[This decision has been published in Ohio Official Reports at
92 Ohio St.3d 245.]
THE STATE OF OHIO, APPELLEE, v. SANDERS, N.K.A. HASAN, APPELLANT.
[Cite as State v. Sanders, 2001-Ohio-189.]
Criminal law—Murder of correctional officer during prison riot—Death penalty
upheld, when—Authorities in lawful charge of prison have no duty to
“negotiate in good faith” with inmates who have seized the prison and
taken hostages—Failure of authorities to negotiate is not an available
defense to inmates charged with the murder of a hostage.
(No. 98-1209—Submitted February 27, 2001—Decided July 18, 2001.)
APPEAL from the Court of Appeals for Hamilton County, No. C-960253.
__________________
SYLLABUS OF THE COURT
The authorities in lawful charge of a prison have no duty to “negotiate in good
faith” with inmates who have seized the prison and taken hostages, and the
failure of those authorities to negotiate is not an available defense to inmates
charged with the murder of a hostage.
__________________
MOYER, C.J.
{¶ 1} During the 1993 prison riot at the Southern Ohio Correctional Facility
(“SOCF”) at Lucasville, Correctional Officer Robert Vallandingham was murdered
on the orders of appellant, Carlos Sanders (n.k.a. Siddique Abdullah Hasan).
Sanders was convicted of aggravated murder and sentenced to death.
Facts
{¶ 2} In 1993, the Department of Rehabilitation and Correction (“DRC”)
ordered that all prison inmates be tested for tuberculosis. Sanders was the
acknowledged imam (spiritual leader) of a group of Muslims at SOCF. He
protested DRC’s order, claiming that the testing method violated Islamic law. On
SUPREME COURT OF OHIO
April 5, 1993, Arthur Tate, Jr., SOCF’s warden, met with Sanders. When Tate
explained that the test was to be administered to all inmates, Sanders replied: “You
do what you have to do and we’ll do what we have to do.” Shortly thereafter, the
warden informed Sanders in writing that all inmates would be tested.
{¶ 3} On April 11, 1993, Muslim inmates staged an uprising and took
control of unit L-6 of cellblock “L” (“L-Block”) of the prison. Sanders planned
and led the takeover.
{¶ 4} Several guards, including Vallandingham, were taken hostage.
Vallandingham had locked himself into a restroom, but inmates battered down the
door and captured him. Sanders handcuffed Vallandingham and led him away.
Other hostages included Officers Clark, Dotson, Hensley, and Nagel. Sanders
ordered that all hostages be taken to Unit L-6 and that captured guards be protected
for the time being.
{¶ 5} Three factions emerged as the dominant forces in L-Block: the
Muslims, led by Sanders; the Aryan Brotherhood, a white racist group, led by Jason
Robb and George Skatzes; and the Black Gangster Disciples, a prison gang, led by
Anthony Lavelle. Each faction controlled its own section of L-Block; the Muslims
controlled unit L-6, and also the hallways.
{¶ 6} The rioters held L-Block until they surrendered on April 21. DRC
representatives opened negotiations with the inmates, who periodically threatened
to kill hostages if their demands were not met.
{¶ 7} On Wednesday, April 14, there was a meeting of inmate leaders,
including Lavelle, Robb, and Sanders. The group discussed killing a guard and,
without dissent, decided to do it. But after the meeting, Lavelle told Sanders that
he did not think that killing a guard would accomplish anything. Sanders agreed
that they should “hold off” on killing a guard that day.
{¶ 8} Later that day, news media quoted a DRC employee’s statement
suggesting that the inmates were bluffing. This infuriated the inmates. Another
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January Term, 2001
leadership meeting followed; Sanders, Robb, Skatzes, and Lavelle were there. Also
present were inmate Roger Snodgrass, inmate David Lomache, who helped care for
injured guards, and Muslim inmate Reginald Williams. (Lavelle, Snodgrass,
Lomache, and Williams later turned state’s evidence and recounted the discussion
in trial testimony.) To prove that they were serious, the group decided to issue an
ultimatum and, if the authorities failed to comply, to kill a guard.
{¶ 9} According to Snodgrass and Williams, Sanders and Robb were “the
decision makers” and led this meeting. While accounts differed on whether a
formal vote was taken, the testimony indicated that Sanders supported killing a
guard. According to Lavelle, “[W]e all agreed that a person from each group *
… would participate” in the killing, and Sanders pledged that his security officers
would select a Muslim inmate to take part.
{¶ 10} On the night of April 14, around 9:00 or 10:00 p.m., inmate Miles
Hogan overheard Skatzes and inmate Stanley Cummings tell Sanders “about
somebody that was supposed to kill a correctional officer [and] had backed out of
it.” Sanders said he was “sick of the m***********s saying they was going to do
something and then back[ing] out of it at the last minute.” Cummings said he
“would make sure this got done,” and Sanders replied: “Well somebody’d better do
it.”
{¶ 11} Another meeting was held on Thursday morning, April 15. Reginald
Williams did not attend this meeting, but he was nearby when it broke up. He heard
Muslim inmate James “Namir” Were proclaim loudly that “he would take care of
it.” Sanders told Were to calm down.
{¶ 12} That morning, inmate Kenneth Law was in L-6 when he saw inmates
Alvin Jones and Darnell Alexander escort a bound, blindfolded Vallandingham to
the L-6 shower area. Then Law heard Sanders tell Were to “take care of his
business” if Sanders “didn’t get back with [Were] in half an hour.” Sanders then
left.
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{¶ 13} Were, Jones, and Alexander proceeded to the shower area where
Vallandingham was being held. Kenneth Law followed them. When they arrived,
Were told Jones and Alexander to “take care of your business.” As Were and Law
looked on, Jones and Alexander strangled Vallandingham. His body was later
dumped outside.
{¶ 14} After the murder, another meeting was held. Someone reported a
rumor that Vallandingham was not dead. Were said that “if it is not done right, you
don’t have anybody to blame but [Were].” According to Lavelle, Were addressed
this remark specifically to Sanders.
{¶ 15} Later, Kenneth Law overheard an inmate ask Sanders: “Why was the
guard killed?’ Sanders said: “It was one or many.”
{¶ 16} Inmate Bruce Harris had been locked in a cell on Sanders’s orders.
On April 21, the last day of the takeover, Harris disrupted a prayer session by
shouting and throwing things from his cell. According to inmate Stacy Gordon,
Sanders ordered Harris killed for this. Gordon, Reginald Williams, and other
Muslim inmates proceeded to kill Harris.
{¶ 17} On April 21, 1993, the inmates surrendered, bringing the riot to an
end.
Indictment, Trial, and Sentence
{¶ 18} The Scioto County Grand Jury returned a series of indictments
against various inmates for crimes committed during the takeover and siege. One
of these indictments charged Sanders with two aggravated murder counts with
regard to Robert Vallandingham and one aggravated murder count with regard to
Bruce Harris. All three counts carried death specifications. Sanders was also
charged with various counts against other officers.
{¶ 19} After two changes of venue, the case was tried to a jury in Hamilton
County. The state withdrew several felonious and assault counts.
4
January Term, 2001
{¶ 20} The jury convicted Sanders of the aggravated murder of
Vallandingham, with three death specifications: murder while under detention,
R.C. 2929.04(A)(4); course of conduct, R.C. 2929.04(A)(5); and felony-murder
(kidnapping), R.C. 2929.04(A)(7). He was acquitted of the aggravated murder of
Harris and of one count of felonious assault upon Dotson, and convicted of all other
counts. After a penalty hearing, the jury recommended, and the judge imposed, a
death sentence for the aggravated murder of Robert Vallandingham. The court of
appeals affirmed the judgment of the trial court in all respects.
{¶ 21} Sanders’s appeal is now before us. We have considered each of his
thirty-four 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 Sanders’s
convictions and death sentence should be affirmed.
I. Jury Issues
{¶ 22} In his eighth, ninth, tenth, twelfth, and thirteenth propositions of law,
Sanders raises issues pertaining to the selection and conduct of the jury.
A. Motion to Dismiss Venire
{¶ 23} On voir dire, a venireman said he could not be fair because Sanders’s
name and garb reminded him of Louis Farrakhan, whom the venireman regarded
as an anti-white, anti-American racist. The venireman was excused for cause.
However, when the venireman gave these responses, nine other veniremen were in
the courtroom. Four of those nine served on the jury. Sanders’s request that the
venire be dismissed was overruled. In his eighth proposition, Sanders claims that
the venireman’s statements biased these jurors, invalidating the jury’s verdict.
{¶ 24} However, nothing in the record indicates that the statements at issue
biased the other veniremen. The usual way to find out whether a venireman harbors
bias is voir dire, and Sanders could have asked that the trial court either question
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the other veniremen on this point, or permit the parties to do so. But Sanders made
no such request.
{¶ 25} We decline to presume that the other veniremen were biased by
hearing the remarks at issue. Although bias was presumed in similar circumstances
in Mach v. Stewart (C.A.9, 1997), 137 F.3d 630, we find Mach distinguishable.
There, the venireman made repeated, definite statements of opinion concerning a
matter germane to the trial—a matter in which she also appeared to be an expert.
In this case, the venireman expressed only personal opinions, did not speak at
length, and was immediately excused for cause. See State v. Doerr (1998),
193
Ariz. 56, 62,
969 P.2d 1168, 1174; Lucero v. Kerby (C.A.10, 1998),
133 F.3d 1299,
1308-1309.
{¶ 26} Sanders also argues that the trial court should have given either a
cautionary instruction to neutralize the effect of the venireman’s statements or
questioned the other veniremen to determine whether the comments had affected
their impartiality. However, at trial he did not ask the court to take such measures.
Thus, he has waived his claim that such measures should have been taken.
{¶ 27} Sanders’s eighth proposition is overruled.
B. Excusal for Cause
{¶ 28} The trial court excused a venireman for cause because she stated on
voir dire that she could not do without a cigarette for any length of time. In his
ninth proposition, Sanders claims that excusing the venireman for this reason was
error. However, an erroneous excusal for cause, on grounds other than the
venireman’s views on capital punishment, is not cognizable error, since a party has
no right to have any particular person sit on the jury. Unlike the erroneous denial
of a challenge for cause, an erroneous excusal cannot cause the seating of a biased
juror and therefore does not taint the jury’s impartiality.1
1. See, e.g., United States v. Cornell (C.C.D.R.I.1820), 25 F. Cas. 650, 656; United States v. Brooks
(C.A.8, 1999),
175 F.3d 605, 606; Jones v. State (Tex.Crim.App.1998),
982 S.W.2d 386, 392 (citing
6
January Term, 2001
{¶ 29} In any event, excusing this venireman was within the trial court’s
discretion. Crim.R. 24(B) provides:
“A person called as a juror may be challenged for the following causes:
“…
“(14) That he is otherwise unsuitable for any other cause to serve as a juror.”
{¶ 30} The venireman admitted that she is an “inveterate” smoker who
“get[s] very upset” when she cannot smoke and that it would be “almost impossible
to go for any length” without a cigarette. It is likely that such a juror would be
inattentive during trial and bring an attitude less than judicious to deliberations, and
would thus be “unsuitable” to serve as a juror under Crim.R. 24(B)(14).
{¶ 31} Moreover, the trial court was under no obligation to accommodate
the juror with smoking breaks, as Sanders suggests. Frequent breaks would have
prolonged the trial and disrupted the presentation of evidence. Moreover, the juror
could not take smoking breaks outside the jury room after submission of the case,
for “R.C. 2945.33 and Crim.R. 24(G) clearly contemplate that jurors in capital cases
generally must not be permitted to separate during their … deliberations.” State
v. Davis (1992), 63 Ohio St.3d 44, 47-48,
584 N.E.2d 1192, 1195-1196. Sanders’s
ninth proposition is overruled.
cases); State v. Mendoza (1999),
227 Wis.2d 838, 863,
596 N.W.2d 736, 748, fn. 15 (citing cases).
Contra United States v. Salamone (C.A.3, 1986),
800 F.2d 1216; People v. Lefebre (Colo.2000),
5
P.3d 295.
7
SUPREME COURT OF OHIO
C. Representativeness of Jury
{¶ 32} In his tenth proposition, Sanders contends that the Hamilton County
Jury Commissioner used a procedure that placed nearly three-fourths of minority
veniremen in the second half of the venire. This, according to Sanders, denied him
equal protection, due process, and the right to trial by an impartial jury.
{¶ 33} Sanders contends that, although he was not entitled to a petit jury
that reflected a representative cross-section of the community, see, e.g., Lockhart
v. McCree (1986), 476 U.S. 162, 173-174,
106 S.Ct. 1758, 1765,
90 L.Ed.2d 137,
147-148, he was entitled to a “fair possibility” of obtaining such a jury.2 See
Williams v. Florida (1970),
399 U.S. 78, 100,
90 S.Ct. 1893, 1906,
26 L.Ed.2d 446,
460; United States ex rel. Teague v. Lane (C.A.7, 1985),
779 F.2d 1332, 1334
(Cudahy, J., dissenting). And he claims that the system used by the jury
commissioner “precluded the possibility of securing a representative jury.”
{¶ 34} Sanders’s claim centers on the method used to assign juror numbers.
The jury commissioner gave numbers to prospective jurors based on the order in
which they returned their completed questionnaires, i.e., the first to do so was
designated Juror No. 1, and so forth. However, when a venireman returned the
questionnaire, the jury commissioner (or his subordinate, the jury coordinator)
would review it; if he found any omissions, he would return it to the venireman for
completion.3 Thus, a venireman would be assigned a number only after returning
a completed questionnaire.
{¶ 35} According to Sanders, this system clusters minority jurors near the
end of the venire, where they are less likely to be called for voir dire and hence less
2. Sanders does not claim that the venire failed to reflect a fair cross-section of the community, as
required by Duren v. Missouri (1979), 439 U.S. 357,
99 S.Ct. 664,
58 L.Ed.2d 579.
3. They also returned questionnaires to veniremen who asked them to. Jury coordinator Robert
Grauvogel testified that “sometimes somebody will come back in and say, I don’t know whether I
answered this question right, so we have to go back and find theirs and give it back and they answer
again.”
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January Term, 2001
likely to become jurors. (Sanders’s argument seems to assume that prospective
jurors were called for voir dire in order of their juror numbers. Although the record
does not make that clear, the state has not disputed it.)
{¶ 36} At trial, Sanders argued that minority jurors cluster at the end of the
venire because they are likely to fill out questionnaires more slowly. He presented
no proof of this at the hearing. His claim thus appears to rest on unadulterated racial
stereotyping. Without proof, Sanders’s assumption that minority jurors fill out jury
questionnaires more slowly than the rest of the population simply deserves no
credence.
{¶ 37} On appeal, Sanders drops this argument and suggests instead that the
real problem was the practice of returning questionnaires to jurors for correction,
thus moving those jurors to the end of the list. He contends that the commissioner
thereby “decided who went to the back of the venire” and hints that the
commissioner may have discriminated against black veniremen.
{¶ 38} However, this argument is inconsistent with the evidence and the
trial court’s findings. There was no showing that the jury commissioner
manipulated the questionnaires so as to push black veniremen (or any others) to the
end of the list. The jury coordinator testified that he and the commissioner returned
questionnaires only to veniremen who had either failed to complete the forms or
asked to have them returned so they could correct an answer. Hence, no “decisions”
were being made by the jury officials. Rather, the ordering was decided by factors
beyond their control. And the trial court evidently accepted this testimony, for it
found that there had been no “systematic attempt on anybody’s part … to keep
any person off the jury.”
{¶ 39} We therefore reject Sanders’s claim that the system used by the jury
commissioner precluded the possibility of securing a representative jury. His tenth
proposition of law is overruled.
D. Demonstration Outside Courthouse
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SUPREME COURT OF OHIO
{¶ 40} During the trial, demonstrators opposing capital punishment
picketed the courthouse. One juror reported to the bailiff that, during a lunch break,
a demonstrator pointed him out and said, “There he goes” or “there goes one.” The
judge had two demonstrators brought in and warned them not to intimidate or speak
to jurors.
{¶ 41} Defense counsel requested a chance “to ask [the jurors] some
questions or [for] the court [to] ask them.” The judge then questioned the jury.
{¶ 42} The judge told the jurors that he had warned the demonstrators not
to speak to them, and that the demonstrators were “harmless people” with
“absolutely no connection” to the parties. He asked: “Now does anybody feel,
because of that incident, if you were involved in that incident, that you could not
continue with this trial and be fair and honest with all the issues that you’re going
to be confronted with?” Nobody answered.
{¶ 43} He then asked the juror who had reported the incident whether he
had any problem; he said he had none. The judge asked another juror, who said the
same. Finally, he asked, “Does anybody have any problem?” Again, no juror
spoke. The judge declared the subject closed, and trial proceeded.
{¶ 44} Sanders contends that this procedure was inadequate. In his twelfth
proposition of law, he argues that this incident constituted an extraneous influence
on the jury and that, under Remmer v. United States (1954), 347 U.S. 227,
74 S.Ct.
450,
98 L.Ed. 654, the court had a duty to conduct a deeper, more individualized
inquiry. Sanders asks us to remand to the trial court for a Remmer hearing. See
United States v. Davis (C.A.6, 1999),
177 F.3d 552, 557.
{¶ 45} The scope of voir dire is generally within the trial court’s discretion,
including voir dire conducted during trial to investigate jurors’ reaction to outside
influences. State v. Henness (1997), 79 Ohio St.3d 53, 65,
679 N.E.2d 686, 697.
See, generally, Annotation (1992),
3 A.L.R.5th 963, Section 2(a). Thus, we must
10
January Term, 2001
determine whether the trial judge abused his discretion in conducting the inquiry as
he did.
{¶ 46} In our view, he did not. Although the judge directly questioned only
two jurors, he also asked: “Does anybody have any problem?” This was directed
at all the jurors, and the judge could reasonably assume that those who did not speak
up were unaffected. Hence, he did not abuse his discretion by stopping there. In
Henness, we upheld a judge’s refusal to question each juror individually as within
the trial court’s discretion. 79 Ohio St.3d at 65,
679 N.E.2d at 696-697. See, also,
United States v. Spinella (C.A.5, 1975),
506 F.2d 426, 428-429.
{¶ 47} United States v. Davis, supra, cited by Sanders, is distinguishable.
There, a juror in a drug trafficking trial was dismissed after informing the court that
one of his employees had discussed his jury service with him; the juror felt
intimidated after his employee told him that “members of the community … were
discussing his role in the proceedings.” Id., 177 F.3d at 556. Moreover, the juror
admitted that he had discussed his fears with the other jurors. Yet the trial judge
made no attempt at all to determine what effect the extraneous contact had upon
the other jurors. Nor did he instruct the other jurors to disregard what the dismissed
juror had told them.
Id. at 556.
{¶ 48} Here, in contrast, the trial judge asked the jurors whether the incident
with the demonstrators had affected them. Moreover, he acted to allay possible
prejudice by warning the demonstrators not to speak to the jurors, by telling the
jurors he had done so, and by informing the jurors that the demonstrators had no
connection to either party in the case.
{¶ 49} Given the facts before the trial court, and the actions the court took,
we find no abuse of discretion in its failure to go further still and interrogate each
juror individually. Accordingly, we overrule Sanders’s twelfth proposition of law.
E. Sleeping Juror
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{¶ 50} The record indicates that one or more jurors may have fallen asleep
during the trial. During a sidebar conference at trial, defense counsel alleged that
Juror No. 3 appeared to have fallen asleep while the prosecution was playing tape-recorded phone conversations between inmate negotiators and DRC negotiators.
Counsel asserted that the juror’s eyes were shut for about an hour and fifteen
minutes, and that the juror was motionless for half an hour. Counsel noted that the
defense had “previously commented about this problem” (apparently off the record)
during Kenneth Law’s testimony. The judge said: “[O]bviously I’ve been watching
her myself, and I’ll make some determination what to do while we still have
alternate jurors.” Later that day, the judge told the jury he was keeping the
courtroom temperature low “because there’s too much sleeping going on. And I’m
not going to tolerate it anymore. I know it’s tedious, but you’re going to have to
all be alert.”
{¶ 51} In his thirteenth proposition, Sanders contends that having a juror
asleep during trial denied him due process, and that the trial judge should have
replaced Juror No. 3. Alternatively, Sanders contends that the trial court should at
least have examined the juror to determine whether she really was sleeping and
what she missed.
{¶ 52} However, Sanders did not request either remedy at trial, nor did he
express dissatisfaction with the trial judge’s handling of the matter. See United
States v. Kimberlin (C.A.7, 1986), 805 F.2d 210, 244; United States v. Newman
(C.A.1, 1992),
982 F.2d 665, 670. Moreover, “[t]here is no per se rule requiring an
inquiry in every instance of alleged [juror] misconduct.” United States v.
Hernandez (C.A.11, 1991),
921 F.2d 1569, 1577; see, also, Newman,
982 F.2d at
670. Thus, in the absence of plain error, this claim is waived. See, generally, State
v. Childs (1968),
14 Ohio St.2d 56,
43 O.O.2d 119,
236 N.E.2d 545.
{¶ 53} We find no plain error. A trial court “has considerable discretion in
deciding how to handle a sleeping juror.” United States v. Freitag (C.A.7, 2000),
12
January Term, 2001
230 F.3d 1019, 1023; see, also, United States v. Bradley (C.A.3, 1999),
173 F.3d
225, 230. There is no evidence that the juror missed large or critical portions of the
trial. See
Freitag, supra, at 1023; United States v. Barrett (C.A.9, 1983),
703 F.2d
1076, 1083, fn. 13. The taped conversations between inmate and DRC negotiators
were not critical. (The defense also alleged that a juror had fallen asleep during
Law’s testimony, but nothing in the record shows which juror allegedly slept or
what part of Law’s testimony that juror allegedly missed.)
{¶ 54} Moreover, the trial judge was watching the situation, and he
admonished the jury to be alert. Compare United States v. McFerren (Apr. 8,
1998), C.A.6 No. 96-5458, unpublished opinion, 1998 WL 180514 (affirming
conviction where judge “kept a watchful eye on the jury” and, when necessary,
admonished jurors to stay awake).
{¶ 55} For the foregoing reasons, we do not find plain error. Sanders’s
claim is therefore waived, and we overrule his thirteenth proposition of law.
II. Guilt Phase Issues
A. Weight/Sufficiency of Evidence
{¶ 56} In his thirtieth proposition of law, Sanders contends that his
conviction was against the manifest weight of the evidence. See, generally, State
v. Thompkins (1997), 78 Ohio St.3d 380, 387,
678 N.E.2d 541, 546-547. Pursuant
to R.C. 2953.02, we can overturn a conviction as being against the manifest weight
of the evidence in a capital case, but only where the crime was committed after
January 1, 1995. See State v. Smith (1997),
80 Ohio St.3d 89, 102-103, 113,
684
N.E.2d 668, 683-684, 690-691.
{¶ 57} However, we can treat Sanders’s manifest-weight claim as a
challenge to the legal sufficiency of the evidence. See State v. Powell (1990), 49
Ohio St.3d 255, 260,
552 N.E.2d 191, 197. “[T]he relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
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reasonable doubt.” (Emphasis sic.) Jackson v. Virginia (1979), 443 U.S. 307, 319,
99 S.Ct. 2781, 2788-2789,
61 L.Ed.2d 560, 573; State v. Jenks (1991),
61 Ohio
St.3d 259,
574 N.E.2d 492, paragraph two of the syllabus.
{¶ 58} The state’s evidence showed that Sanders was the leader of the
Muslim inmates at SOCF; that he planned and led the takeover; that, at a meeting
of inmate leaders, Sanders supported killing a guard; that the leaders decided to do
so; that Sanders ordered James Were to execute that decision; and that, as a result,
Were and others killed Vallandingham.
{¶ 59} Inmates Stacey Gordon and Reginald Williams testified that, before
the riot, Sanders approached them to discuss his plan to take over part of the prison.
Four guards testified that at the outset of the riot, Sanders said he was “running
this” or “in charge.”
{¶ 60} During the takeover and siege, Sanders ordered certain inmates
punished and others protected. There was abundant evidence that Muslim inmates
obeyed Sanders even when he ordered them to kill. For instance, Sanders ordered
Muslim inmates to kill inmate Johnny Fryman. Sanders and other inmates attacked
Fryman, stabbed him, and left him for dead (although he lived to testify against
Sanders).
{¶ 61} The Muslim inmates also obeyed Sanders when he ordered them not
to kill, as when he saved the life of inmate Miles Hogan. When Sanders learned
that certain inmates had been murdered without his authorization, he became upset
and shouted: “Who ordered that?”
{¶ 62} Lomache, Lavelle, and Snodgrass testified that Sanders was at the
April 14 meeting and agreed that a guard should be killed if demands were not met.
Snodgrass quoted Sanders as saying: “Look, this is our bargaining chips[,] we got
to keep him safe.” (Emphasis added.)
{¶ 63} On the night before the murder, Hogan overheard inmates Skatzes
and Cummings tell Sanders “about somebody that was supposed to kill a
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January Term, 2001
correctional officer [and] had backed out of it.” According to Hogan, Sanders
complained that he was “sick” of people “saying they was going to do something
and then back[ing] out of it at the last minute.” Cummings said he “would make
sure this got done,” and Sanders replied: “Well somebody’d better do it.”
{¶ 64} This evidence shows Sanders’s complicity in Vallandingham’s
murder. It proved that he intended to kill Vallandingham and that he engaged in
prior calculation and design. The evidence here is clearly sufficient to support the
verdict. Sanders’s thirtieth proposition is overruled.
B. Expert Assistance
{¶ 65} An indigent defendant has a due process right to hire expert
assistance at state expense where he can make “a particularized showing (1) of a
reasonable probability that the requested expert assistance would aid in his defense,
and (2) that denial of the requested expert would result in an unfair trial.” State v.
Mason (1998), 82 Ohio St.3d 144,
694 N.E.2d 932, syllabus. Sanders’s first
proposition of law claims that he was improperly denied the assistance of experts
on audiotape analysis and hypnosis.
{¶ 66} Audiotape-analysis expert. Having received copies of the “tunnel
tapes” in discovery, Sanders sent one to Steve Cain, a forensic scientist, who set
forth his findings in a document entitled “Preliminary Lab Report.” Cain found
“anomalies” in the tape: discontinuities in ongoing speech, abrupt ends to
conversations, and changes in background noise. In Cain’s opinion, these
anomalies suggested that someone might have edited the original recording, but to
determine whether editing had occurred, Cain needed to examine the original.
{¶ 67} Sanders filed a motion for expert assistance, with Cain’s report
attached, asking the court to appoint an expert in tape-recording analysis. The trial
court denied the motion.
{¶ 68} At trial, FBI agent Mark A. Hopper testified that the persons
monitoring the recorders would have turned them off when conversation stopped,
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SUPREME COURT OF OHIO
listened periodically for further conversation, and turned the recorders back on
when they heard conversation. Hopper had helped to set up the equipment but did
not observe the monitoring.
{¶ 69} The court of appeals held that expert assistance was unnecessary
because the discontinuities in the conversations were explained by the fact that the
recorders were turned on and off. However, Cain’s report identified three instances
where, in his opinion, a discontinuity was apparently not accompanied by a starting
or stopping of the recorder.
{¶ 70} Nevertheless, we find no error in the trial court’s denial of the
motion. Although Cain’s report did show a possibility that the tape was edited,
Sanders did not show how the alleged edits could have affected his case. His
motion did not explain how the allegedly edited version of Tunnel Tape 61 differed
from the actual conversation or how it would tend to falsely implicate him in the
offenses charged. Hence, he did not make a “particularized showing” that the
requested expert could help his defense. Mason, 82 Ohio St.3d 144,
694 N.E.2d
932, syllabus.
{¶ 71} Hypnosis expert. Sanders filed a motion for the appointment of an
expert on hypnotically refreshed testimony and a motion to prohibit such testimony.
He attached statements from two such experts who had read a transcript of an
investigator’s interview with Correctional Officer Michael Hensley. One expert
believed that Hensley had been hypnotized to refresh his memory. This expert
based his conclusion on the fact that Hensley’s psychologist had told him that
looking at prisoners or mug shots might trigger his memory. The second thought
it possible that Hensley had been hypnotized, leading to false memories.
{¶ 72} The trial court held a hearing on Sanders’s motion. At the hearing,
Hensley testified that he had not been hypnotized. Correctional Officer Darrold
Clark also testified that he had not been hypnotized. Sanders theorized that Hensley
and Clark might have been hypnotized without knowing it, but he submitted no
16
January Term, 2001
evidence that this had happened. The court found that Sanders had failed to show
that the two guards had been hypnotized, and thus denied the motion for expert
assistance.
{¶ 73} Since no evidence supported Sanders’s theory that Hensley or Clark
had been hypnotized, Sanders failed to show a reasonable probability that a
hypnosis expert would aid his defense or that denial of an expert would result in an
unfair trial. We find no error in the denial of the motion.
C. Prejudicial Evidence
{¶ 74} In his eleventh proposition of law, part A(2)(3) of his fifth
proposition, and part B of his seventeenth, Sanders contends that the state
introduced irrelevant, unfairly prejudicial evidence against him.
{¶ 75} The state introduced a great deal of evidence of various assaults and
murders committed by other inmates. In many cases, Sanders was not involved in
these particular crimes. Sanders argues that this evidence was irrelevant.
{¶ 76} Inmate Roger Snodgrass admitted that he helped kill two inmates.
Snodgrass’s participation in the riot and vulnerability to criminal charges went to
his credibility, and the state was entitled to “draw the sting” of cross-examination
by bringing out facts discrediting Snodgrass on direct. See State v. Tyler (1990),
50 Ohio St.3d 24, 34,
553 N.E.2d 576, 590.
{¶ 77} Inmate Keith Lamar’s murders of suspected informants in L-6 was
also relevant. There was testimony that Sanders ordered certain inmates locked up
for their own protection because he knew that Lamar was killing “snitches.” This
showed Sanders’s power to make life-or-death decisions.
{¶ 78} Similarly, we find relevant the assault on inmate Andre Stockton.
Muslim inmate Reginald Williams testified that when another Muslim assaulted
Stockton, Williams made him stop because Sanders had not ordered it.
17
SUPREME COURT OF OHIO
{¶ 79} The assaults on the prison guards during the takeover tell the story
of the takeover, explaining how the prisoners came to be in control, and were a
necessary piece of stage-setting.
{¶ 80} Moreover, evidence of the widespread assaults and killings that took
place during the riot showed that a dangerous situation prevailed in L-Block. The
existence of a dangerous situation, combined with the fact that Sanders was obeyed
when he ordered that certain people not be harmed, showed how far his influence
with the rioting prisoners extended; in fact, it showed that Sanders possessed power
over life and death. That supports the state’s claim that, by ordering Vallandingham
killed, he caused Vallandingham to be killed. The numerous assaults on guards
and inmates also tended to show that when Sanders issued orders to kill, he could
assume that they would be carried out. That tends to show Sanders’s murderous
intent.
{¶ 81} Evidence of the terror experienced by the kidnapped guards indicates
that the guards would be unlikely to forget what they had undergone, which goes
to their credibility as witnesses.
{¶ 82} Since reasonable bases exist to hold that all the evidence at issue was
relevant, the ultimate decision on relevance rested in the trial judge’s broad
discretion. Hence, its admission did not amount to plain error, since under Crim.R.
52(B) plain error must be “obvious” as well as outcome-determinative. See State
v. Keith (1997), 79 Ohio St.3d 514, 518,
684 N.E.2d 47, 54. Because no plain error
occurred, Sanders’s failure to object at trial waived these claims.
{¶ 83} In his fourteenth proposition, Sanders claims that the state used an
excessive number of gruesome photographs of the two murder victims,
Vallandingham and Bruce Harris. Sanders did not object at trial, waiving this issue.
{¶ 84} Sanders contends that numerous crime-scene and autopsy photos of
Bruce Harris were repetitive, showing the same things from slightly different angles
or distances. However, these photos were not prejudicial, since the jury acquitted
18
January Term, 2001
Sanders of murdering Harris. Sanders further claims that the autopsy photos of
Vallandingham are cumulative. But the photos in question were not so gruesome
as to arouse prejudice.
{¶ 85} Admission of these photos does not reach the level of plain error.
Thus, Sanders’s failure to object at trial waives this issue.
{¶ 86} Sanders’s eleventh and fourteenth propositionsof law, parts (A)(2)
and (3) of his fifth proposition of law, and part B of his seventeenth proposition of
law are overruled.
D. Exclusion of Defense Evidence
{¶ 87} Sanders’s fifteenth proposition of law and parts C(4) and C(5) of his
first proposition allege that defense evidence was wrongly excluded.
{¶ 88} During the siege, FBI agents tape-recorded conversations in L-Block
with equipment placed in tunnels underneath the cellblock. At trial, these were
referred to as “tunnel tapes.” During Sanders’s testimony, the defense attempted
to introduce Tunnel Tape 61, which recorded an inmate meeting. The defense had
originally attempted to play this tape during the cross-examination of inmate Roger
Snodgrass, a state’s witness. However, the tape was not played then because there
was no machine available to play it. The defense contended that the state had
altered the tape in such as way as to frame Sanders.
{¶ 89} The trial judge ruled that Sanders could play the tape but said that
Sanders could not “comment” on the tape during his testimony. The judge then
clarified his ruling: “If [Sanders] wants to testify that that’s not his voice … or
that’s the voice of Gordon or that’s the voice of someone else because he recognizes
it, I’ll let him do that.” (Emphasis added.) However, the judge added, because
Sanders was not an expert, he could not say that the tape was “faked.”
{¶ 90} Sanders claims that the trial court “deprived the defense of an
opportunity to play the tape and impeach the State’s witnesses, who had previously
testified about this meeting.”
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SUPREME COURT OF OHIO
{¶ 91} However, the trial court did not prevent Sanders from playing the
tape. Moreover, Sanders was free to identify voices and explain how the tape
differed from the actual conversation.
{¶ 92} Furthermore, Sanders did not attempt to authenticate the tape by
proffering “evidence sufficient to support a finding that the matter in question is
what its proponent claims.” Evid.R. 901(A); see, also, Evid.R. 901(B)(1). Sanders
did not show that the tape he wanted to play was either the original tape or the same
copy of that tape that the state had given him in discovery. Thus, he laid no
foundation from which the jury could find that the state was responsible for any
alleged alterations of the recording.
{¶ 93} Sanders tried to introduce Tunnel Tape 60, which recorded another
meeting in which David Lomache spoke vehemently in favor of the rioters’
objectives. (Lomache admitted making this speech but claimed that he had been
“acting.”) The defense tried to use the tape as a prior inconsistent statement to
impeach Lomache’s testimony that he had not been in favor of the riot.
{¶ 94} The trial court excluded the tape. Sanders argues that the trial court,
by refusing to let him play the tape, denied him the opportunity to subject the state’s
case to adversarial testing.
{¶ 95} However, although the tape itself was excluded, the defense was
allowed to confront Lomache on cross-examination with a transcript of the tunnel
tape. Indeed, defense counsel got Lomache to admit that he made a “pep rally”
speech at the meeting and that he had feared that these statements might cause him
to be prosecuted for his involvement in the riot. Since Lomache’s testimony was
subjected to adversarial testing, we reject Sanders’s Sixth Amendment claim.
{¶ 96} At trial, the defense attempted to introduce a record of inmate
attendance at religious services in SOCF. The defense proffered the attendance
record to show that “two of the people they alleged are Muslims never attended
Muslim services.” The defense did not state which two inmates it was referring to.
20
January Term, 2001
The trial judge, finding the exhibit’s relevance “tenuous,” excluded it. Sanders
claims that this was error.
{¶ 97} Sanders contends that the exhibit impeached the credibility of certain
inmates by showing that they “lied about being Muslim.” But since the defense
never identified the inmates in question, we are unable to determine whether it had
any impeachment value as to those inmates. In any event, because the exhibit
covered only a limited period (December 1992-March 1993), it did not show that
any given inmate never attended services.
{¶ 98} Trial courts have broad discretion in determining the relevance or
irrelevance of evidence. See State v. Hymore (1967), 9 Ohio St.2d 122, 128,
38
O.O.2d 298, 302,
224 N.E.2d 126, 130. The trial judge here did not abuse his
discretion by excluding the attendance record: his finding that it had “tenuous”
relevance was reasonable under the circumstances.
{¶ 99} Sanders’s fifteenth proposition of law is overruled.
E. Assigning Blame for the Riot
{¶ 100} SOCF Deputy Warden David See testified for the state. On cross-examination, Sanders attempted to ask See about a series of TB tests performed on
SOCF inmates in 1982 and 1983. The state objected. According to Sanders’s
proffer, See conducted the 1982-1983 tests in a “non-confrontational” manner, and
See described that method to Tate a few days before the riot and “suggested that
this would be a more peaceful means of resolving the matter.” The trial judge ruled
the proffered testimony irrelevant and sustained the objection. He also sustained
the state’s objection to Sanders’s attempt to cross-examine Tate regarding prison
conditions that may have contributed to the riot.
{¶ 101} At trial, the state introduced portions of tape-recorded phone
conversations between inmates and DRC negotiators. The defense asked that other
parts of these “negotiation tapes” be played to show that “the prison administration
21
SUPREME COURT OF OHIO
did not take the inmates seriously and did not negotiate in good faith.” The trial
court denied the request.
{¶ 102} Sanders challenges these rulings by the trial court in his part C(4)
of his first and in his sixteenth propositions of law. He argues essentially that, if
the state was permitted to show that he was responsible for the riot, then the defense
had a right to show that the prison administration also bore some responsibility for
it.
{¶ 103} However, the guilt phase of the trial was not supposed to be a freefloating inquiry into who should bear the most blame for the riot. Its purpose was
to determine whether Sanders was guilty of the murder of Vallandingham and the
other crimes he was charged with. The relevance of either side’s evidence must be
evaluated with that in mind.
{¶ 104} Evidence that Sanders instigated and led the riot was not introduced
for the purpose of showing that Sanders, as opposed to the prison administration,
was “responsible” for the riot. Instead, it was introduced to show that he was an
inmate leader whose orders were obeyed—a fact that was directly relevant to his
culpability for Vallandingham’s murder.
{¶ 105} On the other hand, evidence that the prison administration may
have contributed to the tensions that led to the riot was utterly irrelevant to the guilt
phase. It did not negate the evidence showing that Sanders organized and led the
riot, nor did it negate the evidence showing that Sanders ordered the murder of
Vallandingham. It may explain why Sanders did what he did, but it provides neither
justification nor excuse for his acts.
{¶ 106} Nor was DRC’s alleged refusal to “negotiate in good faith” relevant
in the guilt phase. Let us be clear: The authorities in lawful charge of a prison have
no duty to “negotiate in good faith” with inmates who have seized the prison and
taken hostages, and the “failure” of those authorities to negotiate is not an available
defense to inmates charged with the murder of a hostage.
22
January Term, 2001
{¶ 107} For these reasons, the trial court did not err in excluding the
proffered evidence from the guilt phase of trial. Sanders’s sixteenth proposition of
law is overruled.
F. Failure to Admonish Witnesses
{¶ 108} The trial judge ordered a separation of witnesses pursuant to
Evid.R. 615 but refused a defense request that he admonish witnesses not to discuss
their testimony with other witnesses. In his eighteenth proposition, Sanders claims
that this refusal was error. However, the trial court has discretion to grant or deny
such a request. See State v. Richey (1992), 64 Ohio St.3d 353, 364-365,
595 N.E.2d
915, 926. At trial, Sanders “failed to demonstrate any need for the measures he
requested,”
id. at 365,
595 N.E.2d at 926;
Richey, supra, and he now “fails to cite
specific instances of preventable discussions, or any prejudice from the lack of such
orders.”
Id. Sanders’s eighteenth proposition is overruled.
G. Discovery Issues
{¶ 109} At trial, Sanders asked for material from DRC files concerning
certain inmate-witnesses. Inmates violating prison rules can be disciplined by a
Rules Infraction Board (“RIB”); Sanders asked for any RIB hearing records
involving the inmate-witnesses. The prosecution did not review the RIB files,
taking the position that it had no duty to disclose those files to the defense because
they were not in the possession of the prosecution. At trial, Sanders argued that
either the state or the trial court had a duty at least to review the RIB files and
determine whether they contained Brady material. In part C(3) of his first
proposition of law, Sanders contends that the court’s refusal to order the prosecutor
to review the RIB records was error.
{¶ 110} Usually, “it is the state that decides which information must be
disclosed,” and that decision “is final.” Pennsylvania v. Ritchie (1987), 480 U.S.
39, 59,
107 S.Ct. 989, 1002,
94 L.Ed.2d 40, 59. See, also, State v. Patterson (1971),
28 Ohio St.2d 181, 182,
57 O.O.2d 422, 423,
277 N.E.2d 201, 203. In this case,
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SUPREME COURT OF OHIO
however, the prosecution did not review the requested RIB files, claiming that the
files were not in its possession. The state’s citation of State v. Lawson (1992), 64
Ohio St.3d 336,
595 N.E.2d 902, to support its defense of lack of access is
inapposite. In Lawson, the defendant sought disclosure of FBI records, which were
outside the state’s possession because they belonged to a separate sovereign, the
United States.
Id. at 344, 595 N.E.2d at 909. But the prosecutor and DRC are
agents of the same sovereign, the state of Ohio.
{¶ 111} Prosecutors have “a duty to learn of any favorable evidence known
to the others acting on the government’s behalf in the case, including the police.”
(Emphasis added.) Kyles v. Whitley (1995), 514 U.S. 419, 437,
115 S.Ct. 1555,
1567,
131 L.Ed.2d 490, 508. The Brady obligation thus extends to information
held by state or local agencies involved in the investigation or prosecution at issue.
United States v. Morris (C.A.7, 1996),
80 F.3d 1151, 1169.
{¶ 112} Yet even so, in order to invoke a right to disclosure, or a
concomitant prosecutorial duty to search records, a defendant must make a
preliminary showing that the requested files actually contain material, exculpatory
information. See United States v. Brooks (C.A.D.C.1992), 966 F.2d 1500, 1503-
1504; United States v. Santiago (C.A.9, 1995),
46 F.3d 885, 894-895; United States
v. Burnside (N.D.Ill.1993),
824 F.Supp. 1215, 1254. He “may not require the trial
court to search through [a state agency’s] file without first establishing a basis for
his claim that it contains material evidence.” Pennsylvania v. Ritchie, supra,
480
U.S. at 58,
107 S.Ct. at 1002,
94 L.Ed.2d at 58, fn. 15.
{¶ 113} Here Sanders’s request was not supported by facts to indicate that
any material exculpatory or impeaching information actually was in the specified
records. The request itself did not identify any such information. Rather, Sanders
made a broad request for any information related to “misconduct,” “bad acts,” or
“antisocial acts” by any inmate who was to be a witness. We note that, assuming
that such material existed, much of it would likely have been unusable as
24
January Term, 2001
impeachment. Specific instances of a witness’s misconduct could not be proved by
extrinsic evidence, and could be raised on cross-examination only if clearly
probative of truthfulness or untruthfulness. Evid.R. 608(B).
{¶ 114} “[A] specific request will sometimes require the trial court to
review the contested matter in camera to determine whether it is material or
exculpatory despite representations to the contrary by the prosecutor.” (Emphasis
added.) State v. Lawson, 64 Ohio St.3d at 344,
595 N.E.2d at 909. But Sanders did
not make a specific request, and he submitted no facts to the trial court that would
indicate that impeachment material actually existed in the RIB files. We therefore
conclude that neither the trial court nor the prosecutors were required to review the
RIB files for Brady material.
{¶ 115} In his twenty-eighth proposition, Sanders contends that the trial
court should have given him access to the grand jury testimony of inmates involved
in the riot. Sanders failed to raise these issues in the court of appeals. He thereby
waived them. Sanders’s twenty-eighth proposition is overruled.
H. Instructions
{¶ 116} Sanders’s third, nineteenth, twentieth, twenty-first, and thirty-third
propositions of law allege error in the guilt-phase instructions. However, all these
claims were waived at trial by failure to object, and none of the alleged errors
amounts to plain error.
{¶ 117} In his twenty-first proposition, Sanders contends that the trial judge
erred in defining the R.C. 2929.04(A)(7) felony-murder specification to the count
charging him with the felony-murder of Vallandingham under R.C. 2903.01(B).
The judge did not instruct that, to find the felony-murder specification, the jury
must determine whether the defendant committed aggravated murder while
committing kidnapping and that he did so with prior calculation and design.
Instead, Sanders argues, the court’s instruction allowed the jury to find the
specification based on the existence of prior calculation and design alone.
25
SUPREME COURT OF OHIO
{¶ 118} It is true that the trial court mistakenly omitted the element of
committing aggravated murder during kidnapping from its instruction on the
felony-murder specification to the felony-murder count.4 However, the felony-murder count to which the specification was attached was predicated on the
commission of murder during a kidnapping, and the jury was instructed that it must
find Sanders guilty of kidnapping in order to find him guilty of aggravated murder
on that felony-murder count. Thus, the instruction on the specification presupposed
that the jury had already found Sanders guilty of kidnapping, since without having
so found, the jury could not have convicted him of the felony-murder count to
which the specification was attached.
{¶ 119} Plain error exists only when it is clear that the verdict would have
been otherwise but for the error. State v. Long (1978), 53 Ohio St.2d 91,
7 O.O.3d
178,
372 N.E.2d 804. In this case, had the judge instructed correctly, the verdict
would have been precisely the same, since the jury did find Sanders guilty of
murder during kidnapping by returning a verdict of guilt on the felony-murder
count (as well as the separate count alleging the kidnapping of Vallandingham).
Thus, the error was not plain error, and Sanders waived it by failing to object.
{¶ 120} Also in his twenty-first proposition, Sanders contends that the
judge erred in defining the course-of-conduct specification. If the record is correct,
the judge did err by twice substituting the word “intent” for “attempt.”
{¶ 121} However, we do not find plain error. The verdict forms correctly
stated the elements of the specification. Counsel for both parties correctly stated
its elements in argument. Finally, the evidence supports a finding of the
specification. Thus, it is not clear that the outcome of the guilt phase would have
4. We note that the judge did include the element of committing aggravated murder during
kidnapping when he defined the felony-murder specification attached to the other Vallandingham
aggravated-murder count.
26
January Term, 2001
been otherwise—i.e., that the jury would have failed to find Sanders guilty of the
specification—had it not been for the error. There is no plain error.
{¶ 122} Sanders claims two other instructional errors in his twenty-first
proposition. First, he contends that the trial court’s instructions allowed the jury to
infer the existence of prior calculation and design upon finding purpose to kill.
However, the trial judge explained that prior calculation and design “means that the
purpose to kill … was reached by a complete process of reasoning in advance of
the actual killing, … including a studied consideration of the method and means
with which to kill.” This was a clear, correct explanation of the concept of prior
calculation and design.
{¶ 123} Sanders further contends that the judge confused the jury by
“equating” prior calculation and design with premeditation.5 Sanders contends that
the term “premeditation,” as Ohio courts defined it before 1974, includes
momentary or instantaneous deliberation.6 Therefore, Sanders claims, the jury
could have found prior calculation and design under this instruction even if it
believed that Sanders had killed on the spur of the moment.
{¶ 124} However, the trial court specifically instructed that “acting on the
spur of the moment or after momentary consideration of the purpose to kill is not
enough to amount to the kind of prior calculation and design necessary for this kind
of aggravated murder.” (Emphasis added.)
{¶ 125} Moreover, it is unlikely that the judge’s use of the word
“premeditation” caused the jury to ignore or misapply this correct instruction. The
judge never told the jury that “premeditation” includes instantaneous deliberation,
5. The judge stated: “You may have heard on mystery stories or something somewhere else about
premeditated murder. Well, this is prior calculation and design. Whether it is premeditated murder,
I don’t know. But I am going to tell you what we understand under the law prior calculation and
design is.”
6. State v. Taylor (1997), 78 Ohio St.3d 15, 18-19,
676 N.E.2d 82, 88.
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SUPREME COURT OF OHIO
and we see no reason to suppose that the jury was familiar with the history of the
term “premeditation” as construed in Ohio courts before 1974. Finally, the
evidence did not suggest in any way that Sanders decided to order Vallandingham’s
death on the spur of the moment.
{¶ 126} For these reasons, it is not clear that the jury’s verdict would have
been otherwise but for the alleged error. Sanders’s claim is therefore not plain error
under Long.
{¶ 127} In his third proposition of law, Sanders alleges that the trial court
gave a deficient instruction on complicity. He argues that the court failed to make
clear that complicity in an offense requires the specific mental state required for
that offense. Thus, he contends, the instruction may have allowed the jury to find
him guilty of complicity, and therefore of aggravated murder, without finding that
he specifically intended to kill Vallandingham.
{¶ 128} However, instructions must be read as a whole. State v. Price
(1979), 60 Ohio St.2d 136, 141,
14 O.O.3d 379, 382,
398 N.E.2d 772, 775. The
trial judge made several strong statements that Sanders could be convicted of
aggravated murder only if the state proved that he harbored the specific purpose to
kill Vallandingham. He also explained how the jury could determine whether
purpose existed, thus underlining that purpose was necessary to a conviction.
{¶ 129} We find that the possibility of jury confusion with respect to this
issue does not reach the level of plain error. Sanders’s third proposition is waived.
{¶ 130} In his nineteenth proposition, Sanders claims that the robbery
instruction equated robbery with stealing. However, the complete instruction states
all the elements of robbery, including the use or threat of force.
{¶ 131} He further argues that the judge in effect directed a verdict on the
“deadly weapon” element of felonious assault and the “property” element of theft
by instructing that a PR-24 (a police baton or nightstick) is a deadly weapon and
that keys are property. However, it is far from clear that a differently instructed
28
January Term, 2001
jury would have acquitted Sanders of these crimes, and no plain error exists here.
Long, 53 Ohio St.2d 91,
7 O.O.3d 178,
372 N.E.2d 804.
{¶ 132} In his twentieth proposition, Sanders contends that the kidnapping
instruction was flawed because the trial court instructed the jury with respect to the
“released unharmed in a safe place” language of R.C. 2905.01(C).
{¶ 133} If a kidnapper releases his victim unharmed in a safe place, that fact
reduces the offense of kidnapping from a first-degree to a second-degree felony.
R.C. 2905.01(C). It is not an element of the offense; rather, the accused must plead
and prove it in the fashion of an affirmative defense. See State v. Cornute (1979),
64 Ohio App.2d 199,
18 O.O.3d 152,
412 N.E.2d 416, syllabus. As Sanders points
out, since he did not claim that Vallandingham was released unharmed in a safe
place, that was not properly an issue.
{¶ 134} Sanders argues that the instruction prejudiced him because an
affirmative defense concedes the act constituting the crime. However, this
argument fails, since the jury was never told that Sanders had conceded committing
the act.
{¶ 135} Sanders further argues that the “released in a safe place unharmed”
language was prejudicial because, by emphasizing that Vallandingham was killed,
it “effectively created an improper aggravating circumstance.” But Sanders’s claim
that the jury may have treated Vallandingham’s death as an aggravating
circumstance rests wholly upon speculation. Thus, it is not clear that the outcome
would have been otherwise but for the error, and we therefore cannot find plain
error. Sanders’s twentieth proposition is waived, and we therefore overrule it.
{¶ 136} Finally, Sanders’s thirty-third proposition, which claims that the
statutory reasonable-doubt instruction is unconstitutional, is waived. We find no
plain error. See State v. Van Gundy (1992), 64 Ohio St.3d 230,
594 N.E.2d 604.
{¶ 137} Since none of the claimed instructional errors amounts to plain
error, Sanders’s claims are waived by his failure to object at trial. Consequently,
29
SUPREME COURT OF OHIO
his third, nineteenth, twentieth, twenty-first, and thirty-third propositions of law are
overruled.
I. Jury View
{¶ 138} Sanders requested that the jury be brought to SOCF to view the
scene of the riot. The state argued that the premises had changed so much since
then that a jury view would not be helpful. The trial court agreed and denied the
motion.
{¶ 139} A trial court has broad discretion in such matters. State v. Zuern
(1987), 32 Ohio St.3d 56, 58,
512 N.E.2d 585, 588. In part C(2) of his first
proposition, Sanders argues that the trial judge here abused that discretion, but we
disagree. The decision had a rational basis.
{¶ 140} Sanders further contends that denial of a view denied him a
meaningful opportunity to present a complete defense. We disagree. Denial of a
view did not “significantly [undermine] fundamental elements of the defendant’s
defense.” United States v. Scheffer (1998), 523 U.S. 303, 315,
118 S.Ct. 1261,
1267-1268,
140 L.Ed.2d 413, 422.
III. Penalty Phase Issues
A. Exclusion of Mitigation
{¶ 141} In his second proposition of law, and in part D of his first
proposition, Sanders argues that the trial court should have permitted him to
introduce penalty-phase testimony on pre-riot “conditions” at SOCF to show the
mental and emotional stress inflicted on inmates.
{¶ 142} In the penalty phase, Sanders called Joseph R. Rowan, a
correctional and criminal justice consultant. Rowan had been an expert witness in
lawsuits concerning SOCF and had studied reports and depositions about the riot.
Sanders asked him what problems existed at SOCF before the riot. The state
objected.
30
January Term, 2001
{¶ 143} In response, the defense made a proffer of Rowan’s testimony.
Rowan stated that “psychological brutality” at SOCF, the fruit of poor
administration, caused the riot. He stated that the warden could have prevented the
riot with a different approach to the issue of TB testing. Finally, Rowan said that a
public statement by a DRC employee, which angered the inmates, was “the major
triggering factor” in Vallandingham’s murder.
{¶ 144} The defense argued that the riot’s causes were relevant in
mitigation because the state claimed that Sanders had started the riot. The defense
wished to contradict that by showing that the inmates had intended not to riot but
to stage “a short-lived demonstration in L-6,” which “got out of control.” The
defense offered to show that prison conditions made SOCF “ripe for disturbance”
that, once started, would inevitably become “uncontrollable.” However, the trial
court excluded Rowan’s testimony, holding that the causes of the riot were
“irrelevant” and “not a mitigating factor.”
{¶ 145} In our view, the trial court erred: Rowan’s testimony was relevant
mitigation. The Eighth Amendment allows a capital defendant to introduce “any
aspect of [his] character or record and any of the circumstances of the offense that
the defendant proffers as a basis for a sentence less than death.” (Emphasis added.)
Lockett v. Ohio (1978), 438 U.S. 586, 604,
98 S.Ct. 2954, 2965,
57 L.Ed.2d 973,
990. See, also, State v. McGuire (1997),
80 Ohio St.3d 390, 403,
686 N.E.2d 1112,
1122-1123. R.C. 2929.04(B) also requires the sentencer to consider “the nature
and circumstances of the offense.”
{¶ 146} Since Vallandingham’s murder was a direct result of the riot, we
think that the riot and its causes are “circumstances of the offense” and therefore
relevant to mitigation. Hence, Sanders had a right to show in the penalty phase why
the prisoners rioted. Additionally, the fact that Sanders may have acted in anger
caused by the DRC employee’s statement is relevant mitigation.
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SUPREME COURT OF OHIO
{¶ 147} It is true, as we explain supra, that the causes and motivations of
the riot do not justify or excuse the riot, much less the murders committed during
the riot. Thus, the trial court quite properly excluded it from the guilt phase. But a
court may not exclude relevant mitigation, as a matter of law, from the penalty
phase on the ground that the asserted mitigating factor fails to justify or excuse the
crime. Eddings v. Oklahoma (1982), 455 U.S. 104, 113-114,
102 S.Ct. 869, 876-
877,
71 L.Ed.2d 1, 10-11.
{¶ 148} This error does not require a new sentencing hearing, however. We
have held that, when independently reviewing a death sentence pursuant to R.C.
2929.05(A), we may “consider proffered evidence that the jury was erroneously not
allowed to consider.” State v. Williams (1996), 74 Ohio St.3d 569, 578,
660 N.E.2d
724, 733. Thus, we can cure the trial court’s error by considering Rowan’s
proffered testimony in our independent review, infra.
32
January Term, 2001
B. Guilt-Phase Evidence in Penalty Phase
{¶ 149} Sanders contends that the trial court should not have permitted the
reintroduction of all guilt-phase evidence in the penalty phase. See State v. Getsy
(1998), 84 Ohio St.3d 180, 201,
702 N.E.2d 866, 887; but, compare, State v.
Woodard (1993),
68 Ohio St.3d 70, 78,
623 N.E.2d 75, 81; and see, generally, R.C.
2929.03(D)(2). However, Sanders did not object, so this issue is waived.
C. Opinions of Victim’s Family
{¶ 150} In part C of his seventeenth proposition, Sanders complains that
Vallandingham’s mother was allowed to address the judge at the final sentencing
hearing and request a death sentence. Permitting the statement was improper. See,
e.g., State v. Huertas (1990), 51 Ohio St.3d 22, 27,
553 N.E.2d 1058, 1065.
However, since only the judge heard the request—the jury having rendered its
sentencing recommendation and been dismissed—and since a trial judge is
presumed to have considered only the competent and material evidence, the
impropriety does not reach the level of plain error. See State v. Post (1987),
32
Ohio St.3d 380, 384,
513 N.E.2d 754, 759.
D. Penalty-Phase Instructions
{¶ 151} In State v. Brooks (1996), 75 Ohio St.3d 148,
661 N.E.2d 1030, we
held that a jury need not unanimously reject the death penalty before it may
consider a life sentence. Instead, “the jury, when it cannot unanimously agree on a
death sentence, [is required] to move on in their deliberations to a consideration of
which life sentence is appropriate, with that determination to be unanimous.”
Id.
at 162,
661 N.E.2d at 1042.
{¶ 152} In his fourth proposition of law, Sanders contends that the trial
court gave a penalty-phase instruction that was inconsistent with Brooks. The court
instructed: “[I]t is necessary that all twelve of you agree on any verdict that you
return. You cannot have a decision in this second hearing if it’s seven to five …
or eleven to one. Whichever punishment you select must be twelve to zero.”
33
SUPREME COURT OF OHIO
However, the trial court did not specifically instruct that a solitary juror may block
a recommendation of death. See id.,75 Ohio St.3d at 162,
661 N.E.2d at 1042; but,
compare, Jones v. United States (1999),
527 U.S. 373, 381-384,
119 S.Ct. 2090,
2098-2100,
144 L.Ed.2d 370, 381-384 (federal Constitution does not require court
to instruct jury of the consequences of its inability to agree unanimously on a
sentencing recommendation). However, he did not object to that instruction at trial.
The alleged error was thus waived, and we therefore decline to consider it.
{¶ 153} In his twenty-fifth proposition, Sanders alleges three errors in the
penalty-phase instructions. None of these issues was raised at trial, and so they are
waived. None of the alleged errors amounts to plain error.
{¶ 154} Sanders argues that the trial court incorrectly instructed the jury that
mitigating factors “may be considered … as lessening or reducing the degree of
… blame or punishment.” However, this was not plain error: The jury
instructions, “taken as a whole, indicate that the penalty phase … was for a
determination of punishment—not for the assessment of ‘blame’ or culpability.”
State v. Woodard, supra, 68 Ohio St.3d at 77,
623 N.E.2d at 80.
{¶ 155} The trial court also failed to specifically instruct the jury to consider
the defendant’s history, character, and background. However, the judge did instruct
the jury to consider “any other factors that are relevant to the issue of whether or
not the defendant should be sentenced to death.” It is likely that the jury considered
Sanders’s history, character, and background under this catchall category,
especially since defense counsel argued that Sanders’s childhood “cries out for
mercy.” Thus, the omission of a specific history, character, and background
instruction was not clearly outcome-determinative. Hence, it was not plain error
under Long, 53 Ohio St.2d 91,
7 O.O.3d 178,
372 N.E.2d 804.
{¶ 156} Finally, the trial court did not tell the jury that it need not make
unanimous findings as to the existence of mitigating factors. See Mills v. Maryland
(1988), 486 U.S. 367,
108 S.Ct. 1860,
100 L.Ed.2d 384 (jury may not be instructed
34
January Term, 2001
that it must unanimously agree on a mitigating factor before that factor may be
weighed against aggravating circumstance); McKoy v. North Carolina (1990), 494
U.S. 433,
110 S.Ct. 1227,
108 L.Ed.2d 369 (same). However, Sanders cites no
language that “could reasonably be taken to require unanimity as to the presence of
a mitigating factor.” Coe v. Bell (C.A.6, 1998),
161 F.3d 320, 338. Without such
language, Mills is not violated.
Id. See, also, Scott v. Mitchell (C.A.6, 2000),
209
F.3d 854, 875-876. Thus, we do not find plain error as to this issue.
{¶ 157} In his twenty-sixth proposition, Sanders complains that the trial
court instructed the jury that “[i]f the facts and the law warrant a recommendation
for the death penalty, then it is your duty to make that finding uninfluenced by your
power to recommend a lesser penalty.” Sanders argues that this instruction was
erroneous because it can never be the jury’s duty to recommend death. Since he
did not raise that objection at trial, the issue is waived absent plain error.
{¶ 158} However, R.C. 2929.03(D)(2) provides that, if the jury finds,
unanimously and beyond a reasonable doubt, that the aggravating circumstances
outweigh the mitigating factors, the jury “shall recommend … that the sentence
of death be imposed.” (Emphasis added.) See State v. Allen (1995), 73 Ohio St.3d
626, 638-639,
653 N.E.2d 675, 687. Hence, we cannot find that the trial court
committed plain error as to this issue.
{¶ 159} Sanders’s fourth, twenty-fifth, and twenty-sixth propositions of law
are waived, and are therefore overruled.
E. Sentencing Opinion
{¶ 160} In his twenty-seventh proposition of law, Sanders argues that the
trial court’s sentencing opinion improperly considered his leadership of the
Muslims during the riot as a nonstatutory aggravating circumstance.
{¶ 161} After a brief summary of the verdicts and facts, the opinion contains
a heading: “The Aggravating Circumstances.” The first sentence under that
35
SUPREME COURT OF OHIO
heading begins, “The Aggravating Circumstances were:” and the opinion then
correctly states, in list form, the three specific circumstances found by the jury.
{¶ 162} Next comes a paragraph about Sanders and his behavior in the riot;
it is here that the opinion mentions that Sanders was leader of the Muslims. Then,
under a new heading, “The Mitigating Factors,” the possible mitigating factors are
set forth; then the opinion explains why the aggravating circumstances outweigh
the mitigating factors.
{¶ 163} The opinion’s structure suggests that only the specific, numbered
factors listed immediately after the “Aggravating Circumstances” heading were the
“aggravating circumstances” referred to in the heading. The facts recounted in the
subsequent paragraph were not part of that list. We conclude that the trial court did
not mistake those facts for aggravating circumstances.
{¶ 164} Sanders also claims that the trial court failed to consider his history,
character, and background as mitigating. But the court’s failure to specifically
mention history, character, and background does not indicate that it failed to
consider that factor.
{¶ 165} Sanders’s twenty-seventh proposition of law is overruled.
F. Settled Issues
{¶ 166} We summarily overrule Sanders’s twenty-fourth proposition on
authority of State v. Durr (1991), 58 Ohio St.3d 86, 93,
568 N.E.2d 674, 682. See,
also, Mapes v. Coyle (C.A.6, 1999),
171 F.3d 408, 414-415. We summarily
overrule his thirty-fourth proposition. See, e.g., State v. Mills (1992),
62 Ohio St.3d
357, 371-372,
582 N.E.2d 972, 985-986.
36
January Term, 2001
IV. Prosecutorial Misconduct
{¶ 167} Sanders’s fifth proposition claims that his convictions and death
sentence should be reversed for prosecutorial misconduct in both phases of the trial.
A. Guilt Phase
{¶ 168} In parts A(5) and A(6) of his fifth proposition, Sanders contends
that the state made improper jury arguments.
{¶ 169} In the state’s guilt-phase rebuttal argument, the prosecutor accused
defense counsel of telling the jury “an absolute flat-out lie.” The defense objected.
The judge thereupon instructed the jury to disregard the prosecutor’s statement. He
expressly pointed out that the prosecutor’s statement was improper and irrelevant,
and that “there’s nothing to indicate that [defense counsel was] a liar.” He
emphatically added that counsel’s statements were not evidence.
{¶ 170} In part A(6)(1) of his fifth proposition, Sanders contends that it was
misconduct for the prosecutor to accuse defense counsel of lying. He is correct.
See State v. Keenan (1993), 66 Ohio St.3d 402, 405-406,
613 N.E.2d 203, 206-207
(prosecutor may not impute insincerity to opposing counsel). But this remark was
followed by a strong curative instruction. Hence, the misconduct did not deny a
fair trial. See State v. Hawkins (1993),
66 Ohio St.3d 339, 348,
612 N.E.2d 1227,
1234.
{¶ 171} In part A(6)(4) of his fifth proposition, Sanders accuses the
prosecutor of denigrating defense counsel for making objections. “It is improper
to denigrate defense counsel in the jury’s presence for making objections.” Keenan,
supra,66 Ohio St.3d at 406,
613 N.E.2d at 207. However, the prosecutor did not
do that. He did complain to the judge that “I’ve only got a limited amount of time.
Every time he objects I lose time.” But this was not an attack on opposing counsel
for objecting; it was an appeal to the court for more time to argue.
{¶ 172} The remainder of part A(6) is waived, as is the whole of part A(5),
because Sanders did not object at trial to the misconduct alleged therein.
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SUPREME COURT OF OHIO
{¶ 173} In part A(3) of his fifth proposition, Sanders accuses the state of
presenting perjured testimony. The state may neither suborn perjury, Mooney v.
Holohan (1935), 294 U.S. 103,
55 S.Ct. 340,
79 L.Ed. 791, nor introduce testimony
it knows or should know is false without correcting it. Napue v. Illinois (1959),
360 U.S. 264,
79 S.Ct. 1173,
3 L.Ed.2d 1217.
{¶ 174} Sanders argues that Kenneth Law’s testimony was “unreliable.”
Law had been indicted with death specifications as a principal offender in
Vallandingham’s aggravated murder. The jury in Law’s case failed to reach a
verdict on the aggravated murder charge but convicted him of kidnapping
Vallandingham. Law then entered into a plea agreement with the state: he pled
guilty to conspiracy to commit murder and agreed to testify against three codefendants, and the state dismissed the death specifications.
{¶ 175} At Sanders’s trial, Law testified that he did not participate in
Vallandingham’s murder but watched while two other inmates killed
Vallandingham. Sanders argues that, because the state had originally indicted Law
as a principal offender in the aggravated murder of Vallandingham, and because
Law’s testimony was inconsistent with Law’s being a principal offender, we should
conclude that Law’s testimony was false and that the state knowingly presented
false testimony.
{¶ 176} Sanders’s claim is untenable. There is nothing in the record to
show that Law’s testimony was false. Law’s previous indictment on aggravated
murder charges is not enough to justify Sanders’s accusation of perjury; an
indictment, which is “a mere accusation,” State ex rel. Lipschutz v. Shoemaker
(1990), 49 Ohio St.3d 88, 90,
551 N.E.2d 160, 162, may issue upon probable cause
alone. See, e.g., State v. Van Meter (1998),
130 Ohio App.3d 592, 601,
720 N.E.2d
934, 940; State v. Hayes (1994),
99 Ohio App.3d 530, 533,
651 N.E.2d 62, 64. In
any event, the jury in this case knew that Law had been indicted as a principal
offender in the murder and could assess his credibility in light of that knowledge.
38
January Term, 2001
Hence, there was no due process violation. See Overton v. United States (C.A.5,
1971), 450 F.2d 919, 920; Tapia v. Tansy (C.A.10, 1991),
926 F.2d 1554, 1563.
{¶ 177} In part A(1) of his fifth proposition, Sanders contends that the
prosecution made improper comments during opening statement. Sanders did not
object to the alleged misconduct at trial. Hence, the issues raised here are waived.
The issues raised in part A(4), alleging that the state improperly cross-examined
Sanders, are also waived for the same reason.
{¶ 178} In part A(2)(2) of his fifth proposition, Sanders contends that the
prosecution improperly led its own witnesses on direct examination. It was within
the trial court’s discretion to permit leading questions on direct, however, and
Sanders does not make a persuasive case that the court abused that discretion.
{¶ 179} Parts A(2)(1) and A(2)(2) of Sanders’s fifth proposition were not
preserved at trial. Part A(2)(3) is discussed, and overruled, in conjunction with
Sanders’s eleventh proposition, supra.
B. Penalty Phase
{¶ 180} Sanders’s assertions of guilt-phase prosecutorial misconduct were
waived at trial, and none of them amounts to plain error.
{¶ 181} Proposition 5(B)(1)(1): In the penalty phase, Sanders contends, the
prosecutor referred to “nonstatutory aggravating circumstances” by mentioning the
riot and the fact that it occurred during Easter week. However, the prosecutor did
not say that these were aggravating circumstances, nor did he urge the jury to weigh
them as aggravating circumstances.
{¶ 182} Proposition 5(B)(1)(2): The prosecutor predicted that Sanders’s
mitigating evidence would not “move that scale one inch from what he’s already
done.” Sanders finds in this statement the implication that the defense needed to
present mitigation that outweighed the aggravating circumstances. His reading of
this statement is extremely strained. A more natural reading is that Sanders’s
39
SUPREME COURT OF OHIO
mitigation was entitled to no weight at all, a claim that implies nothing about the
burden of persuasion.
{¶ 183} Proposition 5(B)(2): Sanders complains that the state asked inmatewitness Thomas Hurst about the murder of inmate Pop Svette. However, the brief
iteration of this murder, without any details, was not highly prejudicial, since the
jury had already heard extensive evidence in the guilt phase about several murders.
It was not outcome-determinative plain error.
{¶ 184} Proposition 5(C)(1) and 5(C)(2): In penalty-phase closing
argument, the prosecutor asked the jury to “imagine” Vallandingham’s feelings,
and his “terror” and “desperation.” This was improper, see State v. Combs (1991),
62 Ohio St.3d 278, 283,
581 N.E.2d 1071, 1077, but counsel did not object, and it
was not plain error.
{¶ 185} The prosecutor’s comparison between Sanders and his sister, who
was a “law-abiding, hard-working, upstanding member of her community” despite
a similar background and upbringing, was not plain error. See, e.g., State v. Murphy
(1992), 65 Ohio St.3d 554, 572,
605 N.E.2d 884, 900.
{¶ 186} Sanders’s fifth proposition of law is overruled.
V. Right-to-Counsel Issues
{¶ 187} In his sixth proposition of law, Sanders contends that he received
ineffective assistance of counsel in both the guilt and penalty phases. Sanders’s
first, seventh, and twenty-ninth propositions also implicate the effectiveness of his
counsel.
{¶ 188} Ineffective-assistance claims are governed by a two-prong test first
articulated in Strickland v. Washington (1984), 466 U.S. 668,
104 S.Ct. 2052,
80
L.Ed.2d 674. First, the appellant must show that counsel’s performance “fell below
an objective standard of reasonableness,”
id. at 688,
104 S.Ct. at 2064,
80 L.Ed.2d
at 693, and “made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.”
Id. at 687,
104 S.Ct. at 2064,
40
January Term, 2001
80 L.Ed.2d at 693. A reviewing court must strongly presume that “counsel’s
conduct falls within the wide range of reasonable professional assistance,” and must
“eliminate the distorting effects of hindsight, … and … evaluate [counsel’s]
conduct from counsel’s perspective at the time.”
Id. at 689,
104 S.Ct. at 2065,
80
L.Ed.2d at 694.
{¶ 189} Second, the appellant must demonstrate prejudice—i.e., “a
reasonable probability that, were it not for counsel’s errors, the result of the trial
would have been different.” State v. Bradley (1989), 42 Ohio St.3d 136,
538 N.E.2d
373, paragraph three of the syllabus. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”
Strickland at 694,
104 S.Ct.
at 2068,
80 L.Ed.2d at 698.
A. Guilt Phase
{¶ 190} Proposition 6(A)(1): Sanders’s two trial attorneys sometimes
disagreed with each other’s judgments in open court, occasionally going so far as
to countermand each other’s decisions. Sanders argues that these disagreements
rendered his attorneys ineffective. Nevertheless, Sanders must show specific errors
by counsel that undermine confidence in the reliability of the verdict. Strickland,
supra.
{¶ 191} During voir dire, lead counsel questioned a prospective juror
regarding her death-penalty views, then challenged her for cause; however, the trial
court denied the challenge. Two days later, the court recalled this juror for further
questions. Lead counsel, believing he had already established cause, declined to
question further. Co-counsel, however, did question the juror. After he was
finished, the trial court excused the juror for cause.
{¶ 192} Sanders contends that co-counsel erred by getting this biased juror
excused because otherwise Sanders would have had a reversible error to raise on
appeal. However, Sanders’s co-counsel had no professional obligation to create
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SUPREME COURT OF OHIO
error before the trial court. It was perfectly proper for co-counsel to dissuade the
court from committing error prejudicial to his client.
{¶ 193} Another prospective juror, who opposed capital punishment, was
excused due to high blood pressure. Co-counsel agreed that this juror should be
excused and offered to waive any objection. However, lead counsel disagreed and
placed an objection on the record. Sanders contends that co-counsel erred by
acquiescing in excusal and thereby waiving the issue.
{¶ 194} Assuming that co-counsel’s acquiescence was enough to effect
waiver in the face of lead counsel’s objection, it was not ineffective to acquiesce in
the juror’s removal. Because the erroneous excusal of a prospective juror on
grounds unrelated to her views on the death penalty is not cognizable error (see
discussion of eleventh proposition, supra), the waiver did not harm Sanders’s
position on appeal. Moreover, the asserted cause for excusal—the juror’s health—
was clearly legitimate. Finally, the excusal did not compromise the impartiality of
the jury that actually sat on this case, and Sanders’s assumption that this juror would
have been favorable to the defense is pure speculation.
{¶ 195} During trial, co-counsel filed a motion to strike Kenneth Law’s
testimony, even though lead counsel had instructed co-counsel not to. Lead counsel
then withdrew the motion. Sanders does not state whether filing the motion or
withdrawing it was the unprofessional error contemplated by Strickland, nor does
he explain what prejudice he suffered from either action.
{¶ 196} Sanders also claims in his sixth proposition that he received
ineffective assistance due to specific errors by his trial counsel.
{¶ 197} Proposition 6(B)(1)(1) and 6(B)(1)(2): Sanders takes issue with
counsel’s failure to inquire into racial and religious attitudes at voir dire, since
Sanders is black and a Muslim charged with murdering a white. But trial counsel,
who saw and heard the jurors, were in the best position to determine whether such
voir dire was needed. State v. Bradley, 42 Ohio St.3d at 143,
538 N.E.2d at 381.
42
January Term, 2001
{¶ 198} Proposition 6(B)(2): A defense attempt to subpoena FBI originals
of tunnel tapes was quashed due to counsel’s failure to follow correct procedures.
Sanders, however, does not show how this lapse was prejudicial.
{¶ 199} Proposition 6(B)(3) and (B)(4): Sanders’s counsel filed pretrial
motions challenging the jury selection process and claiming bias in the grand jury.
At hearings on these motions, counsel presented witnesses but were unable to prove
key factual claims. Sanders contends that this was due to inadequate preparation.
It is equally likely, however, that the defense claims were incorrect. There is no
way to tell from the record, so the ineffective assistance claim fails.
{¶ 200} Proposition 6(C)(1): Sanders claims that trial counsel “conceded
guilt” by suggesting that Sanders would be in prison “when this case is over.” But
since Sanders was already a prisoner, and would remain one regardless of the trial
outcome, this statement did not concede guilt.
{¶ 201} Proposition 6(C)(2), (C)(3), and (C)(4): Sanders takes issue with
counsel’s failure to ask witnesses whether they had talked to other witnesses, to
object to certain evidence and arguments, to seek dismissal of a juror who allegedly
fell asleep, and to request a hearing on how courthouse picketing may have
influenced the jury.
{¶ 202} As to the juror, Sanders’s counsel did bring the matter to the trial
court’s attention. As to the picketing, the trial court held a sufficient hearing. The
other issues involved tactical judgments, and Sanders does not establish either
attorney error or prejudice.
{¶ 203} Proposition 6(E): Sanders claims that his counsel should have
objected to allegedly erroneous instructions. But his claims were not supported by
existing law at the time of the trial, and counsel had no duty to press “untested or
rejected legal theories.” State v. McNeill (1998), 83 Ohio St.3d 438, 449,
700
N.E.2d 596, 607.
B. Penalty Phase
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SUPREME COURT OF OHIO
{¶ 204} Proposition 6(D): Sanders claims that counsel failed to adequately
investigate mitigation. But the record does not indicate the extent of counsel’s
investigation. See State v. Hutton (1990), 53 Ohio St.3d 36, 48-49,
559 N.E.2d
432, 446. The defense actually presented significant mitigation. Since the record
does not show whether further investigation could have developed anything more,
Sanders can show neither attorney error nor prejudice.
{¶ 205} Finally, Sanders contends that counsel should have objected to the
en bloc readmission of guilt-phase evidence in the penalty phase. We find no
prejudice; there is not a reasonable likelihood that the jury would have returned a
different recommendation but for the readmission of allegedly prejudicial evidence.
Moreover, we find that counsel’s failure to object did not fall below an objective
standard of reasonable representation in light of then-existing law. See State v.
Woodard (1993), 68 Ohio St.3d 70, 78,
623 N.E.2d 75, 81.
C. Appeal
{¶ 206} In his twenty-ninth proposition, Sanders claims that he received
ineffective assistance on appeal. He lists twenty-two issues that his counsel failed
to advance in the court of appeals. However, raising every possible error is not
required for effective appellate assistance. Jones v. Barnes (1983), 463 U.S. 745,
103 S.Ct. 3308,
77 L.Ed.2d 987. None of Sanders’s new claims is so strong that
competent counsel would have felt compelled to raise it; indeed, they are not
notably stronger than the issues appellate counsel did raise. Hence, Sanders’s
twenty-ninth proposition is overruled.
D. Compensation
{¶ 207} In part B(1) of his first proposition of law, Sanders complains that
his counsel were inadequately compensated and that this violated his right to
counsel. However, Sanders still must show that he received ineffective assistance
under the performance-and-prejudice standard established in Strickland, 466 U.S.
44
January Term, 2001
668, 104 S.Ct. 2052,
80 L.Ed.2d 674. This issue is not an independent ground for
an ineffective-assistance claim.
E. Interference with Counsel
{¶ 208} Sanders’s trial attorneys were from Cincinnati. In early 1995, DRC
transferred Sanders from the Warren Correctional Institution at Lebanon, near
Cincinnati, to the Mansfield Correctional Institution. This move increased the
distance the lawyers had to travel to see Sanders. Defense counsel estimated that
it took two and one-half hours to drive one way between Cincinnati and Mansfield;
thus, each lawyer had to invest a minimum of five hours per visit.
{¶ 209} In his seventh proposition, and part B(2) of his first, Sanders
appears to contend that the state denied him effective assistance of counsel by
incarcerating him so far from his lawyers. However, Sanders was returned to
Lebanon about a month before the trial began and was housed in the Hamilton
County Jail during trial. Moreover, Sanders appears to concede that his attorneys
actually did visit him at Mansfield, despite the extra distance. See State v. Coleman
(1999), 85 Ohio St.3d 129, 143-144,
707 N.E.2d 476, 489-490.
{¶ 210} Sanders invokes Geders v. United States (1976), 425 U.S. 80,
96
S.Ct. 1330,
47 L.Ed.2d 592, which held that the trial court denied the defendant
effective assistance when it forbade him to speak to his attorney during a seventeenhour overnight recess, at a point in the trial when the defendant was on the stand.
However, the judge in Geders totally “cut off communication” between lawyer and
client “about anything” during the recess.
Id. at 91,
96 S.Ct. at 1336 and 1337,
47
L.Ed.2d at 600 and 601. In contrast, the state here did not completely cut off
attorney-client communication. Sanders’s counsel did in fact visit him at
Mansfield.
{¶ 211} Sanders also complains—in his seventh proposition, part C(1) of
his first, and part A(2) of his sixth—that his counsel had insufficient time to prepare
for trial. Lead counsel was appointed nearly two months before trial to replace
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Sanders’s previous lead counsel, who had withdrawn. His request for more
preparation time was denied. However, co-counsel had been on the case fifteen
months before trial, providing continuity. Compare State v. Reynolds (1998), 80
Ohio St.3d 670, 673-674,
687 N.E.2d 1358, 1365. Moreover, the previous lead
counsel agreed to assist Sanders’s lawyers during portions of the trial.7 A trial court
has broad discretion over continuance requests, State v. Unger (1981),
67 Ohio
St.2d 65,
21 O.O.3d 41,
423 N.E.2d 1078, syllabus, and the court here did not abuse
its discretion.
F. Presumption of Prejudice
{¶ 212} Finally, Sanders urges us to hold that the combined circumstances
of this case amount to state interference with counsel’s ability to render effective
assistance. Hence, we are urged to presume prejudice “without inquiry into the
actual conduct of the trial.” United States v. Cronic (1984), 466 U.S. 648, 660,
104
S.Ct. 2039, 2047,
80 L.Ed.2d 657, 668. However, we decline to do so.
{¶ 213} “[T]he right to the effective assistance of counsel is recognized not
for its own sake, but because of the effect it has on the ability of the accused to
receive a fair trial. Absent some effect of challenged conduct on the reliability of
the trial process, the Sixth Amendment guarantee is generally not implicated. …
* Moreover, because we presume that the lawyer is competent to provide the
guiding hand that the defendant needs, … the burden rests on the accused to
demonstrate a constitutional violation.” Cronic, 466 U.S. at 658,
104 S.Ct. at 2046,
80 L.Ed.2d at 667; see, also,
id. at 659, 104 S.Ct. at 2047, 80 L.Ed.2d at 668, fn.
26.
{¶ 214} Nonetheless, Cronic recognized that some circumstances are so
likely to prejudice the defendant that no showing of prejudice is necessary. These
include “the complete denial of counsel … at a critical stage of [the] trial” and
7. This attorney did not participate in the courtroom proceedings in the trial, but the record does not
show whether he gave out-of-court assistance.
46
January Term, 2001
the complete failure of counsel “to subject the prosecution’s case to meaningful
adversarial testing.” 466 U.S. at 659, 104 S.Ct. at 2047, 80 L.Ed.2d at 668.
“Ineffectiveness is also presumed when counsel ‘actively represented conflicting
interests.’ “ Id. at 661, 104 S.Ct. at 2048, 80 L.Ed.2d at 669, fn. 28, quoting Cuyler
v. Sullivan (1980), 446 U.S. 335, 350,
100 S.Ct. 1708, 1719,
64 L.Ed.2d 333, 347.
Also included are such extreme cases as Powell v. Alabama (1932),
287 U.S. 45,
53 S.Ct. 55,
77 L.Ed. 158, where defense counsel was appointed only a few minutes
before the trial commenced. See Cronic,
466 U.S. at 659-661,
104 S.Ct. at 2047-
2048,
80 L.Ed.2d at 668-669 (discussing Powell).
{¶ 215} “Apart from circumstances of that magnitude, however, there is
generally no basis for finding a Sixth Amendment violation unless the accused can
show how specific errors of counsel undermined the reliability of the finding of
guilt.” Cronic, 466 U.S. at 659,
104 S.Ct. at 2047,
80 L.Ed.2d at 668, fn. 26. It is
clear to us that no “circumstances of that magnitude” were present in this case.
Sanders was vigorously defended by two attorneys, one appointed two months
before trial, the other fifteen months before trial. They were not representing
conflicting interests. They had investigative assistance and they subjected the
state’s case to adversarial testing. Sanders’s counsel were not denied “the
opportunity to participate fully and fairly in the adversary factfinding process.”
Herring v. New York (1975),
422 U.S. 853, 858,
95 S.Ct. 2550, 2553,
45 L.Ed.2d
593, 598.
{¶ 216} The circumstances offered by Sanders to justify a presumption of
prejudice, such as concerns about attorney compensation, disagreements between
lead counsel and co-counsel, and his transfer from Lebanon to Mansfield, do not
approach the magnitude necessary to relieve him of his Strickland burden to show
that his counsel committed specific errors that caused prejudice to his case.
{¶ 217} Sanders’s first, sixth, seventh, and twenty-ninth propositions of law
are overruled.
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VI. Judicial Bias
{¶ 218} In his thirty-first proposition, Sanders contends that the trial judge
was biased against the defense. The presence of a biased judge on the bench is, of
course, a paradigmatic example of structural constitutional error, which if shown
requires reversal without resort to harmless-error analysis. See Arizona v.
Fulminante (1991), 499 U.S. 279, 309-310,
111 S.Ct. 1246, 1265,
113 L.Ed.2d 302,
331.
{¶ 219} In this case, Sanders cites six occasions when the judge criticized
defense counsel before the jury. He cites four occasions when the judge questioned
prosecution witnesses in a manner that Sanders perceives as improperly favorable
to the prosecution, and two when the judge raised a sua sponte objection to defense
evidence and argument. Sanders also claims that the judge made “opinionated
remarks” in the jury’s presence.
{¶ 220} However, “[s]harp words spoken by a trial court to counsel do not
by themselves establish impermissible bias. There is a ‘modicum of quick temper
that must be allowed even judges.’ “ United States v. Donato (C.A.D.C.1996), 99
F.3d 426, 434, quoting Offutt v. United States (1954),
348 U.S. 11, 17,
75 S.Ct. 11,
15,
99 L.Ed. 11, 17.
{¶ 221} The judge rebuked defense counsel outside the jury’s presence after
counsel accused the DRC of “playing games” with the rioters during negotiations.
This rebuke does not show bias. Nor does the judge’s refusal of requested sidebar
conferences.
{¶ 222} Sanders also claims that the judge’s unfavorable rulings prove bias.
This is incorrect. See, e.g., In re Disqualification of Hunter (1988), 36 Ohio St.3d
607,
522 N.E.2d 461. We think that the incidents cited by Sanders fall far short of
establishing actual bias on the part of the trial judge.
{¶ 223} Sanders also contends that the judge’s behavior in the presence of
the jury displayed a pro-prosecution bias, thus influencing the jury against Sanders.
48
January Term, 2001
{¶ 224} We disagree. In this case, the guilt phase alone produced nearly
five thousand three hundred pages of transcript; the entire transcript is over five
thousand six hundred pages long. The judge’s occasional impatience did not
pervade the trial, and the incidents described in Sanders’s brief probably left little
impression on the jury. See United States v. Centracchio (C.A.7, 1985), 774 F.2d
856, 859-860 (seventeen incidents were “all but lost” in two-thousand-page
transcript); compare United States v. Filani (C.A.2, 1996),
74 F.3d 378 (judge
argumentatively questioned testifying defendant sixteen times in sixty transcript
pages, challenging his defense theory and personal credibility).
{¶ 225} Sanders’s thirty-first proposition is overruled.
VII. Cumulative Error
{¶ 226} In his thirty-second proposition, Sanders contends that the effect of
the errors alleged in this case, even if individually harmless, cumulatively denied
him a fair trial. See State v. DeMarco (1987), 31 Ohio St.3d 191, 31 OBR 390,
509
N.E.2d 1256. He makes no persuasive showing of cumulative error. This
proposition is overruled.
VIII. Independent Sentence Review
{¶ 227} In Sanders’s twenty-second proposition of law, he contends that the
death sentence is not appropriate in this case.
{¶ 228} R.C. 2929.05(A) requires us to review Sanders’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 here is
proportionate to those we have affirmed in similar cases. Id.
Aggravating Circumstances
{¶ 229} The aggravating circumstances are that Sanders committed
aggravated murder (1) while a prisoner in a detention facility, (2) as part of a course
of conduct involving the purposeful killing of, or attempt to kill, two or more
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SUPREME COURT OF OHIO
persons, and (3) while committing the crime of kidnapping. See, respectively, R.C.
2929.04(A)(4), (5), and (7). We find that the evidence supports Sanders’s
conviction of all three specifications.
Mitigating Factors
{¶ 230} In mitigation, Sanders adduced evidence of his history, character,
and background.
{¶ 231} Sanders’s sister testified about his childhood. His mother never
married the father of her four children. She had her first child at age thirteen; when
she had Sanders, her third, she was seventeen. Sanders’s mother worked to support
the children; as a result, Sanders and his siblings were frequently left in the care of
the eldest child, who was only four years older than Sanders.
{¶ 232} Sanders had no relationship with his father, who lived with the
family for only four or five years and did not work. The father would occasionally
stop by to “discipline” his sons. Once, Sanders watched as his father beat Sanders’s
brother Walter with a belt and made him bleed. When Walter fled, his father
threatened him with a gun.
{¶ 233} Sanders got little or no moral instruction at home. He began getting
into trouble at age nine and was briefly in a foster home at age ten or eleven. After
Sanders was returned to his family, he and his brother Walter were caught
burglarizing a gun store. Sanders was then just twelve. He spent eight years in a
juvenile detention facility. When he was released, his sister found him “hardened.”
About fifteen months later, Sanders was arrested for a robbery involving a gun, the
crime that ultimately sent him to SOCF.
{¶ 234} Sanders’s sister described him as a “loving,” “kind, considerate,”
and “sensitive” brother. She believed that his conversion to Islam was sincere and
had made him more humble.
{¶ 235} Five SOCF inmates testified to Sanders’s good character. One
testified that Sanders had stepped in to prevent a young inmate from homosexual
50
January Term, 2001
rape. Another witness told how he had been unjustly accused of being a “snitch,”
and Sanders “went to bat for” him on numerous occasions. Three inmates testified
that Sanders had spoken out against the racist anti-white teachings of a rival Islamic
sect. Inmates described Sanders as humble, pious, quiet, studious, and generous.
It was even testified that Sanders used his influence to discourage violence.
{¶ 236} Sanders’s final witness was Niki Schwartz, a lawyer who mediated
between DRC and the rioters in the last days of the siege. Schwartz had dealt with
Sanders, Robb, and Lavelle in their capacities as leaders of the three inmate
factions. He testified that Robb was the lead negotiator and that Sanders was not
“in complete control” of the riot. Moreover, Schwartz described Sanders as a
“peacemaker” and did not believe that he was trying to prolong the crisis.
Independent Weighing
{¶ 237} It is clear that Sanders had a bad upbringing, with insufficient
supervision and moral instruction and some exposure to violence. This may, to
some degree, account for his criminal career. Yet, worse backgrounds than his have
been afforded little weight. State v. Campbell (1994), 69 Ohio St.3d 38, 54-55,
630
N.E.2d 339, 353-354; State v. Murphy,
65 Ohio St.3d at 585-586,
605 N.E.2d at
908; State v. Cooey (1989),
46 Ohio St.3d 20, 41,
544 N.E.2d 895, 919; State v.
Holloway (1988),
38 Ohio St.3d 239, 245-247,
527 N.E.2d 831, 837-839.
{¶ 238} There is evidence to suggest that Sanders has partly overcome his
background and developed some good character traits: a loving nature, kindness,
courage, generosity, and racial tolerance. Yet Sanders was also capable of viewing
human lives as “bargaining chips.” And the claims by penalty-phase witnesses that
Sanders was a “peacemaker” who deprecated violence are hardly consistent with
the crimes proven against him in this case.
{¶ 239} Sanders proffered testimony that the prison administration inflicted
“psychological brutality” on the prisoners and hence bore some responsibility for
the riot. We regard that factor as potentially mitigating and have considered the
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SUPREME COURT OF OHIO
proffered testimony. However, we find that it deserves no weight.
Vallandingham’s murder was not a response to any “psychological brutality” that
may have existed at SOCF. It was a calculated act, undertaken to bend the DRC to
Sanders’s will. In State v. Clark (1988), 38 Ohio St.3d 252, 264,
527 N.E.2d 844,
856, we stated: “Appellant’s need for drugs may have led him to rob, but it certainly
did not require him to kill in the course of the robbery.” Similarly, whatever
mistakes prison administrators may have made, Sanders need not have ordered
Vallandingham’s murder. For the same reasons, we give no weight to the fact that
a DRC employee made a public statement that offended the inmates.
{¶ 240} We conclude that the mitigation here, though significant, is
outweighed beyond a reasonable doubt by the three proven aggravating
circumstances.
2. Proportionality
{¶ 241} Sanders’s death sentence is proportionate to the death sentence
imposed upon Aryan Brotherhood leader Jason Robb for Vallandingham’s murder,
a sentence we approved in State v. Robb (2000), 88 Ohio St.3d 59,
723 N.E.2d
1019. It is also proportionate to death sentences approved for aggravated murders
in detention facilities, see State v. Zuern (1987),
32 Ohio St.3d 56,
512 N.E.2d 585;
for “course of conduct” aggravated murders, see State v. Combs (1991),
62 Ohio
St.3d 278,
581 N.E.2d 1071; State v. Allard (1996),
75 Ohio St.3d 482,
663 N.E.2d
1277; and for aggravated murders during kidnappings, State v. Seiber (1990),
56
Ohio St.3d 4,
564 N.E.2d 408.
{¶ 242} The judgment of the court of appeals is therefore affirmed.
Judgment affirmed.
DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG
STRATTON, JJ., concur.
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52
January Term, 2001
Mark E. Piepmeier, Special Prosecuting Attorney, and William E. Breyer,
Assistant Special Prosecuting Attorney, for appellee.
David H. Bodiker, State Public Defender, Kelly L. Culshaw and Ruth L.
Tkacz, Assistant Public Defenders, for appellant.
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