State v. Murphy

[This decision has been published in Ohio Official Reports at 

.]




            THE STATE OF OHIO, APPELLEE, v. MURPHY, APPELLANT.
                      [Cite as State v. Murphy, 

.]
Criminal law—Aggravated murder—Invocation of right to remain silent is
        ambiguous or equivocal, when—Crim.R. 24(F)—Waiver—Allowing
        alternate jurors to attend deliberations is not reversible plain error, when—
        Mere existence of conflicting evidence cannot make the evidence
        insufficient as a matter of law—Death penalty upheld, when.
       (No. 98-1586—Submitted October 17, 2000—Decided June 6, 2001.)
         APPEAL from the Court of Common Pleas of Franklin County, No.
                                      97CR-05-2877.
                                  __________________
        ALICE ROBIE RESNICK, J.
        {¶ 1} Defendant-appellant, Ulysses C. Murphy, was convicted of
murdering Andre Brooks during an aggravated robbery and was sentenced to death.
        {¶ 2} Andre Brooks lived in Mansfield. His sister, Condrea Webber, lived
in Columbus. On a weekend in May 1997, Webber went to Mansfield to visit her
family. On Saturday, May 10, she drove back to Columbus with Brooks.
        {¶ 3} They went to the C&S Lounge, a bar on the East Side of Columbus.
Arriving sometime before 1:00 a.m., May 11, they left around 2:00 a.m. and went
to the F&H Grill.
        {¶ 4} The F&H occupied a two-story building; the second floor was an
“after-hours bar,” i.e., an establishment that serves liquor after the lawful closing
time. Webber and Brooks stayed until about 3:30 a.m.
        {¶ 5} Murphy was also in the F&H that night. Frank Green, who frequented
the F&H and knew Murphy, later testified that Murphy left “[m]aybe a couple
minutes” after Brooks and Webber. Brooks was wearing several gold chains
                               SUPREME COURT OF OHIO




around his neck that evening. These had attracted Murphy’s notice, and he decided
to rob Brooks to get them.
       {¶ 6} Brooks and Webber were near the car when Murphy told them to put
their hands up and ordered Brooks “to take off his gold.” Brooks asked Murphy to
let Webber get into the car.
       {¶ 7} As Webber fumbled with the keys, she accidentally set off the car
alarm. Brooks told her how to shut it off, while continuing to ask Murphy to give
her a chance to get in. Murphy was pointing his gun at Brooks the entire time.
Finally, Webber got in, started the car, and put it in drive. Brooks and Murphy
were standing at the rear of the car, and Webber could see them in her rear-view
mirror. (Although it was night, and the car’s rear windshield appears to be tinted,
the car was near an outdoor light.)
       {¶ 8} Brooks tried to take his gold chains off, with Murphy continually
demanding that he “hurry up.” Then Brooks tried to scare Murphy away by telling
his sister to “reach underneath the seat.” But Webber, afraid to support Brooks’s
bluff, opened the door and turned around to assure Murphy that she had no gun. It
was then that she got her best look at Murphy.
       {¶ 9} Webber then closed the car door but continued to watch the robbery
in the rear-view mirror. Murphy kept yelling at Brooks that he was “moving too
slow.” Webber then saw Murphy, who was standing slightly over an arm’s length
from Brooks, take a step back. She heard two quick shots; then her brother
screamed and fell. According to Webber, Brooks was shot while still trying to take
his chains off. Webber hit the gas pedal and sped to a nearby White Castle
restaurant to summon a police officer.
       {¶ 10} An autopsy showed that Brooks died of two gunshot wounds. One
bullet entered the inside of Brooks’s upper left arm near the armpit and went into
his torso, breaking a rib, which lacerated his lung and caused bleeding. The other
entered his lower back and severed an artery.




                                         2
                               January Term, 2001




       {¶ 11} Police found three spent shell casings where Brooks was shot. Mark
Hardy, a Columbus police criminalist and firearms specialist, examined the casings.
Based on firing-pin impressions, extractor and ejector marks, and breech marks
found on each casing, Hardy concluded that all three had been ejected from the
same gun. Hardy also concluded that both bullets extracted from Brooks’s corpse
were fired from one gun.
       {¶ 12} Police showed Webber a photographic array, and she identified
Murphy as her brother’s killer. She later identified him again in court.
       {¶ 13} Murphy was arrested and interrogated. At first he denied everything.
Ultimately, he admitted that he had shot Brooks while trying to rob him of his
chains. He claimed that the gun had accidentally gone off because Brooks tried to
grab it. However, he admitted firing a second shot at Brooks when, according to
Murphy, Brooks tried to run away after the first shot.
       {¶ 14} Murphy was indicted for aggravated murder, aggravated robbery,
and having a weapon under disability. The aggravated murder count carried a
felony-murder death specification. Each count also carried a firearm specification.
He was convicted on all counts. After a penalty hearing, he was sentenced to death.
       {¶ 15} In this appeal, appellant raises twenty propositions of law attacking
the validity of his convictions and death sentence. After full consideration, we
overrule each proposition of law. We have also independently reviewed appellant’s
death sentence, as R.C. 2929.05(A) charges us to do, by reweighing the felony-murder aggravating circumstance against the mitigating factors and measuring the
sentence in this case against sentences imposed in similar cases. Our analysis leads
us to the conclusion that appellant’s convictions and death sentence must be
affirmed.
                            I. Fifth Amendment Issues
       {¶ 16} In his first proposition of law, appellant contends that his videotaped
confession should have been suppressed. He contends, first, that he did not waive




                                         3
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his right to remain silent; second, that police continued to interrogate him after he
invoked his right to cut off questioning. See Michigan v. Mosley (1975), 

, 

, 

.
                                       A. Waiver
          {¶ 17} At 10:38 p.m., May 11, 1997, Detective Viduya began appellant’s
interrogation by administering Miranda warnings. See Miranda v. Arizona (1966),

, 

, 

. Viduya then had appellant read the
Miranda warnings aloud and asked, “Can you explain to me what that means to
you?” Appellant stated, “That means I ain’t got to say nothing right now, ‘til I talk
to my lawyer.”
          {¶ 18} After advising appellant of his rights, Viduya did not specifically ask
him whether he desired to waive his rights, nor did he ask appellant to sign a waiver
form. However, he did explain appellant’s rights to him in simple terms. He did
give appellant a waiver form, had him read the form aloud, and made sure he
understood it. Only then did Viduya proceed to interrogate appellant.
          {¶ 19} The trial court, ruling on appellant’s motion to suppress his ensuing
confession, found that appellant understood his rights and displayed “no hesitation”
in talking with Viduya. The court also found that appellant had voluntarily waived
his right to remain silent.
          {¶ 20} Appellant contends that he never waived his right to remain silent at
all. He stresses the fact that he never signed the waiver-of-right form, and that the
trial court improperly found that he implicitly waived this right by talking with
police.
          {¶ 21} It is settled law that a Miranda waiver need not be expressly made
in order to be valid. North Carolina v. Butler (1979), 

, 

, 

. A court may infer a waiver from the suspect’s
behavior, viewed in light of all the surrounding circumstances. See cases cited
infra.




                                            4
                                January Term, 2001




        {¶ 22} The trial court inferred waiver from appellant’s actions. In our view,
the record supports that inference. Even though Viduya did not ask appellant if he
wished to give up his rights, he did ask him whether he understood his rights. Not
only did appellant affirm that he understood his rights, he showed his understanding
of the right to remain silent: “That means I ain’t got to say nothing right now, ‘til I
talk to my lawyer.” He also understood the concept of a waiver: “That means I can
talk to you if I want to.”
        {¶ 23} When Viduya questioned him, appellant spoke with no visible
reluctance. His original story was exculpatory, and he evidently believed that if he
told it well, he would be released. (Thus, once he had told it, he informed Viduya
that he was “ready to go home.”)
        {¶ 24} Where a suspect speaks freely to police after acknowledging that he
understands his rights, a court may infer that the suspect implicitly waived his
rights. See, e.g., United States v. Ogden (C.A.5, 1978), 

;
Gorham v. Franzen (C.A.7, 1985), 

; United States v. Hilliker
(C.A.9, 1970), 

; People v. Sully (1991), 

, 

, 

; State v. Williams (1993), 

, 

, vacated on other grounds, North Carolina v.
Bryant (1994), 

, 

, 

; State v. McCluskie
(Me.1992), 

; People v. Sirno (1990), 

, 

, 

. A suspect’s acknowledgment that he understands
his rights should not, perhaps, “inevitably carry the day,” but such an
acknowledgment “is especially significant when defendant’s incriminating
statement follows immediately thereafter,” as was the case here. 2 LaFave, Israel
& King, Criminal Procedure (2 Ed.1999) 592, Section 6.9(d), citing Billings v.
People (1976), 

, 

.
        {¶ 25} The surrounding circumstances also suggest that appellant’s waiver
was voluntary. Viduya’s manner was not threatening; there is no evidence that




                                          5
                              SUPREME COURT OF OHIO




police used coercive tactics to obtain the waiver. Appellant told Viduya that he was
sober, and this was confirmed by his appearance and demeanor in the video. Thus,
the record supports the trial court’s finding that appellant voluntarily waived his
rights.
                               B. Assertion of Rights
          {¶ 26} Michigan v. 

 holds that once a suspect invokes his
right to remain silent, police must cease to question him. The invocation does not
bar further questioning altogether, but police must scrupulously honor the
defendant’s exercise of his right to cut off questioning. Mosley, 

,

, 

, citing Miranda, 

, 

, 

.
          {¶ 27} In this case, appellant told Detective Viduya that he had not been
involved in the crime. After telling his version, he said, “I’m ready to quit talking
now and I’m ready to go home, too.” Viduya left the interrogation room for a few
minutes to consult another detective. When he came back, he brought a crime scene
technician with him, and the interrogation resumed. Appellant answered without
apparent reluctance, and ultimately confessed to holding Brooks up and shooting
him.
          {¶ 28} Appellant contends that his statement to Viduya that he was “ready
to quit talking, and … go home, too” was an expression of his desire to stop
talking, hence an invocation of his right to remain silent. Since Viduya did not
“scrupulously honor” that invocation, appellant contends, his confession should
have been suppressed.
          {¶ 29} However, police must honor an invocation of the right to cut off
questioning only if it is unambiguous. Davis v. United States (1994), 

,

, 

, holds that “after a knowing and voluntary waiver
of the Miranda rights, law enforcement officers may continue questioning until and
unless the suspect clearly requests an attorney. … [W]e decline to adopt a rule




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                                 January Term, 2001




requiring officers to ask clarifying questions. If the suspect’s statement is not an
unambiguous or unequivocal request for counsel, the officers have no obligation to
stop questioning him.” 

, 114 S.Ct. at 2356, 

.
        {¶ 30} Although Davis dealt with invocations of the right to counsel, we
think it also applies to the right to remain silent. “[E]very circuit that has addressed
the issue squarely has concluded that Davis applies to both components of Miranda:
the right to counsel and the right to remain silent.” Bui v. DiPaolo (C.A.1, 1999),

.
        {¶ 31} Although a suspect “need not ‘speak with the discrimination of an
Oxford don,’ “ Davis, 

, 

, 

,
quoting 

, 114 S.Ct. at 2364, 

 (Souter, J., concurring in
judgment), a suspect “must articulate his or her desire to remain silent or cut off
questioning ‘sufficiently clearly that a reasonable police officer in the
circumstances would understand the statement to be’ an invocation of the right to
remain silent.” State v. Ross (1996), 

, 

,
quoting Davis, 

, 

, 

; see, also,
United States v. Mikell (C.A.11, 1996), 

. If the suspect says
something that may or may not be an invocation of the right, police may continue
to question him; they need not treat the ambiguous statement as an invocation or
try to clear up the ambiguity. See Ross, 

, 

,
and fn. 4 (citing cases); State v. Owen (Fla.1997), 

; State v.
King (Me.1998), 

. Thus, appellant’s claim turns on whether
his statement was an unambiguous invocation of his right to stop talking.
        {¶ 32} The first part of his statement—”I’m ready to quit talking”—might
well be read as an unambiguous invocation of the right to remain silent if examined
in isolation. However, we must examine appellant’s words not in isolation but in
context. His full statement was: “I’m ready to quit talking and I’m ready to go
home, too.” (Emphasis added.)




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                             SUPREME COURT OF OHIO




        {¶ 33} This statement can be interpreted as meaning simply that appellant
was ready to “go home.” In Moore v. Dugger (C.A.11, 1988), 

,
the question “When will you all let me go home?” did not amount to so much as an
equivocal invocation of the right to silence. Obviously, if appellant had gone home,
he would also have stopped talking to the police. What is not clear, however, is
whether his readiness to stop talking was independent of his desire to go home.
        {¶ 34} What appellant appears to have wanted was to be released. Talking
to the police was a means to that end; he was trying to persuade them that he was
innocent. Thus, his words did not necessarily mean that he wanted to stop talking,
no matter what. If the police were not ready to let him go, he may well have wanted
to keep trying to persuade them of his innocence.
        {¶ 35} We conclude that appellant’s statement was not an unequivocal
assertion of his right to remain silent. Such an ambiguous statement could create
no obligation for the police to suspend their questioning of a criminal suspect. We
therefore overrule appellant’s second proposition of law.
                           II. Request for New Counsel
        {¶ 36} In his fourth proposition of law, appellant contends that the trial
court abused its discretion in denying him a continuance so that he could seek to
retain counsel to replace his appointed counsel after he became dissatisfied with
them.
        {¶ 37} At arraignment, appellant requested appointed counsel and filed an
affidavit of indigence, in which he represented under oath that he was “financially
unable to retain private counsel without substantial hardship to me or to my family.”
The trial court assigned appellant two assistant county public defenders. Appellant
later became dissatisfied with their advice, so they sought leave to withdraw. The
court granted leave, continued the trial date, and assigned Terry Sherman and Debra
Gorrell to represent appellant (who had asked specifically for Sherman).




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                                   January Term, 2001




        {¶ 38} However, appellant soon became dissatisfied with Sherman and
Gorrell. On May 1, 1998, the first day of voir dire, Sherman and Gorrell sought
leave to withdraw and requested another continuance so that appellant could retain
private counsel. According to Sherman, appellant asked his attorneys to withdraw
because, thinking the case “almost impossible to win,” Sherman had advised him
to “consider an option other than trial.” Sherman noted that appellant had nothing
against him personally and added, “I like Mr. Murphy a lot.”
        {¶ 39} Appellant stated that “there is nothing inaccurate” in Sherman’s
statement. Although appellant thought Sherman and Gorrell were “great lawyers,”
he explained that he wanted to hire his own lawyer because he did not trust a statepaid lawyer to work in his best interest. However, appellant also admitted, “I’m
not really sure if I’m going to have the money” to retain counsel, but he wanted
thirty days to try and raise it.
        {¶ 40} Noting that seventy-eight prospective jurors had been called into
court, the trial judge overruled the motions for withdrawal and continuance.
Appellant then refused to cooperate further and asked to be taken back to his cell.
The court granted this request and proceeded with voir dire.
        {¶ 41} By the next court session, appellant agreed to return to court. That
morning, Sherman protested a proposal to put a “stun belt” on appellant. Sherman’s
representations to the court on this point throw considerable light on his relationship
with appellant. Although appellant had been “mouthy,” Sherman believed that he
now had his client “under control.” He stated that appellant “hasn’t displayed any
problems while he has been incarcerated nor any problems while he was here Friday
[May 1]. He did what we told him. He … didn’t cause any problems.” Sherman
warned that putting a stun belt on appellant would only “cause me to lose the
ground that I’ve gained, and I need to work with this guy.” (Emphasis added.)
        {¶ 42} However, before opening statements on May 11, Sherman informed
the trial judge that counsel and client were having “a fundamental disagreement”




                                           9
                              SUPREME COURT OF OHIO




on how to proceed. Sherman believed that, since the court had declined to suppress
appellant’s confession, the best remaining defense was to concede that appellant
had killed Brooks but argue that he lacked the intent to kill. However, appellant
told Sherman that he did not want to take that course.
        {¶ 43} Nevertheless, Sherman told the jury in his opening statement that
appellant killed Brooks and that the sole issue was whether he had done so with the
intent to kill. He then discussed the evidence and told the jury that “you will not
find that there was a specific intent to kill.”
        {¶ 44} At the beginning of the next day’s session, appellant requested a
mistrial because counsel had disregarded his wishes in choosing a defense.
Addressing the court, appellant said, “Now, counsel and myself have discussed my
defense, and I made it perfectly clear that I was innocent. … I made it very clear
that I didn’t want to go in to trial with that defense, but he did it anyway.”
(Emphasis added.)
        {¶ 45} Sherman then told the court that he and appellant were
communicating and “getting along.”          He stated that he and co-counsel had
discussed various defense options with appellant, shown him witness-interview
summaries, police reports, and investigative reports, and conveyed the state’s plea
offer. Sherman understood that appellant “did not want us to proceed the way I
proceeded.” Sherman had explained his view of the case to appellant and asked
him to suggest “any plausible … avenue that I can pursue.”
        {¶ 46} Against this factual background, appellant advances three related
Sixth Amendment claims.
        {¶ 47} First, appellant contends that the trial judge should have assigned
different counsel to represent him during the trial court’s inquiry into his request
for a change of counsel, when it became apparent that his attorneys had essentially
“abandoned” him by taking a position contrary to his wishes. We cannot agree.
Appellant’s sole authority for this claim is United States v. Wadsworth (C.A.9,




                                           10
                                January Term, 2001




1987), 

, but we find Wadsworth distinguishable. Defense
counsel in that case had taken an “adversary and antagonistic” stance toward his
client’s right to counsel. 

. But here, Sherman was not averse to
appellant’s request for new counsel.       Nor were he and appellant personally
antagonistic, as the record makes clear. Hence, there was no need to assign
appellant different counsel for the inquiry.
        {¶ 48} Second, appellant takes issue with the result of that inquiry. He
contends that his motion for a continuance so that he could hire his own counsel
should have been granted.
        {¶ 49} The determination of whether to grant a continuance is entrusted to
the broad discretion of the trial court. State v. Unger (1981), 

, 

, 

, syllabus. Relevant factors include “the length of
delay requested, prior continuances, inconvenience, [and] the reasons for the
delay.” State v. Landrum (1990), 

, 

.
        {¶ 50} Moreover, “[a]n indigent defendant has no right to have a particular
attorney represent him and therefore must demonstrate ‘good cause’ to warrant
substitution of counsel.” United States v. Iles (C.A.6, 1990), 

,
quoted in State v. Cowans (1999), 

, 

. If
his complaint is unreasonable, the trial judge may deny the requested substitution.
State v. Deal (1969), 

, 

, 

, syllabus.
In evaluating a request for substitute counsel, the court must balance “the accused’s
right to counsel of his choice [against] the public’s interest in the prompt and
efficient administration of justice.” United States v. Jennings (C.A.6, 1996), 

. “The trial court’s decision is reviewed under an abuse-of-discretion
standard.” Cowans, 

, 

, citing Iles, 

.
        {¶ 51} Appellant alleges a complete breakdown in communication between
him and his assigned counsel. Although there is no right to a “meaningful attorney-




                                         11
                             SUPREME COURT OF OHIO




client relationship,” Morris v. Slappy (1983), 

, 

, 

, a “total lack of communication preventing an adequate
defense” is a factor the court should consider in evaluating a defendant’s request
for substitute counsel. Jennings, 

. See, also, 

,

.
       {¶ 52} The record does not indicate any breakdown of communications
between appellant and his attorneys. Instead, “the record is replete with references
to [counsel’s] discussions with the defendant.” Iles, 

. Appellant
admitted that he had discussed his defense with counsel and believed he had made
his position clear to them. Sherman’s statements also show that communication
was taking place, and that he understood what appellant wanted. This was not a
breakdown in communications but rather a disagreement as to the best line of
defense.
       {¶ 53} Appellant had already had at least two continuances and one change
of counsel. His new request, coming on the first day of voir dire, was ill-timed.
And the judge had no reason to believe that appellant could hire counsel. Appellant
had already claimed indigence, and he admitted that he still did not have the money
to hire a lawyer and was not sure he could get it.
       {¶ 54} We conclude that the trial court did not abuse its discretion either by
denying appellant’s request for continuance or by denying Sherman and Gorrell
leave to withdraw.
       {¶ 55} Finally, appellant contends that his counsel rendered ineffective
assistance by pursuing a strategy against his wishes. Appellant cannot and does not
contend that the Constitution reserves the selection of trial strategy to the
defendant’s personal choice. Decisions about “the viability of certain defenses” are
“within the exclusive province of defense counsel to make after consultation with
his client.” Lewis v. Alexander (C.A.6, 1993), 

.




                                         12
                                January Term, 2001




       {¶ 56} Instead, appellant argues that counsel were ineffective in rejecting
his desired course, because it was “just as reasonable” as the course counsel
pursued. However, that implies that counsel’s strategy was also as reasonable as
appellant’s—a concession that dooms appellant’s ineffective-assistance claim. To
prevail on such a claim, a defendant must show that counsel’s actions were
professionally unreasonable. See Strickland v. Washington (1984), 

, 

, 

. Appellant can hardly
claim that counsel’s strategic choice was unreasonable in light of his confession.
Hence, he cannot prevail on his ineffective-assistance claim.
       {¶ 57} Appellant’s fourth proposition of law is overruled.
                                III. Voir Dire Issues
                               A. Denial of Voir Dire
       {¶ 58} The trial court excused prospective jurors Shipka, who had an
upcoming vacation, and Wack, who felt unable to serve due to a recent negative
experience with the criminal-justice system. In his fifth proposition, appellant
complains that the trial court gave the defense no chance to voir dire these jurors
before excusing them. However, appellant did not request an opportunity to voir
dire either one (though he did object to excusing Shipka). Thus, appellant has
waived this issue, and his fifth proposition is overruled.
       {¶ 59} We further note that a juror’s discharge “on grounds of personal
excuse” is a matter “between the court and the jurors, and with which the parties
can not, of right, interfere.” Bond v. State (1872), 

, 355, 

. A party has no right to have any particular juror on the panel. His right is to
an impartial jury, and a juror’s erroneous excusal does not compromise the jury’s
impartiality. See, e.g., United States v. Cornell (C.C.D.R.I.1820), 

; State v. Mendoza (1999), 

, 

 (citing
cases); Jones v. State (Tex.Crim.App.1998), 

 (citing cases);
People v. Lefebre (Colo.2000), 

.




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                             SUPREME COURT OF OHIO




       {¶ 60} Excusing prospective jurors without voir dire neither caused any
disqualified or biased juror to be seated nor impaired counsel’s ability to exercise
peremptories. Thus, it did not deny appellant the essential benefits of voir dire.
See Dowd-Feder, Inc. v. Truesdell (1936), 

, 

, 

, paragraph one of the syllabus; State v. Anderson (1972), 

, 71-
72, 

, 

; State v. Garner (1995), 

, 

 (explaining the purposes of voir dire). It follows
that, if the court erred in excusing the jurors without voir dire, the error would be
harmless.
                         B. Denial of Challenges for Cause
       {¶ 61} Prospective juror Council had a cousin who was killed by an armed
robber in 1993. He was upset that the killer was never caught.
       {¶ 62} Council initially said that he could separate the instant case from that
of his cousin. Under defense examination, Council indicated that his cousin’s death
“probably would” affect him in hearing the case, and he agreed that if he could not
hear the case fairly he could not be “a fair juror.” He also told defense counsel that
he had no doubt about his fairness and did not think that his cousin’s death would
interfere with his being fair in this case. Council further indicated that he could
consider a penalty other than death in a case of murder during armed robbery, that
a person’s “upbringing” and “personality” might be relevant, and that he was not
predisposed toward one penalty over another.
       {¶ 63} A prospective juror is not automatically disqualified by the fact that
a close relative has been the victim of a crime similar to the crime on trial. See
State v. Allen (1995), 

, 

; State
v. Allard (1996), 

, 

; and see,
generally, Crim.R. 24(B) (listing grounds for challenge for cause). Instead, the trial
judge must determine, on a case-by-case basis, whether the juror “is possessed of a
state of mind evincing enmity or bias.” Crim.R. 24(B)(9).




                                         14
                                January Term, 2001




       {¶ 64} Despite some hesitation, Council ultimately made it clear that his
feelings about his cousin’s killing would not affect his ability to be impartial. The
trial court’s ruling on a challenge for cause will not be overturned on appeal if the
record supports it. See State v. Wilson (1972), 

, 

, 

. “[T]he trial judge saw and heard [Council] and
could legitimately validate [his] statements.” 

,

.
       {¶ 65} A juror whose views on capital punishment are such that they would
prevent or substantially impair his ability to consider mitigating factors, as the law
requires, is disqualified. See Morgan v. Illinois (1992), 

, 

, 

; State v. Williams (1997), 

, 

; State v. Rogers (1985), 

, 17 OBR 414, 417-418, 

. Appellant claims that
the trial court improperly overruled his challenges for cause of three such jurors.
       {¶ 66} Venireman Roe said that he “would be able to” impose a sentence
other than death, although he “[couldn’t] imagine any [such circumstances] right
now.” Roe stated that he “would start with death and go from there. … [I]f
conditions are presented to me that make me think that [the sentence] should not be
the maximum, then I would consider that.” Roe gave examples: if the victim’s
family asked the jury to spare the defendant’s life, or the defendant suffered from a
“psychological imbalance.” Failing that, Roe would vote for a sentence of death
“or at least life without parole.” Once Roe was told that the law required the jury
to consider mitigating factors, he agreed that he could fully and fairly consider all
the evidence.
       {¶ 67} Appellant challenged Roe for cause; the challenge was overruled,
and appellant struck Roe with a peremptory challenge.
       {¶ 68} Venireman Hector stated at the outset that he would not
automatically vote to recommend death after a finding of guilty but would decide




                                         15
                                SUPREME COURT OF OHIO




whether death was appropriate only after listening to the mitigation presented and
deciding what weight to give it. While he said that he would give little weight to
certain mitigating factors, he never refused to consider them, and he specifically
mentioned others that he would consider.
        {¶ 69} Under defense examination, Hector seemed to contradict himself,
stating that “if the intent was to kill, I would have to ask for death.” Hector then
clarified these statements: they referred to a situation where there were no
mitigating factors. The trial judge found that Hector had misunderstood defense
counsel to be talking about a case with no mitigating circumstances. Thus, the
judge overruled the challenge, and Hector sat on the jury.
        {¶ 70} Venireman Arnold was seated as an alternate. She stated that “I
think I want to listen to everything and look at all sides before I would make a
decision.” Specifically, she thought “I would want to listen to the mitigation
evidence … [because] I don’t think you get the whole picture unless you do.”
Only once did she waver from this position, saying, “There is a possibility I would
not.” However, on further inquiry, it turned out that she had not understood defense
counsel’s questions.
        {¶ 71} The record affords no basis to overturn the trial judge’s rulings on
these jurors. As soon as each juror understood that he or she would have a legal
duty to consider mitigation, each one said he or she could do so. The trial judge
could reasonably find that these jurors’ ability to weigh mitigating circumstances
would not be substantially impaired. We note that the judge was sensitive to this
issue and granted other Morgan challenges by the defense when called for. We do
not think she abused her discretion in denying the ones at issue here.
        {¶ 72} Finally, appellant argues that the voir dire of prospective juror
Ellsesser revealed bias against the defendant. Ellsesser is a police officer.1 During


1. He did not work for the Columbus Police Department, which investigated Brooks’s murder.




                                             16
                                   January Term, 2001




individual voir dire, Ellsesser was asked if he would be “slanted” because of his
police background. He replied: “I will hear the case as the facts are presented to
me. I can’t change who I am. … I don’t feel it would be slanted. Maybe
somebody else would think it would be.” He added that “honor” would require him
to follow the judge’s instructions.
        {¶ 73} Later, on general voir dire, defense counsel asked him: “As
somebody who is involved in law enforcement, what do you think about serving as
a juror on an aggravated murder case?” He said, “I don’t know. If I was you guys,
I wouldn’t want me here, but that’s your decision.” (Emphasis added.)
        {¶ 74} Appellant urged the trial court, as he now urges us, to read
Ellsesser’s statement, “If I was you guys, I wouldn’t want me here,” as an admission
of bias. However, this statement simply is not the clear-cut confession of bias that
appellant claims it is. Ellsesser’s statement can easily be understood as a mere
acknowledgement of what everyone already knows: defendants generally do not
want police officers on the jury. Indeed, Ellsesser had said precisely that during his
individual voir dire; that earlier statement may well have influenced the trial court’s
interpretation of the later one.
        {¶ 75} The context of the statement also militates against appellant’s
reading. The question Ellsesser was answering did not deal with bias, and he had
already indicated that he did not feel he would be biased.             Moreover, he
immediately followed this statement with the comment “The judge will give you
instructions. You follow what the law dictates you are to do.” On this record,
interpreting the words “I wouldn’t want me here” as an eleventh-hour admission of
bias is not warranted.
        {¶ 76} Thus, the record supports the trial court’s finding that Ellsesser was
not biased.
        {¶ 77} The record supports each of the questioned rulings on challenges for
cause. Hence, appellant’s fifth proposition of law is overruled.




                                           17
                             SUPREME COURT OF OHIO




                                  C. Batson Issue
       {¶ 78} In his sixth proposition, appellant claims that the prosecutor
exercised two peremptories in a racially discriminatory fashion, i.e., that he
challenged prospective jurors Jacobs and Watkins because they were black. The
Equal Protection Clause of the Fourteenth Amendment strictly prohibits a state
actor from engaging in racial discrimination in exercising peremptory challenges.
Such discrimination is grounds to reverse a conviction returned by a jury tainted
with such discrimination. See Batson v. Kentucky (1986), 

, 

, 

; State v. White (1999), 

, 

.
       {¶ 79} A court adjudicates a Batson claim in three steps. In step one, the
opponent of the peremptory challenge at issue must make a prima facie case that
the proponent was engaging in racial discrimination. In step two, the proponent
must come forward with a race-neutral explanation for the strike. In step three, the
trial court must decide, on the basis of all the circumstances, whether the opponent
has proved racial discrimination. Purkett v. Elem (1995), 

,

, 

; State v. White, 

,

.
       {¶ 80} In this case, the prosecutors voluntarily came forward with an
explanation why they challenged Watkins and Jacobs; hence, the trial court did not,
and we need not, determine whether the defense made the requisite prima facie
case. See Hernandez v. New York (1991), 

, 

,

; State v. Hernandez (1992), 

, 

. Our analysis therefore proceeds to step two, in which we
consider the state’s proffered reasons for the challenges at issue.
       {¶ 81} The prosecutor claimed that he struck Jacobs because “she said if
she perceived any discrepancy [in the evidence], she could not find someone
guilty,” and also because “in the absence of mitigation, she claims she would vote




                                         18
                                  January Term, 2001




for life without parole. … She absolutely cannot, in my opinion, follow the law
when it comes to the death penalty.” These are racially neutral reasons for striking
Jacobs.
          {¶ 82} The state struck Watkins because “[h]e has a feeling that the system
here is not fair” and “[h]e felt fine with the O.J. [Simpson] verdict, and anybody
that feels fine with the O.J. verdict doesn’t sit on my juries.” The state argued that
approval of the “O.J. verdict” indicated “a predisposition [to believe] that the police
are going to plant or manufacture evidence.”
          {¶ 83} Appellant argues that this explanation is not race-neutral because
“the ‘O.J. trial’ was itself a racially charged trial.”      However, Watkins was
challenged on the basis of an individual rather than a racial characteristic: an
opinion he allegedly held. Compare Heno v. Sprint/United Mgt. Co. (C.A.10,
2000), 

 (juror’s favorable opinion on affirmative action was
race-neutral explanation for strike). Moreover, “disparate impact” analysis does
not apply to step two of a Batson challenge. Hernandez v. New York, 

, 

, 

. Clearly, the proffered reason for
challenging Watkins was race-neutral. That conclusion moves us to step three.
          {¶ 84} Appellant argues that the state’s reason for striking Jacobs—that she
could not vote guilty if she perceived any discrepancies, even minor ones, in the
evidence—is not supported by the record. However, the prosecutor had asked
Jacobs, “You wouldn’t want any discrepancies at all, basically?” and Jacobs said,
“Yeah.”
          {¶ 85} Appellant also argues that, if the prosecutor’s concern was indeed
sincere, he would also have struck prospective juror Council, who also thought
minor discrepancies were important in determining credibility. A facially neutral
reason for a strike may indicate discrimination, if the state uses it only to eliminate
jurors of a particular cognizable group. Coulter v. Gilmore (C.A.7, 1998), 

.




                                           19
                              SUPREME COURT OF OHIO




       {¶ 86} Appellant’s argument is not persuasive. Council did not say that he
“wouldn’t want any discrepancies at all,” as Jacobs did. Council also admitted that
witnesses might have different “perspective[s]” and that discrepancies did not
necessarily indicate lying.
       {¶ 87} The prosecutor also said that he struck Jacobs because she would not
vote for the death penalty. Jacobs did seem to say that she would vote for life
without parole even if the mitigating factors deserved no weight. However,
appellant argues that this justification is disingenuous, because when the question
was clarified, Jacobs said that she could sign a death recommendation. Thus, the
state’s claim that Jacobs would never vote for death does seem overstated.
       {¶ 88} Yet, a valid explanation for a peremptory challenge need not reach
the level of a challenge for cause. See Batson, 

, 

,

. Jacobs’s answers certainly indicated some degree of opposition
to capital punishment. While that is insufficient to permit a challenge for cause
(see, generally, Adams v. Texas [1980], 

, 

, 

; Wainwright v. Witt [1985], 

, 

, 

), it is highly likely that such an attitude made her undesirable to the
prosecution. See State v. Esparza (1988), 

, 

 (state may use peremptories to eliminate jurors based on opposition to death
penalty). Thus, the trial court was entitled to conclude that the prosecutor’s stated
reason for striking Jacobs was sincere.
       {¶ 89} Appellant offered no evidence of discriminatory intent. The burden
of proving intentional racial discrimination was his. Moreover, “[t]he trial court’s
finding is entitled to deference, since it turns largely ‘on evaluation of
credibility.’ ” State v. White, 

, 

, quoting
Batson, 

, 

, 

. We think the
record supports the trial judge’s finding with respect to Jacobs.




                                          20
                                  January Term, 2001




        {¶ 90} Appellant argues that the state’s reason for striking Watkins—his
view on the “O.J. verdict”—was insincere, because the state never asked Watkins
any questions about the “O.J. verdict.” However, appellant forgets that, before voir
dire, the venire members filled out jury questionnaires.          Unfortunately, the
questionnaires are not in the record, but the voir dire transcript does indicate that
they included a question about attitudes toward the “O.J. verdict.” Because of this,
the prosecutor’s failure to discuss the subject further during Watkins’s voir dire
cannot support a claim of bias.
        {¶ 91} The racially disparate impact of a justification that is race-neutral on
its face can be considered in Batson step three as evidence that the claimed
justification was pretextual. Hernandez v. New York, 

, 

, 

; 

.
        {¶ 92} Appellant appears to suggest that exercising peremptory challenges
based on a juror’s attitude toward the “O.J. verdict” is a practice having a disparate
impact on black jurors. We reject this suggestion for two reasons. First, to find
disparate impact, we would have to assume that jurors’ opinions about the “O.J.
verdict” were likely to vary according to race. The record contains no evidence to
support such an assumption.
        {¶ 93} Second, disparate impact by itself does not violate Batson. Batson
proscribes purposeful discrimination; disparate impact is merely evidence from
which discriminatory purpose may be inferred. However, the prosecutor’s race-neutral explanation for the strike was also evidence, and the trial judge was free to
believe that evidence instead.
        {¶ 94} Here, the prosecutor stated his belief that a person with a favorable
view of the “O.J. verdict” would be predisposed to suspect police of dishonesty.
The trial court evidently accepted this explanation. Since appellant cites nothing in
the record to suggest that the explanation was less than sincere, we have no basis
to disturb the trial court’s determination of credibility.




                                           21
                             SUPREME COURT OF OHIO




       {¶ 95} In overruling appellant’s Batson claims, the trial court implicitly
found that he had failed to show intentional discrimination by the state in exercising
its peremptory challenges. Our review of the record reveals nothing that would
justify us in disturbing that finding. Accordingly, we overrule appellant’s sixth
proposition of law.
                       IV. Alternate Jurors in Deliberations
       {¶ 96} In both phases of trial, the trial court sent the alternate jurors into the
jury room to listen to the jury’s deliberations.         However, the court strictly
commanded the alternates not “to participate in the deliberations in any fashion,”
even by “gestures” or “facial movements.”
       {¶ 97} It is generally regarded as erroneous to permit alternates to sit in on
jury deliberations. See, e.g., State v. Rocco (App.1978), 

, 

; State v. Boulies (Colo.1984), 

; State v. Murray
(2000), 

, 

; Berry v. State
(Fla.App.1974), 

; Johnson v. State (1975), 

, 

; Commonwealth v. Smith (1988), 

, 

; State v. Crandall (Minn.App.1990), 

, 710-
711; Luster v. State (Miss.1987), 

; State v. Scrivner
(Mo.App.1984), 

; State Hwy. Comm. v. Dunks (1975), 

, 

; State v. Bindyke (1975), 

, 

; State v. Coulter (App.1982), 

, 

; Yancey v. State
(Okla.Crim.App.1982), 

; Commonwealth v. Krick (1949), 

, 

; State v. Grovenstein (1999), 

, 

; Patten v. State (1968), 

, 

; State v. Lightner (1999), 

, 

; State v. Cuzick
(1975), 

, 

. Contra Wilcoxen v. State (Ind.1993), 

 (alternate jurors may attend deliberations as long as they are instructed
not to participate); see, also, Potter v. Perini (C.A.6, 1976), 

 (finding




                                          22
                                 January Term, 2001




error but no prejudice and no constitutional violation); People v. Valles (1979), 

, 

, 

 (alternate may remain in jury room if
defendant so stipulates); State v. Grant (1986), 

, 

 (distinguishing Dunks). See, generally, Koch v. Rist (2000), 

,

.
        {¶ 98} In an ordinary criminal case, Crim.R. 24(F) requires that any
alternate juror not substituted for a regular juror be discharged when the jury retires.
However, in State v. Hutton (1990), 

, 

, 444-
445, and paragraph three of the syllabus, we held that the discharge requirement
does not apply in a capital case under certain circumstances. In Hutton, we held it
permissible for a court to retain alternates after the jury retired in the guilt phase
and to substitute one of them for a regular juror who became incapacitated after the
guilty verdict but before the jury retired to deliberate in the penalty phase.
        {¶ 99} On the other hand, nothing in Hutton authorizes alternates who have
not replaced regular jurors to be present during deliberations. An alternate is part
of the “trial jury” if “properly substituted” for a regular juror, Hutton, paragraph
two of the syllabus, but here the alternates were not substituted. Hence, at least as
a technical matter, they were not part of the jury. See Koch, 

-
252, 730 N.E.2d at 965 (alternate was a “non-juror”). But, compare, State v.
Hessler (2000), 

, 

 (alternate present
during penalty deliberations was part of the jury for purposes of aliunde rule); State
v. Reiner (2000), 

, 

, 672. It follows that the
alternates should not have been present in the deliberations.
        {¶ 100} However, no defense objection appears in the trial record to the
presence of the alternate jurors. The waiver rule requires that a party make a
contemporaneous objection to alleged trial error in order to preserve that error for
appellate review. The rule is of long standing, and it goes to the heart of an
adversary system of justice.




                                          23
                             SUPREME COURT OF OHIO




       {¶ 101} Even constitutional rights “may be lost as finally as any others by
a failure to assert them at the proper time.” State v. Childs (1968), 

, 

, 

. Accord State v. Williams (1977),

, 

, 

.
The waiver rule operates even in capital cases, for “capital defendants are not
entitled to special treatment regarding evidentiary or procedural rules.” State v.
Greer (1988), 

, 

; see, also, State v.
Spisak (1988), 

, 

; State v. Campbell
(1994), 

, 

.
       {¶ 102} The Rules of Criminal Procedure make but one exception to the
contemporaneous-objection requirement: “Plain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of
the court.” Crim.R. 52(B).
       {¶ 103} Under this rule, we may take notice of waived errors only if they
can be characterized as “plain errors.” As we have repeatedly emphasized, the plain
error test is a strict one: “[A]n alleged error ‘does not constitute a plain error or
defect under Crim.R. 52(B) unless, but for the error, the outcome of the trial clearly
would have been otherwise.’ “ State v. Campbell, 

, 

, quoting State v. Long (1978), 

, 

, 

, paragraph two of the syllabus. We have warned that the plain error rule is not
to be invoked lightly. “Notice of plain error under Crim.R. 52(B) is to be taken
with the utmost caution, under exceptional circumstances and only to prevent a
manifest miscarriage of justice.” Long at paragraph three of the syllabus; see, also,
Campbell, 

, 

.
       {¶ 104} It is clear that the error alleged here is subject to the waiver and
plain error rules. In United States v. Olano (1993), 

, 

,

, the United States Supreme Court held that while it was error to
let alternate jurors attend deliberations, the error was not reversible under the




                                         24
                                 January Term, 2001




federal “plain error” standard because it was not shown to have affected a
substantial right. The court explained that error in such a case will not be presumed;
under Fed.R.Civ.Proc. 52(b), the party complaining of the error has the burden of
showing that the alternates disobeyed the court’s instructions by participating in the
deliberations, either verbally or through body language, or that their presence
chilled the deliberative process. Since the respondents made no such showing,
there was no basis for finding that the error affected respondents’ substantial rights,
and hence no basis for reversal as plain error. 

, 

-
1781, 

. Accord State v. Lightner, 

,

 (applying plain error test). See, also, Johnson v. Duckworth
(C.A.7, 1981), 

 (explaining why alternates are unlikely to
prejudice deliberations); Johnson v. State (1977), 

, 

 (alternate “is in every respect a juror”); State v. Crandall, 

 (alternates are not strangers to the jury).
          {¶ 105} Moreover, as the Supreme Court of Appeals of West Virginia noted
in applying the waiver rule to a similar case: “The first time [the defendant] uttered
any complaint was after the jury was discharged. At that time, the opportunity to
correct the error was lost to the trial court.” Lightner, 

, 

.
          {¶ 106} We are aware that, in some states, a defendant in such a case loses
the right to object on appeal only by affirmative waiver. That is, failure to object
to the presence of an alternate is no bar to claiming error unless the defendant has
knowingly, voluntarily, and intelligently agreed to the alternate’s presence during
deliberations. See, e.g., Boulies, 

; Berry, 

;
Commonwealth v. Jones (1989), 

, 

 (defendant does
not lose right to claim error even if defense counsel agreed to alternate’s presence);
Bindyke, 

, 

; Yancey, 

;
Cuzick, 

, 

.




                                          25
                              SUPREME COURT OF OHIO




        {¶ 107} However, as explained above, we have consistently enforced
Ohio’s waiver and plain error rules. Appellant would have us make an ad hoc
exception to those rules in cases where an alternate juror has been erroneously
admitted into the jury’s deliberations. We think Olano gives highly persuasive
reasons why no such exception is necessary.
        {¶ 108} Applying the test for plain error, we cannot find on this record that,
“but for the [trial court’s] error, the outcome of the trial clearly would have been
otherwise.” (Emphasis added.) Long, 

, 

, 

, paragraph two of the syllabus. We therefore hold that plain error is absent
here.   Thus, appellant waived the issue of the alternate jurors’ presence in
deliberations by failing to raise it at trial. Appellant’s seventh proposition therefore
must be, and is, overruled.




                                          26
                                 January Term, 2001




                                   V. Photo Array
         {¶ 109} “When a witness has been confronted with a suspect before trial,
due process requires a court to suppress her identification of the suspect if the
confrontation was unnecessarily suggestive of the suspect’s guilt and the
identification was unreliable under all the circumstances.” (Emphasis added.) State
v. Waddy (1992), 

, 

. In his third
proposition of law, appellant claims that police used an unduly suggestive
photographic lineup to get Condrea Webber to identify appellant as her brother’s
killer. Hence, he contends, both Webber’s in-court and out-of-court identifications
of appellant should have been suppressed.
         {¶ 110} On May 11, 1997, police showed Condrea Webber an array
comprised of six full-face photographs of black males. According to Webber’s
uncontradicted suppression-hearing testimony, she “immediately” picked out
appellant’s photo as that of her brother’s killer. She was “[o]ne hundred percent
sure” of her identification. The police in no way indicated which one she should
choose.
         {¶ 111} After a hearing, the trial judge overruled appellant’s motion to
suppress identification, remarking, “Quite frankly, there’s nothing suggestive
here.”
         {¶ 112} Appellant contends that the other photos in the array were so unlike
his that the array was suggestive. However, we affirm the trial court’s contrary
finding. “A defendant in a lineup need not be surrounded by people nearly identical
in appearance.” State v. Davis (1996), 

, 

. Furthermore, the other five photos in the array are all reasonably close to
appellant’s photo in appearance, showing no significant variations in hair length,
complexion, age, features, or dress.
         {¶ 113} Appellant claims that, while several of the photos depicted men
with facial hair, he had none. However, that is incorrect. Appellant’s photo in the




                                          27
                             SUPREME COURT OF OHIO




array shows a short, scraggly chin beard. Four of the other five subjects also had
short beards. Three of the other four bearded subjects did have mustaches, unlike
appellant; however, those three had only thin, inconspicuous mustaches.
        {¶ 114} Appellant’s photo does not stand out in any way. Hence, the array
was not suggestive, and appellant’s third proposition of law lacks merit.
                           VI. Prosecutorial Misconduct
        {¶ 115} Appellant’s eighth and sixteenth propositions of law charge
prosecutorial misconduct in both phases of trial. Although the prosecution did
engage in some improper argument, appellant’s claims are waived because he did
not object at trial.
        {¶ 116} In his eighth proposition, appellant makes only one claim of guiltphase misconduct. In closing, the prosecutor argued: “While [Brooks’s mother]
was spending her Mother’s Day driving to Columbus to identify the body of her
son, [appellant] is taking his girlfriend and mother out for dinner, not a care in the
world.” The defense objected on the ground that “[t]hat’s not in evidence.”
        {¶ 117} This isolated statement, while improper, was not outcome-determinative in this case, given that appellant shot Brooks in front of an eyewitness
and then confessed to doing it. Appellant’s contention is without merit.
        {¶ 118} The rest of appellant’s eighth proposition deals with alleged
penalty-phase misconduct, as does his sixteenth proposition. Again, all these issues
were waived at trial, and we find that none of the errors alleged amounted to plain
error. Appellant’s eighth and sixteenth propositions are therefore overruled.
                                  VII. Instructions
                                   A. Guilt Phase
        {¶ 119} In his ninth proposition, appellant alleges that the trial court
instructed the jury improperly in the guilt phase.
        {¶ 120} Appellant concedes that he did not object at trial to any of the
allegedly erroneous instructions. Hence, unless appellant can demonstrate plain




                                         28
                                January Term, 2001




error, each objection is waived. Appellant contends that because the state’s
evidence was weak, the outcome of this case would clearly have been otherwise
had these alleged errors not occurred. State v. Long, 

, 

, 

, paragraph two of the syllabus. We cannot agree. The
evidence here was more than sufficient to allow the jury to find appellant guilty
beyond a reasonable doubt. (See discussion of appellant’s eleventh proposition,
infra.) Thus, we cannot say that the outcome would clearly have been otherwise
but for the alleged errors.
                                  B. Penalty Phase
       {¶ 121} In propositions twelve through fourteen, appellant claims error in
the penalty-phase instructions. However, appellant actually requested each of the
instructions that he now contends were erroneous. In fact, the trial court gave
appellant’s proposed instructions almost verbatim.
       {¶ 122} Thus, appellant was “actively responsible,” State v. Kollar (1915),

, 91, 

, 197, for what he now claims to be error. Under
the settled principle of invited error, a litigant may not “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, citing Lester v. Leuck (1943), 

, 

, 

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

, 

. We therefore overrule appellant’s twelfth,
thirteenth, and fourteenth propositions of law.
       {¶ 123} Although we overrule these propositions on the basis of the invitederror doctrine, we note that appellant’s contentions lack merit in any event.
Because appellant attacks the instructions as not only incorrect, but egregiously so,
a brief review of his contentions is in order, to dispel any concern that he was
sentenced on the basis of egregiously incorrect instructions. See, generally, State
v. Campbell, 

, 

.




                                         29
                             SUPREME COURT OF OHIO




       {¶ 124} Appellant’s twelfth proposition identifies four alleged errors in the
penalty-phase instructions. The first was when the trial court instructed that “an
aggravating circumstance is something that makes the defendant’s crime more
serious and which, therefore, makes the death penalty more appropriate for the
defendant than a sentence of life imprisonment.”
       {¶ 125} Appellant contends that this instruction creates a presumption that
death is appropriate simply because an aggravating circumstance has been proven.
It does not: it merely explains the function of an aggravating circumstance. Other
instructions clearly explained to the jury that it must weigh the aggravating
circumstance against the mitigating factors and recommend life unless persuaded
beyond a reasonable doubt that the former outweighed the latter.
       {¶ 126} The trial court also instructed: “[M]itigating factors are the opposite
of aggravating circumstances.” According to appellant, this implied that mitigating
circumstances are circumstances that reduce the defendant’s guilt in the felony
murder.
       {¶ 127} However, the judge’s very next words were: “That is, a mitigating
factor is a factor that, in your individual judgment, makes a life sentence more
appropriate for Ulysses Murphy than a sentence of death.”            Then the judge
specifically divorced the concept of guilt from that of mitigation: “In order to decide
that something is a mitigating factor which would render a life sentence more
appropriate, you do not have to believe that it excuses or justifies the crime itself.”
Compare Eddings v. Oklahoma (1982), 

, 

, 

. The trial court also fully explained the concept of mitigating factors.
       {¶ 128} Finally, appellant contends that the trial court erroneously
instructed that “a life sentence could be returned only if the mitigating factors
outweighed the aggravating circumstances.” However, the instruction appellant
cites said nothing of the kind. What it actually said was, “You might decide that
the mitigating factors, taken together, outweigh the one aggravating circumstance,




                                          30
                                 January Term, 2001




taken alone. In that event, your vote as an individual juror must be for a penalty of
life imprisonment.”
          {¶ 129} This was part of a comprehensive instruction outlining “four
possibilities.” In his brief, appellant chooses to quote only part of the trial court’s
instruction.    The court explained that the jury “might decide that the one
aggravating circumstance, taken alone, outweighs the mitigating factors, taken
together”; or “that the mitigating factors, taken together, outweigh the one
aggravating circumstance, taken alone”; or “that the weight of the one aggravating
circumstance, taken alone, is equal to the weight of all the mitigating factors taken
together”; or that the jury “may not be able to decide which side outweighs the
other.”
          {¶ 130} Thus, the instruction at issue did say that the jury must recommend
life if mitigation outweighed aggravation—which, of course, is true. See R.C.
2929.03(D)(2). However, it did not even remotely suggest that the jury could
recommend life only if mitigation outweighed aggravation.
          {¶ 131} To the contrary, the full instruction made clear that a juror could
vote for death only if he or she found that aggravation outweighed mitigation. In
each of the other three situations outlined by the instruction—where mitigation
outweighed aggravation, where the two were in equipoise, and where the jurors
could not decide which had greater weight—the trial court instructed the jury in
plainest English that “[y]our vote as an individual juror must be for a penalty of life
imprisonment.” (Emphasis added.)
          {¶ 132} In his thirteenth and fourteenth propositions of law, appellant
contends that the trial court gave instructions inconsistent with State v. Brooks
(1996), 

, 

, which holds that
a jury need not unanimously reject the death penalty before it may consider a life
sentence.




                                          31
                             SUPREME COURT OF OHIO




       {¶ 133} In his thirteenth proposition of law, appellant objects to the
following instruction: “Your decision will depend on whether the prosecution
proves to each and every one of you, beyond a reasonable doubt, that the death
penalty should be imposed. If the prosecution succeeds in doing this, then you, the
jury, must return a verdict of death. If the prosecution does not succeed in doing
this, then you, the jury, must return a verdict of life imprisonment.”
       {¶ 134} Appellant suggests that the above instruction was inconsistent with
Brooks. We disagree. The instruction says that if the jury does find “that the death
penalty should be imposed” (i.e., if it finds that aggravation outweighs mitigation),
it must recommend death. That, of course, is a correct statement of law. See R.C.
2929.03(D)(2); State v. Allen, 

, 

. The
instruction states nothing about unanimity nor does it state anything about the order
in which the jury should proceed. Moreover, the trial court specifically instructed
that “if the jurors cannot agree unanimously that death is the only appropriate
verdict in this case, then the jury as a whole must return a verdict of life
imprisonment.”
       {¶ 135} In his fourteenth proposition, appellant attacks an instruction that
states, “Just as the verdict of death must be reached by unanimous agreement, so
also the choice between the three life imprisonment verdicts must be reached by
unanimous agreement.”
       {¶ 136} Again, appellant claims that this is inconsistent with Brooks.
Again, appellant’s Brooks claim fails.        Brooks holds that the jury need not
unanimously reject the death penalty in order to recommend a life sentence, and the
trial court’s instructions were clear on that point. However, if the jury recommends
life, Ohio law requires it to choose a specific type of life sentence: life without
parole, life with parole eligibility after twenty-five years, or life with parole
eligibility after thirty years. See R.C. 2929.03(D)(2)(a). Nothing in Brooks implies
that the jury may recommend one of these options on a less-than-unanimous vote.




                                         32
                                  January Term, 2001




To the contrary, Brooks states that “the jury, when it cannot unanimously agree on
a death sentence, [is required] to move on in their deliberations to a consideration
of which life sentence is appropriate, with that determination to be unanimous.”
(Emphasis added.) State v. Brooks, 

, 

.
          {¶ 137} Finally, dictum in Brooks states that the jury should be instructed
that “a solitary juror may prevent a death penalty recommendation.” 

 Appellant
complains that the trial court’s instructions “left the jurors unaware” of that fact.
This contention is incorrect. The trial court gave the following instruction, which
made it entirely clear that a solitary juror could prevent a death recommendation:
“[I]f any single juror … votes individually for a verdict of life imprisonment,
then the entire jury is obligated by law to return a verdict of life imprisonment.”
(Emphasis added.) Nothing could be more straightforward.
          {¶ 138} We overrule appellant’s ninth proposition as waived, and his
twelfth, thirteenth, and fourteenth propositions under the doctrine of invited error.
                             VIII. Ineffective Assistance
          {¶ 139} In his tenth and seventeenth propositions of law, appellant contends
that his trial counsel rendered ineffective assistance at both the guilt and penalty
phases.
          {¶ 140} Ineffective-assistance claims are governed by a two-part test. To
prevail, the defendant must show (1) deficient performance by counsel, i.e.,
performance falling below an objective standard of reasonable representation, and
(2) resulting prejudice, i.e., a reasonable probability that, but for counsel’s errors,
the proceeding’s result would have been different. Strickland v. Washington, 

, 

, 

; Williams v. Taylor (2000), 

, 

, 

; State v. Bradley (1989), 

, 

, paragraphs two and three of the syllabus.
                                    A. Guilt Phase




                                           33
                              SUPREME COURT OF OHIO




        {¶ 141} In his tenth proposition, appellant contends that his counsel
rendered ineffective assistance by failing to question a juror on voir dire. However,
we have recognized that counsel is in the best position to determine whether any
potential juror should be questioned and to what extent. 

, 

; State v. Mason (1998), 

, 

, 948-
949.
        {¶ 142} Appellant contends that, if we find that counsel failed to make out
a prima facie case of racial discrimination with respect to his Batson claim, that
failure constituted ineffective assistance. (See discussion of sixth proposition of
law, supra.) However, since the state here voluntarily offered reasons for the
peremptory challenges at issue, it does not matter whether a prima facie case was
made or not. Hernandez v. New York, 

, 

, 

; State v. Hernandez, 

, 

.
        {¶ 143} When the state played appellant’s videotaped confession in court,
the judge suggested that the court reporter need not transcribe the audio portion.
Counsel agreed to this; appellant now argues that counsel should have insisted that
the tape be transcribed.
        {¶ 144} We agree with appellant that the court reporter’s failure to
transcribe the video violated the requirement of Crim.R. 22 that “[i]n serious
offense cases all proceedings shall be recorded.” (Emphasis added.) We do not
agree, however, that counsel’s failure to object was ineffective assistance. This
lapse did not affect the outcome of the trial in any way, nor will it affect the outcome
of this appeal. The video is in the record, and the lack of a transcript does not
prevent us from fully reviewing appellant’s Fifth Amendment claims.
        {¶ 145} Appellant claims that counsel should have objected at trial to the
prosecutor’s alleged misconduct in arguing to the jury. A failure to object to such
misconduct may, in a given case, be the product of attorney error. However, as we
have recognized, there are significant disadvantages to interrupting opposing




                                          34
                                January Term, 2001




counsel’s argument.     Hence, it is also possible that, in a given case, those
disadvantages may outweigh the advantages of objecting to misconduct. In such a
case, defense counsel may make a reasonable tactical decision not to object. See
State v. Campbell, 

, 

; State v. Keene (1998),

, 

. Since the burden of showing attorney
error is on appellant, we cannot presume such error; and since nothing in the record
shows why counsel did not object, we cannot find that the failure to object was the
product of error.
       {¶ 146} Appellant further contends that his counsel should have objected to
two allegedly erroneous jury instructions. Yet, contrary to appellant’s claim, the
trial court never instructed the jury to disregard discrepancies in the evidence. (See
discussion of ninth proposition of law, supra.) As for the court’s instruction on the
standard of proof, the trial court gave the reasonable doubt instruction required by
R.C. 2901.05(B) and (D). An objection to that instruction would have had no
support in then-existing law, see State v. Van Gundy (1992), 

,

, so counsel had no obligation to raise it. See State v. Keene, 

, 

; State v. McNeill (1998), 

, 

.
       {¶ 147} Finally, appellant’s counsel did not object to the presence of
alternate jurors in the jury room during deliberations. The record does not disclose
why counsel did not object; and appellant has failed to carry his burden of
persuasion on this issue. Moreover, appellant makes no attempt to show prejudice,
as Strickland requires. This clearly is not a situation in which the Sixth Amendment
would require us to presume prejudice. See Strickland, 

, 

, 

; compare Olano, 

, 

, 

 (for plain error purposes, no presumption of prejudice arises from
alternate’s presence in deliberations, citing Strickland).
       {¶ 148} Appellant’s tenth proposition of law is overruled.




                                          35
                                SUPREME COURT OF OHIO




                                      B. Penalty Phase
        {¶ 149} Appellant’s seventeenth proposition of law claims ineffective
assistance in the penalty phase.
        {¶ 150} First, appellant claims that his counsel should have objected to the
instruction that “an aggravating circumstance is something that makes the
defendant’s crime more serious and which, therefore, makes the death penalty more
appropriate for the defendant than a sentence of life imprisonment.” Appellant
contends that this instruction creates “a presumption [in favor of] a death sentence.”
        {¶ 151} We disagree. The trial court explained to the jury that it must weigh
the aggravating circumstance against the mitigating factors and recommend life
unless persuaded beyond a reasonable doubt that the former outweighs the latter.
        {¶ 152} Moreover, appellant’s claim that defense counsel did not review the
penalty-phase instructions before the trial court gave them is inconsistent with the
fact that defense counsel actually submitted the instructions the trial court gave.
        {¶ 153} Next, appellant contends that defense counsel should have objected
to alleged prosecutorial misconduct in the penalty phase. However, such decisions
are within the scope of trial counsel’s reasonable tactical judgment.
        {¶ 154} Appellant contends that the prosecutor improperly asked the jury
to consider the impact of the crime on Brooks’s family. However, even assuming
that defense counsel’s failure to object was unreasonable, it does not meet
Strickland’s prejudice test, because there is no reasonable likelihood that appellant
would have received a life sentence but for this remark.2
        {¶ 155} Appellant’s other misconduct claims were not supported by
existing law. For instance, he argues that the prosecutor improperly asked a
penalty-phase witness a question not supported by the evidence. However, nothing

2. State v. Reynolds (1998), 

, 

. Compare State v.
White (1999), 

, 

; State v. McNeill (1998), 

, 

; State v. Fautenberry (1995), 

, 

.




                                              36
                                 January Term, 2001




in the record shows that the prosecutor lacked a good-faith belief that a factual
predicate for the question existed. See State v. Gillard (1988), 

,

, paragraph two of the syllabus, modifying State v. Williams, 

, 

, 

.
       {¶ 156} Appellant accuses the prosecutor of making an improper religious
appeal in closing argument by saying that appellant “will have to ask God for” the
mercy his counsel had asked of the jury. See People v. Hill (1998), 

, 

, 

 (appeal to religious authority
in support of the death penalty is improper). However, the prosecutor’s comment
was a response to the defense use of a religious appeal as a basis for mercy: “[W]e
are taught in our Sunday schools that mercy is good [and] that we may hate the sin
but care for the sinner. … Spare the life of Ulysses Murphy, and you, too, …
will be blessed.”   The prosecutor’s reply was a fair response to which defense
counsel could not have validly objected.
       {¶ 157} The prosecutor said that the penalty phase was about “what we
allow in our society.” But we have allowed prosecutors to urge the jury to uphold
community standards. See State v. Murphy (1992), 

,

; State v. Williams (1986), 

, 23 OBR
13, 17, 

.         Defense counsel did not, therefore, behave
unreasonably by not objecting.
       {¶ 158} The prosecutor argued on rebuttal that appellant was no “kid,” but
“a 26-year-old man, who, after going through his entire juvenile life without a
record, decided … to take up a life of crime, deal drugs, carry guns, get shot,
shoot other people.”
       {¶ 159} Again, however, defense counsel would have had no basis to
object. The defense argued that appellant “wouldn’t be here [in court] today” but
for the shortcomings of his parents, and that he “will mature” in prison. The state
was entitled to rebut this by arguing that appellant’s crime resulted from freely




                                         37
                              SUPREME COURT OF OHIO




made adult choices, not immaturity or childhood neglect as claimed by the defense,
and to demonstrate this by contrasting appellant’s clean juvenile record with his
adult criminality.
        {¶ 160} Appellant contends that it was misconduct for the prosecutor to
argue that he displayed no remorse in his confession, inasmuch as the defense had
not raised the issue of remorse. In fact, the defense had raised the issue. A defense
psychologist testified in the penalty phase that Murphy admitted his guilt to her
with sadness, remorse, and regret. There was no basis for objection to the state’s
argument, which directly responded to this testimony.
        {¶ 161} Next, appellant contends that members of Brooks’s family did not
want a death sentence, and that defense counsel therefore should have brought this
fact to the attention of the jury as a mitigating factor.
        {¶ 162} However, the record before us does not indicate whether defense
counsel knew about this at the time of the penalty phase, or whether they could
have discovered it through reasonable investigative efforts. The record indicates
only that Brooks’s relatives publicly expressed opposition to a death sentence after
the jury made its recommendation. At that point, defense counsel did file a motion
asking the trial judge to take this factor into account in sentencing.
        {¶ 163} Moreover, not calling Brooks’s relatives to express their wishes to
the jury may have been a tactical decision, and if so it was an arguably sound one.
At the final sentencing hearing, five of Brooks’s relatives spoke before the trial
judge. Only three actually said that appellant should get a life sentence, and their
reasons for saying so were born of anger and bitterness, and could have hurt rather
than helped appellant’s cause. Brooks’s stepfather hoped that appellant would get
life because it would be worse than death. Brooks’s father told Murphy at the
sentencing hearing that he hoped Murphy would “get life without parole and stay
there until [he] rot[s].” A reasonable attorney could have feared that the evident




                                           38
                               January Term, 2001




bitterness and anger of these relatives would affect the jury more than their
expressed wishes.
        {¶ 164} Finally, appellant contends that his counsel failed to fully
investigate possible mitigating factors. He argues that counsel should have called
an expert witness on “cultural diversity,” but he does not explain what such a
witness could have said on his behalf. He also argues that counsel should have
called an expert witness on fetal alcohol syndrome and should have obtained a
neuropsychological assessment to investigate possible organic brain impairment.
However, the record does not show that defense counsel failed to investigate these
possibilities.   Contrary to appellant’s suggestion, we cannot infer failure to
investigate from a silent record; the burden of demonstrating ineffective assistance
is on him.
        {¶ 165} The record shows that counsel did search for and present extensive
evidence of mitigating factors. The defense called eleven penalty-phase witnesses
who testified about appellant’s neglected childhood in an alcoholic home, and his
personality, intelligence, and redeeming qualities. “Attorneys need not pursue
every conceivable avenue; they are entitled to be selective.” United States v.
Davenport (C.A.7, 1993), 

.
        {¶ 166} Appellant’s seventeenth proposition is overruled.




                                        39
                             SUPREME COURT OF OHIO




                            IX. Evidentiary Sufficiency
       {¶ 167} In his eleventh proposition of law, appellant contends that the state
introduced insufficient evidence to support his conviction. Appellant claims that
the state failed to prove that he was Brooks’s killer and that he intended to kill. In
reviewing the sufficiency of the evidence, we must determine “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), 

,

, 

.
       {¶ 168} Appellant’s confession and Webber’s eyewitness testimony, if
believed, are easily sufficient to allow a jury to find that appellant killed Andre
Brooks. Appellant argues that this evidence is unreliable, but on review for
evidentiary sufficiency we do not second-guess the jury’s credibility
determinations; rather, we ask whether, “if believed, [the evidence] would convince
the average mind of the defendant’s guilt beyond a reasonable doubt.” (Emphasis
added.) Jenks, paragraph two of the syllabus.
       {¶ 169} The evidence here was also sufficient for the jury to find beyond a
reasonable doubt that appellant intended to kill. Because appellant used a deadly
weapon, the jury could infer that he intended the result. See, e.g., State v. Clark
(1988), 

, 

. Other evidence also supports
that inference. Three shell casings found at the scene had been ejected from the
same gun, permitting an inference that appellant fired three shots. Webber testified
that appellant took a step back before shooting Brooks. Finally, one of the two
shots that hit Brooks was fired into Brooks’s back.
       {¶ 170} Thus, viewing the evidence in the light most favorable to the state,
the trier of fact could reasonably find that appellant fired multiple shots into Brooks




                                          40
                                  January Term, 2001




at close range. These circumstances support the jury’s finding that appellant
intended to kill Brooks.
          {¶ 171} Appellant argues that the state failed to prove intent to kill because
“there was conflicting evidence regarding whether [Brooks] grabbed for the gun.”
Evidentiary conflicts are for the jury, see State v. DeHass (1967), 

, 

, 

, paragraph one of the syllabus; thus, the mere
existence of conflicting evidence cannot make the evidence insufficient as a matter
of law.
          {¶ 172} Appellant’s eleventh proposition is overruled.
                          X. Trial Court’s Sentencing Opinion
          {¶ 173} In his fifteenth proposition, appellant argues that the trial court’s
sentencing opinion does not sufficiently explain why the court found that the
aggravating circumstance outweighed the mitigating factors. However, the opinion
contains more than three pages discussing mitigating factors in detail and
“specif[ying] … what weight the [judge] gave to proven mitigating factors.”
State v. Fox (1994), 

, 

. The trial court
gave no weight to much of appellant’s proffered mitigation and little weight to the
rest. The court then went on to state:
          “While Defendant’s childhood was less than ideal, even in the absence of
parental influence, he was able to lead a law abiding life through his teen years. On
May 11, 1997, Defendant chose to take the life of a fellow human being in order to
carry out a robbery.”
          {¶ 174} The opinion thus sufficiently explains why the trial court found that
the aggravating circumstance outweighed the mitigating factors.
          {¶ 175} Appellant also criticizes the trial court’s decision to afford little
weight to his “background and upbringing” as the son of alcoholic and absent
parents. However, “[t]he weight, if any, to be given mitigation evidence is a matter




                                            41
                             SUPREME COURT OF OHIO




for the discretion of the sentencer.” Fox, 

, 

; see, also, State v. Richey (1992), 

, 

.
       {¶ 176} Appellant’s fifteenth proposition is overruled.
                                    XI. Settled Issues
       {¶ 177} It is our practice to rule summarily on well-settled points of law.
See, generally, State v. Poindexter (1988), 

, 

,
syllabus; State v. Spisak, 

, 

. Thus, we
summarily overrule appellant’s eighteenth proposition of law on authority of State
v. Jenkins (1984), 

, 15 OBR 311, 

, and State v.
Maurer (1984), 

, 15 OBR 379, 

. We summarily
overrule his nineteenth proposition on authority of State v. Smith (1997), 

, 

, paragraph one of the syllabus.
                               XII. Cumulative Error
       {¶ 178} In his twentieth proposition, appellant asks us to hold that the errors
alleged in his brief cumulatively prejudiced his trial and sentencing. We find no
merit to this proposition of law.
                        XIII. Independent Sentence Review
       {¶ 179} R.C. 2929.05(A) requires us to review appellant’s death sentence
independently.
                            Aggravating Circumstance
       {¶ 180} Appellant was convicted of a felony-murder aggravating
circumstance under R.C. 2929.04(A)(7). The evidence included his confession,
eyewitness testimony by Condrea Webber, three shell casings left at the scene, and
two bullets removed from Brooks’s body. The evidence supports the finding that
appellant killed Brooks intentionally, as the principal offender, and while
committing aggravated robbery.




                                           42
                                January Term, 2001




                                 Mitigating Factors
       {¶ 181} Appellant called eleven penalty-phase witnesses, including both of
his parents, others who knew him as a child, social workers and school personnel
familiar with the household situation, a jail supervisor, and a clinical psychologist.
Appellant made no unsworn statement.
       {¶ 182} Appellant was born in 1971, the fifth child of Barbara Murphy. His
father, Ulysses Woods, was then married to another woman. Woods and Barbara
Murphy lived together for about six weeks after appellant’s birth, but they did not
get along, and Woods moved out for good. Although he worked, he gave Barbara
little money.
       {¶ 183} Appellant’s parents were both alcoholics. Appellant’s father spent
much of his time in bars and got drunk daily. As a child, appellant wanted to spend
time with his father, but hardly ever did, because whenever he wanted to see his
father, appellant had to go to whatever bar his father happened to be in at the time.
       {¶ 184} Nor was appellant’s mother much of a presence in his life. Barbara
Murphy worked during the day; after work, she spent her time in bars. She drank
six days a week and spent her Sundays sleeping. At times, she had a babysitter stay
with her children; often, however, she left them home alone. There was food in the
house, but frequently nobody was there to fix a meal. As a result, appellant
frequently went to a neighbor’s house for dinner. Appellant’s sister, aunt, or
grandaunt occasionally took him to the movies.
       {¶ 185} Appellant’s grandmother, Eleanor Woods, tried to maintain as
much contact with appellant as she could, but Barbara discouraged it. Sometimes
when appellant visited his grandmother, he would complain that his brothers beat
him up and refused to feed him. Sometimes he would say, “None of them love
me.”




                                         43
                             SUPREME COURT OF OHIO




       {¶ 186} When appellant was sixteen, Barbara filed her fifth incorrigibility
complaint against him and threw him out of the house. Franklin County Children
Services then placed him with his grandmother.
       {¶ 187} Dr. Jolie Brams, a clinical psychologist with expertise in the field
of child development, interviewed appellant several times and reviewed extensive
school and children services records on him and his family.
       {¶ 188} Dr. Brams explained the importance of parental nurturing to a
child’s development. Nurturing involves “being a model,” showing the child how
to live and how to set and attain goals. Without nurturing, a child becomes angry
and depressed. A child who never learns how to attain goals can develop feelings
of worthlessness and frustration.
       {¶ 189} According to Dr. Brams, appellant was a grossly neglected child
who got no nurturing from his alcoholic parents and essentially “raised himself.”
School or community connections might have offset familial neglect and helped
him to develop, but these were also lacking. Appellant attended eleven schools in
seven years, quitting in the eighth grade, and his family was isolated from the
community.
       {¶ 190} We note, however, that in cataloguing appellant’s developmental
disadvantages, Brams did not take into account his relationship with his
grandmother.    Brams mistakenly testified that appellant’s grandmother was
mentally ill, abusive, and alcoholic. She later retracted that testimony, admitting
that she had confused appellant’s grandmother with his mother.
       {¶ 191} Appellant himself began drinking heavily at age eleven or twelve.
Frustration and depression, the fruits of neglect, contributed to his drinking. Genes
may have been a factor as well: both parents and eighty percent of his first- and
second-degree relatives were alcoholics. Appellant told Brams that he was drunk
when he shot Brooks.




                                         44
                                 January Term, 2001




          {¶ 192} As a young teenager, appellant would steal food or beer at times
but did not indulge in what Dr. Brams characterized as “grossly delinquent
behavior.” (Emphasis added.) As an adult, he became a small-time drug dealer.
He had two convictions for drug offenses and one for carrying a concealed weapon,
and served two brief prison terms.             In prison, appellant was guilty of
insubordination because he was too “unmotivated” to do assigned work. Once
appellant threw a blanket over an inmate’s head while another person robbed the
inmate.
          {¶ 193} Dr. Brams testified that appellant did not have “mental health
problems.”      She described him as intelligent and as possessing “decency.”
Appellant showed remorse when he discussed the murder with Brams.
          {¶ 194} Brams felt that appellant had acquired enough “insight” about his
life to see that he had wasted his talents. She thought that, given a life sentence, he
“can do something productive and meaningful with his life.” His earlier prison
terms had been too short to motivate him to change, but a life sentence would keep
him from drinking, allow him to participate in programs, and foster his “innate
desire to do something.” On the other hand, Dr. Brams admitted on crossexamination that appellant’s score on the MMPI (a personality test) was consistent
with impulsiveness, difficulty in controlling anger, and antisocial tendencies.
          {¶ 195} Sheriff’s Deputy Matthew Massie was a supervisor at the Franklin
County Jail. Massie testified that inmates there have little to do, which causes
disciplinary problems. Yet, although appellant had been jailed for over a year at
that time, jail records did not show that he broke any rules during his stay.
          {¶ 196} Finally, Brooks’s father, sister, and stepfather expressed the view
that appellant should get life without parole rather than death.
          {¶ 197} Appellant’s chief mitigating factor was his neglected childhood. It
is clear that appellant grew up with little or no moral guidance. This is entitled to
some weight, but we have seldom accorded strong weight to a defendant’s




                                          45
                              SUPREME COURT OF OHIO




childhood. See, e.g., State v. Holloway (1988), 

, 

; State v. Cooey (1989), 

, 

; State v. Murphy, 

, 

; State v.
Campbell, 

, 

. In his confession to
police, appellant claimed that he was drunk when he shot Brooks, but he offered no
corroboration of that claim at trial, and in any case voluntary intoxication is entitled
to little weight. State v. D’Ambrosio (1995), 

, 145, 

.
        {¶ 198} Appellant’s record before shooting Brooks appears to have
involved no serious violence, a fact that deserves some weight. On the other hand,
his good behavior in jail while awaiting trial deserves little weight, given his record
of disciplinary violations in prison. Nor can we give any substantial weight to
appellant’s late expression of remorse. See State v. Baston (1999), 

, 

.
        {¶ 199} We have considered the testimony of Dr. Brams that appellant has
“decency,” “insight,” and a potential to “do something productive and meaningful
with his life.” However, in our view that opinion is too vague and too weakly
supported to deserve substantial weight.
        {¶ 200} Finally, we note that, in their statements to the sentencing judge,
Brooks’s father, sister, and stepfather indicated that appellant should receive a life
sentence. However, their support for a life sentence appears to have been premised
not on mercy but on the view that a life sentence would be a more severe
punishment than death. That is not an unreasonable view, perhaps, but we do not
share it. These statements, therefore, have virtually no weight in mitigation.
        {¶ 201} On the whole, we find that appellant’s mitigation is weak. We find
that the aggravating circumstance outweighs the mitigating factors beyond a
reasonable doubt.
                                   Proportionality




                                           46
                                   January Term, 2001




          {¶ 202} We further find that the death sentence in this case is proportionate
to death sentences that we have approved in other robbery-murder cases. See, e.g.,
State v. Lindsey (2000), 

, 

; State v. Bays (1999),

, 

; Baston, 

, 

;
State v. Raglin (1998), 

, 

; State v. Benge (1996),

, 

; State v. Clark, 

, 

.
          {¶ 203} Accordingly, we affirm appellant’s convictions and sentence of
death.
                                                                   Judgment affirmed.
          MOYER, C.J., DOUGLAS, F.E. SWEENEY and LUNDBERG STRATTON, JJ.,
concur.
          MOYER, C.J., and COOK, J., concur separately.
          DOUGLAS, J., concurs separately.
          LUNDBERG STRATTON, J., concurs in Part I of Cook, J.’s separate concurring
opinion.
          PFEIFER, J., dissents.
                                   __________________
          DOUGLAS, J., concurring.
          {¶ 204} I concur in the well-reasoned opinion and judgment of the majority.
I write separately to comment, only, on section IV of the opinion. Crim.R. 24(F)
provides:
          “The court may direct that not more than six jurors in addition to the regular
jury be called and impanelled to sit as alternate jurors. Alternate jurors in the order
in which they are called shall replace jurors who, prior to the time the jury retires
to consider its verdict, become or are found to be unable or disqualified to perform
their duties. Alternate jurors shall be drawn in the same manner, have the same
qualifications, be subject to the same examination and challenges, take the same




                                            47
                              SUPREME COURT OF OHIO




oath, and have the same functions, powers, facilities, and privileges as the regular
jurors. An alternate juror who does not replace a regular juror shall be discharged
after the jury retires to consider its verdict. Each party is entitled to one peremptory
challenge in addition to those otherwise allowed if one or two alternate jurors are
to be impanelled, two peremptory challenges if three or four alternate jurors are to
be impanelled, and three peremptory challenges if five or six alternate jurors are to
be impanelled. The additional peremptory challenges may be used against an
alternate juror only, and the other peremptory challenges allowed by this rule may
not be used against an alternate juror.”
        {¶ 205} The rule is clear and unequivocal. It is disturbing that we are seeing
a number of cases where the rule is being summarily ignored. The rule should be
followed so long as it remains part of our trial practice. In a case less egregious
than the case at bar, I believe violation of the rule might be grounds for reversal of
a conviction. We should avoid even that possibility by simply following the rule.
        {¶ 206} With regard to the application of the rule in death penalty cases, I
believe that, while bifurcated, both the guilt phase and the penalty phase are part of
one trial. Accordingly, alternate jurors can be retained until deliberations begin in
the penalty phase at which time they should be discharged in accordance with the
rule.
                               __________________




                                           48
                                January Term, 2001




       COOK, J., concurring.
       {¶ 207} Though I would affirm Murphy’s convictions and death sentence,
I respectfully disagree with the majority’s analysis of Murphy’s first and tenth
propositions of law.
                                     I. Miranda
                A. Invocation of the Right to Cut Off Questioning
       {¶ 208} I agree with the majority’s conclusion in Part I(A) that Murphy
initially waived his right to remain silent during his custodial interrogation by
Detective Viduya. But after Murphy made some exculpatory statements, he said to
Detective Viduya, “I’m ready to quit talking now and I’m ready to go home, too.”
The majority decides that when examined “in context” this statement “can be
interpreted as meaning simply that appellant was ready ‘to go home.’ … [H]is
words did not necessarily mean that he wanted to stop talking, no matter what.” I
cannot subscribe to the majority’s thesis that examining Murphy’s statement “in
context” should result in this court simply ignoring an operative half of that
statement. And I find no legal authority for the majority’s proposition that a suspect
may only appropriately invoke the right to cut off questioning if he indicates to the
police that he does so “no matter what.”
       {¶ 209} As the majority notes, the standard by which a court assesses a
suspect’s invocation of the right to cut off questioning during a custodial
interrogation is an objective one. With today’s decision, the majority suggests that
a reasonable police officer, when told by a suspect that he or she is “ready to quit
talking,” would not understand the meaning of that statement. The implications of
this analysis are an affront to law enforcement and could, in future cases, undermine
the usefulness of the procedural safeguards established by Miranda v. Arizona
(1966), 

, 

, 

, Michigan v. Mosley (1975),

, 

, 

, Edwards v. Arizona (1981), 

, 

, 

, and Davis v. United States (1994), 

                             SUPREME COURT OF OHIO




452, 

, 

. If Miranda and its progeny do not require
a suspect to articulate his or her invocation of the Fifth Amendment’s procedural
safeguards “with the discrimination of an Oxford don,” Davis, 

, 

, 

, nor does the law require reviewing courts to
assume that law enforcement officers cannot understand plain spoken English. And
if Davis stands for the proposition that a particular statement constitutes an
unambiguous invocation of the right to silence if a reasonable police officer would
construe it as such, today’s decision subtly twists that rule by suggesting that a
particular statement will not be deemed sufficiently unambiguous if it is in any way
possible for reviewing courts to construe the statement otherwise.
       {¶ 210} In addition to rendering half of Murphy’s attempted invocation of
the right to cut off questioning without meaning or effect, the majority’s analysis
lacks convincing legal support. The majority relies on Moore v. Dugger (C.A.11,
1988), 

, but in that case the Eleventh Circuit addressed a
question—not a statement—from a suspect who merely asked when police would
let him go home. 

. The suspect in Moore neither made an affirmative
statement to the interrogating officers nor indicated that he was “ready to quit
talking,” as Murphy did here. Accordingly, Moore is hardly persuasive support for
the majority’s characterization of Murphy’s words as ambiguous or equivocal.
       {¶ 211} The majority also twice cites a decision of the Wisconsin Supreme
Court, State v. Ross (1996), 

, 

. But Ross, like Moore,
is of little help here due to significant factual distinctions. The Ross court did not
even address whether a particular oral statement by a suspect in custody constituted
an unambiguous invocation of the right to cut off interrogation; rather, the question
in Ross was whether five to twenty seconds of silence following an officer’s
questions constituted an unambiguous invocation of the right to cut off questioning.

, 

. The Ross court answered this question in the negative,




                                         50
                                January Term, 2001




as this court did over two decades ago in State v. House (1978), 

,

, 

.
       {¶ 212} The majority also cites State v. Owen (Fla.1997), 

,
and State v. King (Me.1998), 

, but I find these cases equally
unpersuasive. In Owen, the defendant’s purported invocations of the right to cut
off questioning (“I’d rather not talk about it” and “I don’t want to talk about it”),
id. at 717, fn. 4, came in response to specific questions from interrogating officers
about what the Florida Supreme Court described as “relatively insignificant details
of the crime,” id. at 717, and these purported invocations occurred only after the
defendant had already “acknowledge[d] the conclusiveness” of the state’s evidence
against him. Owen, 560 So.2d at 210-211. Finally, in King, the Supreme Judicial
Court of Maine provided no explanation for its conclusion that King’s statement
“I’m just saying, you know, … I ain’t saying nothing” failed to meet Davis’s
“standard of clarity.” King, 

.
       {¶ 213} Absent from today’s opinion is any mention of the many Ohio cases
that have examined suspects’ purported invocations in the related context of
invoking the right to counsel. See, e.g., State v. Henness (1997), 

, 

 (“I think I need a lawyer”); State v. Tefft (Sept. 2, 1999),
Allen App. No. 1-99-35, unreported, 

 (“Well I’m going to need
one”); State v. Metz (Apr. 21, 1998), Washington App. No. 96 CA 48, unreported,

 (“Maybe I should get a lawyer” and “Do you think I should get
a lawyer?”); State v. Salinas (1997), 

, 

 (“Maybe I want a lawyer, maybe I should talk to a lawyer”); State v. Mills
(Nov. 24, 1997), Clermont App. No. CA96-11-098, unreported, 

(“I’d rather have my attorney here if you’re going to talk stuff like that”); State v.
Stover (Apr. 16, 1997), Lorain App. No. 96CA006461, unreported, 

 (“I feel like, talk to my, have my lawyer present” and “Well I mean, I’d
still like to have my lawyer here”).




                                         51
                             SUPREME COURT OF OHIO




       {¶ 214} In each of the cases cited above, the courts deemed the suspect’s
purported invocations of the right to an attorney too ambiguous or equivocal to
require interrogation to cease. I express no opinion as to the merits of the individual
cases listed above; what concerns me now is that Murphy’s statement “I’m ready
to quit talking now and I’m ready to go home” is being added to this ever-growing
list of equivocal statements. As the list grows, we will eventually reach a point
where almost nothing that a suspect says will be deemed sufficiently unambiguous
to invoke the right to cut off questioning. This puts our courts on a collision course
with Miranda’s express warning that “[i]f the individual indicates in any manner,
at any time prior to or during questioning, that he wishes to remain silent, the
interrogation must cease. At this point he has shown that he intends to exercise his
Fifth Amendment privilege; any statement taken after the person invokes his
privilege cannot be other than the product of compulsion, subtle or otherwise.
Without the right to cut off questioning, the setting of in-custody interrogation
operates on the individual to overcome free choice in producing a statement after
the privilege has been once invoked.” (Emphasis added.) Miranda, 

, 

, 

.
       {¶ 215} Recognizing this dilemma, the United States District Court for the
Southern District of Ohio has expressly noted its “reluctan[ce] to hold that a
statement invoking the right to remain silent must meet standards of post hoc
clarity, along the lines of ‘I hereby invoke my rights under Miranda to remain
silent.’ “ United States v. Harrison (Feb. 19, 1993), S.D. Ohio No. CR-3-92-93,
unreported, 

. In Harrison, Judge Rice deemed the suspect’s
statement that he “didn’t want to talk about it right now” to be a sufficiently
unambiguous invocation of the right to remain silent. The Sixth Circuit Court of
Appeals has likewise determined that the suspect’s statement “I can’t tell you no
more tonight” was an unambiguous invocation of the right to cut off questioning,
even though the interrogating officer later testified that he “never drew that kind of




                                          52
                                January Term, 2001




conclusion whatsoever from the conversation we were having.” Kordenbrock v.
Scroggy (C.A.6, 1990), 

.
       {¶ 216} In State v. Martin (Nov. 10, 1987), Hamilton App. No. C-860610,
unreported, 

, the First District Court of Appeals held that a suspect
unambiguously invoked the right to silence by saying, “If I am under arrest, then I
am not talking to nobody,” even though after three additional questions from the
police the suspect agreed to discuss what happened. The First District noted that
“[t]he right to remain silent would be of little value if the police were permitted to
overcome a suspect’s will by badgering him until he made a statement.” Id. at *2.
I agree, and would find Murphy’s assertion of his desire to “quit talking” and “go
home” as clear and unambiguous as the statements assessed in Harrison,
Kordenbrock, and Martin. Accord People v. Arroya (Colo.1999), 

 (deeming “I don’t wanna talk no more” unambiguous).
       {¶ 217} Detective Viduya, the officer who was actually present in the
interrogation room with Murphy when Murphy made the statement at issue here,
was on vacation during the hearing on Murphy’s motion to suppress. Detective
Yates, however, who entered the room with Detective Viduya two minutes after
Murphy said that he was “ready to quit talking,” did testify at the suppression
hearing. According to Detective Yates, Detective Viduya “didn’t catch” Murphy’s
attempted invocation of the right to remain silent at the time he made it because
Murphy was “mumbling.” If this were true, the state’s argument that Murphy failed
to invoke clearly and unambiguously the right to cut off questioning would be more
persuasive, for an inaudible invocation of the right to cut off questioning can hardly
be described as a clear and unambiguous one.
       {¶ 218} But Detective Yates’s testimony at the suppression hearing is flatly
contradicted by the videotape recording of the interrogation, which is also a part of
the record here. At approximately 10:57 p.m. on the videotape, Detective Viduya,
seated directly in front of Murphy at a small table, said to Murphy, “I’m working




                                         53
                             SUPREME COURT OF OHIO




on this homicide, but I’m not the primary investigator, O.K.? I’m going to see if I
can get ahold of him, because he knows more details about this than I do.” With
Detective Viduya still seated at the table and looking directly at him, Murphy
responded indignantly (and in a volume at least as loud as his previous responses,
if not noticeably louder), “I’m ready to quit talking now and I’m ready to go home,
too.” Still looking directly at Murphy, Detective Viduya responded, “O.K. Just let
me ask him a couple of questions before I come back, all right? You just chill out
right there.”   (Emphasis added.) The videotape contradicts Detective Yates’s
suppression hearing testimony, for it confirms not only that Murphy’s statement
was clearly audible, but also that Detective Viduya both heard and responded to the
statement.
       {¶ 219} The videotape also lends support to defense counsel’s contention at
the suppression hearing that Murphy actually made a second futile attempt to
invoke his right to cut off questioning. At approximately 11:04:51 p.m. on the
videotape, Detective Yates told Murphy, “It’s up to you. Do you wanna just go
ahead and tell the prosecutor you’ll be cooperative, this was an accident?” Murphy
tried to respond by shaking his head and saying “I don’t really want to talk—” but
Yates interrupted Murphy and said, “Do you have any doubt that, from what I did
out there at the scene, that I am one hundred percent sure and I can prove it in court
that you killed this guy? Do you have any doubt in your mind at all?” I would not
assign significant weight to Detective Yates’s suppression hearing testimony
regarding the clarity of Murphy’s first attempted invocation when Yates was not in
the room at the time, and when the videotape shows Yates himself interrupting
Murphy just as Murphy appears to attempt a second invocation.




                                         54
                                January Term, 2001




   B. Did Police Scrupulously Honor Murphy’s Right to Cut Off Questioning?
       {¶ 220} Because I would conclude that Murphy unambiguously invoked his
right to cut off questioning, and that the trial court’s finding to the contrary was
clearly erroneous, the question that follows is whether the police “scrupulously
honored” that request before reinitiating the interrogation that ultimately resulted
in Murphy’s inculpatory statements. See Michigan v. Mosley, 

, 

, 

. As the United States Supreme Court explained in
Mosley, “[t]hrough the exercise of his option to terminate questioning [the suspect]
can control the time at which questioning occurs, the subjects discussed, and the
duration of the interrogation. The requirement that law enforcement authorities
must respect a person’s exercise of that option counteracts the coercive pressures
of the custodial setting. We therefore conclude that the admissibility of statements
obtained after the person in custody has decided to remain silent depends under
Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’
“ 

, 

, 

.
       {¶ 221} In Mosley itself, the court decided that the police had indeed
“scrupulously honored” Mosley’s request to cut off questioning before reinitiating
the interrogation, because “[w]hen Mosley stated that he did not want to discuss
the robberies, Detective Cowie immediately ceased the interrogation and did not
try either to resume the questioning or in any way to persuade Mosley to reconsider
his position. After an interval of more than two hours, Mosley was questioned by
another police officer at another location about an unrelated holdup murder. He
was given full and complete Miranda warnings at the outset of the second
interrogation. He was thus reminded again that he could remain silent and could
consult with a lawyer, and was carefully given a full and fair opportunity to exercise
these options. The subsequent questioning did not undercut Mosley’s previous
decision not to answer Detective Cowie’s inquiries.” 

, 

, 

.




                                         55
                             SUPREME COURT OF OHIO




       {¶ 222} Later in its opinion, the Mosley court reiterated the factors that had
led it to believe that the officers had “scrupulously honored” Mosley’s invocation
of the right to silence, saying that “[t]his is not a case, therefore, where the police
failed to honor a decision of a person in custody to cut off questioning, either by
refusing to discontinue the interrogation upon request or by persisting in repeated
efforts to wear down his resistance and make him change his mind. In contrast to
such practices, the police here immediately ceased the interrogation, resumed
questioning only after the passage of a significant period of time and the provision
of a fresh set of warnings, and restricted the second interrogation to a crime that
had not been the subject of the earlier interrogation.” (Emphasis added.) 

, 

, 

.
       {¶ 223} The United States Supreme Court relied in Mosley on factors that
are absent from this record to conclude that law enforcement had scrupulously
honored Mosley’s invocation of the right to cut off questioning. Though Detective
Viduya left the room immediately after Murphy told him that he wanted to “quit
talking,” Detective Viduya returned just two minutes later with Detective Yates.
Yates, who admitted at trial to playing the “bad cop” role at this stage of the
interrogation, promptly introduced himself as the crime scene investigator with a
“pat” case against Murphy. Without additional rewarnings, the two detectives
resumed their interrogation of Murphy about the same crime. This interrogation
included additional questions from Detective Viduya—the very same detective
who, only minutes earlier, had heard Murphy assert his desire to “quit talking” and
had responded to that assertion by saying “O.K.” and leaving the room.
       {¶ 224} I would conclude, therefore, that the instant case is distinguishable
from Mosley and that the interrogating officers in this case did not scrupulously
honor Murphy’s invocation of the right to cut off questioning. See State v.
Thompson (Jan. 24, 2001), Jefferson App. Nos. 98 JE 28 and 98 JE 29, unreported,

 (invocation of right to remain silent not scrupulously honored




                                          56
                               January Term, 2001




where suspect was interrogated a second time after an undetermined amount of time
had elapsed and suspect was not rewarned); United States v. Clayton
(E.D.Wis.1976), 

 (invocation not scrupulously honored where
“salient facts in Mosley” were absent; suspect was twice questioned within an hour
by the same officer concerning the same crime); Harrison, 

, at
*3; Kordenbrock, 

.
                                C. Harmless Error
       {¶ 225} Having decided that Murphy’s interrogators did not scrupulously
honor Murphy’s invocation of the right to cut off questioning, I would next
determine the legal consequences of any improperly admitted inculpatory
statements.
                            1. Arizona v. Fulminante
       {¶ 226} As the United States Supreme Court has noted, the admission of an
improperly obtained confession is a “trial error”—not a “structural” one—that is
subject to review under the same “harmless error” standard as other trial errors.
Arizona v. Fulminante (1991), 

, 

,

. See, also, Milton v. Wainwright (1972), 

, 

, 

 (holding that the admission of a confession, even if
obtained in violation of Massiah v. United States [1964], 

, 

, 

, was harmless beyond a reasonable doubt). In Fulminante,
the Supreme Court decided that “[w]hen reviewing the erroneous admission of an
involuntary confession, the appellate court, as it does with the admission of other
forms of improperly admitted evidence, simply reviews the remainder of the
evidence against the defendant to determine whether the admission of the
confession was harmless beyond a reasonable doubt.” 

, 111
S.Ct. at 1265, 

. Though Fulminante concerned the application
of the harmless-error standard of review to an involuntary confession, “a fortiori a
confession held inadmissible by reason of having been obtained in violation of the




                                        57
                            SUPREME COURT OF OHIO




prophylactic Miranda requirements also must be subject to a harmless-error
standard of review.” People v. Sims (1993), 

, 

, 

.
          2. Other Courts’ Application of the Harmless-Error Standard
       {¶ 227} As the Sixth Circuit has noted, “The harmless error inquiry is fact
specific and requires an analysis of the particular facts at hand.” Kordenbrock, 

. And as our own court has stated, “Where constitutional error in the
admission of evidence is extant, such error is harmless beyond a reasonable doubt
if the remaining evidence, standing alone, constitutes overwhelming proof of [the]
defendant’s guilt.” State v. Williams (1983), 

, 6 OBR 345, 

, paragraph six of the syllabus. In order to assess meaningfully whether
the improper introduction of Murphy’s post-invocation videotaped statements was
harmless beyond a reasonable doubt, it is helpful to examine briefly some other
cases in which reviewing courts were faced with the same issue.
       {¶ 228} In 

 the Supreme Court decided that the
erroneous introduction of Fulminante’s coerced jailhouse confession to an FBI
informant was not harmless because “[a]bsent the confessions, it is unlikely that
Fulminante would have been prosecuted at all, because the physical evidence from
the scene and other circumstantial evidence would have been insufficient to
convict.” 

, 111 S.Ct. at 1258, 

. In addition,
the admission of Fulminante’s confession led to the admission of other evidence
prejudicial to Fulminante; specifically, that Fulminante “willingly sought out the
company of criminals” for counsel. 

, 111 S.Ct. at 1260, 

.
       {¶ 229} In Kordenbrock v. 

 the Sixth Circuit likewise
concluded that the introduction of the defendant’s confession, which had been
obtained after the defendant invoked his right to cut off questioning, was not
harmless error and granted habeas corpus relief. 

. In




                                        58
                                January Term, 2001




Kordenbrock, as here, the defendant knew before trial that his confession was going
to be admitted as evidence. At trial, then, Kordenbrock made a strategic decision
to confess to the homicide—but not to confess to the element of premeditation—in
his opening statement to the jury. 

. The Sixth Circuit conceded that
there was “independent evidence” that Kordenbrock had committed a premeditated
killing, but noted that there was “no explicit evidence other than the confession that
plainly tended to contradict Kordenbrock’s contention that he was under the
influence of drugs and alcohol and did not intend to cause death.” (Emphasis
added.) 

. Accordingly, the Kordenbrock court concluded that the
erroneous introduction of the confession was not harmless, distinguishing
Kordenbrock from an earlier case in which eyewitness testimony had confirmed
that the defendant was not acting in self-defense, as he claimed. 

, citing Burks v. Perini (C.A.6, 1986), 

, 

,
unpublished opinion.
       {¶ 230} In State v. Bucklew (Mo.1998), 

, on the other
hand, the Supreme Court of Missouri determined that police had scrupulously
honored Bucklew’s Fifth Amendment rights and that his videotaped confession was
properly admitted. Even so, the court concluded that if the trial court’s refusal to
exclude the videotaped statement was indeed error, it was harmless, because an
eyewitness testified to every element of first degree murder. 

. Similarly,
in Riggs v. State (1999), 

, 

, the
Supreme Court of Arkansas determined that Riggs’s statement, which included a
detailed confession regarding the premeditated killings of her two young children,
was properly admitted despite Riggs’s claim that the statement was involuntarily
made. The Riggs court concluded that, even if the statement should have been
suppressed, the jury heard “abundant” additional evidence that Riggs committed
the murders. 

, 

.
             3. Applying the Foregoing Principles to the Instant Case




                                         59
                             SUPREME COURT OF OHIO




       {¶ 231} The state contends that even absent Murphy’s confession, “there
was overwhelming evidence to support his conviction[s]” for aggravated robbery
and aggravated murder, and that based upon the whole record, any constitutional
error related to the introduction of the confession at trial was harmless beyond a
reasonable doubt. I would agree, for I find the instant case distinguishable from
Fulminante and Kordenbrock and more analagous to Burks, Bucklew, and Riggs.
       {¶ 232} In Fulminante, the Supreme Court’s independent evaluation of the
record led it to conclude that “both the trial court and the State recognized that a
successful prosecution depended on the jury believing the two confessions. Absent
the confessions, it is unlikely that Fulminante would have been prosecuted at all.”
(Emphasis added.) 

, 111 S.Ct. at 1258, 

.
The Supreme Court also found it significant that the admission of Fulminante’s
confession led to the admission of other prejudicial evidence. 

, 111 S.Ct.
at 1259, 

. In Kordenbrock, the Sixth Circuit was concerned that
there was “no explicit evidence other than the confession” that “plainly” established
the defendant’s mens rea. 

.
       {¶ 233} These concerns do not, however, apply to the case at bar. Given
that Condrea Webber, an eyewitness to Murphy’s entire confrontation with Brooks,
picked Murphy out of a photo array shortly after the killing, and that an employee
of the F&H Bar & Grill corroborated Webber’s eyewitness identification by
testifying that he saw Murphy follow the victim out of the bar, it is unlikely that the
police would have decided not to prosecute Murphy for these offenses had Murphy
never confessed to them. Moreover, as in Burks, 

, here there was
compelling eyewitness testimony from Webber tending to show Murphy’s mens
rea. In fact, as in Bucklew, 

, Webber’s detailed account of her
brother’s killing went to each element of the charged offenses.
       {¶ 234} The state opened both its opening statement and its case-in-chief
by focusing on Webber’s eyewitness account of the events that occurred behind the




                                          60
                               January Term, 2001




F&H Bar & Grill—the state did not “lead” with the inculpatory statements that
Murphy made following his invocation of the right to cut off questioning. Webber
testified that she watched “everything that was going on” the “whole time.” Asked
if she had trouble seeing the assailant clearly, Webber responded, “No, I could see
him. And I really got the best look at him when I opened the car door to turn around
and tell him that we didn’t have anything.” Webber testified that Murphy eventually
grew impatient with Brooks’s effort to remove his necklaces, took a step back, and
shot Brooks multiple times at close range with a large weapon that Murphy had
been pointing and waving at Brooks’s head and chest. According to Webber,
Murphy stepped back and shot Brooks while Brooks’s hands were “[u]p trying to
get his chains off.” Webber’s detailed eyewitness account of events was persuasive
evidence that Murphy purposely caused Brooks’s death while committing,
attempting to commit, or fleeing immediately after committing an aggravated
robbery.
       {¶ 235} Though the defense tried to cast doubt on the reliability of
Webber’s identification of Murphy by pointing to the late hour and lack of
illumination in the area, the state effectively responded to this tactic with the
testimony of the crime scene technician, William Snyder, who had included two
nearby light sources in his computer drawing of the scene. The deputy coroner
testified that both of Brooks’s bullet wounds resulted from close-range shots, and a
firearms examiner testified that the weapon from which the bullets were fired was
unlikely to have discharged by bumping or dropping. Even before the state
introduced Murphy’s videotaped statement at the conclusion of its case-in-chief,
then, the state had built a strong case against Murphy going to all the elements of
aggravated robbery and murder.
       {¶ 236} Though the state mentioned Murphy’s confession in its opening
and closing statements, and played the videotape of Murphy’s interrogation for the
jury at the conclusion of its case-in-chief during the testimony of Detective Yates,




                                        61
                              SUPREME COURT OF OHIO




the trial court prohibited the state from rehashing Murphy’s inculpatory statements
after the jury viewed the tape. And unlike Fulminante, the transcript here does not
indicate that the trial court and the state “recognized that a successful prosecution
depended on the jury believing” the confession. (Emphasis added.) 

, 111 S.Ct. at 1258, 

.
        {¶ 237} For these reasons, though I believe that Murphy unambiguously
invoked the right to cut off questioning and respectfully disagree with the
majority’s analysis to the contrary, I would, like the majority, overrule Murphy’s
first proposition of law. The state introduced abundant, independent proof of
Murphy’s guilt, and the erroneous admission of Murphy’s videotaped post-invocation statements was harmless beyond a reasonable doubt.
               II. Alternate Jurors/Ineffective Assistance of Counsel
        {¶ 238} I also write separately to address the majority’s analysis of the
“alternate juror” problem that Murphy raises in his seventh and tenth propositions
of law. In his seventh proposition, Murphy claims that the trial court deprived him
of his right to a fair trial by allowing the alternates to remain in the jury room during
deliberations in both phases of his trial. I agree with the majority that under United
States v. Olano (1993), 

, 

, 

, Murphy’s
failure to object to the alternates’ presence in the jury room results in a plain-error
standard of review. And because Murphy has not shown that the outcome of the
trial would have been otherwise had the trial court properly excluded alternates
from the jury room during deliberations, I agree with the majority’s resolution of
Murphy’s seventh proposition of law.
        {¶ 239} I respectfully disagree, however, with portions of the majority’s
analysis of Murphy’s tenth proposition of law, which also implicates the alternatejuror issue. In his tenth proposition, Murphy claims that his attorney’s failure to
object to the presence of alternates in the jury room constituted ineffective
assistance of counsel. The majority writes that “[t]he record does not disclose why




                                           62
                                January Term, 2001




counsel did not object; and appellant has failed to carry his burden of persuasion on
this issue.” I write separately to clarify that an ineffective-assistance-of-counsel
claimant has no burden of persuasion on the issue of why his attorney did not object
to a particular trial error. As the majority correctly notes earlier in its opinion, an
appellant raising a claim of ineffective assistance of counsel must only show (1)
that counsel performed deficiently, and (2) that there was a reasonable probability
that, but for counsel’s errors, the proceeding’s result would have been different.
See State v. Bradley (1989), 

, 

, paragraphs two
and three of the syllabus. Though the state will often try to overcome claims of
ineffective assistance of counsel by hypothesizing why an attorney might have
failed to object (by suggesting that defense counsel’s failure to object was
reasonable trial strategy, for example) the appellant bears no burden of persuasion
on this issue.
        {¶ 240} Finally, I disagree with the majority’s citation to Olano at the
conclusion of its analysis of Murphy’s claim of ineffective assistance of counsel. I
do not disagree with Olano’s formulation of the plain-error standard of review, but
the standard for prejudice under the plain-error rule differs from the standard for
prejudice in an ineffective-assistance-of-counsel claim, and we should studiously
avoid mixing the two concepts.
        {¶ 241} An error is not prejudicial for purposes of plain-error review
unless, “but for the error, the outcome of the trial clearly would have been
otherwise.” (Emphasis added.) State v. Long (1978), 

, 

, 

, paragraph two of the syllabus. But Strickland “prejudice” is
different. In fact, the Strickland court expressly rejected an outcome-determinative
standard for prejudice in the context of ineffective assistance of counsel claims,
describing such a standard as “not quite appropriate.” Strickland v. Washington
(1984), 

, 

, 

. The
Strickland court explained:




                                          63
                             SUPREME COURT OF OHIO




       “[W]e believe that a defendant need not show that counsel’s deficient
conduct more likely than not altered the outcome in the case.
       “…
       “[T]he appropriate standard of prejudice should be somewhat lower. The
result of a proceeding can be rendered unreliable, and hence the proceeding itself
unfair, even if the errors of counsel cannot be shown by a preponderance of the
evidence to have determined the outcome.
       “Accordingly, … [t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.
       “In making the determination whether the specified errors resulted in the
required prejudice, a court should presume … that the judge or jury acted
according to law.” (Emphasis added.) 

, 

, 

. See, also, State v. Pettit (July 5, 2000), Vinton App. No. 99CA529,
unreported, 

 (holding that erroneous jury instructions did not
amount to plain error, but that counsel performed deficiently in failing to object to
the erroneous instructions and that there was a reasonable probability that the trial
outcome would have been different had counsel objected and the court given the
appropriate instruction).
       {¶ 242} For the foregoing reasons, I would resolve Murphy’s claim of
ineffective assistance of counsel regarding the presence of the alternate jurors
somewhat differently than does the majority. Under the first prong of the Strickland
analysis, I would conclude that Murphy’s counsel performed deficiently by failing
to object to the presence of alternates in the jury room during deliberations. I would
reach this conclusion because (1) the presence of alternates in the jury room during
deliberations violated Crim.R. 24(F); (2) a timely objection by Murphy’s counsel
may have formed the basis for a successful motion for new trial under Crim.R.




                                          64
                                     January Term, 2001




33(A)(1) (“Irregularity in the proceedings”); and (3) this court has recently upheld
a trial court’s decision in a civil case to sua sponte declare a mistrial when it
discovered the presence of an alternate in the jury room during deliberations, even
though the alternate assured the judge that he had contributed nothing to the jury’s
verdict. Koch v. Rist (2000), 

, 

.3
        {¶ 243} Moving to the second prong of Strickland, however, I would
conclude that Murphy has failed to show that there is a reasonable probability that,
but for counsel’s deficient performance, the result of the proceeding would have
been different.     In his brief, Murphy refers only generally to the “numerous
dangers” present in the trial court’s “unusual” and “inherently problematic”
procedure with the alternates.
        {¶ 244} Murphy’s generalized concerns do not undermine one’s confidence
in the outcome of this case. See Strickland, 

, 

, 

 (“not every error that conceivably could have influenced the
outcome undermines the reliability of the result of the proceeding”). During its
instructions to the jury, the trial court admonished the alternates that “by law you
are not permitted to participate in the deliberations in any fashion. That means that
you are not permitted to make any type of gestures, perhaps any signs by way of
facial movements, which we understand is a difficult task, but that is what the law
does require. You are not permitted to participate in the deliberations unless and
until, if ever, one of the other members of the jury would not be able to conclude
their service in the case.” The judge reiterated this explicit warning just before the


3. In Koch, a majority of this court decided that “the case before us involves extraordinary
misconduct where a stranger to the jury entered the jury room and remained there throughout the
entire deliberative process.” Koch, 

, 730 N.E.2d at 965. This court’s opinion
in Koch, however, was released after Murphy’s trial had already concluded, and decided an issue of
first impression in Ohio. Id. Thus I cannot charge Murphy’s trial counsel with knowledge of this
court’s decision in Koch. I cite Koch simply as persuasive support for my conclusion that Murphy’s
counsel performed deficiently by failing to object to the presence of alternates in the jury room.
That this court had not yet spoken on the consequences of a particular trial error does not excuse
trial counsel’s failure to preserve an objection to that error.




                                               65
                             SUPREME COURT OF OHIO




jury retired to deliberate, saying, “Just remind the alternate jurors again about not
being able to participate in any manner in the deliberations during this time.”
Murphy provides no specific basis for concluding that the alternate jurors failed to
adhere to the trial court’s explicit instructions. Because we presume, for purposes
of Strickland’s second prong, that the jury acted in accordance with law, see id.,

, 

, 

, and because Murphy
has given me no reason to believe that the alternates failed to adhere to the judge’s
instructions, I would overrule Murphy’s tenth proposition of law.
       MOYER, C.J., concurs in the foregoing concurring opinion.
       LUNDBERG STRATTON, J., concurs in Part I of the foregoing concurring
opinion.
                               __________________
       PFEIFER, J., dissenting.
       {¶ 245} I agree with Justice Cook’s concurrence, except that I do not
believe that the error in failing to halt Murphy’s interview was harmless. I write
separately to address several other issues.
       {¶ 246} “The constitutional purpose of statutory aggravating circumstances
is to narrow the class of murderers to those deserving society’s ultimate
punishment, the death penalty. Zant v. Stephens (1983), 

, 

, 

. See Rosen, Felony Murder and the
Eighth Amendment Jurisprudence of Death (1990), 31 B.C.L.Rev. 1103, 1121.”
State v. O’Neal (2000), 

, 421, 

 (Pfeifer, J.,
dissenting).   The felony-murder rule embodied in R.C. 2929.04(A)(7), the
aggravating circumstance charged and proved in this case, is not particularly well
suited for guidance in distinguishing between those who deserve death and those
who do not. One state supreme court has struck down the statute listing simple
felony murder as an aggravating circumstance, holding that it failed to sufficiently
narrow the class of death-eligible offenders. State v. Middlebrooks (Tenn.1992),




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.4 One commentator has called felony murder the “least
defensible” aggravating circumstance. Ledewitz, The New Role of Statutory
Aggravating Circumstances in American Death Penalty Law (1984), 22 Duq.
L.Rev. 317, 380, fn. 230. This case is a good example of why they reached those
conclusions.
         {¶ 247} The aggravating circumstance in this case is standard felony
murder. If Murphy had not demanded or taken the gold chains worn by Brooks,
the death penalty would not have been possible in this case.                   Although the
mitigating circumstances are not overwhelming, the record indicates that Murphy
had significant developmental disadvantages. Basically, he had never been taught
right from wrong. In spite of this, he had no documented history of violent
behavior.
         {¶ 248} Murphy is not the type of hard-core criminal targeted by the death
penalty, the type who cold-bloodedly plans and executes murders. See State v.
Smith (2000), 

, 

; State v. Green (2000), 

, 

. Murphy committed a heinous, senseless act. He shot
and killed Andre Brooks. The lives of Brooks’s family and friends have been
irreparably altered. Brooks himself will never again have the chance to experience
the joys and sorrows of life. That is tragic and nothing can change it. Murphy must
be severely punished for the murder he committed.                     We are required to
independently determine whether his punishment should include a sentence of
death.
         {¶ 249} R.C. 2929.04(B) and (B)(7) require the sentencer to consider “the
history, character, and background of the offender” and “[a]ny other factors that are
relevant to the issue of whether the offender should be sentenced to death.” If our
obligation to independently weigh mitigating factors against each aggravating

4. The Tennessee legislature amended the offending statute in response to Middlebrooks. See
Tenn.Code Ann. 39-13-204(i)(7).




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circumstance is to mean anything, this court must, when the circumstances warrant,
reverse a sentence of death. We must distinguish between a defendant’s guilt and
whether he should be put to death. See Crocker, Concepts of Culpability and
Deathworthiness: Differentiating between Guilt and Punishment in Death Penalty
Cases (1997), 66 Fordham L.Rev. 21.
       {¶ 250} We are required by statute to conduct a proportionality review in
which we “consider whether the sentence is excessive or disproportionate to the
penalty imposed in similar cases.” R.C. 2929.05(A). This court has construed this
language to limit review to similar cases in which the death penalty was imposed.
State v. Steffen (1987), 

, 31 OBR 273, 

, paragraph
one of the syllabus. However, the “similar cases” language of R.C. 2929.05(A) is
ambiguous.     A narrow interpretation, such as this court’s current one, is a
possibility. Another is that “similar cases” refers more broadly to all factually
similar cases, whether or not a capital specification was charged or proved.
       {¶ 251} In my view, Murphy should be compared to the universe of all Ohio
cases in which a person was killed during the course of a robbery, not just to cases
in which a person was killed during the course of a robbery and in which a sentence
of death was imposed. When we compare a case in which the death penalty was
imposed only to other cases in which the death penalty was imposed, we continually
lower the bar of proportionality. The lowest common denominator becomes the
standard. This result is ethically indefensible.
       {¶ 252} Apparently to assist us in reviewing proportionality, R.C. 2929.021
requires that certain information for each indictment charging aggravated murder
be provided to our court. However, the information provided is incomplete. It does
not include race or any other constitutionally significant factors that this court could
use to determine whether our justice system fairly treats all the defendants that
come before it. It is time for this court to augment the statutorily required




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                                 January Term, 2001




information we do receive by gathering constitutionally significant information that
could assist us in analyzing proportionality.
        {¶ 253} Murder that fits within the four corners of the death penalty statute
does not necessarily merit prosecution as a death penalty case. R.C. 2929.04(A)
states that “[i]mposition of the death penalty for aggravated murder is precluded
unless one or more of the following [aggravating circumstances] is specified in the
indictment … and proved beyond a reasonable doubt.”          The statute does not
require prosecutors to seek the death penalty whenever an aggravating
circumstance can be proven beyond a reasonable doubt; it simply prohibits them
from seeking the death penalty absent a statutory aggravating circumstance.
Prosecutors are expected to exercise their discretion when seeking the death
penalty. When Ohio’s death penalty statute was enacted, it was designed to be
narrowly tailored to allow the execution of only the most vile and evil murderers.
        {¶ 254} The death penalty scheme established by the General Assembly is
demonstrably better than those of Texas or Illinois. But it is only as good as the
principals in our criminal justice our system make it. Prosecutors must continue to
zealously pursue convictions while tempering their desire to seek death. Defense
attorneys must continue to zealously advocate even when, as in this case, guilt is
beyond doubt. Trial judges must continue to ensure that defendants receive the full
protections of the Constitution.       Juries must continue to receive as much
information as is necessary to fulfill their duties and responsibilities. Each principal
in the system must continually strive to ensure that we sentence to death only those
murderers who truly deserve death.
        {¶ 255} This court is no different. We must be willing to do serious
proportionality review. Even though approximately two hundred males currently




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reside on death row,5 this court has never overturned a death sentence based on
proportionality review. “Proportionality review” must be more than hollow words,
it must someday mean that this court will overturn a sentence of death based solely
on proportionality review.
        {¶ 256} Finally, alternate jurors were in the jury room during both the guilt
and penalty phases while the jury deliberated. Crim.R. 24(F) states that “[a]lternate
jurors in the order in which they are called shall replace jurors who, prior to the
time the jury retires to consider its verdict, become or are found to be unable or
disqualified to perform their duties. … An alternate juror who does not replace
a regular juror shall be discharged after the jury retires to consider its verdict.” It
is readily apparent that Crim.R. 24(F) was violated because the alternate jurors were
not discharged properly. Further, allowing the alternate jurors to be present during
jury deliberations violated the sanctity of the jury process. See United States v.
Virginia Erection Corp. (C.A.4, 1964), 

; Koch v. Rist (2000), 

, 

, 965. As in Koch, which involved a civil trial,
“the case before us involves extraordinary misconduct where a stranger to the jury
entered the jury room and remained there throughout the entire deliberative
process.” 

, 730 N.E.2d at 965.
        {¶ 257} I likely would find that this error alone warrants a reversal of the
death sentence, even under a plain error standard. However, I need not so find
given the other issues discussed above. After reviewing the record, weighing the
aggravating circumstance against the mitigating factors, and considering
proportionality, I conclude that the sentence of death should be reversed and that
Murphy should be sentenced to life in prison without parole.
                                  __________________


5. The Ohio Department of Corrections website lists two hundred and one death row inmates, all
male, as of April 2, 2001 (ftp://ftp.sconet.state.oh.us/opinions/2001/981586.pdf).        See
http://www.drc.state.oh.us/public/deathrow.htm.




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                               January Term, 2001




       Ron O’Brien, Franklin County Prosecuting Attorney, and Susan E. Day,
Assistant Prosecuting Attorney, for appellee.
       W. Joseph Edwards and Barbara A. Farnbacher, for appellant.
                              __________________




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