 10.
        {¶ 125} Proposition of Law No. 6:         When prosecutors make closing
argument in such a manner that it inflames the jury, a capital defendant is denied
his substantive and procedural due process rights to a fair trial as guaranteed by the
Sixth, Eighth and Fourteenth Amendments to the United States Constitution, as
well as Article I, Sections 9 and 16 of the Ohio Constitution.
        {¶ 126} Proposition of Law No. 7: When a capital jury returns a life
sentence and a death recommendation on the same count of aggravated murder,




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jeopardy attaches and the trial court must sentence the defendant to the life term.
U.S. Const. Amend. V, VI, VIII, and XIV; Ohio Const., Art. I.
       {¶ 127} Proposition of Law No. 8: When a trial court weighs the nature and
circumstances of the offense as aggravating, considers victim impact evidence and
incorrectly weighs Ohio Rev.Code § 2929.04(B)(3) mitigation, a capital defendant
is deprived of his right to individualized sentencing and of his liberty interest in the
statutory sentencing scheme thus violating rights guaranteed by the Fifth, Eighth
and Fourteenth Amendments to the United States Constitution and §§ 9 and 16,
Article I, of the Ohio Constitution.
       {¶ 128} Proposition of Law No. 9:             Ohio’s death penalty law is
unconstitutional. The Fifth, Sixth, Eighth and Fourteenth Amendments to the
United States Constitution and §§ 2, 9, 10 and 16, Article I of the Ohio Constitution
establish the requirements for a valid death penalty scheme. Ohio Rev.Code Ann.
§§ 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04 and
2929.05, (Anderson 1996), do not meet the prescribed constitutional requirements
and are unconstitutional on their face and as applied to Jerry Hessler.




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