State v. Nields

[This decision has been published in Ohio Official Reports at 

.]




             THE STATE OF OHIO, APPELLEE, v. NIELDS, APPELLANT.
                      [Cite as State v. Nields, 

.]
Criminal law—Aggravated murder—Death penalty upheld, when.
        (No. 98-20—Submitted April 25, 2001—Decided August 29, 2001.)
 APPEAL from the Court of Common Pleas of Hamilton County, No. B9703305.
                                  __________________
        LUNDBERG STRATTON, J.
        {¶ 1} On the night of March 27, 1997, Patricia Newsome was found
strangled on her kitchen floor. Police arrested Richard Nields, defendant-appellant,
Newsome’s frequent live-in companion, at Newsome’s home that night, not long
after Springfield Township Police had transported him there. Defendant was
indicted for aggravated murder and aggravated robbery, found guilty as charged,
and sentenced to death.
        {¶ 2} Prior to 1997, defendant and Patricia Newsome had an on-again, offagain relationship for approximately ten to twelve years. In the year leading up to
the murder, they lived together at Newsome’s home in Finneytown, Springfield
Township, in Hamilton County. Newsome worked as a realtor in Fairfield, and
defendant was a keyboard musician who was out of work most of the time. On
March 27, 1997, Newsome had lunch with her friend, Dorothy Kiser. Newsome
told Kiser that she asked defendant to move out. Even though defendant had packed
his clothes in his car in order to move out, “he kept coming back to the house.”
        {¶ 3} In the weeks leading up to March 27, defendant would call Newsome
with hostile messages. On one occasion, an angry call for Newsome was received
by the office receptionist, Floanna Ziegler, from a man identifying himself as a
musician. Newsome wrote the incident down and told Ziegler, “I’m trying to file
charges against him and I want to document everything that he said to you.”
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        {¶ 4} During the afternoon of March 27, Dorothy Alvin had a conversation
with defendant, who was a stranger to her, at Lulu’s bar in Springfield Township.
Defendant told Alvin that the lady whose house he lived in was throwing him out.
Defendant further told Alvin, “I’d like to kill her, but I guess I won’t do that because
I don’t want to go to prison.”
        {¶ 5} Later, during the evening of March 27, Barbara Beck and Patricia
Denier were dining at the Briarwood Lounge on Hamilton Avenue.                       At
approximately 10:30 p.m., defendant entered the bar and approached the two
women, both of whom he knew. Both women noticed blood on his right hand and
asked him what happened. Defendant said to them, “[Y]ou’ll hear it on the news
tomorrow.” Defendant also kept repeating, “I’m in serious, serious trouble.” Both
women thought that he was in shock and was acting strange. Neither smelled any
alcohol on his breath.
        {¶ 6} As Beck and Denier left the lounge, defendant walked them to their
car and asked to go with them. After they declined to take defendant with them,
defendant told them, “I’m going to be driving home in a Cadillac.” They saw
defendant walk across the street to a white Cadillac. Friends of Patricia Newsome
testified that she owned a white Cadillac but never let anyone else drive it,
especially defendant, “because of the way he drank.”
        {¶ 7} Anthony Studenka was at DJ’s Pub on Winton Road on the night of
March 27, a little before midnight and sat down next to a person at the bar who
“told me he killed somebody.” That person was defendant. Defendant showed
Studenka his hands, which had cuts on them, and told Studenka that he had killed
some kid who was a drug pusher. Defendant then suddenly became belligerent and
started calling Studenka insulting names. Kimberly Brooks, a friend of Studenka,
also heard defendant declare that he had killed someone and noticed that defendant
had “dried blood all over” his hands. However, defendant then denied that he had




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                                January Term, 2001




killed anyone, and said that he had helped drag the body away. Brooks called 911
to report defendant’s statements.
       {¶ 8} Springfield Township Police Officer Greg Huber was in front of DJ’s
Pub when he heard a radio call that a male at the bar was bragging that he had killed
someone. Huber encountered defendant inside the bar and asked him to step
outside because of the noise. After initially refusing to do so, defendant went
outside and spoke with Huber, who then noticed blood on both of defendant’s
hands. When asked about the blood, defendant told Huber that he was in a fight
across the street at Lulu’s bar. At that time, Police Sgt. Ken Volz arrived on the
scene. Huber then went to Lulu’s to investigate and discovered that there had been
no fight there.
       {¶ 9} Sgt. Volz and another officer, Clayton Smith, spoke with defendant
outside of DJ’s Pub. Defendant told the officers that the story of the killing he was
telling inside the bar was really about a Clint Eastwood movie. Smith, who was
familiar with such movies, asked defendant questions to find out to which movie
defendant was referring. However, defendant could not sufficiently answer any of
his questions. Sgt. Volz then instructed Smith to drive defendant home due to his
“intoxication level.”
       {¶ 10} Defendant pointed to the white Cadillac across the way as “his
girlfriend’s car” that he drove, which Volz learned was registered to Patricia
Newsome. Volz then went to Newsome’s house on 8527 Pringle Avenue, “to check
on [her] well being.” When he peered through the front window, he could see that
the television and some lights were on, and he could hear the dog barking inside.
       {¶ 11} As Officer Smith drove up to the Pringle Avenue residence with
defendant, Sgt. Volz was standing on the front porch area. Defendant “became very
uptight and aggressive and verbal and almost yelling” at Smith. Defendant declared
that they were not going into the house without a search warrant. Defendant
eventually calmed down, and the officers let him enter the house and hoped he




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would calm down for the night. However, after defendant entered the house, the
officers could see defendant through the front window “waving his hands … in
an erratic fashion.”
       {¶ 12} As the officers were leaving, they noticed the door on the attached
garage was open. Officer Smith entered the open lit garage and peered in a window
that looked into the kitchen. Smith saw “a female … on the ground [who] …
was obviously deceased.” The officers went to the front door and saw defendant
through the front window still waving his arms. They knocked on the door, and as
defendant opened the door, they grabbed his arm, pulled him outside, and
handcuffed him. Police arrested defendant and advised him of his Miranda rights.
Sgt. Volz entered the house to check on the victim but could not detect a pulse.
       {¶ 13} While defendant was detained in the police cruiser, he kept asking
Officer Smith, “[I]s she alive?” During the arrest, police found fifteen traveler’s
checks in defendant’s possession, all of which bore Patricia Newsome’s name.
Police Chief David Heimpold arrived at the scene and readvised defendant of his
Miranda rights. Defendant told Heimpold that he and Newsome had been in an
argument. She hit him with the telephone, he then pushed her, and she hit her head
on a bookcase. Defendant also mentioned that someone named “Bob” was also
there, but shortly thereafter, he admitted that this was a lie. Defendant admitted
that he had choked Newsome after they had had a fight. The assistant medical
examiner, who performed the autopsy on Newsome, concluded that she had died
from asphyxia due to manual strangulation.
       {¶ 14} Defendant was incarcerated at the Hamilton County Justice Center.
Two days after the murder, he talked with Timothy Griffis, who was serving time
that weekend for nonpayment of child support. Defendant told Griffis that “he had
killed his girlfriend,” that they had argued, and that he “jumped on top of her, started
beating her up.” Defendant said that he then went to a bar. He came back to
Newsome’s home to see if she was breathing and started strangling her. He laid




                                           4
                               January Term, 2001




the phone on top of Newsome’s chest, called her either “bitch” or “baby,” and told
her, “Call me from heaven.” According to Griffis, defendant at times appeared to
be remorseful, but at other times, he exhibited a carefree attitude while recounting
the details of the murder. Defendant also told Griffis that he took money, jewelry,
and traveler’s checks out of Newsome’s purse. According to Griffis, defendant was
kind of upset because he could not use the traveler’s checks.
       {¶ 15} On May 2, 1997, the grand jury indicted defendant for aggravated
robbery, aggravated murder with prior calculation and design, and aggravated
felony-murder during an aggravated robbery.        A death penalty specification
attached to the aggravated murder counts alleged that defendant had committed
aggravated murder during the aggravated robbery and that he was either the
principal offender or committed the aggravated murder with prior calculation and
design. R.C. 2929.04(A)(7).
       {¶ 16} Prior to trial, a suppression hearing was held on defendant’s motion
to suppress defendant’s statement to police after he requested an attorney, his
statements at DJ’s Pub, and his statement to Timothy Griffis because the police
entered the curtilage of Newsome’s home without a warrant. The trial court denied
the motion to suppress, holding that exigent circumstances justified the search of
the home. The court further held that defendant’s statements to police after he
requested an attorney were freely and voluntarily given and that defendant’s
statement at the Justice Center to Griffis and his statements at the pub were not
suppressible.
       {¶ 17} The state called numerous witnesses to establish defendant’s guilt
before a jury. The defense conceded that defendant had killed Newsome but
disputed that defendant had purposefully or “knowingly caused the death of Patricia
Newsome” because he was “under the influence of sudden passion … and rage.”
During the trial, Officer Nancy Richter testified that she discovered three pages of
yellow legal paper entitled “Record of Abuse” at Newsome’s residence while she




                                         5
                             SUPREME COURT OF OHIO




and Newsome’s children were looking for her will several days after the murder.
A forensic document examiner with the coroner’s office determined that the
“Record of Abuse” pages were written by Newsome.
       {¶ 18} Also at trial, Springfield Township Police Officer Paul Rook
testified that he responded to a “domestic call” at Newsome’s residence on March
1, 1997. At that time, Newsome told Rook that she wanted defendant to leave her
home and that she was afraid of him. Rook and another officer took defendant from
Newsome’s residence until he could find someone else who would come and get
him. The defense called one witness.
       {¶ 19} After deliberation, the jury found defendant guilty as charged.
       {¶ 20} At the mitigation hearing, the defense presented three witnesses:
defendant’s sister, Rochelle Pittman; Dr. Emmett Cooper, psychiatrist and
pharmacologist; and Assistant Public Defender James Slattery. Pittman chronicled
defendant’s family life, including the fact that defendant’s father was an alcoholic
who left the family when defendant was in high school. Pittman also testified that
she became friends with Newsome and that a few weeks before the murder, they
discussed having defendant committed at Newsome’s suggestion.
       {¶ 21} Dr. Cooper testified that defendant was an alcoholic and reviewed
the medical ailments that defendant suffered as a result of his alcoholism. Dr.
Cooper observed that defendant’s time in jail since his arrest represented his longest
period of sustained sobriety since 1976. Slattery, an admitted alcoholic, testified
as to the deleterious effects of alcohol and how his alcoholism interfered with his
ability to do what was best for himself as well as his ability to practice law.
       {¶ 22} The jury recommended death, and the court imposed the death
sentence on defendant.
       {¶ 23} The cause is now before this court upon an appeal as of right.
       {¶ 24} In this appeal, defendant raises forty-four propositions of law for
review. Upon review of each proposition of law, we find that none warrants




                                          6
                                January Term, 2001




reversal of defendant’s convictions or death sentence. We have also independently
weighed the aggravating circumstance against the mitigating factors and compared
his sentence to those imposed in similar cases, as R.C. 2929.05(A) requires. Having
done so, we affirm defendant’s convictions and sentence of death.
                         VOIR DIRE/PRETRIAL ISSUES
                    Failure to Appoint or Fund Defense Experts
       {¶ 25} In propositions I, X, XI, XXXIII, and XXXVI, defendant contends
that the court’s failure to provide him with adequate funds for several expert
witnesses prevented him from presenting an adequate defense, in violation of Britt
v. North Carolina (1971), 

, 

, 

, and Ake v.
Oklahoma (1985), 

, 

, 

.
       {¶ 26} In proposition I, defendant complains that he was not provided with
an investigator, a coroner, a crime scene investigator, or an expert on voice or
audiotape. In proposition X, he claims error because the court failed to provide
funds for an independent expert pathologist, and in XI, he argues that he was
prejudiced by not having a neuropharmacologist. In proposition XXXIII, defendant
claims error in the failure of the court to appoint or provide funds for an independent
psychologist, since Dr. Cooper’s testimony was limited to explaining defendant’s
alcoholism. In proposition XXXVI, defendant asserts error because he lacked an
independent neuropsychologist for mitigation purposes.
       {¶ 27} In Ake v. Oklahoma, 

, 

, 

, the United States Supreme Court held that due process requires that
an indigent defendant have access to psychiatric assistance “when [the] defendant
has made a preliminary showing that his sanity at the time of the offense is likely
to be a significant factor at trial.” Further, R.C. 2929.024 requires trial judges to
grant funds in aggravated murder cases for investigative services and experts when
“reasonably necessary for the proper representation” of indigent defendants.




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                              SUPREME COURT OF OHIO




       {¶ 28} In State v. Mason (1998), 

, 

,
syllabus, we recognized that due process, as protected by constitutional guarantees,
“requires that an indigent criminal defendant be provided funds to obtain expert
assistance at state expense only where the trial court finds, in the exercise of a sound
discretion, that the defendant has made a particularized showing (1) of a reasonable
probability that the requested expert would aid in his defense, and (2) that denial of
the requested expert assistance would result in an unfair trial.” See, also, State v.
Jenkins (1984), 

, 15 OBR 311, 

, paragraph four
of the syllabus; Sup.R. 20(IV)(D).
       {¶ 29} We find that all of defendant’s arguments lack merit. First, the
record demonstrates that the trial court allocated funds for expert assistance when
defendant requested such funds. For example, the trial court allocated funds for a
mitigation specialist and a clinical psychiatrist to examine defendant and review his
medical history.
       {¶ 30} Second, defendant never requested funds for an investigator, a
coroner, a crime-scene investigator, an expert on voice or audiotape, an expert
pathologist, a neuropharmacologist, an independent psychologist, or an
independent neuropsychologist.       We “need not consider an error” when the
complaining party “could have called, but did not call” the matter to the trial court’s
attention. State v. Williams (1977), 

, 

, 

, paragraph one of the syllabus. “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.” State v. Long (1978), 

,

, 

, paragraph three of the syllabus. Since plain error
is absent, all of defendant’s propositions of law in this realm are devoid of merit on
that ground alone.
       {¶ 31} In proposition I, defendant asserts generally that the defense was
hamstrung by a lack of funds, but fails to explain how an investigator, a coroner, a




                                           8
                               January Term, 2001




crime scene investigator, or an expert on voice or audiotape would have helped his
defense. Defendant’s defense was that although he killed Newsome, it was the
result of passion or rage. Yet, defendant does not explain how these experts would
have aided such a defense. Thus defendant failed to show a particularized need for
these experts and has not shown how the failure to employ these experts denied him
a fair trial. Cf. Mason, 

, 

; State v. Clemons
(1998), 

, 

.
        {¶ 32} Furthermore, the record does not support defendant’s arguments in
proposition X that an independent pathologist would have helped defendant. The
coroner examined the victim and thoroughly documented and photographed the
autopsy. The record indicates that the autopsy was performed in a competent and
professional manner. The cause of death was not an issue here, and defendant has
not established a particularized need or shown how the lack of another pathologist
resulted in an unfair trial.
        {¶ 33} In propositions XI, XXXIII, and XXXVI, defendant claims that the
court’s failure to appoint a neuropharmacologist, independent psychologist, and
neuropsychologist prevented available, relevant mitigating evidence from being
introduced.    However, this claim also lacks merit.       Defendant employed a
mitigation specialist and a psychiatrist, Dr. Emmett Cooper, who also possesses a
doctorate in pharmacology. Dr. Cooper discussed the effects that alcohol had on
defendant and the physical damage he has suffered as a result of his alcoholism.
Thus, counsel readily had “alternative devices that would fulfill the same functions
as the expert assistance sought.” Jenkins, 

, 15 OBR 311, 

, paragraph four of the syllabus.       Defense counsel at trial never
suggested that they needed further assistance from a neuropharmacologist, an
independent psychologist, or a neuropsychologist.        Thus, no “particularized
showing” was made.




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       {¶ 34} Moreover, defendant has not shown that the lack of such experts
caused an unfair trial. Cf. State v. Coleman (1989), 

, 

. Based on all the foregoing, we reject defendant’s propositions I,
X, XI, XXXIII, and XXXVI.
                                    Suppression Issues
       {¶ 35} Propositions VII and XIX involve issues raised at the suppression
hearing conducted prior to trial.
       {¶ 36} Confession.      In proposition VII, defendant asserts that two
statements he made to police should have been suppressed: (1) the statements he
made to Springfield Township Police Chief Heimpold shortly after his arrest
outside Newsome’s home, and (2) the statement he gave at the police station that
was tape recorded after he had requested an attorney.
       {¶ 37} During the suppression hearing, Chief Heimpold testified that he
read defendant his Miranda rights outside Newsome’s home, even though Officer
Smith had already done so moments earlier. Defendant stated that he understood
his rights. Defendant told Heimpold that he had come home and argued with
Newsome while another person was in the house. She struck him with a telephone,
and he pushed her, causing her to hit her head on the bookcase. When Heimpold
asked who else was in Newsome’s home at the time, defendant admitted that he
lied about someone else being there. Heimpold noted that he had seen the victim
and noticed bruising on her neck. When Heimpold asked defendant if he had
choked Newsome, he responded that he had. Heimpold then transported defendant
to the police station. In this conversation, defendant never asked for an attorney
and displayed no hesitation in talking with police.
       {¶ 38} At the police station, a tape recorder was set up, and police again
advised defendant of his Miranda rights. Heimpold began interviewing defendant
with Detective Pat Kemper also present. After the interview began, defendant
requested an attorney, and he turned off the tape recorder himself at 1:06 a.m.




                                            10
                                January Term, 2001




Unbeknownst to defendant, another tape recorder automatically turned on. At that
point, Heimpold told defendant that he was going to charge him with murder. Other
officers began processing defendant to find out his name, address, and phone
number, but they did not ask him about the murder.
       {¶ 39} Defendant then began to try to explain to Heimpold what happened
that night, and Heimpold told him that he could not hear it without defendant’s
attorney present. Defendant said, “[N]o, I want to tell you what happened.” At
1:25 a.m., with three other officers present, Heimpold restarted the tape recorder,
and defendant acknowledged that he wanted to talk to the officers about what
happened at Newsome’s house. Defendant then read aloud his Miranda rights and
signed a waiver-of-rights form.      During the interview, defendant was given
bathroom breaks and was provided cigarettes and soft drinks. Heimpold testified
that defendant began to cry a little bit when he said that he killed Newsome. The
trial court ruled that defendant’s incriminating statements to the police were freely
and voluntarily given, essentially finding that they were not given in response to
police questions.
       {¶ 40} The transcript indicates that police advised defendant of his Miranda
rights at least four times. When defendant decided that he wanted to talk with police
on his own initiative and no longer wanted an attorney, he signed a waiver-of-rights
form. The evidence supports the trial court’s finding that defendant was properly
advised of his Miranda rights and that he understood those rights when he signed
the waiver. An accused’s signed waiver form is strong proof that such waiver was
valid. State v. Clark (1988), 

, 

; North
Carolina v. Butler (1979), 

, 

, 

.
       {¶ 41} The evidence shows that it was defendant who initiated the
conversation about the murder during routine police processing at the station.
When Heimpold told defendant that he could not hear anything without his attorney




                                         11
                              SUPREME COURT OF OHIO




present, defendant insisted on “tell[ing Heimpold] what happened.” Therefore, it
is clear that defendant’s statements to police after he invoked his right to have an
attorney present were initiated by him, were not the result of a police interrogation,
and were voluntary and not elicited in violation of his constitutional rights. See
Oregon v. Bradshaw (1983), 

, 

, 2834-
2835, 

, construing Edwards v. Arizona (1981), 

,

, 

; State v. Jones (2000), 

, 

.
        {¶ 42} At a suppression hearing, the evaluation of evidence and the
credibility of witnesses are issues for the trier of fact. State v. Mills (1992), 

, 

, citing State v. Fanning (1982), 

, 1 OBR 57, 58, 

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

, 

, 

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

, 

. Nothing
suggests that defendant’s “will was overborne” or that his “capacity for selfdetermination was critically impaired because of coercive police conduct.” State
v. Otte (1996), 

, 

; Colorado v. Connelly
(1986), 

, 

, 

. See, also,
State v. Edwards (1976), 

, 

, 

,
paragraph two of the syllabus (in deciding whether confession was involuntary,
court should consider totality of circumstances).
        {¶ 43} Under the totality of the circumstances, we find that defendant made
a knowing, voluntary, and intelligent waiver of his constitutional rights and that he
initiated the conversation with police about the murder, after having previously
invoked his right to have an attorney present. Finally, any error in failing to
suppress defendant’s statement at the police station was harmless beyond a
reasonable doubt. At the police station, defendant merely repeated what he had




                                           12
                                January Term, 2001




already admitted to Heimpold at the time of his arrest outside of Newsome’s home.
Accordingly, we overrule proposition VII.
                 Warrantless Search of Residence and Automobile
       {¶ 44} In proposition XIX, defendant contends generally that the police
improperly searched his person, vehicle, and residence on the night of his arrest and
the following week. The trial court held at the conclusion of the suppression
hearing that there were exigent circumstances validating the warrantless search of
Newsome’s home.
       {¶ 45} Residence. A warrantless entry into a home to make a search or
arrest is per se unreasonable, and the burden of persuasion is on the state to show
the validity of the search. State v. Kessler (1978), 

, 

, 

; Xenia v. Wallace (1988), 

,

. There is no “murder scene exception” to the warrant
requirement. Mincey v. Arizona (1978), 

, 

,

; Thompson v. Louisiana (1984), 

, 

,

. “Before agents of the government may invade the sanctity of the
home, the burden is on the government to demonstrate exigent circumstances that
overcome the presumption of unreasonableness that attaches to all warrantless
home entries.” Welsh v. Wisconsin (1984), 

, 

, 

; see, also, Payton v. New York (1980), 

, 

, 

.
       {¶ 46} A review of the facts and circumstances leading up to the entry and
search of Newsome’s home indicates that the trial court was correct in upholding
the warrantless search. Springfield Township police officers were notified that
defendant had been telling bar patrons at DJ’s Pub that he killed someone or was
present during a murder. Defendant had blood on both of his hands when police
arrived at the pub, and another officer discovered that his alibi claiming that he got
bloody hands from a fight at a bar across the street was false. Defendant also falsely




                                         13
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explained that when he told bar patrons that he killed someone, he was actually
recounting a Clint Eastwood movie. The police decided to take defendant home
because he was “highly intoxicated” and they did not want him driving any vehicle
home. They were also concerned because, after running a check on defendant and
on Newsome’s car, they discovered that defendant had a history of domestic
violence and that his explanations for his bloody hands were inconsistent or false.
       {¶ 47} Upon arriving at Newsome’s home, defendant became very hostile
with the police, yelling and ranting that they had to have a search warrant to enter
the residence. The officers allowed defendant to enter the house alone. Then, for
about thirty to forty seconds, they could see defendant through the window, and he
was “just standing in one place ranting and raving and just flailing his arms.” The
officers could not understand why defendant was so upset and, in spite of
defendant’s unusual behavior, were considering leaving the home, even though
“something wasn’t right.”
       {¶ 48} At that time, Officer Smith noticed that the garage door was open
and saw a window in the garage next to a door that emitted light from inside the
house. Smith went into the garage, got on a step leading to a door into the house,
and looked into the kitchen area through the window. He saw a white female lying
on the kitchen floor with a pool of blood around her head. The officers then
immediately went to the front door and knocked. Defendant answered, and the
officers grabbed his arm, pulled him outside, and placed him under arrest. Because
they did not know if there were more people in the house, and having seen the
victim lying on the floor, the officers went into the house to check on the victim
and to see if anyone else was in danger.
       {¶ 49} We find that both exigent circumstances and probable cause
permitted the warrantless entry and search of the victim’s home. Officer Smith’s
initial warrantless entry into the garage was permissible under the exigent
circumstances exception to the Fourth Amendment warrant requirement because




                                           14
                               January Term, 2001




defendant’s behavior and statements leading up to his arrest compelled an
immediate, and therefore warrantless, investigation into whether any victims of the
crime were on the premises. “[T]he Fourth Amendment does not bar police officers
from making warrantless entries and searches when they reasonably believe that a
person within is in need of immediate aid.” Mincey v. Arizona, 

, 

, 

. At the time Smith entered Newsome’s garage and
peered in the kitchen window, yet before seeing Newsome’s corpse, he quite
reasonably believed that someone within the residence was in need of immediate
assistance.
       {¶ 50} The third officer to arrive at DJ’s pub, Smith was aware that
defendant had bragged to bar patrons about killing someone. Due to his own
familiarity with Clint Eastwood films, Smith had reason to doubt defendant’s
purported justification for the story. Another officer at the scene had learned that
defendant had a prior conviction for domestic violence. Smith personally observed
fresh wounds and blood on defendant’s hands, defendant’s “out of control”
behavior outside Newsome’s residence, and defendant’s bizarre “flailing” just
inside the house. From a position outside the garage, Smith could see through the
interior garage window into Newsome’s kitchen above sink level. Though he saw
no evidence of a crime from that vantage point, Smith acted reasonably in entering
the garage “to make sure that there was nobody else in there,” and the circumstances
justified the officers’ warrantless entry into the residence to check the victim’s
status and to ascertain whether anyone else was in danger. Mincey, 

, 

, 

, citing Michigan v. Tyler (1978), 

, 

, 

.
       {¶ 51} Person. Defendant also complains that he was illegally searched
without a warrant. Yet, the facts indicate that the search of his person was proper
as incident to a valid arrest. United States v. Robinson (1973), 

,

, 

.




                                        15
                            SUPREME COURT OF OHIO




       {¶ 52} Inventory of Defendant’s Automobile. Lastly, defendant claims that
the inventory and search of his own automobile (not Newsome’s Cadillac) was
illegal. However, defendant has waived this issue by failing to raise it before the
trial court. Williams, 

, 

, 

, paragraph
one of the syllabus.
       {¶ 53} A warrantless inventory search of a motor vehicle is generally
reasonable and lawful in most instances, depending on the particular facts of the
search. South Dakota v. Opperman (1976), 

, 

, 

. In Ohio, a standard inventory search of a lawfully impounded
automobile, as was the situation here, is permissible. State v. Robinson (1979), 

, 

, 

, syllabus.
       {¶ 54} Here, defendant’s automobile was properly impounded, and the
inventory search of his automobile was undertaken in accordance with the
procedures established by the Springfield Township Police Department. Once the
officers who conducted the inventory search came across what appeared to be
incriminating evidence in a box in defendant’s vehicle, they stopped their
inventory, sealed the car and sought a search warrant for defendant’s automobile.
Plain error is absent under the circumstances.
       {¶ 55} Based on all the foregoing, we overrule proposition XIX.




                                        16
                                January Term, 2001




                                  Denial of Bond
       {¶ 56} In proposition XII, defendant argues that he was deprived of a
“reasonable bond” in violation of his constitutional rights.
       {¶ 57} Section 9, Article I of the Ohio Constitution provides, “All persons
shall be bailable by sufficient sureties, except for a person who is charged with a
capital offense where the proof is evident or the presumption great.” Defendant
asserts error because no evidentiary hearing was held to determine if the proof was
evident or if the presumption was great.
       {¶ 58} When defendant was arraigned on May 6, 1997, he asked the court
to set a reasonable bond. However, the prosecutor argued against any bond because
of the capital charges and the fact that defendant had no regular job and was living
at different residences, none of which were in his name. The trial court rejected the
bond request because it was a capital case.
       {¶ 59} In our view, defendant’s complaint that he was unfairly denied bond
lacks merit for several reasons. First, defendant never requested a hearing to
determine whether “the proof is evident or the presumption great.” Trial courts can
“determine, before trial on the merits, the application of a person [charged with a
capital offense] to be admitted to bail.” State ex rel. Reams v. Stuart (1933), 

, 

, syllabus. Having failed to request a bond hearing,
defendant waived the issue. See, e.g., Williams, 

, 

,

, paragraph one of the syllabus; Crim.R. 12(G).
       {¶ 60} Second, the jury subsequently convicted defendant of the murders
largely on the basis of the evidence available by the date of his arraignment, which
was more than a month after the crime. Therefore, the proof was “evident” at that
time and the presumption “great.” Even if a hearing had been held, no bail could
reasonably have been expected to result.
       {¶ 61} Third, defendant was indigent and could not have made any
reasonable bond that would have been appropriate. If an accused is charged with




                                           17
                              SUPREME COURT OF OHIO




serious crimes and is facing a lengthy sentence, “the incentive to abscond is greater
and the amount must be such as to discourage the accused from absconding.” Bland
v. Holden (1970), 

, 

, 

.
        {¶ 62} Finally, defendant has not demonstrated how his failure to be
released on bail could have reasonably affected the result of his trial. “After
conviction, any error concerning the issue of pretrial bail is moot.” State v.
Patterson (1996), 

, 

. Proposition
XII lacks merit.
                                  Grand Jury Issues
        {¶ 63} In proposition XIII, defendant contends that he was indicted “by an
improperly constituted grand jury and upon inadequately presented evidence” in
violation of his constitutional rights.
        {¶ 64} However, defendant’s argument lacks merit for several reasons.
First, he waived this issue by failing to raise it before the trial court. Williams, 

, 

, 

. See, e.g., State v. Joseph (1995),

, 

 (challenge to indictment waived not
having been made before or during trial).
        {¶ 65} Second, the record does not reflect what evidence was presented
before the grand jury; hence, whether the indictment was based on “inadequately
presented evidence” cannot be evaluated. Moreover, “[a] reviewing court cannot
add matter to the record before it … and then decide the appeal on the basis of
the new matter.” State v. Ishmail (1978), 

, 

, 

, paragraph one of the syllabus. Additionally, an accused cannot attack
an indictment valid on its face on the ground that the grand jury lacked sufficient
credible evidence to indict. See State v. Davis (1988), 

, 

.
        {¶ 66} Third, the record reflects no basis to find that the grand jury was
“improperly constituted.” Defendant claims (without benefit of record evidence)




                                          18
                                 January Term, 2001




that Hamilton County uses only voter registration lists to select grand jurors.
Further, defendant argues (again without evidence) that when he was tried, “the
percentages of African-American and other minorities registered to vote in
Hamilton County was less than the percentage of racial minorities composing the
voting age population of Hamilton County.” (Emphasis added.)
       {¶ 67} Fourth, even if defendant’s assertions were proved as facts, those
facts provide no basis for relief. As we noted in State v. Williams (1997), 

, 

, “Equal protection forbids intentional
discrimination against any distinct group in choosing grand juries. … However,
not every grand jury has to represent a ‘fair cross-section,’ so long as the selection
process is nondiscriminatory.” In State v. Fulton (1991), 

, 

, paragraph one of the syllabus, we held that in order to obtain standing
to challenge a grand jury array on the basis of equal protection, “a defendant must
prove that the procedure employed in the selection process resulted in a substantial
underrepresentation of his or her race or of the identifiable group to which he or
she belongs,” and the group is recognizable and distinct. (Emphasis added.)
Defendant     fails    to   claim   purposeful    discrimination     or   substantial
underrepresentation.
       {¶ 68} Last, the use of voter registration lists to provide petit jurors is
constitutional, and no basis exists to apply a different principle to the selection of
grand jurors. See, e.g., State v. Moore (1998), 

, 

; State v. Johnson (1972), 

, 

, 

,
paragraph two of the syllabus.
       {¶ 69} Grand Jury Foreman. In proposition XXXIV, defendant contends
that the “process used in Hamilton County to select foremen of grand juries that
return capital indictments is biased geographically, racially, culturally, and socio-economically.”




                                         19
                             SUPREME COURT OF OHIO




       {¶ 70} However, defendant’s claim fails for several reasons.              First,
defendant never raised his claim at trial and thus waived the issue. Williams, 

, 

, 

, paragraph one of the syllabus.
Second, the record contains no evidence about how grand jury foremen were
selected in Hamilton County, and thus no facts exist on which to claim error. Third,
defendant claims that the process to select the foremen is biased “geographically, *
… culturally, and socio-economically,” but he cites no authority that such claims
are cognizable in constitutional law. Claims as to racial discrimination in the
selection of grand jury foremen are cognizable, but defendant cites no statistical or
other basis to believe that such discrimination occurred in Hamilton County. See
Rose v. Mitchell (1979), 

, 

, 

. Therefore,
we reject proposition XXXIV.
                                Prejudicial Publicity
       {¶ 71} In proposition XIV, defendant argues that prejudicial publicity that
“occurred throughout [his] trial, deprived him of his right to a fair trial and a fair
and reliable sentencing determination.”
       {¶ 72} Defendant’s claim here fails for several reasons. First, defendant
never requested a change of venue and never objected either before or during trial
about prejudicial publicity. Defendant waived his right to complain on this basis.
State v. Campbell (2000), 

, 

, 1197;
Williams, 

, 

, 

. Second, defendant
makes sweeping assertions about media coverage but cites no direct evidence of
media interest, articles, or commentary on the trial. Without providing this court
with specific evidence of excessive publicity, defendant cannot claim prejudice.
       {¶ 73} Last, the trial court asked jurors about pretrial publicity during voir
dire, and no juror indicated an inability to evaluate the evidence fairly. Thus, the
record fails to support defendant’s claim that prejudicial publicity deprived him of
a fair trial or a fair sentencing determination. Proposition XIV is overruled.




                                          20
                                 January Term, 2001




                                  Voir Dire Issues
       {¶ 74} In proposition XXVI, defendant argues that the court failed to excuse
two prospective jurors for cause because they made statements to the effect that
they would automatically favor the death penalty. Defendant asserts that he was
forced to exercise peremptory challenges on “automatic death penalty jurors.” In
proposition XXVII, defendant contends that four jurors were improperly excused
for cause.
       {¶ 75} Trial courts have discretion in determining a juror’s ability to be
impartial. State v. Williams (1983), 

, 6 OBR 345, 351, 

. R.C. 2313.42(J) contemplates that “good cause” exists for
removal of a prospective juror when “he discloses by his answers that he cannot be
a fair and impartial juror or will not follow the law as given to him by the court.”
A prospective juror who has been challenged for cause should be excused “if the
court has any doubt as to the juror’s being entirely unbiased.” R.C. 2313.43. See
State v. Allard (1996), 

, 

. However,
a “ruling on a challenge for cause will not be disturbed on appeal unless it is
manifestly arbitrary … so as to constitute an abuse of discretion.” State v. Tyler
(1990), 

, 

. Accord Williams, 

, 

.
       {¶ 76} The two jurors defendant claims should have been excused for cause
were prospective jurors Hoendorf and Adams. Hoendorf expressed fears that
someone sentenced to twenty-five years in prison or to life in prison might not serve
the full term. Adams indicated that the death penalty removed a murderer from
society, that it was a deterrent, and that he favored capital punishment. However,
both jurors agreed that they would consider sentencing options other than the death
penalty. Adams agreed that he could impose a life-without-parole sentence. After
the defense preserved a challenge to Hoendorf for cause, the trial judge questioned
Hoendorf further. In response to the judge’s inquiry, Hoendorf acknowledged that




                                         21
                             SUPREME COURT OF OHIO




he would set aside his expressed preconceived notions and assume that the sentence
eventually imposed would in fact be fulfilled.
       {¶ 77} Under these circumstances, the trial court did not abuse its discretion
in failing to excuse either prospective juror for cause. “[D]eference must be paid
to the trial judge who sees and hears the juror.” Wainwright v. Witt (1985), 

, 

, 

. Therefore, we overrule
proposition XXVI.
       {¶ 78} In proposition XXVII, defendant contends that prospective jurors
Barnes, Johnson, Burgdorf, and Burnett were all improperly excused for cause. We
find that defendant’s assertions lack merit.
       {¶ 79} Prospective juror Barnes stated, “I don’t think I’m the one to
pronounce sentence on someone’s life. … I have a problem with the death
sentence, period.” Moreover, Barnes indicated to the trial judge that he would not
follow his instructions of law. Even after defense counsel attempted to rehabilitate
him, Barnes declared, “I couldn’t pronounce him sentenced to death.”
       {¶ 80} Prospective juror Johnson also stated she could not consider
imposing a death sentence if appropriate: “No, I will not.” She described her
position against the death penalty as a “permanent conclusion.”
       {¶ 81} Prospective juror Burgdorf expressed sentiments of being unable to
vote in favor of a death sentence. While Burgdorf thought he could consider
imposing a death sentence for multiple murderers such as Timothy McVeigh or Ted
Bundy, he told the trial judge, “To be honest I don’t think I could” when asked if
he could fairly consider imposing a death sentence.
       {¶ 82} Prospective alternate juror Burnett stated, “I could never sign
anything if I knew the [defendant] was an alcoholic.” Burnett further declared that
he “couldn’t do it [impose a death sentence] … under any circumstances.”
       {¶ 83} Given the responses of all four prospective jurors, the trial court did
not abuse its discretion by excusing these jurors. Their views on the death penalty




                                         22
                               January Term, 2001




would have prevented or substantially impaired their performance as jurors. See,
e.g., State v. Dunlap (1995), 

, 

; State v.
Rogers (1985), 

, 17 OBR 414, 

, paragraph three
of the syllabus. Accordingly, we reject proposition XXVII.
                                 TRIAL ISSUES
                                  Prior Bad Acts
       {¶ 84} In proposition II, defendant asserts that the prosecutor impermissibly
introduced “prior bad acts” testimony against him.         Specifically, defendant
complains that the prosecution elicited testimony from a police officer who had
responded to a domestic violence call involving defendant and Newsome at her
home several weeks before the murder. The trial court permitted evidence of the
prior act because it showed a strained relationship between the killer and victim.
       {¶ 85} Under Evid.R. 404(B), “[e]vidence of other crimes, wrongs, or acts
is not admissible to prove” a defendant’s character as to criminal propensity. “It
may, however, be admissible [to show] motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.”
       {¶ 86} Here, the evidence defendant complains about tended to show his
motive to murder Newsome. See State v. Broom (1988), 

, 

, paragraph one of the syllabus. The evidence also illustrated the
tumultuous relationship between defendant and Newsome in an incident that took
place just weeks before the murder. It also tended to prove the absence of accident
and was evidence suggesting intent. The evidence showed defendant’s strained
relationship with Newsome within a month of the murder. See State v. Wilson
(1996), 

, 

. Given these circumstances,
we overrule proposition II.
                                 Jury Instructions
       {¶ 87} In proposition V, defendant asserts that the jury should have been
allowed to consider his intoxication on the night of the murder and that the trial




                                         23
                             SUPREME COURT OF OHIO




court erred in failing to charge the jury on the defense of voluntary intoxication.
However, the trial court has discretion to determine whether the evidence is
sufficient to require a jury instruction on intoxication. State v. Wolons (1989), 

, 

, paragraph two of the syllabus. Here, the court did
not abuse its discretion in refusing to charge the jury on intoxication.
       {¶ 88} During the afternoon, just hours prior to the murder, defendant was
at Lulu’s bar and mentioned to Dorothy Alvin, a bar patron at the time, that he
would “like to kill” the woman he lived with, but did not want to go to prison. At
that time, defendant “didn’t really appear to be intoxicated” to Alvin. When
Barbara Beck and Patricia Denier noticed defendant’s bloody hands on the night of
the murder, he did not seem to have been drinking or to have been intoxicated.
Anthony Studenka, a patron at DJ’s Pub who had an encounter with defendant on
the night of the murder, testified that defendant did not seem “buzzed”; Studenka
noticed no slurred speech or bloodshot eyes.
       {¶ 89} In contrast, the two police officers who encountered defendant at the
bar would not allow him to drive home because he appeared to be intoxicated.
However, the fact the officers felt that defendant appeared to be intoxicated does
not mean that the trial court abused its discretion in refusing to instruct on
intoxication. Defendant’s recall of the murder appears to have been clear when he
saw Beck and Denier at the Briarwood Lounge and told them that they would hear
about it on the next day’s news. It was also clear to him two days after the murder
when he recounted the crimes he committed to fellow inmate Timothy Griffis.
       {¶ 90} Under these circumstances, we find that the trial court did not act
arbitrarily or unreasonably in refusing to instruct the jury on intoxication. State v.
Adams (1980), 

, 

, 

(defining “abuse of discretion”); Wolons, 

, 

. Accordingly, we reject proposition V.




                                          24
                                 January Term, 2001




         {¶ 91} We summarily reject defendant’s complaint in proposition XVIII,
that the statutory definition of reasonable doubt (R.C. 2901.05[D]) is
constitutionally defective. We have uniformly upheld use of the statutory definition
of reasonable doubt in jury instructions. See, e.g., Jenkins, 

, 15
OBR 311, 

, paragraph eight of the syllabus; Moore, 

, 

. Accordingly, we hold proposition XVIII to be without
merit.
         {¶ 92} In proposition XXXIX, defendant asserts instructional errors during
voir dire and the guilt phase. However, defendant failed to object to any of these
alleged errors and therefore has waived all but plain error. State v. Underwood
(1983), 

, 3 OBR 360, 

, syllabus.
         {¶ 93} Defendant first contends that the prosecution confused the venire
during voir dire as to what they were to consider as the law. However, the transcript
reveals that the prosecution did state that the “final word on the law” comes from
the trial judge. Plain error is absent.
         {¶ 94} Defendant next complains that the trial court improperly defined
“reasonable doubt” at the close of the trial phase. Yet, as discussed above, the
court’s use of the R.C. 2901.05(D) definition of “reasonable doubt” was proper.
See State v. Frazier (1995), 

, 

.
Defendant’s argument that the court erroneously instructed the jury on inferences,
was not outcome-determinative. In view of the entire charge to the jury, see State
v. Price (1979), 

, 

, 

, paragraph four
of the syllabus, defendant was not prejudiced by the court’s instructions on
inferences.   Nor did the court’s failure to define the “theft” element of the
aggravated robbery charge constitute plain error.
         {¶ 95} Defendant claims error in the court’s failure to distinguish murder
from felony murder after having distinguished murder from aggravated murder
with prior calculation and design in its jury instructions. The error, if any, was




                                          25
                             SUPREME COURT OF OHIO




harmless at worst. The jury found that a robbery had taken place when it convicted
defendant on the aggravated robbery count. Thus, the jury would have convicted
defendant of felony murder even if it had been properly instructed on the lesser
included offense of murder. See State v. Allen (1995), 

, 

.
       {¶ 96} Defendant raises several other instructional issues, but none of them
have any merit. Based on all of the foregoing, we overrule proposition XXXIX.
                    Sufficiency/Manifest Weight of the Evidence
       {¶ 97} In proposition VIII, defendant asserts that reversal of a conviction is
warranted where the conviction is supported by insufficient evidence and is
contrary to the manifest weight of the evidence. However, defendant does not argue
why the evidence in this case is insufficient or suggest why his conviction is against
the manifest weight of the evidence.
       {¶ 98} In reviewing a record for sufficiency, “[t]he relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt.” State v. Jenks (1991), 

, 

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

, 

, 

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

, 

, 

, paragraph one of the syllabus.
       {¶ 99} Here, the evidence is sufficient to establish defendant’s guilt of the
crimes for which he was convicted. On the day of the murder, defendant told
Dorothy Alvin, a complete stranger, that the woman whose house he lived in was
throwing him out and that “I’d like to kill her, but I guess I won’t do that because I
don’t want to go to prison.” Friends of the victim, Patricia Newsome, testified that
she and defendant had a stormy relationship and that Newsome was documenting
defendant’s abuse of her in order to file charges against him.




                                         26
                                January Term, 2001




        {¶ 100} Barbara Beck and Patricia Denier saw defendant at the Briarwood
Lounge on the night of the murder with bloody hands. He told both women that
they would hear about what he did on the news the next day. Defendant later went
to another bar where he told Anthony Studenka that he had killed somebody. He
also made similar statements to Kimberly Brooks, who noticed dried blood all over
his hands. Police officers who saw defendant at the bar that night also noticed blood
on defendant’s hands. Defendant had driven Newsome’s Cadillac to the bars on
the night of the murder although Newsome would never let anyone drive her car,
especially defendant, “because of the way he drank.”
        {¶ 101} When police officers took defendant to Newsome’s home, he acted
erratically, flailing his arms while standing inside the front room of the house where
he could be observed through the front window. Police thereafter discovered
Newsome’s body on the kitchen floor of her home. Defendant admitted to Police
Chief Heimpold after his arrest that he and Newsome had argued and that he choked
her.
        {¶ 102} While in jail the day after the murder, defendant told fellow inmate,
Timothy Griffis, that he had killed his girlfriend. Defendant also recounted to
Griffis what he had done before and after he killed Newsome. He further told
Griffis that he took money, traveler’s checks, and jewelry from Newsome’s purse
that night.
        {¶ 103} In addition, the coroner ruled that Newsome died of asphyxia
brought on by manual strangulation.
        {¶ 104} As to the manifest weight of the evidence, the issue is whether
“there is substantial evidence upon which a jury could reasonably conclude that all
the elements have been proved beyond a reasonable doubt.” (Emphasis sic.) State
v. Getsy (1998), 

, 

, citing State v.
Eley (1978), 

, 

, 

, syllabus. The
evidence referenced represents “substantial evidence” and supports the convictions.




                                         27
                             SUPREME COURT OF OHIO




The jury did not lose its way, and this is not “ ‘the exceptional case in which the
evidence weighs heavily against conviction.’ “ State v. Lindsey (2000), 

, 

, quoting State v. Thompkins (1997), 

, 

.
       {¶ 105} Therefore, we find that proposition VIII lacks merit.
                      Gruesome and Prejudicial Photographs
       {¶ 106} In proposition XV, defendant claims that he was prejudiced by the
admission of several crime scene and autopsy photos of the victim that were
gruesome and cumulative. Defendant also complains about the admission of an
enlarged photo of himself taken shortly after his arrest.
       {¶ 107} Under Evid.R. 403 and 611(A), the admission of photographs is left
to a trial court’s sound discretion. State v. Landrum (1990), 

, 

; State v. Maurer (1984), 

, 15 OBR
379, 401, 

. Nonrepetitive photographs in capital cases, even
if gruesome, are admissible if the probative value of each photograph outweighs
the danger of material prejudice to the accused. 

 paragraph seven of the
syllabus; State v. Morales (1987), 

, 

, 273-
274.
       {¶ 108} However, defendant did not object to the admission of crime scene
and autopsy photographs marked State Exhibits 3-A, 3-B, 3-C, 4-A, and 4-G.
Therefore, he has waived all but plain error as to these photographs. Williams, 

, 

, 

.
       {¶ 109} Moreover, the trial court did not abuse its discretion in admitting
any of the nine crime scene or autopsy photos cited by Nields. State Exhibits 3-A,
3-B and 3-C were crime scene photos, each depicting a different angle or view of
the victim’s body and her injuries. They illustrated the testimony of the police
officers who discovered Newsome’s body, and portrayed the crime scene and
condition of the body. None of these photos are duplicative or cumulative. State




                                         28
                                  January Term, 2001




Exhibits 4-A and 4-E were taken at the coroner’s office, and defendant did not
object to them. Exhibit 4-A was repetitive of crime scene photo 3-B, but plain error
is absent. Exhibit 4-E portrays the bruises on Newsome’s neck and corroborated
the coroner’s conclusion that Newsome’s death was caused by manual
strangulation.
          {¶ 110} Exhibits 4-C, 4-D, 4-F, and 4-G also illustrated the coroner’s
testimony of the victim’s injuries and also showed in detail the petechiae on the
victim’s face and eyes. Petechiae are small, reddish marks or hemorrhages that are
caused by compression around the neck. All of these photos helped to prove the
killer’s intent and the lack of accident or mistake. These photos also gave the jury
an “appreciation of the nature and circumstances of the crimes.” State v. Evans
(1992), 

, 

. No abuse of discretion is
apparent, since the probative value of each photo outweighed any prejudicial
impact.
          {¶ 111} Last, we find no plain error in the admission of State Exhibit 28, an
enlarged photo of defendant smiling and holding a cigarette with his raised arm,
that was taken shortly after his arrest. Thus, we overrule proposition XV.




                                           29
                               SUPREME COURT OF OHIO




                                  Incomplete Record
          {¶ 112} In proposition XVII, defendant asserts that the trial court erred
when it failed to maintain a complete record of all proceedings as prescribed under
Crim.R. 22. Defendant cites a number of pages in the transcript where off-therecord conferences were held during the course of the proceedings. However,
defendant failed to object or ask for a recording of these conferences or hearings
and thereby waived the issue. See State v. Brewer (1990), 

, 60-
61, 

; State v. Grant (1993), 

, 

.
          {¶ 113} This court has held that “[t]he requirement of a complete, full, and
unabridged transcript in capital trials does not mean that the trial record must be
perfect for purposes of appellate review.” State v. Palmer (1997), 

, 

, syllabus. Moreover, we held in Palmer that a reversal will
not occur because of unrecorded pretrials or sidebars where the defendant has failed
to request a record at trial, failed to object to the lack of a record and also failed to
demonstrate that material prejudice resulted. Id. at 554, 687 N.E.2d at 696. See,
also, State v. Goodwin (1999), 

, 

.
          {¶ 114} Here, defendant failed to request or move for a recording of any of
the off-the-record proceedings he complains of now. “[P]rejudice will not be
presumed from the mere existence of … unrecorded bench and chambers
conferences in capital cases.” Palmer, 

, 687 N.E.2d at 697.
Moreover, the context in which these conferences took place suggests that most
dealt with ministerial scheduling matters such as when to break or adjourn for the
day. Accordingly, we reject proposition XVII.
                                Separation of Witnesses
          {¶ 115} In proposition XXXI, defendant contends that he was denied a fair
trial because the state failed to comply with the trial court’s order for a separation
of witnesses. Defendant asserts that the state’s witnesses Patricia Denier and




                                           30
                                January Term, 2001




Barbara Beck were confronted by a friend of the victim, who told them that
defendant went back to Patricia Newsome’s home to “finish her off.”
        {¶ 116} Defendant’s claim fails for several reasons. First, nothing in the
record indicates that what defendant alleges took place. Second, defendant failed
to object or bring the alleged matter to the trial court’s attention, and therefore
waived any error. Williams, 

, 

, 

.
Third, defendant made no attempt to supplement the record under App.R. 9(C).
Williams, 73 Ohio St.3d at 161, 652 N.E.2d at 729. Proposition XXXI lacks merit.
                                Jailhouse Informant
        {¶ 117} In proposition XXXV, defendant submits that Hamilton County’s
policy of using jailhouse “snitches” to secure convictions in capital cases deprived
him of his right to a fair trial and sentencing proceeding. Yet, defendant failed to
raise this issue before the trial court and thereby waived all but plain error.
Williams, supra.
        {¶ 118} The testimony defendant complains about was given by Timothy
Griffis, an inmate at the Hamilton County Justice Center. Nields confided details
of his crime to Griffis two days after the murder. Nothing in the record suggests
that Griffis was an agent of the state or that the state failed to investigate his
credibility.
        {¶ 119} Clearly, Griffis’s credibility was a question for the trier of fact to
determine. The procedural safeguard for the defense to test the reliability or
credibility of Griffis’s testimony was cross-examination. Moreover, Griffis’s
testimony was properly admitted under Evid.R. 801(D)(2)(a) as an admission by a
party-opponent. We reject proposition XXXV.




                                          31
                             SUPREME COURT OF OHIO




                          Improper Actions by Trial Court
       {¶ 120} In proposition XXXVII, defendant contends that improper actions
by the trial court denied him a fair trial and sentencing proceeding. Defendant
further asserts that he was denied his right to a neutral and detached judge.
       {¶ 121} However, a review of the instances cited by defendant reveals that
his claims are groundless.     Defendant claims that the trial judge improperly
restricted his right to assistance of experts. Yet, as discussed under propositions I,
X, XI, XXXIII, and XXXVI, defendant never requested additional experts, and the
trial court granted requests he did make for experts.
       {¶ 122} Defendant next complains that the trial judge improperly placed
off-the-record time limits on defense counsel’s voir dire, improperly limited
defense counsel’s cross-examination of the jailhouse informant during the
suppression hearing; and denied the vast majority of his pretrial motions. None of
these complaints have merit.
       {¶ 123} R.C. 2945.03 provides, “The judge of the trial court shall control
all proceedings during a criminal trial, and shall limit the introduction of evidence
and the argument of counsel to relevant and material matters with a view to
expeditious and effective ascertainment of the truth regarding the matters in issue.”
       {¶ 124} Nothing in the record suggests that the trial judge abused his
discretion in the various rulings he made that defendant complains about here. In
addition, the time limits on voir dire are within the trial court’s discretion and the
record indicates that they were enforced against both sides. The limiting of cross-examination on the jailhouse informant during the suppression hearing did not
constitute an abuse of discretion.
       {¶ 125} Defendant also complains that the trial court prohibited his sister
from testifying during the mitigation hearing about some of her contacts with
Newsome and the plan to have defendant committed shortly before the murder took
place. Admittedly, a defendant is accorded great latitude in the presentation of




                                         32
                                January Term, 2001




evidence concerning mitigating factors, R.C. 2929.04(C). However, the excluded
statement was not as sweeping in scope as defendant states; it merely consisted of
defendant’s sister testifying that “alcohol was just eating up [defendant’s] brain.”
Arguably, defendant’s sister was not competent to testify to such a matter since it
could be construed as an expert opinion. In any event, defendant’s expert, Dr.
Cooper, did testify as to the effect alcohol had in damaging defendant’s brain
functioning.
       {¶ 126} Defendant also complains that the judge refused to delete
information from his medical records, but the court did not abuse its discretion in
not doing so. Defense counsel generally requested that the trial judge delete any
reference to violent or nonviolent behavior on defendant’s part that appeared in his
medical records. The defense failed to specifically identify what it wanted omitted.
However, given the voluminous nature of the records and the prosecution’s actions
in refraining from highlighting anything in the medical records, any error in failing
to delete any such references was harmless at worst.
       {¶ 127} Last, defendant contends that the trial judge permitted the
prosecution to improperly refer to two recently slain Cincinnati police officers
during a final argument. Defendant never objected to these references and thus
waived any error. Perhaps the prosecutor was overly dramatic in such references,
but we find that this did not rise to the level of plain error. Accordingly, we reject
defendant’s proposition XXXVII.
                              SENTENCING ISSUES
                       Improper Aggravating Circumstances
       {¶ 128} In proposition III, defendant asserts that victim impact evidence
admitted after the jury recommended death, but before sentencing, constituted an
improper aggravating circumstance considered by the court before it imposed the
death sentence.




                                         33
                            SUPREME COURT OF OHIO




       {¶ 129} The alleged victim impact testimony was given by friends and
family of Patricia Newsome just prior to the court’s sentencing verdict. At no time
did defendant object to any of this testimony. Moreover, “this court will presume
that the judge considered only the relevant, material, and competent evidence in
arriving at a judgment, unless the contrary affirmatively appears from the record.”
State v. Dennis (1997), 

, 

, citing State
v. Post (1987), 

, 

.
       {¶ 130} Similar to Dennis, our review of the transcript and sentencing
opinion reveals no prejudice to defendant. Therefore, we overrule proposition III.
                                 Jury Instructions
       {¶ 131} In proposition XXII, defendant claims that the trial court erred and
engaged in “duplicity” when it instructed the jury during the penalty phase on both
the principal offender and prior calculation and design aspects of the R.C.
2929.04(A)(7) specification. Defendant argues that the jury should have been
required to unanimously select only one of the alternatives.
       {¶ 132} Defendant’s failure to object to the instruction waived all but plain
error. Underwood, 

, 3 OBR 360, 

, syllabus.
Moreover, such an instruction is not improper if the alternatives are given to the
jury disjunctively, as they were here. State v. Cook (1992), 

,

; State v. Burke (1995), 

, 

, 248; Moore, 

, 

.
       {¶ 133} Moreover, any error was not outcome-determinative. Long, 

, 

, 

. The evidence portrayed defendant
as the principal offender, and the defense conceded that defendant was the killer.
No evidence existed that suggested another offender. Thus, defendant’s conviction
could have been based only on his status as the principal offender. See State v.
Chinn (1999), 

, 

. Accordingly, we
reject defendant’s proposition XXII.




                                        34
                                January Term, 2001




       {¶ 134} In proposition XL, defendant essentially alleges three instructional
errors during the penalty phase: (1) charging that a life sentence recommendation
must be unanimous, (2) improperly defining “reasonable doubt,” and (3) giving an
improper definition of “evidence.”
       {¶ 135} Yet, defendant waived these issues by not objecting to the
instruction he complains of now. Underwood, 

, 3 OBR 360, 

, syllabus. Plain error is absent as well. In Ohio, it is required that a
verdict of life imprisonment be unanimous, and that requirement has been upheld
as constitutional. See, e.g., State v. Davis (1991), 

, 

. In addition, the court properly instructed the jury on reasonable
doubt. See Jenkins, 

, 15 OBR 311, 

, paragraph
eight of the syllabus. Moreover, the trial court carefully crafted the reasonabledoubt instruction for the penalty phase by eliminating references to the “truth of the
charge.” See, e.g., Moore, 

, 

.
       {¶ 136} Last, defendant’s complaint concerning the trial court’s definition
of “evidence” as including “all the testimony received from the witnesses and
exhibits presented in this hearing as well as all the evidence in the first hearing” is
not well taken. The state moved, and the court agreed, to admit all of the evidence
presented during the trial phase. Moreover, while we have held that the trial court
should instruct the jury as to which relevant evidence from the trial phase it should
consider, defendant waived this issue by failing to object. Williams, 

, 

, 

. See, also, Lindsey, 

,

, citing Getsy, 

, 

.
Therefore, we overrule proposition XL.
                                  Double Jeopardy
       {¶ 137} Defendant asserts in proposition XXIII that the court violated the
Double Jeopardy Clause by sentencing him on both the felony murder charge and
the aggravated robbery charge. However, this claim lacks merit since aggravated




                                          35
                               SUPREME COURT OF OHIO




robbery and aggravated murder based on the robbery are separate offenses. See
State v. Bickerstaff (1984), 

, 10 OBR 352, 

,
syllabus; State v. Smith (1997), 

, 

, 693-694;
and State v. Reynolds (1998), 

, 

.
Proposition XXIII is overruled.
                              Disproportionate Sentencing
       {¶ 138} In proposition XXIV, defendant argues that his death sentence is
excessive and disproportionate to sentences in similar cases in Hamilton County,
and thus, unconstitutional.
       {¶ 139} Proportionality review in this case will be undertaken as part of our
independent sentence review. Defendant’s other complaints lack merit. See State
v. Steffen (1987), 

, 31 OBR 273, 

, paragraph one
of the syllabus; Jenkins, 

, 15 OBR at 320-321, 473 N.E.2d
at 278-279, discussing Pulley v. Harris (1984), 

, 

, 

; Moore, 

, 

.
                           Disclosure of Brady Evidence
       {¶ 140} In proposition XXVIII, defendant claims that he was not provided
access to evidence favorable to him during both phases of trial as required by Brady
v. Maryland (1963), 

, 

, 

.
       {¶ 141} The suppression by the prosecution of evidence favorable to an
accused violates due process when the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecutor. State v.
Johnston (1988), 

, 

, paragraph four of the syllabus,
following 

 However, defendant utterly fails to articulate, specify or
identify any exculpatory evidence that the prosecution possessed. Thus, this
proposition lacks merit.




                                          36
                                 January Term, 2001




                                Defendant in Shackles
         {¶ 142} In proposition XXX, defendant contends that he was denied a fair
trial when the trial court failed to conduct a hearing or issue a curative instruction
when it learned that several of the jurors saw him in shackles. This apparently
occurred right before closing arguments of the mitigation phase around lunch break.
Although the trial court noted this in the record, nothing more about the incident
appears in the transcript.
         {¶ 143} Defendant fails to demonstrate prejudicial error and simply asserts
that he was prejudiced. However, the risk of prejudice is slight where a juror’s
view of a defendant in custody is brief, inadvertent, and outside the courtroom, as
this apparently was. See State v. Kidder (1987), 

, 

; Landrum, 

, 

. Thus,
we overrule proposition XXX.
                         Juror Exposure to Media Coverage
         {¶ 144} In proposition XXXII, defendant asserts that he was denied a fair
trial as a result of juror Patricia Getz’s failure to inform the court that she had seen
media coverage of the killing of two Cincinnati police officers, an incident that was
referred to in the state’s closing argument at the mitigation phase.
         {¶ 145} However, nothing in the record substantiates defendant’s assertion
that Getz either saw certain media coverage or was influenced by any media
coverage, beyond defendant’s allegations. As such, this proposition is not well
taken.
                         Preclusion of Mitigation Evidence
         {¶ 146} In proposition XXXVIII, defendant argues that the trial court
improperly struck from the record relevant evidence of defendant’s mental state
shortly before the crime was committed.
         {¶ 147} The statement in issue was made by defendant’s sister, Rochelle
Pittman, during her mitigation phase testimony. Pittman related how she and




                                          37
                             SUPREME COURT OF OHIO




Newsome discussed their belief that defendant should be committed, and Pittman
continued, stating, “I thought that it sounded like alcohol was just eating up his
brain.” The prosecution objected, and after a lengthy bench conference, the court
announced to the jury, “For the record the objection will be sustained and I’ll ask
you to move on to your next question.” The prosecution stated during the bench
conference, and the trial court agreed, that Pittman’s comment was “a backdoor
way of going into mental capacity” since the parties had agreed previously that the
defense would not present evidence that defendant lacked substantial mental
capacity to appreciate the criminality of his conduct.
       {¶ 148} R.C. 2929.04(C) provides that a defendant shall be given great
latitude in presenting evidence concerning mitigating factors. As we discussed
under proposition XXXVII, the statement in issue was arguably an expression of
an expert opinion by a nonexpert. Yet, it would also appear that Pittman’s opinion
that “alcohol was just eating up his brain” was merely a personal observation that
was relevant with respect to defendant’s character and background.
       {¶ 149} Nevertheless, defendant was not prejudiced. Defendant’s expert,
Dr. Emmett Cooper, essentially made the same statement when he opined that
defendant had “some brain damage” as a result of his alcoholism. Therefore, we
find proposition XXXVIII to be not well taken.
                           EFFECTIVE ASSISTANCE
       {¶ 150} In propositions VI, XX, XLII, and XLIII, defendant contends that
his counsel provided ineffective assistance before and during the trial. Reversal of
convictions for ineffective assistance requires that the defendant show, first, that
counsel’s performance was deficient and, second, that the deficient performance
prejudiced the defense so as to deprive the defendant of a fair trial. Strickland v.
Washington (1984), 

, 

, 

;
State v. Bradley (1989), 

, 

, paragraph two of the
syllabus.




                                         38
                                January Term, 2001




       {¶ 151} In proposition VI, defendant claims that he was prejudiced by
counsel’s failure to request a crime scene investigator, an expert on voice or audio
tape, and to request a mistrial due to the introduction of “prior bad acts” testimony
concerning defendant. However, as we have discussed previously, the facts failed
to reveal any need for a crime scene investigator or an expert on voice or audio
tape. Thus, no basis exists to find deficient performance.
       {¶ 152} Defendant complains that counsel failed to move for a mistrial due
to the improper admission of evidence of prior bad acts, but that decision by counsel
did not constitute deficient performance. The prosecutor elicited from state’s
witness Virginia Pangallo that defendant had once broken Newsome’s nose.
During a sidebar conference away from the jury, defense counsel indicated that he
would not request a mistrial on that comment if the court struck Pangallo’s entire
testimony, except with regard to three bits of information (that she talked to
Newsome on the phone on the night of the murder; that Newsome would not let
others drive her Cadillac; and that Newsome carried large amounts of cash with
her), none of which were facially prejudicial to defendant. The trial court then
instructed the jury to disregard Pangallo’s testimony except for the limited bits of
information set forth above. Counsel made a tactical decision to not request a
mistrial, and instead secured a curative instruction from the court for the jury to
disregard Pangallo’s testimony regarding prior bad acts.
       {¶ 153} Defendant also contends that counsel’s presentation of mitigation
evidence was a “disaster” because the prosecutor was able to elicit from Dr. Cooper
that defendant was “able to process rationally” at the time of the murder, and from
Rochelle Pittman that Newsome had written in her diary that defendant wanted to
kill both Pittman and Newsome.          Admittedly, neither of these facts helped
defendant, but overall, defense counsel presented substantial mitigating evidence
of defendant’s alcoholism and the problems he encountered throughout life as a
result of alcohol. Thus, no reasonable probability exists that, in the absence of these




                                          39
                             SUPREME COURT OF OHIO




alleged errors, the result of the trial would have been different. Bradley, 

, 

, paragraph three of the syllabus. Therefore, we overrule
proposition VI.
        {¶ 154} In proposition XX, defendant argues that his counsel should have
filed a motion to suppress improperly suggestive identification procedures.
Defendant complains that the prosecution relied heavily on the testimony of
Dorothy Alvin, who encountered defendant at a bar earlier on the day of the murder,
to help establish prior calculation and design. Defendant claims that counsel were
ineffective because the jury never learned that Alvin “was unable to positively
identify [defendant] in a photo-lineup she was given after she made her [initial]
report [to police].”
        {¶ 155} However, the record does not substantiate defendant’s allegations
concerning a photo array given to Alvin. Moreover, in previous cases, we have
rejected claims of ineffective counsel when counsel failed to file or withdrew a
suppression motion when doing so was a tactical decision, there was no reasonable
probability of success, or there was no prejudice to the defendant. See, e.g., Allen,

, 

; State v. Campbell (1994), 

, 

. See, also, Kimmelman v. Morrison (1986), 

, 

, 

, quoted in State v.
Madrigal (2000), 

, 

.
        {¶ 156} In addition, defendant has not demonstrated that this alleged error
affected the outcome of his trial. Bradley, 

, 

,
paragraph three of the syllabus. Accordingly, we reject proposition XX.
        {¶ 157} In proposition XLII, defendant asserts that counsel failed to fully
investigate possible mitigating factors and that counsel committed numerous errors
constituting deficient performance that prejudiced him during the mitigation phase.
        {¶ 158} Defendant complains that counsel failed to interview his sister
(Rochelle Pittman) until the last week of trial; failed to determine if their expert,




                                         40
                                January Term, 2001




Dr. Cooper, had prepared a written report of defendant’s exam; failed to interview
defendant’s co-workers; and failed to obtain experts to testify during mitigation.
Yet, a review of the mitigation transcript indicates that counsel presented
substantial mitigation on defendant’s behalf: defendant’s sister testified about
defendant’s youth and family situation; Dr. Emmett Cooper, a psychiatrist, testified
as to defendant’s alcoholism and physical and mental damage resulting from it; and
James Slattery, a public defender, testified as to the effects of alcoholism from the
perspective of an alcoholic.
       {¶ 159} On the other hand, as we noted in State v. Hutton (1990), 

, 

, “[i]t may be, for instance, that counsel conducted
a diligent investigation, but was simply unable to find substantial mitigating
evidence.” Defendant fails to overcome the strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.
Strickland, 

, 

, 

. The record does
not show counsel’s thought processes, nor does it show a failure to “make
reasonable investigations.” 

, 104 S.Ct. at 2066, 80 L.Ed.2d at 695.
       {¶ 160} Also, as noted earlier, the facts failed to reveal any need for a
pathologist, psychologist, neuropsychologist, or pharmacologist. Thus, no basis
exists to find deficient performance.
       {¶ 161} Defendant also argues that counsel breached their duty during the
mitigation phase by failing to object at certain times. However, counsel had no
reasonable basis to object to the prosecutor stating that the aggravating
circumstances need to outweigh the mitigating factors only by a “hair” or “just this
much,” to the comment that other alcoholics did not find themselves in defendant’s
position, to the comments concerning everything Newsome had done for defendant,
to the instruction that a life sentence must be unanimous, to the “reasonable doubt”
instruction, or to the definition of “evidence,” or to references during closing
argument to two slain Cincinnati police officers.




                                         41
                             SUPREME COURT OF OHIO




        {¶ 162} Counsel may well have thought that objecting would unduly
emphasize the prosecutor’s brief remarks. State v. Brooks (1996), 

, 

. In addition, the jury instructions cited were
properly given. Defendant again fails to overcome the strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.
Strickland, 

, 

, 

.
        {¶ 163} Counsel’s decision not to attempt to introduce defendant’s taped
confession at the mitigation hearing was a tactical one. Although defendant’s
display of erratic, intoxicated behavior could have swayed the jury towards a life
sentence, the tape could have also alienated the jury and reinforced the perception
that his crime merited the death penalty. Even assuming defense counsel’s tactics
were questionable, we are unpersuaded that these trial tactics constituted ineffective
assistance of counsel. See State v. Clayton (1980), 

, 

, 

.
        {¶ 164} Defendant also complains that counsel failed to request voir dire
when it was reported that jurors saw defendant in shackles, failed to work with
defendant to prepare an unsworn statement, and failed to ensure a complete record
of all proceedings. However, as we have found under other propositions of law,
none of this was prejudicial. All decisions were reasonable tactical choices. With
regard to the unsworn statement, the record indicates that defendant refused to give
one, even though defense counsel discussed with him the importance of giving one.
Since counsel’s performance did not fall below the wide range of reasonable
professional assistance during the mitigation phase, we reject proposition XLII.
        {¶ 165} In proposition XLIII, defendant asserts that he was deprived of
effective assistance of counsel during the pretrial, voir dire and the trial phases of
his capital trial.
        {¶ 166} Pretrial. Defendant cites counsel’s lack of an objection to the
court’s failure to set a reasonable bond, counsel’s failure to ensure a complete




                                         42
                               January Term, 2001




record, failure to object to defects in the grand jury, and failure to obtain a
pathologist and an independent psychologist.         Yet, none of these alleged
deficiencies demonstrate deficient performance.         Also, defendant fails to
demonstrate prejudice in his allegation that counsel failed to preserve a complete
record. State v. Phillips (1995), 

, 

.
Nor has defendant demonstrated how the cited experts would have significantly
aided his defense. State v. Jalowiec (2001), 

, 

.
       {¶ 167} Voir Dire. Similarly, defendant’s claims of deficient performance
during voir dire are not well taken. “Life qualification” of jurors is unnecessary
where defense counsel, as in this case, was accorded wide latitude in detecting bias
as to possible sentencing options. See State v. Allard (1996), 

, 

. Counsel’s decision to concede that defendant killed
Newsome was a tactical decision in the hope of avoiding the death penalty, since
evidence of defendant’s guilt was overwhelming. See State v. Lundgren (1995), 

, 

; Goodwin, 

, 

.      Counsel could have decided not to object to the
prosecutor’s arguing of the facts to avoid unduly emphasizing the prosecutor’s
points. Brooks, 

, 

. Also, emphasis by
counsel that they would not raise the defense of alcohol comported with their trial
strategy to admit guilt in the hope of avoiding the death sentence during the
mitigation phase.
       {¶ 168} Trial Phase. Defendant next cites a number of incidents of alleged
ineffective assistance of counsel during trial, but none of these prejudiced
defendant. Counsel had no reasonable basis to object to allegations regarding a
lack of remorse, to comments that the victim was a “hard working lady,” to the
prosecutor stating that he would argue his case with emotion and feeling, or to the
instruction on reasonable doubt.




                                        43
                                SUPREME COURT OF OHIO




        {¶ 169} As we discussed under other propositions of law, waiving the
motion for a mistrial in regard to Pangallo’s testimony, failing to secure a clinical
pathologist, and failing to object to the inference instruction, to the instruction that
allegedly failed to adequately distinguish the murder counts, to the instruction on
purpose, and to the court’s failure to define the theft element of the aggravated
robbery charge did not prejudice defendant.
        {¶ 170} Not objecting to the prosecutor’s characterization of voluntary
manslaughter as blaming the victim (“She made him—I had a bad day”) served to
avoid unduly emphasizing such a theatrical statement. See Brooks, 

, 

. The prosecutor’s references to defendant as a “mean-spirited derelict,” and an “unemployed killer” represented fair comment. See
Clemons, 

, 

.
        {¶ 171} The prosecutor’s comment that it was humorous to him that defense
counsel argued that alcohol had nothing to do with the murder but then asserted that
defendant was acting in a bizarre manner and under the influence of the demons of
alcohol certainly was not plain error. The prosecutor’s argument that the victim
would not be able to spend Christmas with loved ones was overly dramatic, but
not prejudicial to defendant.
        {¶ 172} In sum, none of the instances cited by defendant, either individually
or collectively, determined the outcome of his trial. Bradley, 

,

, paragraph three of the syllabus.           Accordingly, we overrule
proposition XLIII.
                       PROSECUTORIAL MISCONDUCT
        {¶ 173} In propositions IV, XXV, XXIX, and XLI, defendant contends that
he was denied a fair trial due to prosecutorial misconduct throughout all phases of
the trial. The test for prosecutorial misconduct is whether remarks were improper
and, if so, whether they prejudicially affected substantial rights of the accused.




                                          44
                                January Term, 2001




State v. Smith (1984), 

, 14 OBR 317, 318, 

.
       {¶ 174} In proposition IV, defendant complains of comments made by the
prosecutor during opening and closing statements at the trial phase, and during
closing argument at the mitigation phase. Defendant first complains of comments
during the trial phase when the prosecutor stated that defense attorneys sometimes
make reasonable doubt appear to be “some unattainable burden …. Something
perhaps in another galaxy.” Defendant also claims error where the prosecutor
stated that defendant “brutally beat and strangled a person whose only crime was
trying to help him become a better person.” However, defense counsel objected to
both statements, and the trial court sustained the objections, ordered the comments
stricken, and instructed the jury to disregard them. Given the trial court’s corrective
actions, prejudice to defendant is lacking. See Frazier, 

,

.
       {¶ 175} Defendant next cites comments by the prosecutor during closing
argument of the trial phase stating that defendant was a “mean-spirited derelict”
and “very lucid in fairy tales and lies and deception.” He also claims error where
the prosecutor told the jury that because of defendant, “Pat Newsome will not be
able to huddle around a fireplace with her loved ones this Christmas,” and made
other references to Christmas rituals that Newsome will no longer enjoy.
Defendant’s failure to object to any of these comments waived all but plain error.
State v. Slagle (1992), 

, 

. As we stated
previously, the first characterization represented fair comment. However, generally
referring to or alluding to a defendant as a liar is improper, in that it conveys the
prosecutor’s personal belief. Clemons, 

, 

;
State v. Watson (1991), 

, 

. However, the
prosecutor’s characterization was based on evidence presented at trial where in this
case the defendant, himself, admitted to lying. Tyler, 

, 553




                                          45
                             SUPREME COURT OF OHIO




N.E.2d at 595 (a prosecutor may state a personal opinion if it is based on the
evidence at trial).
        {¶ 176} Defendant also complains that the prosecutor commented during
mitigation-phase closing argument that Newsome “got no due process of law but
just had her property taken by the defendant,” and asked “how Patricia Newsome
felt when she was being viciously beaten.” Again, defendant’s failure to object
waived all but plain error. Slagle, 

, 

. The
due process comment was within the creative latitude accorded both parties. State
v. Brown (1988), 

, 

. However,
comments referring to what the victim was feeling or thinking may constitute error
since they essentially ask the jury to speculate on facts not in evidence. State v.
Combs (1991), 

, 

. However, we find
that these comments were not egregious enough to deprive defendant of a fair trial.
Thus, we reject proposition IV.
        {¶ 177} In propositions XXV and XXIX, defendant essentially contends
that he was victimized by the Hamilton County Prosecutor’s Office as a result of
its discriminatory charging and decision to seek the death penalty for his murder of
Newsome. However, existence of discretion in the charging stage of a capital
prosecution does not violate the Constitution. See, e.g., State v. Coleman (1989),

, 

; Gregg v. Georgia (1976), 

, 

, 

. Propositions XXV and XXIX are not
well taken.
        {¶ 178} In proposition XLI, defendant cites instances of prosecutorial
misconduct throughout his trial.
        {¶ 179} Voir Dire. Defendant asserts that the prosecutor continually argued
the facts of the case, thus conditioning the jury to defendant’s guilt and predisposing
them to impose the death sentence.         Defendant submits that the prosecutor
improperly commented upon the loss suffered as a result of the death of a loved one




                                          46
                                 January Term, 2001




and improperly implied that the grand jury had already found the defendant guilty
of aggravated murder, thereby further implying that the petit jury’s only function
was to impose death. Yet, defendant’s failure to object to any of these comments
waived all but plain error. Slagle, 

, 

. In one
instance, defense counsel did object, and the trial court sustained the objection and
instructed the jury to disregard. Arguing facts in evidence is not improper, and
none of the instances cited by defendant, even if assumed to be improper, actually
prejudiced him. State v. Lott (1990), 

, 

.
        {¶ 180} Trial Phase.      Defendant next cites nine instances of alleged
prosecutorial misconduct during the trial phase, many of which were waived for
lack of an objection or are raised and discussed in other propositions of law below.
The comment during opening statement that defendant lacked remorse was not
improper since testimony conflicted on this point. The prosecutor’s comment that
defendant, by arguing manslaughter, was shifting blame for the murder on the
victim, was overly dramatic, but within the creative latitude accorded both parties.
Brown, 

, 

. The comment that Newsome was
“a hard working lady, lots of friends, … what a dignified way to end,” was
harmless in that it did not prejudice defendant’s right to a fair trial.
        {¶ 181} The prosecutor should not have denigrated defense counsel with
the following comment: “the real humorous part to me is that his attorneys on the
one hand said, well, alcohol has nothing to do with it … then in the very next
statement they say, well, he was acting strange, … he was under the demons of
alcohol.” However, it was neither outcome determinative nor unduly prejudicial.
The prosecutor’s comments alleged by defendant to be misstatements of law during
closing argument, even if improper, were cured by the trial court. The court
reminded the jury that closing arguments are not evidence and correctly instructed
the jury as to the law on murder and voluntary manslaughter.




                                           47
                             SUPREME COURT OF OHIO




       {¶ 182} Mitigation Phase. Defendant next cites eight instances of improper
prosecutorial misconduct, most of which we have discussed under other
propositions of law. None, however, were prejudicial. Implying that alcoholism is
a voluntary condition during cross-examination of defendant’s expert, who testified
concerning defendant’s alcoholism, was not improper. Referring during closing
argument to defendant’s attitude appears to be fair comment since it was based on
evidence at trial. Nor was it improper for the prosecutor to point out that other
alcoholics do not find themselves in defendant’s position.            Unobjected-to
prosecutorial comments on the proper standards to be applied, even if misstated,
are harmless when the trial court instructs the jury on the correct standards. See
State v. Stojetz (1999), 

, 

, citing
State v. Greer (1988), 

, 

.
       {¶ 183} Defendant also contends that the prosecutor improperly converted
mitigating factors (the nature and circumstances of the offense, and the history,
character and background of defendant) into nonstatutory aggravating
circumstances during closing argument. In several instances, defendant objected.
The trial court cured any error by reminding the jury that the arguments of counsel
are not evidence, and it was for them to determine what the evidence showed.
While the prosecution did argue the nature and circumstances of the offense during
closing argument, it did not suggest that these were “aggravating circumstances,”
an argument that would clearly violate our pronouncement in State v. Wogenstahl
(1996), 

, 

, paragraph two of the syllabus.
       {¶ 184} Last, the prosecutor’s reference to two recently slain Cincinnati
police officers was irrelevant to defendant’s case and was undoubtedly a veiled
appeal to the emotions of the jury. Yet, defendant’s failure to object waived all but
plain error. In any event, prejudice to defendant is lacking since the prosecutor
couched the isolated reference to the slain police officers in terms of telling the




                                         48
                                January Term, 2001




jurors to “follow the law.” Accordingly, we find no plain error, and we overrule
proposition XLI.
                             CONSTITUTIONALITY
       {¶ 185} Defendant’s argument in proposition IX that the Ohio death penalty
statutes violate Article VI of the United States Constitution and various
international laws can be summarily rejected. See State v. Bey (1999), 

, 

; Phillips, 

, 

. He also waived such a challenge since he did not raise this issue
before the trial court. State v. Awan (1986), 

, 22 OBR 199, 

, syllabus; Williams, 

, 

, 

.
       {¶ 186} In proposition XVI, defendant claims that the requirement that
mitigating factors be proven by a preponderance of the evidence is unconstitutional.
Yet, defendant concedes that this argument was rejected in Jenkins, 

, 15 OBR at 317, 473 N.E.2d at 275, and Delo v. Lashley (1993), 

, 

, 

.
       {¶ 187} In proposition XXI, defendant argues that Ohio death penalty laws
violate the state and federal Constitutions on numerous grounds. However, we
summarily reject these arguments. See, e.g., Mills, 

, 

; State v. Brooks (1986), 

, 25 OBR
190, 199, 

; State v. Jenkins, 

, 15 OBR
311, 

. See, also, State v. Poindexter (1988), 

, 

, syllabus.
                             Cumulative Error (XLIV)
       {¶ 188} In his forty-fourth and final proposition of law, defendant asserts
that his death sentence is inappropriate and that the combination of errors raised by
him compels a reversal of his death sentence. However, defendant received a fair
trial, and any error was either harmless, nonprejudicial, or curable by our
independent review of sentence. “Such errors cannot become prejudicial by sheer




                                         49
                             SUPREME COURT OF OHIO




weight of numbers.” State v. Hill (1996), 

, 

. Proposition XLIV is overruled.
             INDEPENDENT REVIEW AND PROPORTIONALITY
                                  Defense Evidence
       {¶ 189} At the mitigation hearing, defendant’s sister, Rochelle Pittman,
testified that defendant was one of five children and that at first, they had a “fairly
good family life” in Aurora, Indiana. However, after their parents were in an auto
accident, their father “let some taxes slide.” Later, they discovered that their father
was an alcoholic, who hid bottles of liquor all over the house. The father abandoned
the family in 1968 when defendant was in high school. Their mother ended up
losing the family home, in part because she had never worked outside the home
during her marriage. Pittman did have contact with her father twelve years later,
shortly before he died of cirrhosis of the liver due to excessive alcohol
consumption.
       {¶ 190} One of defendant’s brothers also drank heavily and was killed when
his car struck a large truck. Defendant moved to California in the 1970s when he
was out of school. He came back when his two brothers died, and their mother also
brought defendant back home for treatment at a county hospital in the 1980s
because he was “definitely drinking very hard.” Defendant was hospitalized at least
twice for hemorrhaging and coughing up blood as a result of his heavy drinking.
       {¶ 191} Pittman conversed regularly with the victim, Patricia Newsome,
and often had lunch with her. She considered Newsome a friend. According to
Pittman, Newsome would try to impress upon defendant that he had to stop
drinking. Defendant’s relationship with Newsome was a series of break-ups and
reconciliations. Not long before the murder, Newsome called Pittman and told her
that defendant “was getting out of control. That he was hallucinating and was
talking to people that weren’t there. And that he was afraid of … something




                                          50
                                 January Term, 2001




chasing him.” At one point, Newsome told Pittman that “he was talking to [his]
dad.”
        {¶ 192} Around the time of defendant’s March 1 domestic incident with
Newsome, when police were summoned, Newsome told Pittman she wanted to
have defendant committed. Newsome asked Pittman if she would have defendant
committed because it would take a family member to do that. Pittman indicated
that she would, but she put it off because it was close to Easter, and she was
preoccupied with other matters.
        {¶ 193} Pittman concluded her testimony by asking the jury to spare her
brother’s life. On cross-examination, Pittman learned that Newsome wrote in her
diary that defendant “keeps talking about killing his sister Rochelle and killing me.”
        {¶ 194} Dr. Emmett Cooper, a psychiatrist who also possesses a doctorate
in pharmacology, interviewed defendant after reviewing his medical records. He
also interviewed defendant’s sister, Rochelle.         Dr. Cooper determined that
defendant was an alcoholic and that he suffered from cirrhosis of the liver. He
noted that on several occasions during the mid-1990s, defendant was in danger of
bleeding to death and that defendant had anemia due to alcoholism and a history of
seizures, which is indicative of chronic alcohol disease and withdrawal.
        {¶ 195} Dr. Cooper testified that defendant’s family has a history of
alcoholism, including defendant’s father, who died from resulting hemorrhages.
Defendant began drinking when he was around twenty years old, and had a series
of DUIs and alcohol treatments. According to Dr. Cooper, defendant was drinking
in the range of a fifth to a fifth and one-half of vodka or its equivalent per day prior
to the murder. From the time of defendant’s arrest until Dr. Cooper’s interview of
defendant six months later, defendant enjoyed his longest period of sustained
sobriety in over twenty years. Dr. Cooper further testified that lab tests indicated
that defendant has “[s]ignificant liver damage, abnormal blood picture,
hemorrhagic anemia, grand mal seizures, [and] gastrointestinal bleeds.” Moreover,




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Dr. Cooper opined that defendant endured several episodes of depression and had
sustained brain damage due to his alcohol intake. During cross-examination, Dr.
Cooper indicated that defendant had been divorced twice and had a grown daughter
living in California.
       {¶ 196} Attorney James Slattery of the Hamilton County Public Defender’s
Office also testified on defendant’s behalf. Slattery testified as to the effects of
alcoholism on himself and how it affected him as an attorney. He essentially
testified that alcoholics have a very difficult time stopping drinking, even when
they know that they should.
       {¶ 197} Defendant did not testify or give an unsworn statement, despite
defense counsel’s urging him to do so. The trial judge questioned defendant
directly on this, and defendant stated that he would not testify.
       {¶ 198} The defense also introduced extensive medical records concerning
defendant’s treatments for alcohol over the years.




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                                January Term, 2001




                               Sentence Evaluation
       {¶ 199} After independent assessment, the evidence proves the aggravating
circumstances of which defendant was convicted, i.e., murder during an aggravated
robbery, R.C. 2929.04(A)(7).
       {¶ 200} As to the mitigating factors, nothing in the nature and
circumstances of the offense is mitigating. However, defendant’s history and
background provide aspects that are worthy of weight in mitigation. Defendant’s
chronic problems with alcohol and the history of alcoholism in his family, including
several hospitalizations for alcohol-related maladies, are mitigating.
       {¶ 201} None of the statutory mitigating factors are really applicable here
except for the R.C. 2929.04(B)(7) “catchall” factor. Defense counsel decided not
to pursue the (B)(3) “mental disease or defect” factor, even though Dr. Cooper
opined that defendant suffers “some brain damage.” Dr. Cooper stated that he could
not quantify the extent of defendant’s brain damage from his examination of
defendant. Based on the evidence presented at the mitigation hearing, the (B)(3)
factor was not established. However, Dr. Cooper’s findings should be given weight
as a (B)(7) “other factor.”
       {¶ 202} We find that the aggravating circumstance outweighs the
mitigating factors beyond a reasonable doubt. The death sentence is appropriate
under all the facts and circumstances of this case. The manual strangulation of
Patricia Newsome and defendant’s comments to friends at the bar that they would
be reading about “it” (the murder) in the next day’s newspaper, a clear recollection
of what he had done and how, and his apparent lack of intoxication right after the
murder, indicate that defendant was aware of the gravity and consequences of his
actions, notwithstanding his alcoholism and even assuming he had been drinking
before the murder.
       {¶ 203} The death sentence imposed in this case is neither excessive nor
disproportionate when compared with similar cases of murder involving aggravated




                                         53
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robbery. See, e.g., State v. Eley (1996), 

, 

; State
v. Raglin (1998), 

, 

.
       {¶ 204} Therefore, we affirm defendant’s convictions and sentences,
including the death sentence.
                                                                Judgment affirmed.
       MOYER, C.J., DOUGLAS, RESNICK and F.E. SWEENEY, JJ., concur.
       COOK, J., concurs in judgment only.
       PFEIFER, J., dissents.
                                 __________________
       PFEIFER, J., dissenting.
       {¶ 205} I dissent from the majority’s imposition of the death penalty. As I
stated in my dissent in State v. Simko (1994), 

, 

, 359-360, the General Assembly has granted this court an imprecise
mandate regarding our proportionality review in death penalty cases. I view our
role pursuant to R.C. 2929.05 as determining “whether the penalty of death is
appropriate in a particular case, given the penalty’s role in our overall system of
justice.” Simko at 502, 644 N.E.2d at 360. I do not believe that Nields’s is the type
of crime that the General Assembly did contemplate or should have contemplated
as a death penalty offense.
       {¶ 206} The jury determined that the elements justifying an imposition of
the death penalty were present in this case. However, this court’s responsibility to
undertake proportionality review requires us to depart from the “checklist”
approach in order to seriously review whether the crime committed merits the
ultimate penalty. While Nields took some traveler’s checks and drove off in the
victim’s car, thereby satisfying the requisite robbery element for a death penalty
offense, this case is not about robbery. It is about alcoholism, rage, and rejection—
and about Nields’s inability to cope with any of them. It is a crime of passion




                                         54
                                January Term, 2001




imbued with pathos and reeking of alcohol. It is also a crime that is all too common,
but in stealing some traveler’s checks, Nields bought himself a death sentence.
       {¶ 207} This court needs to be less clinical and more reflective in
determining whether cases like this fit within the death penalty scheme.
Prosecutors also must be called upon to use their discretion more thoughtfully.
Prosecutors should be exercising their discretion to look for reasons to spare
persons from the death penalty rather than to look for ways to shoehorn cases into
the death penalty scheme. I believe that Ohioans thirst for justice, not blood.
                                    APPENDIX
       {¶ 208} “Proposition of Law No. I:             The defendant-appellant was
prejudiced by a lack of funds to adequately defend himself in this litigation. As a
result, Nields was deprived of his rights under the Fifth, Sixth, Eighth and
Fourteenth Amendments to the United States Constitution.
       {¶ 209} “Proposition of Law No. II: Misconduct by the state’s attorneys in
impermissibly introducing prior bad acts testimony violates a defendant’s rights
under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States
Constitution.
       {¶ 210} “Proposition of Law No. III:          Where, in a capital case, the
sentencing court considers and weighs invalid or improper aggravating factors in
imposing the death sentence, that sentence violates the Eighth Amendment to the
Constitution of the United States, and the right to due process under the Fourteenth
Amendment of the United States Constitution.
       {¶ 211} “Proposition of Law No. IV:           Egregious misconduct by the
prosecutor in opening statement, closing argument and argument in the penalty
phase of the proceedings was prejudicial as to deny defendant a fair trial in violation
of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States
Constitution.




                                          55
                             SUPREME COURT OF OHIO




       {¶ 212} “Proposition of Law No. V: Defendant-appellant was denied his
rights of due process as guaranteed by the Sixth and Fourteenth Amendments of
the United States Constitution and Article I, Sections 10 and 16 of the Ohio
Constitution as the trial court failed to provide required jury instructions.
       {¶ 213} “Proposition of Law No. VI: Defendant-appellant was denied his
rights to due process as guaranteed by the Sixth and Fourteenth Amendments of the
United States Constitution and Article I, Sections Ten and Sixteen of the Ohio
Constitution as he received ineffective assistance of counsel.
       {¶ 214} “Proposition of Law No. VII: The trial court erred in failing to
suppress Nields’ statement to the police and the search of his home violated his
rights under the Fourth and Fifth Amendment to the United States Constitution, and
Article I, Sections Ten and Fourteen of the Ohio Constitution.
       {¶ 215} “Proposition of Law No. VIII: The judgment of conviction on the
aggravated murder counts is unsupported by legally sufficient evidence and is
contrary to the manifest weight of the evidence, and as a result, appellant’s rights
under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States
Constitution were violated. (Argued Together)
       {¶ 216} “Proposition of Law No. IX: The trial court erred when it failed to
rule that Ohio’s death penalty statute violated various international laws and treaties
entered into by the United States Senate.
       {¶ 217} “Proposition of Law No. X: The trial court failed to provide
appellant Nields with an independent expert pathologist to assist appellant in both
the innocence/guilt and mitigation phases of his capital trial.
       {¶ 218} “Proposition of Law No. XI: The trial court’s failure to appoint an
independent neuropharmacologist deprived appellant Nields of his statutory rights
as well as his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to
the United States Constitution.




                                          56
                                  January Term, 2001




       {¶ 219} “Proposition of Law No. XII: Appellant was denied reasonable
bond in violation of his rights under the Fifth, Sixth, Eighth, Ninth, and Fourteenth
Amendments to the United States Constitution, as well as Article I, Section 9, of
the Ohio Constitution.
       {¶ 220} “Proposition of Law No. XIII:            Appellant’s indictment was
returned by an improperly constituted grand jury and upon inadequately presented
evidence in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to
the United States Constitution.
       {¶ 221} “Proposition of Law No. XIV: The prejudicial publicity, which
occurred throughout appellant Nields’ trial, deprived him of his right to a fair trial
and a fair and reliable sentencing determination as guaranteed by the Fifth, Sixth,
Eighth and Fourteenth Amendments to the United States Constitution.
       {¶ 222} “Proposition of Law No. XV: The admission of gruesome and
otherwise prejudicial photographs which were cumulative of each other as well as
other evidence violated appellant Nields’ rights under the Fifth, Sixth, Eighth and
Fourteenth Amendments to the United States Constitution.
       {¶ 223} “Proposition of Law No. XVI: Requiring that mitigating factors be
proven by a preponderance of the evidence violates the Eighth, Ninth, and
Fourteenth Amendments to the United States Constitution.
       {¶ 224} “Proposition of Law No. XVII: The trial court erred when it failed
to maintain a complete record of all proceedings in appellant Nields’ capital trial.
       {¶ 225} “Proposition of Law No. XVIII: The trial court’s application of
Ohio’s statutory definition of reasonable doubt in the mitigation phase of
appellant’s capital trial deprived him of his rights under the Fifth, Sixth, Eighth and
Fourteenth Amendments to the United States Constitution.
       {¶ 226} “Proposition of Law No. XIX: The evidence the state obtained in
its searches of Nields’ person, vehicle, and residence, both on the night of his arrest
and the following week, were the fruits of illegal searches and seizures, and




                                          57
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deprived appellant of his rights under the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution.
       {¶ 227} “Proposition of Law No. XX: Improperly suggestive identification
lineups deprived appellant Nields of his rights under the Fifth, Sixth, Eighth and
Fourteenth Amendments to the United States Constitution.
       {¶ 228} “Proposition of Law No. XXI:           Ohio’s death penalty law is
unconstitutional. The Fifth, Sixth, Eighth and Fourteenth Amendments to the
United States Constitution and §§ 2, 9, 10 and 16, Article I of the Ohio Constitution
establish the requirements for a valid death penalty scheme. Ohio Rev.Code §§
2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04 and 2929.05,
do not meet the prescribed constitutional requirements and are unconstitutional on
their face and as applied to Richard Nields.
       {¶ 229} “Proposition of Law No. XXII: The trial court erred by allowing
Mr. Nields to be tried, convicted, and sentenced to death on an indictment which
charged Mr. Nields with an aggravated robbery specification based on the
accusation that he was ‘the principal offender’ and/or committed the aggravated
murder ‘with prior calculation and design,’ in violation of the prohibition against
duplicitous indictments, and deprived Mr. Nields of his rights to a unanimous
verdict, as well as substantive and procedural due process as guaranteed by the
Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States
Constitution, Article I, Sections 1, 2, 9, 10, 16 and 20 of the Ohio Constitution.
       {¶ 230} “Proposition of Law No. XXIII:            The trial court erred by
simultaneously sentencing Mr. Nields both on the charge of felony murder and on
the same substantive underlying felony charge in violation of the Double Jeopardy
Clause of the United States Constitution.
       {¶ 231} “Proposition of Law No. XXIV: Appellant’s death sentence is
excessive and disproportionate to sentences in similar cases, thereby depriving Mr.
Nields of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to




                                         58
                                  January Term, 2001




the United States Constitution, as well as Sections 9 and 16, Article I of the Ohio
Constitution.
        {¶ 232} “Proposition of Law No. XXV:                  Prosecutor’s [sic] have
unregulated discretion in determining who will be charged with the death penalty.
The discriminatory charging and prosecution actions of the Hamilton County
Prosecutor’s Office in appellant Nields’ case deprived him of his rights under the
Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
        {¶ 233} “Proposition of Law No. XXVI: Appellant Nields was denied his
right to a fair trial by an impartial jury in his capital case as guaranteed by the Sixth,
Eighth and Fourteenth Amendments to the United States Constitution when the trial
court failed to excuse for cause jurors whose statements during voir dire indicated
that they could not be fair and impartial.
        {¶ 234} “Proposition of Law No. XXVII: Appellant Nields’ rights under
the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States
Constitution were violated by the improper excusal of prospective jurors.
        {¶ 235} “Proposition of Law No. XXVIII: The state’s failure to provide
access and failing to disclose to trial counsel information material to both the trial
and sentencing phases of Mr. Nields’ capital trial deprived him of his rights under
the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States
Constitution.
        {¶ 236} “Proposition of Law No. XXIX: The discriminatory charging and
prosecution actions of the Hamilton County Prosecutor’s Office in appellant
Nields’ case deprived him of his rights under the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution.
        {¶ 237} “Proposition of Law No. XXX: The trial court’s failure to conduct
a hearing or provide a curative instruction to the jury after it discovered that jurors
had witnessed appellant being escorted by jail guards in shackles deprived appellant




                                           59
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of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the
United States Constitution.
       {¶ 238} “Proposition of Law No. XXXI: The state’s failure to ensure that
its witnesses remained separated throughout appellant’s capital trial deprived Mr.
Nields of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to
the United States Constitution.
       {¶ 239} “Proposition of Law No. XXXII: A juror’s failure to notify the trial
court, prior to the mitigation hearing, that she had been influenced by media
coverage seen the day the guilty verdict was returned deprived Mr. Nields of his
rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United
States Constitution.
       {¶ 240} “Proposition of Law No. XXXIII: The trial court’s failure to
appoint an independent psychologist deprived appellant Nields of his statutory
rights as well as his rights under the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution.
       {¶ 241} “Proposition of Law No. XXXIV: The process used to select the
foremen of grand juries which return capital indictments in Hamilton County is
biased. As a result, appellant’s rights under the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution were violated.
       {¶ 242} “Proposition of Law No. XXXV: The state’s use of a jailhouse
informant to secure Mr. Nields’ conviction deprived appellant of his rights under
the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States
Constitution.
       {¶ 243} “Proposition of Law No. XXXVI: The trial court’s failure to
appoint an independent neuropsychologist deprived appellant Nields of his
statutory rights as well as his rights under the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution.




                                         60
                                  January Term, 2001




        {¶ 244} “Proposition of Law No. XXXVII: Mr. Nields was denied his right
to a neutral and detached judge in his capital trial and sentencing proceedings in
violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United
States Constitution.
        {¶ 245} “Proposition of Law No. XXXVIII: The preclusion of mitigation
evidence at appellant’s sentencing hearing deprived Mr. Nields of his right to a
reliable sentencing determination by an informed jury as guaranteed by the Fifth,
Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
        {¶ 246} “Proposition of Law No. XXXIX: The trial court committed
numerous errors in instructing the jury in the guilt determination phase of appellant
Nields’ capital trial in violation of the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution. As a result, appellant’s convictions
and death sentence are constitutionally infirm.
        {¶ 247} “Proposition of Law No. XL: Erroneous instructions at the penalty
phase of his capital trial violated appellant Nields’ rights of due process and a fair
and reliable determination of the appropriate sentence as guaranteed by the Fifth,
Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
        {¶ 248} “Proposition of Law No. XLI: Erroneous instructions at the penalty
phase of his capital trial violated appellant Nields’ rights of due process and a fair
and reliable determination of the appropriate sentence as guaranteed by the Fifth,
Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
        {¶ 249} “Proposition of Law No. XLII: Mr. Nields was deprived of his
right to the effective assistance of counsel in the mitigation phase of his capital trial.
        {¶ 250} “Proposition of Law No. XLIII: Mr. Nields was deprived of his
right to the effective assistance of counsel in the innocence/guilt determination
phase of his capital trial.




                                           61
                            SUPREME COURT OF OHIO




       {¶ 251} “Proposition of Law No. XLIV: Appellant Nields’ death sentence
is unreliable, inappropriate, and violates the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution.”
                             __________________
       Michael K. Allen, Hamilton County Prosecuting Attorney, and Philip R.
Cummings, Assistant Prosecuting Attorney, for appellee.
       David H. Bodiker, State Public Defender, and William S. Lazarow,
Assistant Public Defender; Faulkner & Tepe and A. Norman Aubin, for appellant.
                             __________________




                                       62