State v. Coley

[This decision has been published in Ohio Official Reports at 

.]




              THE STATE OF OHIO, APPELLEE, v. COLEY, APPELLANT.
                        [Cite as State v. Coley, 

.]
Criminal law—Aggravated murder—Death penalty upheld, when.
       (No. 98-1474—Submitted June 20, 2001—Decided October 3, 2001.)
   APPEAL from the Court of Common Pleas of Lucas County, No. CR97-1449.
                                    __________________
         MOYER, C.J.
         {¶ 1} On December 23, 1996, defendant-appellant Douglas Coley, assisted
by Joseph Green, kidnapped, robbed, and attempted to murder David Moore in
Toledo. Then, on January 3, 1997, Samar El-Okdi was shot between the eyes and
left to die in an alley in Toledo. On January 7, 1997, Toledo police stopped a
Pontiac sedan that was owned by El-Okdi and being driven by Green. Coley was
a passenger. A three-judge panel convicted Green of El-Okdi’s murder as well as
other offenses.1 See State v. Green (2000), 

, 

.
         {¶ 2} In May 1998, a jury convicted Coley of the kidnapping, robbery, and
attempted murder of Moore, and the kidnapping, robbery, and aggravated murder
of Samar El-Okdi. Coley received a death sentence, and his case is now on direct
appeal to this court.
                                              Facts
                               Offenses Against David Moore
         {¶ 3} On December 23, 1996, around 7:30 p.m., David Moore parked his
light blue, four-door Ford Taurus at his residence in Toledo. While Moore was
unloading his car trunk, a man he later identified as Green asked for directions. As


1. The three-judge panel originally sentenced Green to death. On appeal, this court affirmed the
conviction but found irregularities in sentencing. On remand, the three-judge panel reconsidered its
opinion and sentenced Green to life in prison without parole. Toledo Blade, April 7, 2001.
                             SUPREME COURT OF OHIO




he gave directions, another man appeared, whom Moore later identified as Coley.
Moore started to leave, but Green and Coley stood in front of him and displayed
small-caliber, shiny, semiautomatic pistols. Coley then told Moore, “Give me your
keys.” Moore complied, and Coley told Moore, “Get in the car.” Coley then
climbed in behind the wheel, Green got in back behind Moore, and Coley drove the
Taurus towards the art museum.
         {¶ 4} While in the car, Moore asked them to let him go, but neither Green
nor Coley responded. Green did tell Moore to “cough up the cash,” and Moore
handed Coley $112, which Coley threw on the front seat. Moore noted that Coley
was calm and never appeared excited, aggravated, confused, or unsure of himself.
After approximately fifteen minutes, Coley pulled into a dark, isolated field and
told Moore to get out of the car.
         {¶ 5} As Moore backed out of the car, Coley shot him in the stomach. After
Moore ran away, he heard a car door open and the car wheels spinning, “trying to
get out of the mud.” Moore heard somebody chasing him. Other shots were fired,
and Moore fell down. Then Moore heard another shot and felt a bullet hit him in
the head. He pretended that he was dead, but as his assailant walked away, Moore
looked back and thought that Green, who was heavier and taller than Coley, was
the one who had just shot him.
         {¶ 6} Eventually, Moore struggled to his feet, went to a nearby house, and
summoned assistance. Police and a medical team responded and took Moore to a
hospital. Moore had been shot in the head, stomach, and arms, and twice in the
hand. During one operation, a surgeon removed a .25 caliber bullet from Moore’s
wrist.
         {¶ 7} In addition to the bullet from Moore’s wrist, police found two .25
caliber shell casings on Green Street near where Moore had been shot. Evidence
established that a gun identified as Coley’s gun had ejected the shell casings found
on Green Street and fired the bullet removed from Moore’s wrist.




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                               January Term, 2001




       {¶ 8} On an evening shortly before Christmas 1996, Tyrone Armstrong, a
cousin of both Coley and Green, saw Coley and Green driving a light blue, four-door Ford Taurus. The Taurus, which Armstrong knew did not belong to either of
them, was overheating, so Armstrong helped put water in the car. Before his
abduction, Moore had purchased but not installed a new replacement radiator
because his Taurus tended to overheat.
       {¶ 9} That same evening, Armstrong saw Coley and Green with the same
.25 caliber semiautomatic pistols that Armstrong had seen each of them previously
carry. Armstrong identified State Exhibit 32, a brown-handled pistol with gray duct
tape, as the weapon Coley had previously carried, and State Exhibit 33, which had
a pearl handle, as Green’s pistol. That evening, Green made up a rap song with the
words “I shot him five times and he had dropped.” At one point, Green pointed his
gun at Coley and said, “You better never snitch on me.” Coley mimicked the
action; pointing his gun at Green, and repeating, “Better never snitch on me.”
Penne Graves, Coley’s girlfriend, also recognized State Exhibit 32 as a gun she had
seen around her house.
       {¶ 10} After a few days, Coley and Green abandoned Moore’s Taurus. On
December 27, 1996, police recovered Moore’s car in an area near the residence of
a girlfriend of Coley. When police found the Taurus, it bore plates that had been
stolen from a Mercury Topaz.
                            Murder of Samar El-Okdi
       {¶ 11} Samar El-Okdi was found dead in an alley on January 7, 1997. She
had last been seen on January 3, 1997. The police traced El-Okdi’s movements on
Friday, January 3, 1997, from around 5:00 p.m. until 8:00 p.m., but no evidence
firmly established exactly where or when she had been abducted. Sometime after
5:00 p.m. that day, El-Okdi left work and told coworkers that she planned to spend
the evening at home. She drove her Pontiac 6000 to her apartment, a block from
Moore’s residence. Raymond Sunderman, her landlord, saw El-Okdi arrive home




                                         3
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sometime between 5:00 and 5:30 p.m. El-Okdi’s brother, Samir El-Okdi, recalls
that El-Okdi stopped by late that afternoon at the family-owned convenience store
for thirty to forty-five minutes. Around 8:00 p.m., El-Okdi dropped film off at the
Blue Ribbon Photo store at Westgate Shopping Center.
       {¶ 12} That same Friday, around 8:45 p.m., Rosie Frusher left a friend’s
house at West Grove Place, near the Toledo Art Museum, to use a pay telephone.
As Frusher walked outside the house at which she was staying, she heard two
gunshots. After she had passed by the house, she saw a car to her left in an alley.
The car had “long taillights” (similar to those on a Pontiac 6000) and a license plate
number with a zero (unlike El-Okdi’s license number). Frusher saw a black, stocky
“man outside the car bending over that had bushy hair.” Another man was sitting
in the driver’s seat. Then Frusher walked to the pay phone and talked to her friend
for thirty minutes or so, but she did not return the same way she had come earlier.
Ameritech records establish that Frusher made this call at 8:41 p.m.
       {¶ 13} On Saturday, January 4, Christopher Neal, El-Okdi’s boyfriend,
discovered that El-Okdi was missing and notified police. El-Okdi’s friends and
relatives searched for El-Okdi, hired a private detective, and distributed missing-person flyers. These flyers described El-Okdi, included her photograph, described
her car, including the bumper stickers, and listed her last known whereabouts.
       {¶ 14} That same weekend in Toledo, Armstrong saw Coley driving a gray
Pontiac 6000 that he later identified as El-Okdi’s car. On the night his cousins were
arrested, Armstrong bought some cigars and two bottles of Alize (an alcoholic
beverage) for Green and Coley, which police later found in that Pontiac. Armstrong
admitted that Green and Coley had keys and used those keys to drive both the
Taurus and the Pontiac.
       {¶ 15} Later that night, Monday, January 6, Megan Mattimoe, El-Okdi’s
friend and coworker, was parked on Scottwood waiting for another friend to
distribute the missing-person flyers about El-Okdi. Around 11:15 p.m., Mattimoe




                                          4
                                January Term, 2001




saw El-Okdi’s car drive by, which she identified by its dented rear fender and a
distinctive bumper sticker, although the license plate was different.         While
following the Pontiac, Mattimoe used a cellphone to call a friend, who in turn called
the police. Mattimoe followed the Pontiac until the driver parked at an apartment
complex and two men got out.
       {¶ 16} After talking with police, Mattimoe and a Toledo detective returned
to where the stolen Pontiac was parked. It bore an Ohio license plate, number YRT
022, which had been stolen from another Pontiac 6000 some time before 6:00 p.m.
on January 4, 1997. Police staked out the car, using five undercover police vehicles.
       {¶ 17} After midnight, Green, Coley, and a woman with a baby got into the
Pontiac and drove away. Police followed in undercover vehicles and, assisted by
marked police cars, forced the Pontiac to stop. Despite being surrounded, Green
rammed one car and spun his wheels in an effort to escape. Green and Coley also
resisted arrest, and police forcibly removed each of them from the car. Police found
a loaded pistol in Green’s coat. When one policeman approached the car, he noticed
that Coley, who was sitting in the back seat, had a metallic object in his hand. On
the Pontiac’s rear floor, police found a loaded, .25 caliber, brown-handled pistol
(Exhibit 32) near where Coley had been sitting.
       {¶ 18} Inside the trunk, police found a black crochet purse that El-Okdi had
with her on January 3 when she disappeared. However, police never found her red
wallet and credit cards, which she always carried with her inside the black purse.
Police found one of El-Okdi’s license plates underneath the stolen rear plate, and
they found her other license plate in the car trunk.
       {¶ 19} On the afternoon of January 7, police found El-Okdi’s body in an
alley behind West Grove Place, where Frusher had heard shots and had seen two
men in a car four days earlier. El-Okdi was wearing the same white shirt, black
shoes, and black trousers that she wore to work on January 3. At the scene, police
found a live .25 caliber bullet and a .25 caliber shell casing near El-Okdi’s body.




                                          5
                            SUPREME COURT OF OHIO




       {¶ 20} The deputy coroner found that El-Okdi had died from a .25 caliber
bullet, which the deputy coroner removed from the back of her cerebellum. The
bullet had struck her between the eyes and had been fired from a muzzle distance
of approximately twelve to eighteen inches. The deputy coroner concluded that El-Okdi did not die immediately.
       {¶ 21} David Cogan, a firearms expert, examined the .25 caliber bullet
removed from El-Okdi’s brain, the .25 caliber bullet removed from Moore’s wrist,
three .25 caliber shell casings from the two crime scenes, and Coley’s .25 caliber
semiautomatic pistol recovered from the rear floor of El-Okdi’s Pontiac. Cogan
concluded that Coley’s pistol was in operating condition and had fired the bullets
into Moore and El-Okdi and had ejected the three crime-scene shell casings. After
police searched Green’s residence on January 7, 1997, they found an empty box
that had contained .25 caliber Remington ammunition.
       {¶ 22} On January 7, 1997, Coley and Green were arraigned on charges
relating to El-Okdi’s stolen Pontiac and the stolen plates. That arraignment was
shown on television, and Moore immediately recognized Green and Coley from the
television newscast as the men who had kidnapped, robbed, and shot him.
       {¶ 23} That same week, Coley, Green and their cousin Armstrong were all
in jail, although Armstrong was being held on unrelated charges. While Armstrong
and Coley were together, Coley hugged him and told him, “I did it but Joe [Green]
shouldn’t have snitched on me.” By this comment, Armstrong understood Coley
to mean that Coley had shot El-Okdi. Coley also asked Armstrong to lie for him
by claiming that Coley had obtained his weapon and the Pontiac from someone
named Denny.
       {¶ 24} On January 16, 1997, a grand jury heard allegations relating to El-Okdi, and returned an indictment of murder, without death-penalty specifications.
Coley was reindicted on March 10, 1997, with the grand jury returning an eightcount indictment for the following offenses: Count I, the kidnapping of David




                                        6
                                January Term, 2001




Moore, in violation of R.C. 2905.01(A)(2); Count II, the aggravated robbery of
David Moore, in violation of R.C. 2911.01(A)(1); Count III, the attempted murder
of David Moore, in violation of R.C. 2923.02; Count IV, the aggravated murder of
Samar El-Okdi, in violation of R.C. 2903.01(A); Count V, the aggravated murder
of Samar El-Okdi, in violation of R.C. 2903.01(B); Count VI, the aggravated
murder of Samar El-Okdi, in violation of R.C. 2903.01(B); Count VII, the
kidnapping of Samar El-Okdi, in violation of R.C. 2905.01(A)(2); and Count VIII,
the aggravated robbery of Samar El-Okdi, in violation of R.C. 2911.01(A)(1). Each
count included a firearm specification in violation of R.C. 2941.145. Count III also
had a firearm specification under R.C. 2941.146. Each murder count included a
specification under R.C. 2929.04(A)(7) that the murder was committed during a
kidnapping or robbery.
         {¶ 25} Coley pleaded not guilty to the charges, and was convicted as
charged, and the jury found both that Coley was the principal offender in the
aggravated murder and that he committed the offense with prior calculation and
design. The trial court later merged the three aggravated murder Counts (IV, V,
and VI). After a sentencing hearing, the jury recommended, and the trial judge
imposed, a death sentence for the aggravated murder of Samar El-Okdi. In addition
to the death sentence, the trial court sentenced Coley to ten years on each of Counts
I, II, III, VII, and VIII, to be served consecutively, and sentenced him on the firearm
specifications.
         {¶ 26} We have considered each of the twelve propositions of law. We
have also independently reviewed his death sentence, as R.C. 2929.05(A) requires,
by reweighing the felony-murder aggravating circumstance against the mitigating
factors and measuring the sentence in this case against sentences imposed in similar
cases.   We conclude that Coley’s convictions and death sentence should be
affirmed.
                                  I. Pretrial Issues




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                              SUPREME COURT OF OHIO




                                A. Change of Venue
        {¶ 27} In proposition I, Coley argues that publicity about his case was so
pervasive that prejudice must be presumed. He also argues that the voir dire
reinforced his claim that this pervasive publicity prejudiced his right to a fair trial.
        {¶ 28} “[T]he right to jury trial guarantees to the criminally accused a fair
trial by a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd (1961), 

, 

, 

. However, “pretrial publicity—
even pervasive, adverse publicity—does not inevitably lead to an unfair trial.”
Nebraska Press Assn. v. Stuart (1976), 

, 

, 

.
        {¶ 29} Changes in venue help protect fair trial rights. A trial court may
change venue “when it appears that a fair and impartial trial cannot be held” in that
court. Crim.R. 18; R.C. 2901.12(K). “A change of venue rests largely in the
discretion of the trial court ….” State v. Fairbanks (1972), 

,

, 

. See, also, State v. Montgomery (1991),

, 

. However, “ ‘a careful and searching
voir dire provides the best test of whether prejudicial pretrial publicity has
prevented obtaining a fair and impartial jury from the locality.’ ” State v. Davis
(1996), 

, 

, quoting State v. Bayless
(1976), 

, 

, 

.
        {¶ 30} Coley’s claims of error based on prejudicial pretrial publicity fail for
several reasons. First, Coley never moved for a change of venue and thus waived
his right to complain on this basis. State v. Campbell (2000), 

, 

, 1197; State v. Williams (1977), 

, 

, 

, paragraph one of the syllabus.
        {¶ 31} Second, the record contains little direct evidence of media interest,
articles, or commentary on the trial. A defense motion (which did not seek a change
of venue) included a brief news article and a Toledo Blade editorial dated January




                                           8
                                 January Term, 2001




24, 1997. It would be presumed in the absence of evidence to the contrary that any
effect from that publicity would have dissipated by the time the case was tried in
May 1998.      Thus, the record does not support claims of prejudicial pretrial
publicity. Moreover, evidence of such publicity cannot be introduced now. See
State v. Ishmail (1978), 

, 

, 

,
paragraph one of the syllabus.
       {¶ 32} Third, the trial court conducted individual voir dire of prospective
jurors as to pretrial publicity. Seven of the seated jurors had never read or heard
anything about the case. Two seated jurors had heard only news accounts that a
jury was being selected. Three other actual jurors had heard or read about the case,
but each promised to decide the case solely on the evidence at trial. Coley never
challenged any of these jurors. Moreover, the court excused those prospective
jurors who indicated in individual voir dire that they had been affected by pretrial
publicity.
       {¶ 33} Fourth, the trial court repeatedly cautioned jurors during the trial not
to read or listen to media reports. Thus, there was no evidence that publicity about
the case compromised the impartiality of any juror.
       {¶ 34} Fifth, a decision not to change venue will not be reversed unless it is
clearly shown that the trial court has abused its discretion. State v. Lundgren
(1995), 

, 

, citing State v. Maurer (1984),

, 15 OBR 379, 388-389, 

. In view of
the voir dire, which revealed no prejudice, and the paucity of evidence as to pretrial
publicity, Coley has not clearly shown an abuse of discretion. See State v. White
(1998), 

, 

, 777-778; State v. Bies (1996), 

, 

. Accordingly, we reject Coley’s first
proposition.
                              B. Joinder of Offenses




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                             SUPREME COURT OF OHIO




       {¶ 35} In proposition XI, Coley argues that the trial court erred by joining
for trial, over defense objection, unrelated offenses, namely the December 1996
offenses against Moore and the January 1997 charges relating to the aggravated
murder of Samar El-Okdi.
       {¶ 36} “The law favors joining multiple offenses in a single trial under
Crim.R. 8(A) if the offenses charged ‘are of the same or similar character.’ ” State
v. Lott (1990), 

, 

, quoting State v. Torres
(1981), 

, 

, 

.
Under Crim.R. 8(A), offenses that are based on acts “connected together or
constituting parts of a common scheme or plan, or are part of a course of criminal
conduct” may also be joined.
       {¶ 37} Nonetheless, “[i]f it appears that a defendant … is prejudiced by
a joinder” a court may grant a severance under Crim.R. 14. However, the defendant
bears the burden to prove prejudice and that the trial court abused its discretion in
denying severance. State v. Torres, 

, 

, 

, syllabus.
       {¶ 38} “A prosecutor can use two methods to negate such claims of
prejudice,” as noted in State v. Lott, 

, 

. First,
if one offense would have been admissible under Evid.R. 404(B), no prejudice
could have resulted from joinder. “To be admissible to prove identity through a
certain modus operandi, other-acts evidence must be related to and share common
features with the crime in question.” State v. Lowe (1994), 

, 

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

, 

.
       {¶ 39} Here, the Moore offenses were admissible under Evid.R. 404(B) to
prove Coley’s identity as El-Okdi’s killer. The similarities between the offenses
were remarkable. The carjack victims, El-Okdi and Moore, lived within a block of
each other, and both were abducted within two weeks of each other at roughly the




                                         10
                                 January Term, 2001




same time of day, between 7:30 and 8:15 p.m. Both victims were driven to a nearby
secluded area, robbed of money, shot using the same gun, and then left to die alone.
Green and Coley drove each car for several days after placing plates stolen from a
similar car on the stolen car.
       {¶ 40} The court has upheld the use of similar other-acts evidence in
comparable cases. See, e.g., State v. Green (2000), 

, 

 (same facts, Coley’s accomplice Joseph Green); State v. Bey
(1999), 

, 

 (businessmen stabbed in chest
with knife, and shoes and trousers removed); State v. Woodard (1993), 

, 

 (carjacking attempt to prove identity as to later
carjacking and murder); State v. Jamison (1990), 

, 

 (similar strong-arm robberies of stores). See, also, State v.
Watson (1971), 

, 

, 

 (proof of other criminal acts allowed to prove possession of murder
weapon); State v. Martin (1985), 

, 19 OBR 330, 334, 

 (proof of theft of victim’s weapon allowed to prove possession
of murder weapon).
       {¶ 41} Furthermore, the state can separately negate prejudice by showing
that “evidence of each crime joined at trial is simple and direct. … Thus, when
simple and direct evidence exists, an accused is not prejudiced by joinder regardless
of” whether the evidence is admissible as other-acts evidence. Lott, 

, 

. See, e.g., State v. Johnson (2000), 

, 

 (assaults against female neighbors); State v.
Franklin (1991), 

, 

 (burglaries in same
neighborhood). In Coley’s case, the proof of each offense was separate and distinct.
The jury was not likely to be confused as to which evidence proved that Coley had
attempted to murder Moore and which proved that he had murdered El-Okdi.




                                         11
                             SUPREME COURT OF OHIO




       {¶ 42} Here, the state satisfied both tests, either of which was sufficient to
negate Coley’s claims of prejudice. “Simple and direct” evidence was involved,
and the evidence was admissible in any event as other-acts evidence. In comparable
circumstances the court has approved joinder of offenses. In State v. Williams
(1995), 

, 

, the court allowed a single
trial of different robberies when the same gun was apparently used to kill a cab
driver and assault a truck driver. In State v. Mills (1992), 

,

, the court approved joinder for separate robberies, three
months apart, against different bank branches. See, also, State v. Lott, 

, 

.
       {¶ 43} Finally, the trial court provided a limiting instruction to the jury
during the guilt phase on the limited use of the Moore evidence to prove Coley’s
identity as El-Okdi’s killer. The trial court also instructed the jury in the penalty
phase regarding the specific aggravating circumstances that the jury was to consider
in imposing punishment for El-Okdi’s aggravated murder. Cf. State v. Waddy
(1992), 

, 

. Moreover, Coley never
objected to the instructions, nor did he claim that the jury was confused about the
relevance of the Moore offenses. Accordingly, we find no merit to Coley’s eleventh
proposition of law and overrule it.




                                         12
                                January Term, 2001




                       C. Disclosure of Grand Jury Minutes
       {¶ 44} In proposition XII, Coley argues that the trial court erred in not
disclosing grand jury minutes because Coley demonstrated a particularized need
for records of those proceedings. We disagree.
       {¶ 45} Coley recognizes that “[g]rand jury proceedings are secret, and an
accused is not entitled to inspect grand jury transcripts either before or during trial
unless the ends of justice require it and there is a showing by the defense that a
particularized need for disclosure exists which outweighs the need for secrecy.”
State v. Greer (1981), 

, 

, 

,
paragraph two of the syllabus. Also, “[w]hether particularized need for disclosure
of grand jury testimony is shown is a question of fact ….” 

 paragraph three
of the syllabus. Moreover, whether to release grand jury testimony “is within the
discretion of the trial court.” 

 paragraph one of the syllabus. A decision to deny
release will not be reversed absent an abuse of discretion. State v. Brown (1988),

, 

.
       {¶ 46} Coley argues that he demonstrated a particularized need because the
grand jury indicted Coley for the Moore and El-Okdi offenses in a noncapital
indictment issued in January 1997. In March 1997, the prosecutor resubmitted the
case, and another grand jury issued a capital indictment against Coley. Coley was
then tried on those new charges.
       {¶ 47} However, the trial court rejected Coley’s argument that a capital
indictment had improperly replaced the earlier noncapital indictment. At the trial
court hearing on the issue, Coley agreed that the fact that he had been reindicted
did not show a particularized need. Further, Coley agreed that he did not claim that
prosecutorial vindictiveness was involved.
       {¶ 48} At the hearing Coley showed that some police officers were unhappy
that the first indictment was for noncapital offenses and expressed their thoughts to
a newspaper reporter. Thereafter, a Toledo Blade editorial questioned why Coley




                                          13
                              SUPREME COURT OF OHIO




and Green had not been indicted on capital offenses. Police investigated further
and secured additional evidence, which was presented to a second grand jury. A
second indictment is not an uncommon procedure, as evidence frequently comes to
light after an initial indictment.
        {¶ 49} This new evidence presented to a second grand jury demonstrated
that El-Okdi had been kidnapped and robbed. Three witnesses who had not testified
before the first grand jury testified before the second grand jury. Among the three
was Frusher, who had heard shots and had seen El-Okdi’s car, along with two
suspects, near West Grove Place at about 8:35 p.m. on January 3. At that location,
police found El-Okdi’s body on January 7. Also, new evidence showed that El-Okdi’s purse was missing.
        {¶ 50} Thus, Coley failed to show a particularized need for the grand jury
testimony.     The subsequent capital indictment was based on additional
investigation and new evidence, not on improper motives such as placating a
newspaper or police department.
        {¶ 51} In previous cases, this court has rejected similar generalized claims
attempting to violate the sanctity of grand jury secrecy. For example, in State v.
Benge (1996), 

, 

, Benge argued that
something improper occurred in the grand jury because “he was bound over on
charges of murder and theft but indicted” on capital charges. The Benge court ruled,
however, that his indictment “on elevated charges” did not show any particularized
need and thus rejected arguments similar to those that Coley makes.
        {¶ 52} In State v. Brown, 

, 

, the court
held that a trial court did not abuse its discretion when it found no particularized
need based on defense claims that the indictment was issued on insufficient
evidence. See, also, State v. Mack (1995), 

, 

 (claims that a witness “fabricated his story to conceal his own involvement”
were not sufficient); State v. Davis (1988), 

, 

                                January Term, 2001




925, 929-930 (claims that indictment was based on “illegal and incompetent
evidence” did not establish particularized need). See, also, State v. Stojetz (1999),

, 

; State v. Webb (1994), 

, 

.
       {¶ 53} Finally, a presumption of regularity supports prosecutorial decisions
such as the decision in this case to present additional evidence to another grand
jury. See United States v. Armstrong (1996), 

, 

, 

; Bordenkircher v. Hayes (1978), 

,

, 

. In sum, Coley has not demonstrated that
the trial court abused its discretion in refusing to release a record of grand jury
proceedings. Accordingly, we overrule Coley’s twelfth proposition.
                               II. Guilt-Phase Issues
                            A. Sufficiency of Evidence
       {¶ 54} In proposition II, Coley challenges the sufficiency of the evidence to
support the jury’s finding of prior calculation and design and argues that the finding
of guilt as to Count IV must be set aside.
       {¶ 55} In reviewing a record for sufficiency, “[t]he relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt.” State v. Jenks (1991), 

, 

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

, 

, 

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

, 

, 

, paragraph one
of the syllabus.
       {¶ 56} As to “prior calculation and design,” no “bright-line test” exists that
“emphatically distinguishes between the presence or absence” of “prior calculation
and design.” State v. Taylor (1997), 

, 

. Yet




                                         15
                             SUPREME COURT OF OHIO




“ ‘prior calculation and design’ is a more stringent element than the ‘deliberate and
premeditated malice’ … required under prior law.” State v. Cotton (1978), 

, 

, 

, paragraph one of the syllabus.
“Instantaneous deliberation is not sufficient ….” 

 paragraph two of the
syllabus.   “ ‘[P]rior calculation and design’ requires ‘a scheme designed to
implement the calculated decision to kill.’ ” State v. D’Ambrosio (1993), 

, 

, quoting State v. Cotton, 

,

, 

.
       {¶ 57} In this case, the facts are sufficient to show that Coley “adopted a
plan to kill.” See State v. Toth (1977), 

, 

,

. Green and Coley probably kidnapped El-Okdi from the street
in front of her home, one block from where Moore was also kidnapped. El-Okdi
planned to spend the evening at home alone. She had no reason to be at the secluded
location where her body was later found. From whatever location Coley and Green
abducted El-Okdi, they drove her to a dead-end alley. They had no reason to drive
her to this out-of-the-way spot except to kill her, a fact that shows prior calculation
and design. Cf. State v. Ballew (1996), 

, 

 (victim abducted and taken to remote location).
       {¶ 58} The evidence supports the jury’s finding that when Coley and Green
arrived at this dead-end alley, Coley personally shot El-Okdi between the eyes,
execution style, and thus was the principal offender. Coley’s gun was the murder
weapon. No evidence suggests that El-Okdi, a small woman, resisted or that she
posed a threat to Coley or Green, who were armed. After Coley shot her, Coley
and Green used El-Okdi’s car for several days, knowing that she could not report it
as stolen, which is further evidence of a plan to kill. Finally, just twelve days
earlier, Coley, assisted by Green, had kidnapped and robbed David Moore, drove
him to a similar deserted area, shot him several times, and left him to die.




                                          16
                                January Term, 2001




       {¶ 59} Moreover, prior calculation and design can be found even when the
killer quickly conceived and executed the plan to kill within a few minutes. See,
e.g., State v. Palmer (1997), 

, 

, 706
(road-rage double homicide that quickly occurred after traffic accident); State v.
Taylor, 

, 

 (chance encounter in bar
between rivals for another’s affections).
       {¶ 60} In any event, the death penalty in this case does not hinge on a
finding of prior calculation and design. The jury found Coley guilty of two counts
of aggravated murder based on felony-murder, and the jury also found that Coley
was the principal offender in the murder. The alternative of felony-murder with
prior calculation and design was not put before the jury in the penalty phase.
Therefore, we reject Coley’s second proposition.
                               B. Double Jeopardy
       {¶ 61} In proposition IV, Coley argues that his rights against double
jeopardy and due process were violated. Coley argues that he “was punished three
times for aggravated murder,” was “punished again for kidnapping and aggravated
robbery,” and “was thus punished various times for one indivisible act.”
       {¶ 62} Coley misreads the record. The trial court merged the three murder
charges against Coley into a single offense. The trial jury verdict referred to one
death penalty, and the trial court imposed only a single death penalty.
       {¶ 63} Also, the constitutional protection against double jeopardy does not
preclude a defendant from being separately punished for an aggravated murder and
for felonies involved in that murder. In order to commit murder, neither aggravated
robbery nor kidnapping need be committed. This court has repeatedly rejected
similar double-jeopardy claims and held that aggravated murder is not an allied
offense of similar import to an underlying aggravated robbery. State v. Reynolds
(1998), 

, 

; State v. Smith (1997), 80




                                            17
                              SUPREME COURT OF OHIO




Ohio St.3d 89, 117, 

, 694. See, also, State v. Bickerstaff (1984), 

, 10 OBR 352, 

, syllabus.
         {¶ 64} As to kidnapping, this court has also found that “aggravated murder
and kidnapping are not allied offenses of similar import under R.C. 2941.25.” State
v. Keenan (1998), 

, 

. See, also, State
v. Reynolds, 

, 

; State v. Jells (1990), 

, 

; State v. Powell (1990), 

, 

.
         {¶ 65} The aggravated robbery and the kidnapping were also separate
offenses under the facts. Coley and Green abducted El-Okdi and drove with her to
a secluded location. Such prolonged restraint and substantial movement of the
victim demonstrates a “separate animus” sufficient to permit punishment of the
kidnapping in addition to the robbery. State v. Logan (1979), 

,

, 

, syllabus. Neither offense was merely incidental
to the other offense. Cf. State v. Reynolds, 

, 

;
State v. Jenkins (1984), 

, 15 OBR 311, 340, 

. Accordingly, we reject Coley’s fourth proposition.
                              C. Gruesome Photographs
         {¶ 66} In proposition V, Coley argues that the trial court erred in admitting
gruesome photographs of the victim that had “little probative value” and were
“highly prejudicial.” However, Coley fails to specify which photographs were
objectionable or exactly why they were inadmissible. The trial court admitted,
without objection, five crime-scene photos of El-Okdi’s body and one autopsy
photo.
         {¶ 67} Since the defense counsel did not object to these photographs at trial,
he thereby waived all but plain error. State v. Taylor, 

, 

; State v. Williams, 

, 

, 

.
No outcome-determinative plain error resulted from admitting these exhibits in




                                          18
                                 January Term, 2001




view of the other compelling evidence of guilt, including the forensic evidence
showing that Coley’s gun was the murder weapon.
       {¶ 68} Moreover, no error occurred.           In capital cases, nonrepetitive
photographs, even if gruesome, are admissible if relevant and of probative value,
as long as the probative value of each photograph outweighs the danger of material
prejudice to an accused. State v. Maurer, 

, 15 OBR 379, 

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

, 

. Decisions on the admissibility of photographs are
“left to the sound discretion of the trial court.” State v. Slagle (1992), 

, 

; State v. Maurer, 

, 15 OBR at
401, 473 N.E.2d at 791.
       {¶ 69} The five crime-scene photographs portray El-Okdi’s body in relation
to her surroundings and from different angles and distances. Although arguably
gruesome, Exhibits 50 and 65 simply show El-Okdi’s clothed body in a partly
curled position, and she appears as though she were asleep, aside from traces of
blood. The photographer took Exhibits 63 and 64 from a much greater distance,
and one cannot even clearly discern that a body is shown in those photos. Exhibits
66 (crime scene) and 72 (coroner), which are gruesome, portray El-Okdi’s face and
clearly show the gunshot wound both before (Exhibit 66) and after (Exhibit 72) the
wound was cleaned.
       {¶ 70} These photos illustrated the testimony of detectives and the deputy
coroner who saw the crime scene, portrayed El-Okdi’s body in relation to her
surroundings, and Exhibits 66 and 72, portraying the wound, helped to prove the
killer’s intent and the lack of accident or mistake. See State v. Goodwin (1999), 

, 

; State v. Mason (1998), 

, 

.             These photos also gave the jury an
“appreciation of the nature and circumstances of the crimes.” State v. Evans (1992),

, 

. The photos were limited in




                                          19
                              SUPREME COURT OF OHIO




number, had substantial probative value and relevance, and, while some were
gruesome, none were particularly inflammatory. In other cases involving even
more gruesome photographs, the court has found no abuse of discretion. See, e.g.,
State v. Smith, 80 Ohio St.3d at 108, 684 N.E.2d at 687; State v. Biros (1997), 

, 

; State v. Joseph (1995), 

, 

.
        {¶ 71} Finally, in addition to not objecting at the trial, Coley never objected
to the photos that were introduced at the penalty phase. No outcome-determinative
plain error resulted from any penalty-phase carryover effect from these photos due
to the insufficiency of mitigating evidence.         Thus, we reject Coley’s fifth
proposition.
                             D. Guilt-phase Instructions
        {¶ 72} In propositions III, VI, VII, and IX, Coley argues that the trial court’s
guilt-phase jury instructions contained various deficiencies. Coley, however, failed
to object at trial or request specific instructions and thus waived all but plain error.
Crim.R. 30(A); State v. Underwood (1983), 

, 3 OBR 360, 

, syllabus; State v. Williams, 

, 

, 

, syllabus. No alleged deficiency caused a different trial result or
created a manifest miscarriage of justice. State v. Long (1978), 

,

, 

. Thus, these propositions could be rejected on the
basis alone that no plain error was involved.
        {¶ 73} Moreover, Coley’s challenges to the court’s jury instructions lack
merit. In discussing proposition III, Coley argues that “the trial court defined prior
calculation as the offender’s purpose to cause death.” However, the court’s
instructions did not equate purpose with prior calculation and design, nor did the
instructions confuse these separate elements. For example, the court stated:
        “Purpose is a decision of the mind to do an act with a conscious objective
of producing a specific result or engaging in specific conduct. To do an act




                                          20
                                January Term, 2001




purposefully is to do it intentionally and not accidentally. Purpose and intent mean
the same thing. The purpose with which a person does an act is known only to
himself unless he expresses it to others or indicates it by his conduct.”
       {¶ 74} In contrast, the court explained and defined prior calculation and
design differently. The court instructed:
       “Prior calculation and design means that the purpose to cause the death was
reached by a definite process of reasoning in advance of the homicide, which
process of reasoning must have included a mental plan involving studied
consideration of the method and the means and/or instrument with which to cause
the death of another.
       “To constitute prior calculation, there must have been sufficient time and
opportunity for the planning of an act of homicide and the circumstances
surrounding the homicide must show a scheme designed to carry out the calculated
decision to cause the death. No definite period of time must lapse          …, but
acting on the spur of the moment or after momentary consideration of the purpose
to cause the death is not sufficient.” (Emphasis added.)
       {¶ 75} The trial court used separate terms to explain prior calculation and
design, such as “a definite process of reasoning in advance,” a “mental plan
involving studied consideration of the method and the means,” “planning of an act
of homicide,” and a “scheme designed to carry out the calculated decision.” The
court also noted that acting on the “spur of the moment” was not sufficient.
       {¶ 76} These instructions, consistent with Ohio Jury Instructions, did not
confuse these separate elements. See 4 Ohio Jury Instructions (1997 and Supp.
2000), Section 503.01. Nor did these instructions serve to direct a verdict on prior
calculation and design as Coley claims. Coley’s claim that the trial court confused
purpose or intent with prior calculation and design lacks merit. Moreover, this court
has previously rejected such claims. See State v. Jones (2001), 

,




                                         21
                             SUPREME COURT OF OHIO




348, 

; State v. Campbell (2000), 

,

, 1200-1201. Accordingly, we reject Coley’s third proposition.
       {¶ 77} In proposition VI, Coley argues that the trial court’s jury instructions
shifted “the burden of proof from the state by instructing the jury to deliberate on
the innocence of the accused.” Coley’s claim of error rests on the following guilt-phase instruction: “You may not discuss or consider the subject of punishment.
Your duty is confined to the determination of the guilt or innocence of the
Defendant ….” (Emphasis added.)
       {¶ 78} Coley’s claim of plain error from the above instruction lacks merit.
At most, the use of the phrase “guilt or innocence” in this limited context relating
to punishment is totally inconsequential. “A single instruction to a jury may not be
judged in artificial isolation but must be viewed in the context of the overall
charge.” State v. Price (1979), 

, 

, 

,
paragraph four of the syllabus, following Cupp v. Naughten (1973), 

, 

, 

.
       {¶ 79} The trial court had already repeatedly instructed the jury that the
state had the burden of proof as to each element of each offense and that if the state
failed to meet that burden the jury must acquit. Even considering this evidence
standing alone, no juror would have believed that this incidental reference to “guilt
or innocence” in this context shifted the state’s burden of proof to the accused.
       {¶ 80} Moreover, this court has previously rejected complaints of
prejudicial error arising from the use of the term “guilt or innocence” in this limited
context. See State v. Jones, 

, 

;
State v. Campbell, 

, 

. We therefore reject
Coley’s sixth proposition.
       {¶ 81} In proposition VII, Coley suggests that the trial court created an
“unconstitutional, conclusive presumption of the mens rea element from the use of
a deadly weapon.” Coley argues that the court erred by not instructing that “any




                                          22
                                January Term, 2001




inference of intent to kill from the manner and commission of the offense is
nonconclusive.” Coley points to R.C. 2903.01(E), which then stated:
       “If a jury in an aggravated murder case is instructed that a person who
commits or attempts to commit [a felony-murder] may be inferred, … because
the offense and the manner of its commission would be likely to produce death        *
…, to have intended to cause the death of any person who is killed … during the
commission of … the offense, the jury shall also be instructed that the inference
is nonconclusive, that the inference may be considered in determining intent, that it
is to consider all evidence … in determining whether the person specifically
intended to cause the death of the person killed …, and that the prosecution must
prove the specific intent of the person to have caused the death … by proof
beyond a reasonable doubt.” (Emphasis added.) 147 Ohio Laws, 6237.
       {¶ 82} In fact, the trial court did instruct the jury that the inference was not
conclusive:
       “If a wound is inflicted upon a person with a deadly weapon in a manner
calculated to … destroy life or inflict great bodily harm, the purpose to cause the
death may be inferred from the use of the weapon. However, the use of a deadly
weapon is not conclusive evidence of a purpose to cause the death of another.
Whether or not you draw the inference of purpose to kill from the use of the deadly
weapon is entirely up to you.” (Emphasis added.)
       {¶ 83} The trial court’s instruction fully satisfied the statutory requirement
that the jury be told that any “inference is nonconclusive.”          The court said
“inferred,” not “presumed,” and the word “may” is permissive, not mandatory.
Further, the court specifically instructed the jury that “use of a deadly weapon is
not conclusive evidence of a purpose to cause” death and “[w]hether or not you
draw the inference of purpose to kill from the use of the deadly weapon is entirely
up to you.” Also, the court repeatedly advised the jury that Coley “may not be




                                          23
                             SUPREME COURT OF OHIO




convicted of aggravated murder unless” the jury found “beyond a reasonable doubt
[that] Douglas Coley specifically intended to cause the death of Samar El-Okdi.”
        {¶ 84} Finally, this court has repeatedly rejected arguments similar to those
Coley makes. See, e.g., State v. Campbell, 

, 

; State v. Stallings (2000), 

, 

; State
v. Getsy (1998), 

, 

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

, 

. We therefore reject
Coley’s seventh proposition.
        {¶ 85} In proposition IX, Coley challenges the court’s guilt-phase
reasonable doubt instruction, which incorporated the statutory definition contained
in R.C. 2901.05. It is our practice to rule summarily on well-settled points of law.
Thus we summarily overrule Coley’s ninth proposition of law on authority of State
v. Jones (2000), 

, 

; State v. Van Gundy
(1992), 

, 

; State v. Nabozny (1978), 

, 

, 

, paragraph two of the syllabus.
                               III. Penalty Instructions
        {¶ 86} In proposition VIII, Coley argues that his constitutional rights were
violated “when the legal issue of relevance is left to the jury regarding sentencing
considerations.” Coley argues that “the jury’s discretion was improperly guided”
because the jury was not told exactly “what trial evidence was relevant to the
weighing process.” Thus, Coley argues that the trial court erred by instructing the
jury:
        “For purposes of this proceeding, only that testimony and evidence which
was presented in this [first] phase that is relevant to the two aggravating
circumstances … and to any of the mitigating factors … are to be considered
by you.”
        {¶ 87} However, Coley did not object to this instruction or request another
instruction. Thus, Coley waived all but plain error. State v. Underwood (1983), 3




                                          24
                                  January Term, 

, 3 OBR 360, 

, syllabus. Neither plain error nor any
other error was involved.
          {¶ 88} Contrary to Coley’s complaint, the trial court focused the jury’s
attention in the sentencing phase. First, the court admitted only eleven exhibits
from the guilt phase into the penalty phase. Cf. State v. Lindsey (2000), 

, 

 (trial court has “duty to determine the
evidence relevant for consideration”). The trial court admitted photos of El-Okdi
without objection, but those were arguably relevant to the penalty phase. See State
v. Gumm (1995), 

, 

, syllabus; State v. DePew
(1988), 

, 

, paragraph one of the syllabus; State v.
Woodard, 

, 

. The trial court also admitted
photos of the gun that killed El-Okdi; however, if this was in error, it was certainly
harmless.
          {¶ 89} Second, in the penalty phase the trial court instructed the jury that
some “evidence and testimony” considered earlier at the guilt phase was “no longer
relevant” for purposes of sentencing. The court instructed the jury to consider only
“evidence … presented in [the guilt] phase that is relevant to the two aggravating
circumstances” proved earlier or to mitigating factors raised by Coley.
          {¶ 90} Third, the trial court carefully instructed the jury regarding the
aggravating circumstances. The court also instructed that “the aggravated murder
itself is not an aggravating circumstance. … Rather, the aggravating
circumstances … are all that you will consider on the aggravation side of the
scale.”
          {¶ 91} Fourth, the significance to be given the evidence or exhibits was a
matter for the jury. “[T]he weight to be given the evidence and the credibility of
the witnesses are primarily for the trier of the facts.” State v. DeHass, 

, 

, 

, paragraph one of the syllabus. Viewing




                                          25
                             SUPREME COURT OF OHIO




the penalty instructions as a whole, we therefore find that the trial court adequately
guided the jury as to the evidence to consider in the penalty phase.
       {¶ 92} Finally, this court has previously rejected similar complaints of
prejudicial error relating to penalty-phase instructions as to “what trial evidence
was relevant to the weighing process.” See State v. Jones, 

-
350, 

.
                         IV. Settled Constitutional Issues
       {¶ 93} In proposition X, Coley challenges the constitutionality of Ohio’s
death penalty statute, but that claim can be summarily rejected. State v. Carter
(2000), 

, 

; State v. Clemons (1998), 

, 

; State v. Poindexter (1988), 

, 

, syllabus. Coley’s challenge based on international law
can also be summarily rejected. State v. Bey, 

, 

; State v. Phillips (1995), 

, 

. This
international law challenge was also waived, since Coley never raised international
issues before the trial court. State v. Awan (1986), 

, 22 OBR 199,

, syllabus; State v. Williams (1977), 

, 

, 

, paragraph one of the syllabus.
                        V. Independent Sentence Evaluation
       {¶ 94} In addition to ruling on Coley’s propositions of law, R.C.
2929.05(A) requires us to review Coley’s death sentence independently. We must
determine whether the evidence supports the jury’s finding of aggravating
circumstances, whether the aggravating circumstances outweigh the mitigating
factors, and whether the death sentence is proportionate to those we have affirmed
in similar cases. 

                            A. Penalty-Phase Evidence
       {¶ 95} Several of Coley’s relatives testified for the defense, including
Karen Armstrong, the sister of Coley’s mother; Douglas Bell, Coley’s father; and




                                         26
                                January Term, 2001




Willie Austin and Martha Davis, Bell’s sisters and Coley’s aunts. Additionally, Dr.
Wayne Graves, a clinical psychologist, testified concerning Coley’s mother,
Victoria Coley. The testimony of these witnesses and the extensive documentary
evidence confirming their testimony establishes that Coley’s upbringing can be
described as a chaotic nightmare.
         {¶ 96} Victoria Coley, Coley’s mother, was one of nine sisters. Victoria
Coley was hospitalized in state mental hospitals some fifteen times between 1977
(when Coley was two years old) to 1991. Victoria also had extensive outpatient
treatment when she was not institutionalized. Victoria, who had an IQ in the 65-68
range, was a chronic paranoid schizophrenic. She also suffered from mixed
substance abuse and borderline personality disorders. When out of institutions,
Victoria used street drugs, drank heavily, and engaged in prostitution to obtain
money for drugs. In 1989, Victoria was found not guilty by reason of insanity for
the aggravated arson of her home that endangered her children.
         {¶ 97} Her sister-in-law, Martha Jean Davis, described Victoria as an
“oversexed mental patient … [who] wouldn’t keep her clothes on.” She “would
strip and run down … the street with no clothes on. … [S]he would have sex
with anyone, anybody, anywhere ….” Victoria had sex with Davis’s ten-yearold son, and reportedly had sex with her own children. When Victoria was
institutionalized, her children stayed with relatives. However, Coley and his older
brother, Victor, were neglected and malnourished, whether they were with Victoria
or relatives.   In referring to both Victoria’s family and Bell’s family, Davis
characterized them as “all alcoholics and drug addicts.” Children’s Service Bureau
and other social service records concerning Victoria and her family date from 1975
and document the family’s horrific problems and neglect of the children, including
Coley.
         {¶ 98} Douglas Bell, Coley’s father, was not a positive father figure. Bell
went to prison for five years when Coley was just a few months old. Bell lived




                                         27
                             SUPREME COURT OF OHIO




with Victoria at various times, but Bell agreed that he has served about six or seven
prison terms and had been convicted of burglary, robbery, felonious assault, drug
trafficking, and other offenses. After Coley was born, Bell was usually in prison
or involved with drugs.
       {¶ 99} Karen Armstrong, Coley’s aunt, testified that Victoria’s life went
downhill after she became involved with Bell and his family because she used drugs
more frequently and engaged in prostitution.
       {¶ 100} Willie Louise Austin, Bell’s sister, stated that her entire family of
six brothers and four sisters was not stable. Austin testified that she had been a
prostitute and drug addict and that everyone in the family had been drug addicts or
alcoholics at some point. The children (Coley and Victor) were forced to fend for
themselves, which is “where the panhandling and stealing and selling dope comes
in.”
       {¶ 101} Marquita Armstrong, Victoria’s sister, testified for the state and
identified a letter Coley had written to her acknowledging that he had been taught
the difference between right and wrong. Coley stayed with Marquita at times in his
childhood and attended church when he did. Marquita admitted that her boyfriend
sold drugs when Coley lived with her. She also agreed that she had shot her
boyfriend but “[n]ot for selling drugs.”
       {¶ 102} Douglas Coley did not testify or make an unsworn statement to the
jury. Although the defense presented evidence about Coley’s parents and relatives,
the defense presented little or no direct evidence as to Coley’s character, schooling,
or employment history. Coley was born on August 24, 1975, and was twenty-one
years old at the time of these offenses.
       {¶ 103} Although Coley did not speak to the jury, he made an unsworn
statement at the sentencing hearing. Coley told the trial court that because of his
upbringing and life, “[s]ometimes there’s no way to control how you get caught up
in things ….” Coley also sent his “condolences to the El-Okdi family for what




                                           28
                                 January Term, 2001




happened to their daughter … your sister, your friend—but I’m not that monster
that was in that alley that night. … I ain’t that monster ….”
                               B. Sentence Evaluation
       {¶ 104} After independent assessment, we find that the evidence is
sufficient to prove the aggravating circumstances, i.e., that Coley committed
aggravated murder, as the principal offender, in the course of committing
kidnapping and aggravated robbery.
       {¶ 105} The nature and circumstances of the offense reveal nothing of
mitigating value. Coley, assisted by Green, kidnapped and robbed El-Okdi, an
innocent young woman, and then drove with her in her own car to a deserted area,
where Coley shot her between the eyes. Then Coley and Green left her to die, alone
and uncared for, on a January night.
       {¶ 106} Upon a review of the evidence presented in mitigation, we find that
Coley’s background is entitled to some weight in mitigation. The defense presented
strong, credible evidence that Coley’s history and background involved a chaotic,
nightmarish upbringing by a mother with very serious mental problems and a father
who was in prison most of the time. Moreover, the extended family of Victoria and
Bell, who cared for Coley and his brother when his mother and father were
institutionalized, offered no better care. Coley’s history and background are worthy
of mitigating value because he faced overwhelming obstacles throughout his
childhood and youth. No evidence was presented as to Coley’s character.
       {¶ 107} Coley’s age of twenty-one at the time of the offenses is a mitigating
factor under R.C. 2929.04(B)(4). No evidence in the record supports other statutory
mitigating factors.
       {¶ 108} Once again, as we have been in a number of death penalty cases,
we are presented with a record that contains evidence of unrelenting, shocking
abuse of a child by adults, including a parent. However, after weighing the
aggravating circumstances against the mitigating evidence, we find that the




                                          29
                            SUPREME COURT OF OHIO




aggravating circumstances of murder in the course of robbery and kidnapping
outweigh the mitigation evidence of Coley’s young age and deprived childhood.
       {¶ 109} The death penalty imposed against Coley is also appropriate and
proportionate when compared with other aggravated murders involving either
kidnapping or aggravated robbery. See, e.g., State v. Moore (1998), 

, 

; State v. Henness (1997), 

, 

; State v. Cook (1992), 

, 

; and
State v. Roe (1989), 

, 

.
                                 C. Conclusion
       {¶ 110} For the foregoing reasons, we affirm the convictions. Finding the
death penalty appropriate and proportionate, we affirm the sentence of death. The
judgment of the court of common pleas is hereby affirmed.
                                                               Judgment affirmed.
       DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG
STRATTON, JJ., concur.
                              __________________
       Julia R. Bates, Lucas County Prosecuting Attorney, Dean P. Mandross,
Eric A. Baum and Gary G. Cook, Assistant Prosecuting Attorneys, for appellee.
       Joseph A. Benavidez, for appellant.
                              __________________




                                        30