State v. Smith

[This opinion has been published in Ohio Official Reports at 

.]




              THE STATE OF OHIO, APPELLEE, v. SMITH, APPELLANT.
                       [Cite as State v. Smith, 

.]
Criminal law–Aggravated murder–Death penalty upheld, when.
      (No. 98-912—Submitted October 12, 1999—Decided January 5, 2000.)
     APPEAL from the Court of Appeals for Lorain County, No. 96CA006331.
                                  __________________


        {¶ 1} On the morning of January 19, 1994, a partially clad male body was
found in a Cleveland cemetery. Two weeks later, the body was identified as that
of Ronald Lally of Elyria. Over a year later, defendant-appellant, Raymond Smith,
and two others including his son, Danny Smith, were indicted for aggravated
murder, a firearm specification, and a death penalty specification, alleging that
Lally was purposely killed to prevent his testimony in a separate criminal
proceeding. Subsequently, a jury found appellant guilty as charged, and he was
sentenced to death.
        {¶ 2} In June 1993, Ronald Lally contacted the Elyria police and advised
them that he wanted to reform himself and stop doing drugs. He felt the best way
he could do that was to turn in his supplier. Lally signed an agreement with Elyria
Police Detective Alan L. Leiby to become a confidential informant for the Elyria
Police Department. On June 7, 1993, with Leiby’s assistance, Lally was wired with
a hidden monitoring device and made a controlled drug buy of crack cocaine from
Danny and appellant. As a result of the controlled buy, police arrested Danny and
appellant in August 1993 and charged them with aggravated drug trafficking. Both
cases were eventually set for trial on January 19, 1994.
        {¶ 3} Lally’s fiancée, Sandra Williams, testified that on September 7, 1993,
Danny approached her in her yard. Danny said he knew where Lally was and told
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her that Lally would feel “real bad” if anything happened to her or to members of
Lally’s family. Danny also told Williams that he knew where Lally’s parents lived
and that it would be a shame if their trailer happened to get blown up.
       {¶ 4} On the afternoon of September 15, 1993, Police Officer John Homoki
responded to a disturbance call at the Mr. Hero’s restaurant on Middle Avenue in
Elyria. As he pulled into the Mr. Hero’s parking lot, Homoki noticed Stan Jalowiec
turn around and walk away from the area. He then saw Lally and Danny talking in
front of the store doorway. Lally appeared to be extremely upset.
       {¶ 5} Lally hurried across the lot to Homoki’s cruiser and told Homoki:
“John, these guys are going to fuck me up.” Lally explained that he was a police
informant, that he had bought drugs from these individuals, and that they had
threatened to kill him. Homoki yelled over to Jalowiec to stand by, and then
approached Danny, who said excitedly while pointing to Lally: “That punk ass
bitch … is going to get his.” Danny then denied that he was threatening Lally.
Consequently, Homoki asked Lally if he wanted to pursue charges for intimidation,
but Lally declined, saying that he just wanted to get out of the area.
       {¶ 6} A few months before January 1994, Danny approached Terry
Hopkins and asked him to “kill somebody,” but Hopkins declined. Danny told
Hopkins that he wanted the person killed “because he had informed the police of
his doings.”
       {¶ 7} Brian Howington, a nephew of Joann Corrine Fike, knew appellant
through his visits to his aunt’s house. On the evening of January 18, 1994,
Howington went with Jalowiec to a couple of bars in his aunt’s car, a Chrysler
LeBaron convertible. Jalowiec asked Howington to take him to “a friend’s house,”
and the pair went to Lally’s apartment on Middle Avenue. There, they smoked
crack cocaine with Lally and his roommate. Around 10:00 p.m., the group went
over to the aunt’s house, “partied some more and shot some pool.” Jalowiec
received a message or a page on his beeper, and he asked Howington if he could




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borrow the aunt’s LeBaron. At first, Howington said no, but after Jalowiec pleaded
with him repeatedly, Howington relented and let him borrow the LeBaron.
According to Howington, Jalowiec and Lally left the aunt’s house at around
midnight.
       {¶ 8} Around 11:00 p.m., Sharon Hopkins went to Razzle’s bar in Elyria
with her brother Terry Hopkins, appellant and his two sons, Michael and Danny
Smith, and several other people including Stan Jalowiec. The group stayed at
Razzle’s until it closed, and then went to eat at Mom’s Open Kitchen until around
2:45-3:00 a.m. However, Jalowiec was not with the group at Mom’s Open Kitchen.
After leaving Mom’s Open Kitchen, Sharon Hopkins rode in a car driven by Danny
that included Michael and appellant. The car went past the railroad tracks on
Middle Avenue whereupon appellant and Michael Smith got out of the car and
walked over to a barn in the woods. Danny drove the car back across the tracks
and into a parking lot where he parked the car with the lights off.
       {¶ 9} Around five to ten minutes later, a LeBaron convertible went past the
parking lot, over to where appellant and Michael were dropped off. Shortly
thereafter, the LeBaron drove back across the tracks and proceeded north towards
town. Danny then followed the LeBaron in his car and signaled the driver to pull
over. Danny ducked down in the driver’s seat, and Sharon Hopkins noticed that
Jalowiec was driving the LeBaron and that there were three other people in the
vehicle. However, Sharon could not identify the other occupants of the LeBaron.
Danny then drove away and dropped Sharon off at her apartment.
       {¶ 10} At around 3:30 that January morning, Terry Hopkins arrived at
Danny’s apartment after the group had left Mom’s Open Kitchen. Danny was there
and appeared to be “nervous, bothered.” Danny said “he was sick.” He also said
“they did it.” Thereafter, Terry left and went to his sister’s apartment.
       {¶ 11} After daybreak, Terry returned to Danny’s apartment and found
appellant, Danny, and Michael there with Jalowiec. While Terry Hopkins could




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not recall who specifically made what statement, he believed that Jalowiec said that
“they had killed the guy.” Moreover, “[t]hey said that they had shot the victim and
they had run him over with a car and stepped on him and stabbed him with
something ….” According to Terry, “they were bragging about it.”
       {¶ 12} At approximately 5:00 or 6:00 a.m. that same morning, appellant and
Jalowiec returned the LeBaron convertible to Fike. According to Fike, the weather
that morning was extremely cold and the car was covered with ice. According to
Howington, the car was frozen because Jalowiec and appellant had just washed it.
Fike noticed some blood in the car and also noticed that Jalowiec’s knuckles were
bleeding. But appellant and Jalowiec told Fike that there had been a fight behind
Mom’s Open Kitchen.
       {¶ 13} At approximately 9:55 a.m. on January 19, Cleveland Police
Detective Michael Beaman answered a call reporting that a male body had been
found on a driveway in a cemetery on Quincy Avenue in Cleveland. The partially
clad and bloody body was lying face down on a cemetery roadway. The victim’s
shirt and coat were lying nearby on a snow mound, but there was no identification
on or near the victim. Approximately two weeks later, Lally’s family contacted
Cleveland police about their missing relative from Elyria. Subsequently, members
of the Lally family came to the Cuyahoga County Coroner’s Office and identified
the victim as Ron Lally. As a result of Lally’s death, the aggravated trafficking
charges against appellant and Danny Smith scheduled for trial on January 19 were
dismissed.
       {¶ 14} Deputy coroner Dr. Heather N. Raaf, who performed the autopsy on
Lally, concluded that Lally died from a non-fatal bullet wound to the head, and
blows to the head causing brain injuries and a skull fracture. Dr. Raaf also noted
that Lally had been cut in the neck with a knife. Dr. Raaf stated that if Lally was
“not quite dead” when he was left in the cemetery, exposure to the cold would
probably have contributed to his death in combination with the injuries he




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                                 January Term, 2000




sustained. Dr. Raaf estimated the time of death to be somewhere between 2:30 a.m.
and 8:30 a.m. on January 19.
       {¶ 15} The murder remained unsolved for several months. However, in
June 1994, Danny Smith contacted Detective Leiby, hoping to make a deal on other
criminal charges he was facing. Danny told Leiby that he would make a statement
about his father (appellant) and the Lally homicide. Danny indicated that his father
would not tell him the “whole story” of the Lally homicide, and that Leiby would
have to speak with appellant directly. At one point, Danny offered to “wear a wire
and talk to his father concerning the homicide.”
       {¶ 16} On July 5, 1994, Leiby and two other detectives interviewed
appellant on audiotape at Elyria police headquarters. After being advised of his
Miranda rights, appellant told the detectives he had been riding in a car with Lally
that was driven by a friend of Lally’s. Appellant stated that at that time they were
riding around smoking crack, and that Lally told him that he was not going to testify
against him and Danny and that he was going to leave town. However, after about
forty-five minutes of getting high on crack in the car, Lally demanded to know
where Danny was because Danny “did somethin’ to [Lally] at … Mr. Hero’s …
*.” Lally then pulled a gun on appellant. Continuing, appellant said that Lally
cooled down some but then went back at him. According to appellant, this change
of moods by Lally occurred several times in the car. Appellant had asked to get out
of the car, but Lally refused to let him out.
       {¶ 17} After driving around Cleveland, Lally eventually directed the driver
into a cemetery. There, Lally ordered appellant out of the car and made him get on
his knees with his hands in his pockets. Lally was standing up against the car, still
smoking crack and holding a gun. Appellant then hit Lally’s leg and knocked him
down. A struggle ensued, and according to appellant “[s]ome how the gun went
off.” Appellant claimed he ran off and hid behind a tombstone until the driver of
the car left. He then walked out of the cemetery, went to a bus station, and took a




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“chitney” (sic) back to Elyria. He claimed that he did not know that Lally was dead
until he read about it in the newspaper.
        {¶ 18} Subsequently, Danny contacted Leiby and asked him if he was
satisfied with appellant’s statement concerning the Lally homicide.              Danny
indicated that appellant was willing to make another statement. Leiby told Danny
that he would speak to appellant only if he named the other person who was at the
cemetery on the night Lally was killed.
        {¶ 19} On January 11, 1995, appellant had a taped phone conversation with
Leiby. In that conversation, appellant was still attempting to help Danny out on
pending charges filed against him. As a sign of good faith, appellant told Leiby,
“it’s Stan,” meaning the name of the person who was with him and Lally at the
cemetery.
        {¶ 20} On March 8, 1995, the grand jury indicted appellant on one count of
aggravated murder with a firearms specification. In addition, a death penalty
specification alleged that appellant purposely killed Lally in order to prevent his
testimony as a witness in a separate criminal proceeding. R.C. 2929.04(A)(8).
        {¶ 21} Prior to trial, the court held a hearing to determine the admissibility
of a deposition by Michael Smith, appellant’s other son. The court had permitted
Michael’s deposition to be taken on June 16, 1995, in order to preserve his
testimony. The state proffered two witnesses (Detectives Beaman and Leiby) who
testified that Michael was not available to testify at trial in spite of numerous efforts
to locate him. The trial court ruled that the deposition would be admitted unless
Michael was found.
        {¶ 22} Trial was held before a jury. After both parties had rested, the
prosecutor informed the trial judge that Leiby had talked on the telephone with
Michael Smith, who was out of the state. Michael stated he was afraid of being
arrested for probation violations. The prosecutor authorized Leiby to tell Michael
that they would pay his way to come back and testify but that they could not promise




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him anything with regard to his probation. After Leiby told Michael this, he did
not hear from him again.
        {¶ 23} In his deposition, which had been subject to cross-examination by
counsel for all three co-defendants (appellant, Danny Smith, and Stan Jalowiec),
Michael testified that he witnessed the murder of Lally, which took place around
4:30 a.m. in early January 1994. Michael stated that at around 2:45 that morning
he met his father (appellant) and brother Danny at Mom’s Open Kitchen in Elyria.
Appellant made a phone call and the three left the restaurant in Danny’s car. Danny
drove Michael and appellant down Middle Avenue and dropped them off near the
railroad tracks.
        {¶ 24} Approximately twenty to thirty minutes later, Jalowiec drove up in
a blue LeBaron with Lally. Michael got in and sat in the back seat (driver side)
next to Lally, and appellant sat in the front passenger seat. After they drove around
a little while, appellant pointed a pistol at Lally and told him “Don’t make no stupid
moves.” Lally at first denied setting Danny up in a controlled drug buy but later
admitted that he had. Michael stated that at this point, Lally agreed to get on a bus
to leave town. Jalowiec drove the car into East Cleveland in order to buy more
crack. All during the trip, all four men were smoking crack cocaine. After seeing
some police cars and fire trucks in East Cleveland, the group decided not to buy
more crack, but drove around Cleveland for another forty-five minutes and ended
up at the Woodland Cemetery in Cleveland.
        {¶ 25} When Stan stopped the car in the cemetery, appellant got out of the
car and pointed his gun at Lally’s face to force him out of the car as well. Michael
heard appellant and Lally exchange words. He then heard a gunshot. Lally
exclaimed: “Oh, you shot me in the head. You shot me in the head.” Appellant
asked Michael and Jalowiec to get out of the car. However, only Jalowiec got out
and helped appellant beat up Lally. Appellant said something about the gun being
jammed and asked Jalowiec for a knife. During this time, Michael could hear “the




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thumps and the smacks and the stomps.” During the beating Lally pleaded: “I
won’t tell nobody. Don’t kill me. Please don’t kill me.” Those were the last words
Michael heard from Lally.
       {¶ 26} Appellant and Jalowiec tried to stuff Lally into the trunk, but he
would not fit. Appellant and Jalowiec got back in the car, and Jalowiec tried to
back the car up over Lally’s body two or three times. However, each time Lally’s
body would stop the car’s movement. Jalowiec then drove the car out of the
cemetery, and he and appellant began to argue with Michael over what he should
have done at the cemetery. During this time, appellant took his gun apart, throwing
it away piece by piece out the window. Eventually, Michael was dropped off at his
brother Danny’s apartment.
       {¶ 27} Two of the state’s witnesses at trial worked at the trace evidence lab
of the Cuyahoga County Coroner’s Office. Sharon Rosenberg testified that there
was no evidence that Lally had fired a weapon. Linda Luke testified that red
discoloration on a trunk liner piece from the LeBaron convertible tested out to be
blood with DNA consistent with that of Ron Lally.
       {¶ 28} After the state rested, the defense presented one witness who was
called to rebut Leiby’s testimony that appellant threatened his son Michael at the
close of his deposition. Leiby had testified that appellant declared at the end of
Michael’s deposition, “I raised the boy, now I got to kill him.” The defense’s sole
witness, a private investigator who attended the deposition, testified that he
construed appellant’s comment as a non-threatening question. The state’s rebuttal
witness, a deputy sheriff, felt that appellant’s statement was a serious threat. After
deliberation, the jury found appellant guilty as charged.
       {¶ 29} At the mitigation hearing, appellant gave an unsworn statement
claiming that he never killed Ron Lally. Also testifying on appellant’s behalf were
three relatives and the spouse of a cousin. The jury recommended death, and the
court imposed the death sentence on appellant.




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                               January Term, 2000




       {¶ 30} Upon appeal, the court of appeals affirmed the conviction and death
sentence.
       {¶ 31} The cause is now before this court upon an appeal as of right.
                              __________________
       Gregory White, Lorain County Prosecuting Attorney, and Jonathan E.
Rosenbaum, Assistant Prosecuting Attorney, for appellee.
       Irving B. Sugerman and Nicholas Swyrydenko, for appellant.
                              __________________
       ALICE ROBIE RESNICK, J.
       {¶ 32} Appellant, Raymond Smith, has raised eleven 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 circumstance against the
evidence presented in mitigation, and reviewed the death penalty for
appropriateness and proportionality.     For the reasons that follow, we affirm
appellant’s conviction and death sentence.
                        VOIR-DIRE/PRETRIAL ISSUES
                             Admission of Deposition
       {¶ 33} In his second proposition of law, appellant argues that his right to
confront witnesses against him was violated when the court permitted, and then
admitted, the deposition of Michael Smith without a showing that Crim.R. 15(F)
was satisfied.
       {¶ 34} Michael Smith testified that he witnessed the Lally murder. Prior to
voir dire, defense counsel raised the issue of whether the defense’s motion to
suppress Michael’s deposition should have been granted, and a colloquy took place
between the parties and the trial judge. The judge indicated that when he permitted
the taking of the deposition on June 16, 1995, it was done with the understanding
that Michael was going to testify at trial and that “it had to be a damn good reason




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why he wouldn’t.” The court at that time declined to disturb its denial of the
defense motion to suppress.
        {¶ 35} However, during the voir-dire process, the court conducted a hearing
regarding the admissibility of Michael Smith’s deposition.           Cleveland Police
Detective Michael Beaman testified that he had been trying to locate Michael Smith
in the Cleveland area for several months without success. Although Michael Smith
was leasing an apartment in Cleveland that was current on rental payments, Beaman
could not find him even with the assistance of the landlord, neighbors, and the
county housing authority police.       Beaman was also unsuccessful in locating
Michael Smith through phone calls of numbers that Michael Smith had phoned
during the time he was staying at the prosecution-provided motel room at the time
just prior to his deposition.
        {¶ 36} Leiby testified that Michael Smith contacted him on June 5, 1995,
and told him that he received what “we felt was a death threat.” Leiby further stated
that at the close of Michael’s deposition, appellant threatened Michael by saying,
“I raised the boy and now I have got to kill him.” Subsequent to giving the
deposition, Michael failed to report to his probation officer and a warrant was
issued for his arrest.
        {¶ 37} In August 1995, Michael Smith was located and was held in the
Cuyahoga County Jail for two days with the intent of transferring him to the Lorain
County jail facility. However, Cuyahoga County authorities had no warrant on
Michael, so the jail refused to hold him. Leiby stated that they were also concerned
about Michael’s safety at the Lorain County Jail, since both appellant and Jalowiec
were being held there. Therefore, they decided at that time that Michael would be
released early. Yet, four or five weeks later, Michael again failed to contact his
probation officer and another warrant was issued for his arrest. Numerous attempts
by Leiby to locate Michael were unsuccessful, even though Michael indicated at
his deposition that he would be available to testify at trial. Leiby further stated that




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they took the deposition, since the prosecution was concerned for Michael’s health
and well-being. Among other things, Michael had attempted suicide on April 2,
1995. At the close of the hearing, the trial court ruled that the deposition would be
allowed unless Michael was found.
          {¶ 38} Before closing argument at the trial phase, the prosecutor informed
the court that Michael Smith had telephoned Detective Leiby from out of state two
days earlier and indicated his willingness to testify. However, Michael was afraid
that there were probation warrants out for his arrest. Leiby informed Assistant
Prosecutor Rosenbaum of the phone call, and Rosenbaum told Leiby to tell Michael
that he would pay for Michael’s way to come back from wherever he was to testify.
However, Rosenbaum could not make any promises regarding his probation.
Michael called Leiby back that same night, and Leiby informed him of the situation.
After that conversation, the state did not hear from Michael again. Subsequently,
the deposition was submitted to the jury as an exhibit during its deliberations.
          {¶ 39} Crim.R. 15(F) provides: “[A] part or all of a deposition … may
be used if it appears: … that the witness is out of the state, unless it appears that
the absence of the witness was procured by the party offering the deposition
….”
          {¶ 40} Here, the testimony indicated that Michael Smith was out of the state
and that reasonable efforts by the state to make him available to testify at trial were
unsuccessful. The state’s efforts to procure Michael’s live testimony appear to have
been reasonable, adequate, and made in good faith. The record indicates that the
state continued to seek Michael’s live testimony at trial up to the time when the
case was submitted to the jury. There is no evidence that the state was responsible
for or procured Michael’s absence from Ohio. Rather, the record shows that
Michael made himself unavailable because he felt that his life was in danger. Thus,
the trial court did not abuse its discretion in admitting the deposition into evidence
in light of Michael’s unavailability to testify under Crim.R. 15(F). See, e.g., State




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v. Jenkins (1984), 

, 15 OBR 311, 361, 

;
State v. Koontz (1979), 

, 

,

.
         {¶ 41} Moreover, appellant’s right to confront his accuser was not violated
by the introduction of the deposition. Contrary to defense arguments, appellant was
able to confront his accuser, Michael Smith, at the deposition. Appellant’s defense
counsel at the time cross-examined Michael, as did counsel for both co-defendants.
Therefore, we overrule appellant’s second proposition.
                                   Voir-Dire Errors
         {¶ 42} In his third proposition of law, appellant contends that the court erred
in granting the state’s motions to excuse prospective jurors Ellingsworth and
Gosselin for cause. Appellant further asserts that the trial court erred in giving
disparate treatment to prospective jurors by favoring those with “pro-death penalty”
views.
         {¶ 43} Appellant has waived these arguments by failing to raise them before
the court of appeals. State v. Williams (1977), 

, 

, 

, paragraph two of the syllabus; State v. Hawkins (1993), 

, 

. In addition, appellant failed to object to the
excusal for cause of prospective juror Ellingsworth. The only voir-dire issues
appellant raised in the court of appeals concerned two Batson claims that he has not
raised before this court.
         {¶ 44} Moreover, appellant’s arguments under this proposition are without
merit. While Ellingsworth equivocated as to whether she could impose a death
sentence, she indicated several times that her views on the death penalty were so
strong that they would interfere with her ability to consider imposing the death
penalty. See, e.g., State v. Beuke (1988), 

, 

.     Likewise, prospective juror Gosselin equivocated during voir-dire
examination as to whether she could impose the death penalty. She admitted




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                                January Term, 2000




several times that her views would substantially impair her ability to sign a death
verdict, but stated at other times that she could vote for a death sentence. Under
such circumstances, even had appellant preserved his objections, this court would
defer to the trial judge who saw and heard the jurors. Id.; State v. White (1999), 

, 

.
       {¶ 45} Last, appellant’s allegation that the trial judge gave favorable
treatment to “pro-death penalty” jurors is not borne out by the voir-dire transcript.
The trial judge in fact excused a fair number of prospective jurors who expressed
an inability to consider imposing a life sentence. Appellant’s third proposition is
overruled.
                                  TRIAL ISSUES
                             Out-of-Court Statements
       {¶ 46} In his first proposition of law, appellant complains that the trial court
permitted, over defense objections, several out-of-court statements made by co-defendant Danny Smith. Appellant contends that the statements were irrelevant
hearsay. He further submits that none of the statements by Danny qualified as
exceptions to the hearsay rules, nor were they properly admitted as statements in
furtherance of a conspiracy under Evid.R. 801(D)(2)(e).
       {¶ 47} Appellant first complains of statements made by Danny to Elyria
police officer John Homoki, who responded to a disturbance call on September 15,
1993, at a Mr. Hero’s restaurant. The disturbance involving Danny, Jalowiec, and
Lally occurred approximately four months before the murder, and around one
month after both appellant and Danny were arrested for aggravated trafficking as a
result of Lally’s controlled buy of crack from them. Homoki testified that Danny
pointed to Lally and declared, “[t]hat punk-ass bitch is going to get his.” When
Homoki asked Danny if he was threatening Lally, Danny responded that “[t]here is
no reason to threaten the mother fucker.”




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         {¶ 48} These statements readily appear to be relevant under Evid.R. 402,
since the state’s theory of the case was that appellant and co-defendants Danny
Smith and Jalowiec conspired to kill Lally in retaliation for his role as a police
informant making a controlled drug buy from appellant and Danny.                   The
threatening statements by Danny, if believed, tended to show that Danny was
agitated and angry with Lally at a time subsequent to his arrest for drug trafficking.
         {¶ 49} Moreover, the statements were admissible as excited utterances
under Evid.R. 803(2). Homoki testified that Danny was “excited” and “angry” at
Lally.    The incident also appears to have been a startling event, since the
confrontation between Lally and Danny at the Mr. Hero’s prompted Lally to call
for police assistance. The incident, along with the appearance of a police officer at
the scene, makes it more probable that the statements were excited utterances in
response to a startling event before there was time for the nervous excitement in the
declarant to lose domination over his reflective faculties. See State v. Huertas
(1990), 

, 

; State v. Simko (1994), 

, 

, 352.
         {¶ 50} Appellant next argues that Danny’s out-of-court statements to
Lally’s fiancée, Sandra Williams, were hearsay. Over defense objections, Williams
testified that Danny told her that Lally would feel “real bad” if anything happened
to her or to any members of Lally’s family. Danny also told Williams he knew
where Lally’s parents lived and that it would be a shame if their trailer happened to
get blown up. The state contends that the statements were made by Danny in
furtherance of a conspiracy under Evid.R. 801(D)(2). The state argues that these
statements by co-defendant Danny Smith were relevant to show that he, appellant,
and Jalowiec participated in a conspiracy to silence Lally through intimidation, and
eventually murder.
         {¶ 51} In our view, these statements were not hearsay, because they were
not offered to prove the truth of the matter asserted (i.e. – that Lally would feel bad,




                                          14
                               January Term, 2000




that he knew where Lally’s parents lived, that it would be a shame, etc.). However,
even if we were to assume that such statements were arguably hearsay, under
Evid.R. 801(D)(2) hearsay does not include “a statement by a co-conspirator of a
party during the course and in furtherance of the conspiracy upon independent proof
of the conspiracy.” This court recognized in State v. Carter (1995), 

, 

, paragraph three of the syllabus, that “[t]he statement of a co-conspirator is not admissible pursuant to Evid.R. 801(D)(2)(e) until the proponent
of the statement has made a prima facie showing of the existence of the conspiracy
by independent proof.” See, also, State v. Milo (1982), 

, 6 OBR
44, 

.
       {¶ 52} Prior to Sandra Williams’s testimony, Sharon Hopkins testified that
appellant and Michael were dropped off near the railroad tracks on the morning of
the murder, and that shortly thereafter a LeBaron convertible went over to where
appellant and Michael were. Sharon saw four people in the LeBaron but could
identify only Jalowiec. Danny told her to ask if his brother had been picked up.
Later, she learned from her brother Terry that Lally had been killed.
       {¶ 53} This independent proof of a conspiracy was insufficient to establish
a prima-facie case at the time Williams testified. However, independent proof of
the conspiracy among appellant, Danny, Michael, and Jalowiec was admitted into
evidence before the case was submitted to the jury. Compelling independent
evidence during trial established that Danny approached Terry about killing
somebody a few months prior to the murder. Officer Homoki testified about
Danny’s threats to Lally shortly after Danny and appellant had been arrested as a
result of Lally’s controlled drug buy from them. On the morning of the murder,
Terry saw Danny, and Danny told him “they did it.” Later that day, appellant,
Danny, Michael, and Jalowiec were at Danny’s apartment bragging about how they
shot the victim, ran over him with the car, stabbed him, and stepped on him.
Jalowiec said that “they had killed the guy.”       Audiotapes and transcripts of




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appellant’s statements to the police were admitted into evidence. These statements
put appellant with Lally together and at the cemetery on the night and morning
Lally was killed, and showed that Jalowiec was also involved. The DNA results
showed that Lally’s blood was found on the trunk liner of the LeBaron convertible.
Michael’s eyewitness deposition detailed the events both before and during the
murder of Lally by appellant and Jalowiec. Hence, as in 

, 

, the premature introduction of Danny’s statements
was harmless error.
       {¶ 54} Last, the out-of-court statements of Danny to Terry Hopkins are
cited by appellant as also constituting inadmissible hearsay. Yet Danny’s statement
to Hopkins that he was sick appears to qualify as a statement of Danny’s thenexisting mental, emotional, or physical condition under Evid.R. 803(3).         In
addition, Danny’s statement that “they did it” could be categorized as an excited
utterance under Evid.R. 803(2), since Hopkins described Danny as being “nervous”
and “bothered” when he talked with him shortly after the murder. See 

, 

; 

,
644 N.E.2d at 352. The admission of Terry Hopkins’s testimony about the other
out-of-court statements made by the co-conspirators bragging about the murder at
Danny’s apartment also appears to be harmless error as to the timing of its
admissibility and in light of the abundant evidence of appellant’s guilt. 

 Accordingly, we overrule appellant’s first proposition.




                                        16
                               January Term, 2000




                                       Venue
       {¶ 55} In his fifth proposition of law, appellant asserts that the state failed
to prove that he purposely murdered Lally with prior calculation and design by any
act that occurred in Lorain County. Appellant submits that any and all conduct
attributable to him in the Lally murder took place in Cuyahoga County and that
therefore his conviction must be reversed.
       {¶ 56} As we held in 

 at paragraph one of the syllabus: “When
an offender commits offenses in different jurisdictions as part of a course of
criminal conduct, venue lies for all the offenses in any jurisdiction in which the
offender committed one of the offenses or any element thereof.                  (R.C.
2901.12[H].)” Venue is not a material element of any crime, but is a fact that must
be proven beyond a reasonable doubt. State v. Headley (1983), 

, 6 OBR 526, 528, 

. However, former R.C. 2901.12(G)
provided: “When it appears beyond a reasonable doubt that an offense or any
element of an offense was committed in any of two or more jurisdictions, but it
cannot reasonably be determined in which jurisdiction the offense or element was
committed, the offender may be tried in any such jurisdiction.” (Emphasis added.)
       {¶ 57} The state contends that prior calculation and design were proven to
have occurred in Lorain County. The testimony concerning the threats made to
Lally by Danny and the events leading up to when Lally was taken out of Lorain
County in the LeBaron convertible with Jalowiec, appellant, and Michael tended to
show a conspiracy preceding the murder. By inference, this series of events seems
to have been orchestrated, and tends to support the state’s theory that conspiracy
and prior calculation and design occurred in Lorain County.
       {¶ 58} In addition, Michael Smith testified that after they drove away in the
LeBaron from Middle Avenue in Elyria, “[a]ppellant brandished a pistol on Ron
Lally and told him, ‘Don’t make no stupid moves.’ ” They then stopped for gas at
the Speedway on St. Rt. 254, “North Ridge,” before they got on St. Rt. 2 headed to




                                         17
                              SUPREME COURT OF OHIO




Cleveland. That part of the deposition appears to describe events that took place in
Lorain County.
        {¶ 59} However, Michael’s deposition also indicated that while they were
driving along to Cleveland, “[e]very thing was a lot smoother” after Lally agreed
to get on a Greyhound bus and leave town. Subsequently, they drove to East
Cleveland and then rode around Cleveland until they ended up in the Woodland
Cemetery in Cleveland. This evidence tends somewhat to negate the state’s
argument that prior calculation and design was formulated in Lorain County.
        {¶ 60} Nevertheless, given the clear language of R.C. 2901.12(G), venue
was proper in Lorain County. In our view, it is clear that the whole sequence of
events culminating in Lally’s murder occurred in two counties.             In essence,
appellant is arguing that the evidence was insufficient to support venue in Lorain
County. In reviewing a record for sufficiency, “[t]he relevant inquiry is whether,
after viewing the evidence in a light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt.” State v. Jenks (1991), 

, 

,
paragraph two of the syllabus, following Jackson v. Virginia (1979), 

,

, 

. “[T]he weight to be given the evidence and the
credibility of the witnesses are primarily for the trier of the facts.” State v. DeHass
(1967), 

, 

, 

, paragraph one of the
syllabus.
        {¶ 61} Here, the jury could reasonably find that prior calculation and design
took place in Lorain County, and, as a result, venue in Lorain County was proper.
While venue is not a material element of the crime, there was ample and sufficient
evidence for the jury to reasonably conclude that getting Lally in the car to ride
with appellant and Jalowiec to Cleveland to buy crack, as well as the plan to have
Lally take a bus out of town, was merely a ruse to kill him in an area where his
corpse could not be identified. In addition, we find that the trial court did not err in




                                          18
                               January Term, 2000




denying appellant’s Crim.R. 29 motion for acquittal on grounds of improper venue,
even though that ground was not specifically averred in the Crim.R. 29 motion.
Accordingly, for these reasons, we overrule Smith’s fifth proposition.
                         Proof of the Death Specification
       {¶ 62} In his ninth proposition of law, appellant argues that he was
prejudiced by extensive testimony given by Detective Leiby concerning the
“underlying” criminal proceeding wherein appellant and Danny were set up by
Lally in a controlled drug buy. Appellant contends that this error was magnified
by the court’s failure to give a limiting instruction concerning Leiby’s testimony.
       {¶ 63} Appellant failed to raise this issue before the court of appeals.
Therefore, it is waived. 

 at paragraph two of the syllabus. Even if
the issue were properly before this court, it would not compel reversal. Leiby’s
testimony as to the underlying offense was necessary to show that Lally was
murdered to prevent his testimony against both appellant and Danny in the
underlying drug trafficking cases. Thus, it was relevant to prove and support the
death penalty specification of R.C. 2929.04(A)(8). See State v. Coleman (1999),

, 

.
       {¶ 64} Appellant cites two cases, State v. Allen (1987), 

,
29 OBR 436, 

, and State v. Wright (1990), 

, 

, that are either inapposite or readily distinguishable from this case. In
addition, absent a request, the trial court was under no duty to provide a limiting
instruction as to what parts of Leiby’s testimony the jury should consider.
Appellant’s ninth proposition lacks merit and is overruled.




                                         19
                             SUPREME COURT OF OHIO




                              SENTENCING ISSUES
                                  Jury Instructions
       {¶ 65} In his sixth proposition of law, appellant asserts that the trial judge
erred in charging the jury at the penalty phase as follows: (a) giving an improper
instruction under State v. Brooks (1996), 

, 

; (b)
referring to aggravating circumstances (plural) when there was only one
aggravating circumstance; (c) not defining what a mitigating factor is; and (d)
listing all the statutory mitigating factors. Appellant’s failure to object to any of
these instructions waived all but plain error. State v. Underwood (1983), 

, 3 OBR 360, 

, syllabus.
       {¶ 66} Appellant first complains that the court erred in failing to instruct the
jury pursuant to 

 However, the instant case was tried in late 1995
before Brooks was decided. Moreover, the court instructed the jury as follows:
       “You shall recommend the sentence of death if you unanimously, that is, all
twelve of you, find by proof beyond a reasonable doubt, that the aggravating
circumstances outweigh the mitigating factors.
       “If you do not so find, you shall unanimously (all twelve) recommend either
a life sentence with parole eligibility after serving twenty years of imprisonment,
or a life sentence with parole eligibility after serving thirty years of imprisonment.”
       {¶ 67} No plain error occurred with this instruction. See State v. Bey
(1999), 

, 

; State v. Goff (1998), 

, 

; State v. Mitts (1998), 

,

. Here, unlike Brooks, 

, 

, the jury was not told that it had “to determine unanimously that the death
penalty is inappropriate before you can consider a life sentence.” Instead, “[t]he
jury was free to consider a life sentence even if jurors had not unanimously rejected
the death penalty.” State v. Taylor (1997), 

, 

.




                                          20
                                January Term, 2000




       {¶ 68} Appellant’s complaint that the court erred in referring to aggravating
circumstances in the plural is correct, but not a ground for reversal. While the court
referred to the single aggravating circumstance as “circumstances,” the mistake was
non-prejudicial. See State v. Jells (1990), 

, 

.    Moreover, the verdict form returned by the jury indicates that it
considered only the single, aggravating circumstance that it found appellant guilty
of during the trial phase.
       {¶ 69} Appellant is also correct in noting that the court erred in instructing
the jury on all statutory mitigating factors, even though the evidence presented did
not compel such an exhaustive instruction. See State v. Hicks (1989), 

, 

, at fn. 3; State v. DePew (1988), 

, 

. However, this did not constitute plain error. See 

, 

; State v. Keith (1997), 

, 

.
       {¶ 70} In addition, appellant was not prejudiced by the court’s failure to
define the term “mitigating factor.” While the trial court should define “mitigation”
for the jury, the absence of instructions on the concept of mitigation does not violate
the Eighth and Fourteenth Amendments to the United States Constitution.
Buchanan v. Angelone (1998), 

, ___, 

, 

. The instructions here did not foreclose the jury’s consideration
of any mitigating evidence because the court directed the jury to “consider all of
the evidence.” 

, 

, 

; 

, 

. Appellant’s bald assertion that the
lack of such an instruction resulted in having the jury consider non-statutory
aggravating circumstances is purely speculative.
       {¶ 71} Last, appellant’s contention that use of the term “recommendation”
in the jury charge deprived him of a fair trial is not persuasive. Use of the term
“recommendation” accurately reflects Ohio law and does not diminish the jury’s




                                          21
                              SUPREME COURT OF OHIO




overall sense of responsibility. State v. Henderson (1988), 

, 29-
30, 

; State v. Woodard (1993), 

, 

. Moreover, the court specifically cautioned the jury that its use
of the term “recommend” should not diminish their responsibility or lessen their
task. Accordingly, we overrule appellant’s sixth proposition.
                                 Sentencing Opinion
        {¶ 72} In his eighth proposition of law, appellant claims prejudicial error in
the trial court’s failure to comply with R.C. 2929.03(F), and in its failure to state its
specific findings as to the existence of mitigating factors set forth in R.C.
2929.04(B). Appellant asserts that the court merely filed a document entitled
“Judgment Entry of Conviction and Sentence.” Appellant’s assertion is incorrect,
and at oral argument, defense counsel conceded that the trial court complied with
all of the requirements of R.C. 2929.03(F) on February 2, 1996. Accordingly,
appellant’s eighth proposition is summarily overruled.
                            EFFECTIVE ASSISTANCE
        {¶ 73} In his seventh proposition of law, appellant lists eight areas where
he claims that trial counsel was ineffective. 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), 

, 

. However, in no instance does
appellant demonstrate prejudice, “a reasonable probability that, were it not for
counsel’s errors, the results of the trial would have been different.” 

at paragraph three of the syllabus.
        {¶ 74} Appellant first complains that trial counsel failed to engage in
meaningful voir dire. Specifically, appellant alleges that counsel failed to ask even
one question of prospective juror Ellingsworth, and that counsel failed to object to




                                           22
                                January Term, 2000




improper questions on two occasions. Appellant further complains that trial
counsel’s line of questioning consisted merely of general inquiries. However, none
of appellant’s claims amounts to ineffective assistance.
       {¶ 75} A review of the voir dire of Ellingsworth indicates that she would
not and could not impose a death sentence. Any attempt by defense counsel to
rehabilitate Ellingsworth would have probably been a waste of time. Counsel was
wise to concentrate rehabilitative efforts on other prospective jurors who were more
open-minded.
       {¶ 76} The two instances cited where counsel failed to object to improper
questions do not indicate prejudice to appellant. In fact, the first instance cited by
appellant involved questions from defense counsel, not the prosecutor. The second
instance cited as an improper question did not prejudice appellant, since that
prospective juror (Gosselin) was going to be excused for cause based on her
inconsistent answers during voir dire. Nor did defense counsel’s line of questioning
amount to ineffective assistance. “The conduct of voir dire by defense counsel does
not have to take a particular form, nor do specific questions have to be asked.” State
v. Evans (1992), 

, 

. Examination of
the entire voir dire indicates no deficient performance on the part of defense
counsel.
       {¶ 77} Appellant next asserts that defense counsel failed to object to
numerous instances of prosecutorial misconduct, including prejudicial remarks in
opening and closing argument. The first instance, where the prosecutor stated,
“Now, as a result of the fact that this group of people [the co-defendants] had been
known to kill all those that are testifying against them …,” should have been
objected to, but did not prejudice appellant. The comment was overly embellished,
but retained a grain of truth in that all the co-defendants were charged with killing
Lally to prevent his testimony in another proceeding. The prosecutorial comments




                                         23
                             SUPREME COURT OF OHIO




in closing argument appear to be a proper rebuttal to defense counsel’s
characterization of testimony that took place during trial.
       {¶ 78} Defense counsel also failed to object during the prosecutor’s
questioning of mitigation witnesses.          However, we find neither deficient
representation nor prejudice. While the prosecutor’s questions were sharp and
overly persistent, none rose to the level of misconduct that would have necessitated
numerous objections. Counsel’s decision not to interrupt in these contexts reflected
an “objective standard of reasonable representation.” 

 at paragraph
two of the syllabus.
       {¶ 79} Appellant’s complaint that counsel failed to object to an alleged
Brooks violation is not well taken. As discussed under appellant’s sixth proposition
of law, the instruction was given before this court announced its decision in State
v. Brooks. In addition, the instruction that was given did not constitute reversible
error. See, e.g., 

, 

.
       {¶ 80} Similarly, counsel’s failure to object to detective Leiby’s testimony
of the “underlying offense” did not prejudice appellant. As discussed under
appellant’s ninth proposition of law, Leiby’s testimony was relevant and probative
of appellant’s motive in committing the crime and in proving the death penalty
specification.
       {¶ 81} Appellant asserts that he was prejudiced by counsel’s failure to
object (1) to Leiby’s testimony concerning appellant’s alleged “kill” remark at the
end of Michael’s deposition, and (2) to Deputy Drozdowski’s rebuttal testimony.
Neither assertion is persuasive. Counsel appears to have refrained from objecting
in order to present a witness who discounted Leiby’s (and later Drozdowski’s)
testimony that appellant threatened to kill Michael at the close of his deposition.
Such a trial strategy, even if questionable, does not compel a finding of ineffective
assistance of counsel. See State v. Clayton (1980), 

, 

, 

.




                                         24
                                January Term, 2000




       {¶ 82} Counsel’s failure to recall Leiby for further questioning concerning
a conversation he had with Michael Smith while the trial was ongoing did not
constitute ineffective assistance. The court had already conducted a hearing
concerning the availability of Michael as an in-court witness, and the court declared
that it would require Michael’s appearance if he was found. A request for a
continuance would not have been granted, since the trial court was aware of the
phone conversation between Leiby and Michael, and was aware that Michael was
out of state and was hesitant to come back to Ohio because of pending arrest
warrants for his probation violations.
       {¶ 83} Nor was counsel ineffective for failing to ensure that appellant’s
prior convictions were not disclosed to the jury. The death penalty specification
alleged that appellant killed a witness to prevent his testimony at another criminal
proceeding. The court file for that proceeding was a necessary piece of evidence
to prove the death penalty specification. Within the file was information that
appellant had several prior convictions. However counsel, as part of his trial
strategy, used the knowledge of appellant’s prior convictions to argue that appellant
may have been involved with drugs, but he was not a murderer. As we held in

, 

, 

, even
if such strategy was questionable, deference to counsel’s judgment is appropriate.
       {¶ 84} Last, appellant’s claim that counsel was ineffective for failing to ask
the trial judge to recuse himself is not persuasive. Moreover, the issue was waived,
since appellant never raised it before the court of appeals. 

 at
paragraph two of the syllabus. Even if the issue was properly before us, prejudice
to appellant is lacking. Appellant claims that the record indicates that the trial
judge, Judge Glavas, granted shock probation to a key state’s witness, Terry
Hopkins. The trial judge was vigilant in assuring appellant a fair trial, however,
and nothing in the record suggests that he was laboring under any “blatant conflict
of interest,” as appellant contends.




                                         25
                             SUPREME COURT OF OHIO




       {¶ 85} Appellant’s claims of ineffective assistance of trial counsel are not
well taken. His seventh proposition is overruled.
                       PROSECUTORIAL MISCONDUCT
       {¶ 86} In his fourth proposition of law, appellant argues that assistant
prosecutor Rosenbaum committed numerous acts of misconduct at every stage of
the trial and that these acts compel reversal of his conviction and death sentence.
       {¶ 87} 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), 

, 

,

.
       {¶ 88} Appellant first claims that the prosecutor “embarked on an attack
towards jurors who showed even the slightest predisposition against the ‘knee jerk’
imposition of the death penalty.” However, the voir-dire transcript does not support
appellant’s assertion. Appellant states that this argument “is fully discussed in a
separate proposition of law.” Yet, examination of the arguments raised under his
third proposition of law lend no credence to appellant’s assertion that the prosecutor
“embarked on an attack” against open-minded prospective jurors.
       {¶ 89} Appellant also cites comments made during the opening statement
and closing arguments of the trial phase: “this group of people had been known to
kill all those that are testifying against them”; and “with the car that they chose to
use, as they used in the past to commit crimes.”
       {¶ 90} No objection was made to the first comment. As discussed under
appellant’s seventh proposition of law, the comment was embellished but not
totally misleading in light of the prosecution’s theory of the case that the co-defendants killed Lally to prevent his testimony at another trial. Any error was not




                                          26
                                January Term, 2000




outcome-determinative. State v. Long (1978), 

, 

, 

.
       {¶ 91} Appellant objected to the second comment and that objection was
sustained. Appellant asserts that misconduct took place when the prosecutor then
stated: “Well, I think the testimony will reflect and you can conclude on your own
that they borrowed the car in the past to sell crack cocaine.” This second assertion
was also objected to, and appears to be an embellishment of the fact that Fike
admitted that she let Danny use her car in exchange for drugs. Even assuming error,
any error did not materially prejudice appellant.
       {¶ 92} Appellant next cites comments by the prosecutor during closing
argument: “[T]hese pictures document their handywork [sic] and speak for what
kind of people they are”; “You may know now why Mr. Bruner [defense counsel]
says what he says is not evidence”; “He is doing what I cautioned you about. He
is trying to direct your attention to somewhere else to what the evidence might be,
what it could be, what he says that is, when it is not what happened from the stand.”
None of these comments was objected to, thus waiving all but plain error. State v.
Slagle (1992), 

, 

. Nor do these
comments constitute plain error. See 

 The prosecution is entitled to a
certain degree of latitude in summation. State v. Liberatore (1982), 

, 

, 493, 

. The comment concerning the
photos could be characterized as the expression of personal opinion, but such a
comment is not improper if it is based on the evidence presented at trial. State v.
Tyler (1990), 

, 

. Unlike the situation
in State v. Wogenstahl (1996), 

, 

, the
prosecutor does not appear to have been asking the jury to imagine what the victim
was thinking, nor inviting the jury to speculate on facts not in evidence. Although
somewhat theatrical, the second and third comments do not improperly denigrate




                                         27
                             SUPREME COURT OF OHIO




defense counsel. Cf. State v. Clemons (1998), 

, 

.
       {¶ 93} Appellant next complains that the prosecutor’s questioning of
mitigation witness William Hill went far beyond the scope of fair play.
Unquestionably, the prosecutor’s cross-examination of Hill was rough. Yet this
line of cross-examination, although brash and theatrical, was neither improper nor
unfair. Hill invited the questioning in the first instance when after mentioning his
prior problems with drug abuse, he asked the prosecutor: “Does that make me a
killer?” The prosecutorial question to Hill: “So you are asking them to violate their
oath of office?” was objected to and sustained by the trial court. Appellant omits
mentioning this fact. The question to Hill as to what mitigating evidence he has to
offer was not improper. In fact, it gave Hill the opportunity to explain why he
believed the jury should spare appellant’s life.
       {¶ 94} The reference to appellant as a “drug pushing murderer” during Kim
Hill’s mitigation testimony was made in the form of a question.            Kim Hill
responded: “That is not all he [appellant] is.” While the question was harsh, it was
not improper given the fact that appellant was found guilty of murder. Moreover,
it was arguably within the creative latitude accorded both parties, and not “purely
abusive.” State v. Brown (1988), 

, 

.
       {¶ 95} Appellant next alleges prosecutorial misconduct during closing
argument at the mitigation phase. First, appellant contends that the prosecutor
referred to the nature and circumstances of the offense as “aggravating
circumstances.” However, close examination of the prosecutor’s argument does
not reveal that he was arguing that the nature and circumstances of the offense were
aggravating circumstances, as proscribed in 

 at paragraph two
of the syllabus. Instead, the prosecutor’s recitation of the nature and circumstances
of the crime was interwoven with his argument that they lacked mitigating value:
“I submit to you that this was not the unfortunate act of someone that was dazed on




                                         28
                                January Term, 2000




crack cocaine”; “He might have been [a] nice person 20 years ago … but even if
he is, it does not outweigh what he did”; “I don’t care how much crack cocaine he
uses, that is not mitigation to offset this horrendous type of killing”; “That is the
mitigation that he puts before you and it cannot outweigh the conscientious decision
to assassinate another human being. That speaks louder than any of the little
conscientious things in the past.”
       {¶ 96} These types of comments by prosecutors are permissible. See State
v. Grant (1993), 

, 

. In addition,
prosecutors may legitimately refer to the nature and circumstances of the offense,
both to refute any suggestion that they are mitigating and to explain why the
specified aggravating circumstance outweighs the mitigating factors. State v.
Sheppard (1998), 

, 

, 294. Prosecutors can
urge the merits of their cause and legitimately argue that defense mitigation is
worthy of little or no weight. State v. Wilson (1996), 

, 

. While the last comment misstated the weighing process during
the mitigation phase, no objection was raised, and the trial court gave correct
instructions on the proper standard to apply in the weighing process. Any error in
this vein was harmless. State v. Greer (1988), 

, 

. Moreover, nowhere did the prosecutor imply, refer, or allude
to the nature and circumstances of the crime as “aggravating circumstances.” Cf.

, 

.
       {¶ 97} Appellant also argues that the prosecutor argued on matters outside
the record when he stated: “The State took his [Michael Smith’s] deposition so that
the motive to kill him would not exist. In other words, it is admissible even if he
were to be killed. Is it so surprising that he is not here? He knows his father. He
saw what he can do and he is gone.” No objection was raised to these comments.
Moreover, these comments appear to be a proper rebuttal to defense counsel’s
assertion that “[o]ne of the main witnesses was not here for me, as his lawyer, to




                                         29
                            SUPREME COURT OF OHIO




cross-examine at trial, not at a deposition.” The prosecutor’s comments appear to
be reasonable inferences based on the evidence in the record.
       {¶ 98} Next, appellant contends that the prosecutor improperly commented
on the fact that his unsworn statement “was cross-examined by no one.” This claim
is also without merit. In State v. Davis (1996), 

, 

, we found that prosecutorial comment on the lack of cross-examination on a defendant’s unsworn statement was “consistent with [State v.]
DePew [(1988), 

, 

].” Accord State v. Moore
(1998), 

, 

.
       {¶ 99} The defense attempts to persuade us to find pervasive prosecutorial
misconduct in this case based largely on generalities and a few specific examples.
Nevertheless, none of the instances cited by appellant, either individually or
collectively, amounts to prosecutorial misconduct. Appellant received a fair trial,
and his substantial rights were not prejudiced by the remarks of the prosecutor.
There are no similarities between what occurred in this case and what occurred in
State v. Keenan (1993), 

, 

, or State v. Fears
(1999), 

, 

. Therefore, we overrule appellant’s
fourth proposition.
                            CONSTITUTIONALITY
       {¶ 100} In his eleventh proposition of law, appellant contends that Ohio’s
death penalty laws are unconstitutional under various provisions, both facially and
as applied. However, these arguments lack merit. See, e.g., 

, 15 OBR 311, 

; State v. Esparza (1988), 

, 

; 

, 

;
State v. Zuern (1987), 

, 

; State v. Phillips (1995),

, 

; and Goff, supra, 82 Ohio
St.3d at 141, 

. Therefore, we summarily reject these claims, and




                                        30
                                January Term, 2000




overrule appellant’s eleventh proposition. State v. Poindexter (1988), 

, 

, syllabus.
             INDEPENDENT REVIEW AND PROPORTIONALITY
       {¶ 101} In his tenth proposition of law, appellant asserts that his death
sentence is inappropriate and must be vacated because the aggravating
circumstance does not outweigh the mitigating factors present in this case.
However, appellant’s arguments are not well taken, and his tenth proposition is
overruled.
       {¶ 102} While much of the state’s evidence was circumstantial and based
on reasonable inferences derived from direct evidence, the deposition of Michael
Smith was the key piece of evidence that solidified the state’s case. The threats to
Lally and his fiancée, the testimony that Danny Smith was looking to hire a “hit
man,” the range of testimony concerning the events leading up to the murder,
including the tape of appellant in which he attempted to portray himself as a selfdefending victim to a gun-wielding Lally, all combine to prove the single
aggravating circumstance beyond a reasonable doubt.              After independent
assessment, we find that the evidence supports beyond a reasonable doubt the
aggravating circumstance that appellant killed Lally in order to prevent him from
testifying as a witness at his trial for drug trafficking. R.C. 2929.04(A)(8).
       {¶ 103} The nature and circumstances of the offense provide nothing in
mitigation. The fact that the murderers and victim were smoking crack cocaine
before the murder does not mitigate the offense: “[T]he unlawful taking of a human
life cannot be deemed less serious simply because the victim was involved in
unlawful activity.” State v. Williams (1997), 

, 

. Nor does the fact that Jalowiec also participated in the murder of Lally have
any weight in mitigation.
       {¶ 104} Appellant’s history, character, and background provide some
mitigating features. Several witnesses testified on appellant’s behalf, including two




                                         31
                               SUPREME COURT OF OHIO




cousins and an uncle. All four witnesses acknowledged appellant’s problems with
drug abuse. Appellant’s cousin, Sandra Howard, described appellant as a decent
father and family member, and further stated that appellant was not the cruel and
calculated person the media had portrayed him to be. Appellant’s uncle, Derrick
Smith, was raised along with appellant during their childhood and spent time with
him when he caddied at the Elyria Country Club. Derrick also worked at several
jobs with appellant at National Tube and the U.S. Steel mill. He never knew
appellant to be violent, even though he knew appellant was convicted of robbery
“back in the 50s.”
       {¶ 105} William Hill, another cousin of appellant, testified that he looked
up to appellant while growing up and that he helped appellant seek drug treatment
in 1993. Hill stated that drugs changed appellant, who was once a hard-working
individual who brought himself up from the streets to work at the Ford Assembly
Plant in Lorain. In Hill’s opinion, appellant had a difficult time facing his drug
problem, and Hill believes that appellant is ashamed that he let his friends and
family down. Hill asked the jury to spare appellant and sentence him to life in
prison in the hope that he can help some individual deal with their problems, as Hill
had tried to help appellant.
       {¶ 106} Hill’s wife, Kim Hill, also testified on appellant’s behalf. She
stated that appellant took her under his wing when she was only fourteen years old
and hanging out at bars. Appellant showed her kindness and offered her an outlet
away from people who would be using and exploiting a fourteen year old. She and
her husband also helped get appellant into drug treatment. She expressed the
feeling that appellant “was a compassionate man at one time.”
       {¶ 107} Appellant gave an unsworn statement wherein he denied killing
Lally. He described the prosecution’s witnesses as “crackheads,” and felt his rights
were violated since the murder was not proven beyond a reasonable doubt. He
further claimed that Detective Leiby was going to “get” him because he would not




                                         32
                                January Term, 2000




testify as Leiby wanted him to testify. Appellant also expressed condolences to
Lally’s family, but declared: “[W]e don’t know nothing about this murder.”
       {¶ 108} With regard to the statutory mitigating factors of R.C. 2929.04(B),
appellant claims that he was not the principal offender, R.C. 2929.04(B)(6), but the
evidence indicates that both he and Jalowiec were the actual killers of Lally. Nor
does it appear that the victim induced the offense, R.C. 2929.04(B)(1), in a manner
that would be considered mitigating. The killing of a witness to prevent his
testimony in another criminal proceeding strikes at the heart of the criminal justice
system. See State v. Keene (1998), 

, 

, 266-
267; 

, 

. In addition, the fact
that the killers and victim were smoking crack cocaine prior to the murder does not
qualify the offender as being under duress, coercion, or strong provocation. R.C.
2929.04(B)(2).
       {¶ 109} However, several aspects in appellant’s background are entitled to
some weight under R.C. 2929.04(B)(7). His drug problem is entitled to minimal
weight. See, e.g., State v. Hill (1995), 

, 

. Also mitigating is the love and support that appellant enjoys from some
family members. See, e.g., State v. Mason (1998), 

, 

. One could also give slight mitigating value to the fact that
appellant tried to address his drug abuse problem. While the jury was instructed on
residual doubt, it is not an acceptable mitigating factor under R.C. 2929.04(B).
State v. McGuire (1997), 

, 

, syllabus.
       {¶ 110} Upon independent weighing, the aggravating circumstance
outweighs the mitigating factors beyond a reasonable doubt.
       {¶ 111} We further find that the death penalty imposed in this case is both
appropriate and proportionate with the sentence given in 

, 

, which also involved the single specification of
murdering a witness to prevent the witness from testifying in a criminal proceeding.




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                             SUPREME COURT OF OHIO




The mitigating factors presented in Coleman are comparable to those raised in this
case. The sentence is also appropriate and proportionate to the sentence imposed
in cases with capital specifications in addition to the R.C. 2929.04(A)(8)
specification. See, e.g., State v. Lawson (1992), 

, 

; State v. Hooks (1988), 

, 

.
        {¶ 112} Based on all of the foregoing, we affirm appellant’s conviction and
death sentence.
                                                            Judgment accordingly.
        MOYER, C.J., DOUGLAS, F.E. SWEENEY, COOK and LUNDBERG STRATTON,
JJ., concur.
        PFEIFER, J., concurs separately.
                               __________________
        PFEIFER, J., concurring.
        {¶ 113} All the principal events in this case occurred in Cuyahoga County;
the only thing that didn’t was the act of prior calculation and design. Why then was
the case tried in Lorain County? Because Ronald Lally was an important witness
in a case Lorain County was prosecuting and was killed by appellant to assure his
silence. I understand Lorain County’s interest; however, it appears a rather slim
interest when weighed against the chance that an aggravated murder conviction
could have been overturned based on lack of venue.
                               __________________




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