[This decision has been published in Ohio Official Reports at
91 Ohio St.3d 335.]
THE STATE OF OHIO, APPELLEE, v. JONES, APPELLANT.
[Cite as State v. Jones, 2001-Ohio-57.]
Criminal law—Aggravated murder—Death penalty upheld, when.
(No. 98-1483—Submitted October 10, 2000—Decided April 18, 2001.)
APPEAL from the Court of Common Pleas of Ashtabula County, No. 97-CR-221.
__________________
FRANCIS E. SWEENEY, SR., J.
{¶ 1} On November 17, 1997, a dispatcher for the Ashtabula City Police
Department advised officers that appellant Odraye G. Jones, an individual with
outstanding felony warrants, had been spotted in the 900 block of West 43rd Street
in Ashtabula. A week earlier, appellant had told his cousin, Jimmie Lee Ruth, that
he “was facing a lot of time for robbing Isaac Coleman” and that he “was going to
shoot at the police if they ever tried to arrest him.”
{¶ 2} Officer William D. Glover, Jr., responded to the dispatcher’s call.
Officer Glover found appellant with a friend, Anthony Gene Barksdale, and Jimmie
Lee Ruth walking together on West 43rd Street. Officer Glover followed the three
men to the home of one of their friends, Flo Chapman. Barksdale knocked on the
door of the Chapman home while Ruth and appellant stood behind him on the
porch. Officer Glover approached the Chapman home, got out of his car, and
beckoned to appellant. Ruth testified that Officer Glover told appellant, “[C]ome
on, you know why I’m here. I don’t want no problem. I’m just doing my job.”
Appellant jumped off the side of the porch and began running down the side of the
Chapman home. Officer Glover pursued him. Not long after the pursuit
commenced, appellant turned around, pulled a .38 caliber revolver from his pocket,
and began firing shots at Officer Glover.
SUPREME COURT OF OHIO
{¶ 3} After firing the first shot, appellant began to approach Officer Glover,
firing several more shots. Officer Glover fell to the ground. Appellant turned and
fled. He ran to a nearby fence and began to climb through a hole in it. Appellant
then stopped, turned around, and ran back to where Officer Glover lay. Appellant
kicked Officer Glover in the chest. The kick was done with such force that it left a
large bruise on Officer Glover’s chest that was visible to the paramedics who later
treated Officer Glover at the scene. After kicking Officer Glover, appellant fled the
scene.
{¶ 4} As Officer Glover was pursuing appellant, another Ashtabula City
Police Officer, Robert Stell, was en route in his patrol car. Officer Stell located
appellant several blocks away from the scene of the shooting, still running. Officer
Stell got out of his car and ordered appellant to stop. Appellant ignored the
command and continued running. Officer Stell pursued appellant on foot. Appellant
led Officer Stell into a nearby apartment complex. He stopped at the door of an
apartment and began attempting to force his way inside. While appellant managed
to squeeze part of his body through the door, the occupant of the apartment
prevented appellant from fully entering. As appellant was struggling to enter the
apartment, Officer Stell began to approach appellant. Officer Stell drew his weapon
and ordered appellant to the ground. Appellant did not immediately respond.
Appellant threw his revolver behind him. The gun landed in some nearby
shrubbery. Officer Stell again ordered appellant to the ground and, this time,
appellant complied. Officer Stell held appellant at gunpoint until assistance arrived.
Officers recovered the weapon and appellant was placed under arrest. This gun was
later matched to fired cartridge casings recovered at the scene of the shooting, live
cartridges found on appellant at the time of his arrest, and bullets taken from Officer
Glover’s body. All of the ammunition was hollow point. This type of ammunition
is designed to open up on impact, causing larger wounds.
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{¶ 5} Officer Glover had sustained gunshot wounds to the top of his head
and to the area just below his right eye. He also sustained a bullet wound to his right
shoulder. The gunshot wound to the top of Officer Glover’s head and the wound to
his face were both fired from a distance of less than one foot. The suddenness of
appellant’s attack had apparently caught Officer Glover by surprise. Officer
Glover’s duty weapon was found in Officer Glover’s holster. The holster’s strap
was snapped securely shut.
{¶ 6} Paramedics transported Officer Glover to Ashtabula County Medical
Center for emergency treatment. After Officer Glover’s condition had been
stabilized, he was life-flighted to Cleveland’s Metro-Health Hospital. X-rays and
CT scans revealed substantial damage to Officer Glover’s brain. Officer Glover had
severe cerebral swelling and profuse bleeding from his nose and mouth.
Neurological assessments revealed minimal brain stem function. Officer Glover
died from his gunshot wounds the following morning, November 18, 1997.
{¶ 7} The state charged appellant with the aggravated murder of Officer
Glover with prior calculation and design. This charge carried with it four
specifications. Under the first specification, appellant was charged with killing
Officer Glover for the purpose of escaping apprehension for his earlier aggravated
robbery offense (R.C. 2929.04[A][3]). The second and third specifications charged
appellant with knowingly and purposefully causing the death of a law enforcement
officer (R.C. 2929.04[A][6]). The fourth specification charged appellant with using
a firearm in the killing of Officer Glover (R.C. 2941.145).
{¶ 8} Appellant was found guilty as charged in a jury trial, and the case
proceeded to the penalty phase. The trial court merged the second and third death
penalty specifications and instructed the jury to consider only the first and second.1
1. The fourth specification of which defendant was convicted, the firearm specification, is not an
aggravating circumstance warranting the death penalty under R.C. 2929.04(A). The jury was
therefore instructed to disregard this specification in the penalty phase.
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Following a hearing, the jury recommended that appellant be sentenced to death.
The trial court concurred. In addition to imposing the sentence of death, the trial
court sentenced the defendant to a three-year mandatory term of imprisonment on
the firearm specification.
{¶ 9} The cause is now before this court upon an appeal as of right.
{¶ 10} Appellant has raised fifteen propositions of law (see Appendix),
which we have considered fully. We have considered the death penalty for
appropriateness and proportionality and we have independently weighed the
aggravating circumstances against the evidence presented in mitigation. For the
reasons that follow, we affirm appellant’s convictions and the sentence imposed.
PRETRIAL ISSUES
Restrictions on Voir Dire
{¶ 11} In his first proposition of law, appellant argues that he should have
been permitted to ask prospective jurors about their views on specific mitigating
factors. Appellant suggests that the trial court’s refusal to permit this line of
questioning left several jurors confused as to the meaning of mitigation. Appellant
believes that his inability to ask about specific mitigating factors, coupled with juror
confusion about the meaning of mitigation, limited his ability to uncover potential
biases in prospective jurors and may have resulted in the empanelling of jurors who
were unwilling to consider mitigating factors.
{¶ 12} During voir dire, a trial court is under no obligation to discuss, or to
permit the attorneys to discuss, specific mitigating factors. See State v. Wilson
(1996), 74 Ohio St.3d 381, 385-386,
659 N.E.2d 292, 300-301; State v. Lundgren
(1995),
73 Ohio St.3d 474, 481,
653 N.E.2d 304, 315. Realistically, jurors cannot
be asked to weigh specific factors until they have heard all the evidence and been
fully instructed on the applicable law.
Id. We reject appellant’s first proposition of
law.
Juror Bias
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January Term, 2001
{¶ 13} In his third proposition of law, appellant contends that several errors
committed during voir dire require us to order a retrial. First, appellant argues that
the prosecutors’ use of peremptory challenges to exclude those jurors who
expressed reservations about the death penalty denied him his right to a fair and
impartial jury. This argument lacks merit. It is well established that “deathqualifying a jury ‘does not deny a capital defendant a trial by an impartial jury.’ ”
State v. Dunlap (1995), 73 Ohio St.3d 308, 315,
652 N.E.2d 988, 995, quoting State
v. Jenkins (1984),
15 Ohio St.3d 164, 15 OBR 311,
473 N.E.2d 264, paragraph two
of the syllabus. Indeed, prosecutors may even exclude a juror for cause when the
juror’s views on capital punishment “would prevent or substantially impair the
performance of his duties as a juror in accordance with his instructions and his
oath.” Wainwright v. Witt (1985),
469 U.S. 412, 433,
105 S.Ct. 844, 857,
83
L.Ed.2d 841, 857, followed in
Dunlap at 315,
652 N.E.2d at 995.
{¶ 14} Second, appellant argues that the trial court erred in failing to excuse
two jurors for cause. The first juror is Juror Lance McCollum, who appellant
suggests should have been dismissed sua sponte. Juror McCollum testified during
voir dire that he had discussed the case with his ex-father-in-law, the former chief
of police of Ashtabula. McCollum stated that he was, to some degree, biased against
the defense. However, McCollum also stated that he would try to disregard the
conversation with his ex-father-in-law, would decide the case only on the evidence,
and would accord the accused the usual presumption of innocence.
{¶ 15} We find no error in the trial court’s decision not to excuse Juror
McCollum. The conversation between McCollum and his ex-father-in-law did not,
by itself, require McCollum’s exclusion. While fairness requires that jurors be
impartial, jurors need not be totally ignorant of the facts and issues involved. State
v. Sheppard (1998), 84 Ohio St.3d 230, 235,
703 N.E.2d 286, 292. The trial court
was entitled to accept McCollum’s assurances that he would be fair and impartial
and would decide the case on the basis of the evidence. “[D]eference must be paid
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to the trial judge who sees and hears the juror.” Wainwright, 469 U.S. at 426,
105
S.Ct. at 853,
83 L.Ed.2d at 853. Furthermore, appellant has waived any potential
error by failing to challenge the prospective juror at trial. State v. Smith (1997),
80
Ohio St.3d 89, 105,
684 N.E.2d 668, 685.
{¶ 16} Appellant also contends that the trial court erred in denying a
challenge for cause brought against another prospective juror, a Mr. Shears, who
testified during voir dire that, according to his religious beliefs, one who takes the
life of another should “automatically” lose his own life. However, Mr. Shears
further testified that he would follow the law and that he was capable of considering
a penalty less than death.
{¶ 17} Here again, the trial court’s determination that Juror Shears’s
scriptural beliefs would not prevent or impair his ability to perform his duties as a
juror is entitled to deference. Wainwright, 469 U.S. at 426,
105 S.Ct. at 853,
83
L.Ed.2d at 853. Where, as here, a juror gives conflicting answers, it is for the trial
court to determine which answer reflects the juror’s true state of mind. State v.
Webb (1994),
70 Ohio St.3d 325, 339,
638 N.E.2d 1023, 1035-1036. Appellant’s
third proposition of law is overruled.
Change of Venue
{¶ 18} Appellant argues in his fourth proposition of law that the trial court’s
denial of his request to change venue violated his rights under the Sixth and
Fourteenth Amendments to the United States Constitution. Appellant based his
request for a change of venue on the fact that only a handful of the original jury
pool were African-Americans and that none of these individuals found their way
onto the jury. Defense counsel pointed out to the trial court that the demographics
of Ashtabula County resulted in African-Americans being unable to serve. Defense
counsel noted that in Ashtabula County, there is only one central area where most
African-Americans live and that this is the area in which the crime occurred. Thus,
appellant’s counsel argued, holding the trial in Ashtabula County virtually
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January Term, 2001
eliminated African-Americans as potential jurors because most people in the area
were either aware of the details of the crime or knew the parties or their families.
The trial court rejected appellant’s request, relying upon a recent decision from this
court, State v. Moore (1998), 81 Ohio St.3d 22, 28,
689 N.E.2d 1, 9, which held
that it is constitutional to rely upon voter registration rolls as exclusive sources for
jury selection, as the trial court did in the instant case.
{¶ 19} “[T]he selection of a petit jury from a representative cross section of
the community is an essential component of the Sixth Amendment right to a jury
trial.” Taylor v. Louisiana (1975), 419 U.S. 522, 528,
95 S.Ct. 692, 697,
42 L.Ed.2d
690, 697. However, the Sixth Amendment does not require that petit juries “mirror
the community and reflect the various distinctive groups in the population.”
Id. at
538,
95 S.Ct. at 702,
42 L.E.2d at 703. Under the Sixth Amendment, “[d]efendants
are not entitled to a jury of any particular composition, … but the jury wheels,
pools of names, panels, or venires from which juries are drawn must not
systematically exclude distinctive groups in the community and thereby fail to be
reasonably representative thereof.”
Id.
{¶ 20} In Duren v. Missouri (1979), 439 U.S. 357,
99 S.Ct. 664,
58 L.Ed.2d
579, the United States Supreme Court held that in order to establish a prima facie
violation of the Sixth Amendment’s fair cross-section requirement, a defendant
must demonstrate “(1) that the group alleged to be excluded is a ‘distinctive’ group
in the community; (2) that the representation of this group in venires from which
juries are selected is not fair and reasonable in relation to the number of such
persons in the community; and (3) that the underrepresentation is due to systematic
exclusion of the group in the jury-selection process.”
Id. at 364,
99 S.Ct. at 668,
58
L.Ed.2d at 587. Accord State v. Fulton (1991),
57 Ohio St.3d 120,
566 N.E.2d 1195,
paragraph two of the syllabus.
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{¶ 21} In reviewing the propriety of appellant’s arguments concerning the
jury venire in the instant case, we find that appellant has failed to establish all of
the elements of a prima facie violation of the fair cross-section requirement.
{¶ 22} Appellant has satisfied the first prong of the Duren analysis. For
purposes of the fair cross-section analysis, African-Americans are a distinctive
group. United States v. Buchanan (C.A.6, 2000), 213 F.3d 302, 310; United States
v. Rioux (C.A.2, 1996),
97 F.3d 648, 654. However, appellant has not satisfied the
remaining prongs of Duren. With respect to the second prong, for example,
appellant has come forward with no evidence to suggest that African-Americans in
Ashtabula County are unfairly represented in venires in relation to their number in
the community. He merely alleges that African-Americans were not adequately
represented on his particular venire and jury.
{¶ 23} Even if the appellant’s venire was underrepresentative, the appellant
has not presented any evidence of “systematic exclusion” as required under the
third prong of Duren. Appellant must do more than show that his particular panel
was unrepresentative. Where, as here, the trial court relies upon voter registration
lists, the defendant-appellant “must demonstrate that the voter-registration
qualifications are suspect, or that the jury-selection procedure is administered in a
discriminatory manner.” United States v. Ireland (C.A.8, 1995), 62 F.3d 227, 231.
There is nothing inherently unconstitutional about using voter-registration rolls as
exclusive sources for jury selection. Moore,
81 Ohio St.3d at 28,
689 N.E.2d at 9.
Because appellant has failed to demonstrate systematic discrimination, we reject
his Sixth Amendment claim.
{¶ 24} A defendant may also bring a federal equal protection challenge to
the selection and composition of the petit jury. Fulton, 57 Ohio St.3d at 123-124,
566 N.E.2d at 1200, citing Duren,
439 U.S. at 368,
99 S.Ct. at 670,
58 L.Ed.2d at
589, fn. 26. To establish this equal protection claim, the defendant must “adduc[e]
statistical evidence which shows a significant discrepancy between the percentage
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January Term, 2001
of a certain class of people in the community and the percentage of that class on the
jury venires, which evidence tends to show discriminatory purpose.” Id. This
evidence is then subject to rebuttal evidence suggesting that either no
discriminatory purpose was involved or that such purpose had no “determinative
effect.” Id.; Duren,
439 U.S. at 368,
99 S.Ct. at 670,
58 L.Ed.2d at 589, fn. 26.
{¶ 25} The appellant has offered no statistical evidence showing a
discrepancy between the percentage of African-Americans in Ashtabula County
and the percentage of African-Americans on jury venires. We therefore reject
appellant’s equal protection argument. Having rejected appellant’s arguments
under the Sixth and Fourteenth Amendments, we find that the trial court did not err
in denying appellant’s motion for a change of venue.
Choice of Counsel
{¶ 26} In his fifth proposition of law, appellant argues that the trial court
denied him the right to counsel guaranteed under the Sixth Amendment to the
United States Constitution. On May 14, 1998, approximately two hours after the
jury was sworn, Attorney David Per Due filed an entry of appearance with the trial
court. The following morning, a hearing was held. Present at this hearing were
appellant’s court-appointed counsel, the prosecution, and Per Due. Appellant
indicated to the trial court that he wanted Per Due to represent him. Appellant stated
that he had a “conflict of interest” with the court-appointed attorneys who had been
representing him to that point. Specifically, appellant felt that his court-appointed
attorneys were “mostly concerned with saving [his] life.” He further stated that “if
[they] can’t win the case for me, then [they] can’t do nothing for me.” Appellant’s
court-appointed attorneys explained to the trial court that their relationship with the
appellant had been “pretty good” and that there existed an open line of
communication between themselves and appellant. They acknowledged appellant’s
concern that they were not concentrating upon acquittal. They further noted that
appellant was concerned that the relationship between themselves and the
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prosecution had, to that point, been too cordial. Appellant concurred with this
assessment.
{¶ 27} The trial court offered to let Per Due assist appellant’s court-appointed counsel. However, the trial court would not allow Per Due to act as lead
counsel because he had not been death-penalty certified by this court. When the
court asked Per Due if he would be ready to commence with trial the following
Monday, he responded, “Absolutely not.” Instead, Per Due requested a four-month
continuance. He further indicated that he would be unwilling to assist appellant’s
court-appointed attorneys as third counsel.
{¶ 28} The court denied Per Due’s motions for entry and a continuance,
concluding that the relationship between appellant and his court-appointed
attorneys did not warrant a change in counsel. The court further concluded that the
request for continuance was made in bad faith and for purposes of delay. The trial
court noted that there had never been, up to that point, any indication that there was
a lack of cooperation or trust between appellant and his attorneys.
{¶ 29} “The grant or denial of a continuance is a matter [that] is entrusted
to the broad, sound discretion of the trial judge. An appellate court must not reverse
the denial of a continuance unless there has been an abuse of discretion.” State v.
Unger (1981), 67 Ohio St.2d 65, 67,
21 O.O.3d 41, 43,
423 N.E.2d 1078, 1080. In
evaluating a motion for a continuance, a trial court should consider, inter alia, the
length of the delay requested; the inconvenience to the litigants, witnesses,
opposing counsel, and the court; and whether the requested delay is for legitimate
reasons or whether it is dilatory, purposeful, or contrived.
Id. at 67-68,
21 O.O.3d
at 43,
423 N.E.2d at 1080.
{¶ 30} The trial court acted within the bounds of its discretion in denying
the motion for continuance. Because the trial had already commenced, the lengthy
delay requested by appellant and Per Due would have greatly inconvenienced
everyone involved in the case, including the witnesses, the prosecution, the trial
10
January Term, 2001
court, and the jury, which had already been sworn. Given the timing of the motion,
and the fact that appellant had never, up to that point, expressed any concerns about
his court-appointed counsel, it was reasonable for the trial court to conclude that
the continuance was requested in bad faith and for purposes of delay.
{¶ 31} Because Per Due adamantly refused to immediately proceed with
trial, the trial court’s refusal to grant the continuance effectively denied appellant
the services of Per Due. We reject appellant’s contention that this denial violated
his Sixth Amendment right to counsel.
{¶ 32} “[W]hile the right to select and be represented by one’s preferred
attorney is comprehended by the Sixth Amendment, the essential aim of the
Amendment is to guarantee an effective advocate … rather than to ensure that a
defendant will inexorably be represented by the lawyer whom he prefers.” Wheat
v. United States (1988), 486 U.S. 153, 159,
108 S.Ct. 1692, 1697,
100 L.Ed.2d 140,
148. Thus, “[a] defendant has only a presumptive right to employ his own chosen
counsel.” (Emphasis sic.) State v. Keenan (1998),
81 Ohio St.3d 133, 137,
689
N.E.2d 929, 937. Factors to consider in deciding whether a trial court erred in
denying a defendant’s motion to substitute counsel include “the timeliness of the
motion; the adequacy of the court’s inquiry into the defendant’s complaint; and
whether the conflict between the attorney and client was so great that it resulted in
a total lack of communication preventing an adequate defense.” United States v.
Jennings (C.A.6, 1996),
83 F.3d 145, 148. In addition, courts should “balanc[e] *
… the accused’s right to counsel of his choice and the public’s interest in the
prompt and efficient administration of justice.”
Id. Decisions relating to the
substitution of counsel are within the sound discretion of the trial court. Wheat,
486
U.S. at 164,
108 S.Ct. at 1700,
100 L.Ed.2d at 152.
{¶ 33} The trial court conducted an extensive inquiry into the appellant’s
relationship with his court-appointed counsel. The record supports the trial court’s
determination that any problems between appellant and his attorneys had not led to
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a total lack of communication. Indeed, both appellant and his attorneys agreed that
the lines of communication between them were open. In balancing the accused’s
right to the representation of his chosen counsel against the interests of the public
in the prompt and efficient administration of justice, the trial court correctly found
that the public’s interests outweighed those of the appellant. Accordingly, we find
no abuse of discretion in the trial court’s refusal to substitute Per Due for court-appointed counsel. We must therefore overrule appellant’s fifth proposition of law.
TRIAL ISSUES
Admissibility of Evidence
{¶ 34} In his sixth proposition of law, appellant argues that the trial court
erred during the guilt phase in admitting evidence concerning the efforts made to
save Officer Glover’s life. Specifically, appellant challenges the admission of
evidence concerning Officer’s Glover’s difficulty in breathing, his internal bleeding
and brain injury, and the consultations between medical personnel and Officer
Glover’s family. Appellant also challenges the introduction of Officer Glover’s
medical records. Appellant contends that this evidence was both irrelevant and
unduly prejudicial. Because appellant’s counsel failed to object to the admission of
this evidence at trial, he now waives all but plain error. State v. Joseph (1995), 73
Ohio St.3d 450, 455,
653 N.E.2d 285, 291. “Plain error does not exist unless, but
for the error, the outcome at trial would have been different.”
Id.
{¶ 35} For the most part, the medical evidence that appellant now
challenges illustrated the nature and circumstances of the crime, including the
physical condition and circumstances of the victim. This type of evidence is
relevant and admissible. State v. Lorraine (1993), 66 Ohio St.3d 414, 420,
613
N.E.2d 212, 218. “The victi[m] cannot be separated from the crime.”
Id. at 420,
613 N.E.2d at 218-219. Furthermore, evidence detailing the impact of the crime on
the victim’s family is admissible when, as here, it is coupled with evidence
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January Term, 2001
depicting the circumstances surrounding the crime. State v. Fautenberry (1995), 72
Ohio St.3d 435, 440,
650 N.E.2d 878, 883.
{¶ 36} Assuming, arguendo, that the medical evidence admitted by the trial
court was unduly prejudicial or cumulative in nature, we find that its admission
does not constitute plain error. There is no doubt that the jury would have convicted
appellant even if it had never been presented with this evidence. The evidence
produced at trial clearly established that the appellant committed the charged
crimes. As for admission of this medical evidence at the sentencing phase, we find
that, given the severity of the aggravating circumstances, admission of the medical
evidence could not have had a determinative effect upon the trial court’s sentencing
decision. In sum, we conclude that admission of the medical evidence, even if error,
did not work to the material prejudice of the appellant. Therefore, appellant’s sixth
proposition of law is overruled.
{¶ 37} In his seventh proposition of law, appellant points to three items of
evidence that he believes should not have been admitted at trial. Appellant contends
that the admission of this evidence constituted reversible error.
{¶ 38} The first item of evidence consists of testimony from Officer Stell,
the arresting officer. On direct examination, the prosecution examined Officer Stell
regarding the day of the shooting and the moment at which he recognized appellant
and began his foot pursuit. The prosecution asked Officer Stell to explain how he
was able to recognize appellant. Officer Stell responded, “[F]rom times we have
had him in our jail.” Defense counsel objected. The trial court sustained the
objection and instructed the jury to disregard Officer Stell’s comment about
appellant’s being in jail.
{¶ 39} Appellant also challenges testimony from Anthony Barksdale.
During the prosecution’s redirect examination of this witness, the prosecution
asked whether the witness had been given a lie detector test. Defense counsel
objected, but before the court could rule, the witness responded affirmatively. The
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trial court sustained the objection and instructed the jury to disregard the question.
The trial court also admonished the prosecution not to make any further references
to the lie detector test.2 The defense counsel moved the trial court for a mistrial.
The trial court did not grant this motion.
{¶ 40} With respect to the testimony of both Officer Stell and Anthony
Barksdale, we find no error in the trial court’s reliance upon curative instructions
and its refusal to grant a mistrial in response to Barksdale’s testimony. The jury is
presumed to have followed the court’s instructions. State v. Raglin (1998), 83 Ohio
St.3d 253, 264,
699 N.E.2d 482, 492.
{¶ 41} Finally, appellant argues that the trial court erred in admitting certain
“inflammatory statements” made by appellant. Specifically, appellant refers to the
following statement he made just prior to arraignment: “If I had my SKS [Russian
assault rifle], I would have killed 16 of you mother fuckers,” referring to the police.
Appellant also objects to the admission of his statement to Jimmie Lee Ruth that
appellant “was going to shoot at the police if they ever tried to arrest him.”
Appellant contends that, under Evid.R. 403(A),3 these statements should not have
been admitted because their potential prejudicial effect substantially outweighed
their probative value. We disagree.
{¶ 42} Both statements were of considerable probative value. Appellant’s
first statement regarding his assault rifle and what he would do with it helped to
prove appellant’s identity as the shooter in this case and helped to establish his
intent to kill a police officer. Similarly, appellant’s statement to Jimmie Lee Ruth
helped to establish that he killed Officer Glover with prior calculation and design.
2. In Ohio, the results of a polygraph examination are admissible in evidence in a criminal trial for
purposes of corroboration or impeachment only when the prosecution and defense stipulate to their
admissibility. State v. Souel (1978), 53 Ohio St.2d 123,
7 O.O.3d 207,
372 N.E.2d 1318, syllabus.
3. Evid.R. 403(A) provides: “Although relevant, evidence is not admissible if its probative value is
substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of
misleading the jury.”
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January Term, 2001
It also tended to support the state’s charges that appellant’s specific purpose was to
kill a police officer and that he killed to escape apprehension for aggravated
robbery. We find no abuse of discretion in the trial court’s determination that the
probative value of these statements outweighed their potential prejudicial effect.
We reject appellant’s seventh proposition of law.
Sufficiency of the Evidence
{¶ 43} In his eighth proposition of law, appellant argues that the state failed
to prove, beyond a reasonable doubt, that he killed Officer Glover with prior
calculation and design. According to appellant, the trial court erred in submitting
this issue to the jury.
{¶ 44} When reviewing the sufficiency of the evidence to support a criminal
conviction, the relevant inquiry is whether, after reviewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt. State v. Stallings
(2000), 89 Ohio St.3d 280, 289,
731 N.E.2d 159, 171. “[T]he phrase ‘prior
calculation and design’ … indicate[s] studied care in planning or analyzing the
means of the crime as well as a scheme encompassing the death of the victim.”
State v. Taylor (1997),
78 Ohio St.3d 15, 19,
676 N.E.2d 82, 88. The amount of
care or time that the defendant spends in planning and analyzing the crime are not
critical factors in themselves; however, they “must amount to more than momentary
deliberation.”
Id. In short, there is no bright-line test for determining the existence
of prior calculation and design.
Id. at 20,
676 N.E.2d at 89. “[E]ach case turns on
the particular facts and evidence presented at trial.”
Id.
{¶ 45} Whether a defendant’s prior statement of intent to kill a police
officer constitutes evidence of prior calculation and design depends largely upon
the totality of other facts and circumstances surrounding the killing. In State v. Reed
(1981), 65 Ohio St.2d 117, 120-121,
19 O.O.3d 311, 313-314,
418 N.E.2d 1359,
1362-1363, we held that a defendant’s isolated statement that “if a cop got in his
15
SUPREME COURT OF OHIO
way [during a robbery] he would blow him away” did not, by itself, establish prior
calculation and design when the totality of the facts and circumstances indicated
that the killing resulted from an instantaneous deliberation. More recently, in State
v. White (1998), 82 Ohio St.3d 16, 24,
693 N.E.2d 772, 779-780, we suggested that
such statements could be used to establish prior calculation and design. The
distinguishing factor in the White decision was the presence of other evidence
establishing prior calculation and design. Unlike in Reed, the defendant’s threat to
kill a police officer in White was repeated several times. In White, there was also
evidence presented at trial indicating that the defendant, who was on probation,
would do whatever necessary to avoid being returned to prison. Here, as in White,
the totality of facts and circumstances surrounding the killing, including the manner
in which appellant killed Officer Glover, clearly indicates that appellant’s act of
killing was not an instantaneous decision and that his prior statement of intent to
kill a police officer was not merely an idle threat. Accordingly, we are willing to
consider appellant’s threat as evidence of prior calculation and design.
{¶ 46} Viewing the evidence in the light most favorable to the prosecution,
we find that the jury could have found the element of prior calculation and design
proven beyond a reasonable doubt. Shortly before the murder, appellant informed
his cousin that he “was going to shoot at the police if they ever tried to arrest him.”
On the day of the murder, appellant was armed with a .38 caliber revolver. When
approached by the police, appellant followed up on his promise to his cousin,
executing Officer Glover with two point-blank gunshots to the head. This evidence
clearly establishes, beyond a reasonable doubt, that appellant killed Officer Glover
with prior calculation and design.
{¶ 47} Appellant also argues in his eighth proposition of law that the state
failed to prove that he killed Officer Glover for the purpose of escaping
apprehension for aggravated robbery, the first death penalty specification.
16
January Term, 2001
Appellant contends that the prosecution bore the burden of proving his commission
of the aggravated robbery offense beyond a reasonable doubt.
{¶ 48} The state argues that appellant waived this claim by failing to raise
the issue at trial. We disagree. Appellant’s “not guilty” plea preserved his right to
object to the alleged insufficiency of the evidence proving the prior offense. See
State v. Carter (1992), 64 Ohio St.3d 218, 223,
594 N.E.2d 595, 599.
{¶ 49} R.C. 2929.04 sets forth the criteria for imposing the sentence of
death for the commission of a capital offense. The statute provides that the death
penalty may be imposed when it is proven beyond a reasonable doubt that the
capital offense “was committed for the purpose of escaping detection,
apprehension, trial, or punishment for another offense committed by the offender.”
(Emphasis added.) R.C. 2929.04(A)(3). Appellant contends that, under this statute,
the state must prove that the defendant committed the offense for which he sought
to avoid apprehension by proof beyond a reasonable doubt. We agree.
{¶ 50} Appellant’s interpretation of R.C. 2929.04(A)(3) is consistent with
both the statute’s plain language and established constitutional law. R.C.
2929.04(A) plainly states that all of the aggravating circumstances listed therein,
including that contained in subsection (A)(3), must be proven beyond a reasonable
doubt. Indeed, conviction under any lesser standard of proof would be inconsistent
with the Due Process Clause of the Fourteenth Amendment to the United States
Constitution. It is axiomatic that the state must prove each and every element of an
offense beyond a reasonable doubt. See Jackson v. Virginia (1979), 443 U.S. 307,
99 S.Ct. 2781,
61 L.Ed.2d 560; In re Winship (1970),
397 U.S. 358,
90 S.Ct. 1068,
25 L.Ed.2d 368. We find that the defendant’s commission of the prior offense
constitutes an essential element of the R.C. 2929.04(A)(3) specification. Had the
General Assembly intended that the death penalty be applied to those who simply
attempt to avoid apprehension on a warrant, it would not have included the words
“committed by the offender.”
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SUPREME COURT OF OHIO
{¶ 51} We conclude, however, that in the case sub judice, the state proved,
beyond a reasonable doubt, that appellant had committed the prior offense for
which he sought to avoid apprehension. The state introduced evidence that a week
before the killing, appellant told his cousin Jimmie Ruth that he “was facing a lot
of time for robbing Isaac Coleman.” Appellant’s admission proves beyond a
reasonable doubt that he committed the prior offense of aggravated robbery. We
therefore affirm appellant’s conviction on the R.C. 2929.04(A)(3) specification.
Trial Phase Instructions
{¶ 52} In his ninth proposition of law, appellant challenges three jury
instructions. Because appellant failed to object to these instructions during the trial,
he now waives all but plain error. Joseph, 73 Ohio St.3d at 455,
653 N.E.2d at 291.
{¶ 53} Appellant challenges the trial court’s reasonable doubt instruction,
which the court recited verbatim from R.C. 2901.05(D). Appellant argues that this
instruction unconstitutionally permits juries to convict upon a standard of proof
below proof beyond a reasonable doubt. We summarily reject this argument. We
have repeatedly affirmed the constitutionality of R.C. 2901.05(D)’s definition of
reasonable doubt. See State v. Hessler (2000), 90 Ohio St.3d 108, 115,
734 N.E.2d
1237, 1246; State v. Getsy (1998),
84 Ohio St.3d 180, 202,
702 N.E.2d 866, 888.
{¶ 54} Appellant also challenges the trial court’s instruction on the two
separate elements of purpose and prior calculation and design. Appellant argues
that the court’s instruction equated the two concepts and essentially directed a
verdict on the element of prior calculation and design.
{¶ 55} The record does not support appellant’s contention that the trial court
equated purpose with prior calculation and design. The court defined “purpose” as
“a decision of the mind to do an act with a conscious objective of producing a
specific result.” It noted that the terms “purpose” and “intent” are synonymous.
While the court went on to explain how the element of “prior calculation and
design” relates to the element of “purpose,” the court’s instruction in no way
18
January Term, 2001
confused these elements. The court explained that “prior calculation and design”
means that “the purpose to cause the death was reached by a definite process of
reasoning in advance of the homicide, which process of reasoning must have
included a mental plan involving studied consideration of the method and means
with which to cause the death of another.” The court further explained that prior
calculation and design includes “planning,” “a scheme designed to carry out the
calculated decision to cause the death.” Finally, the court noted that prior
calculation and design does not include “spur of the moment” decisions. We find
no error in these instructions. The instructions are consistent with the standardized
Ohio Jury Instructions and our own definitions of these elements. See 4 Ohio Jury
Instructions (1997), Sections 409.01 and 503.01(A)(4); R.C. 2901.22(A) (defining
“purposeful” action); State v. Cotton (1978), 56 Ohio St.2d 8,
10 O.O.3d 4,
381
N.E.2d 190, paragraph three of the syllabus (defining “prior calculation and
design”).
{¶ 56} Finally, appellant argues that the trial court improperly shifted the
burden of proof from the state to the defense when it instructed the jury to deliberate
on the guilt “or innocence” of appellant. The trial court instructed the jury that in
the guilt phase of the trial they should “not consider at this time or in any way
discuss the subject matter of punishment.” The court instructed the jury that its duty
was “confined to the determination of the guilt or innocence of the defendant.”
Appellant contends that a reasonable jury would have understood this instruction
to mean that the defendant bore the burden of putting forward evidence of his
innocence.
{¶ 57} We disagree with appellant’s suggestion that the trial court’s
instruction effectively shifted the burden of proof from the state to the defendant.
Any reasonable juror would have taken the instruction as nothing more than a
warning not to consider punishment during the guilt phase. “A single instruction to
a jury may not be judged in artificial isolation but must be viewed in the context of
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the overall charge.” State v. Price (1979), 60 Ohio St.2d 136,
14 O.O.3d 379,
398
N.E.2d 772, paragraph four of the syllabus. Given the trial court’s repeated
instruction to the jury that the state bore the burden of proving guilt beyond a
reasonable doubt, no reasonable juror could have concluded that the single
instruction set forth above shifted the burden of proof to the defendant.
SENTENCING ISSUES
Duplicative Death Penalty Specifications
{¶ 58} In his tenth proposition of law, appellant argues that the trial court
erred in failing to merge the R.C. 2929.04(A)(3) and (A)(6) death penalty
specifications. These specifications represent, respectively, killing to escape
apprehension and killing a law enforcement officer.
{¶ 59} Where two or more aggravating circumstances arise from the same
act or indivisible course of conduct, they are duplicative and must be merged for
purposes of sentencing. Jenkins, 15 Ohio St.3d 164, 15 OBR 311,
473 N.E.2d 264,
paragraph five of the syllabus. Merger is not required when the aggravating
circumstances arise from a divisible course of conduct. State v. Robb (2000),
88
Ohio St.3d 59, 85,
723 N.E.2d 1019, 1047.
{¶ 60} Appellant’s act of fleeing and his killing of Officer Glover were part
of a divisible course of conduct. Therefore, merger of the R.C. 2929.04(A)(3) and
(A)(6) death penalty specifications was unnecessary. Appellant’s purpose to escape
apprehension for his prior robbery offense is demonstrated by his fleeing when
Officer Glover approached him at the Chapman home. Although appellant killed
Officer Glover after fleeing, the circumstances surrounding the killing reveal that
it was a distinct, divisible act. When appellant had drawn his weapon and aimed it
at Officer Glover, he had stopped running. Appellant fired shots at Officer Glover
while walking toward him. Appellant’s killing of Officer Glover was clearly a
separate act, which demonstrated a separate animus. The killing was in no way
implicit in appellant’s decision to flee Officer Glover. Id. See, also, White,
82 Ohio
20
January Term, 2001
St.3d 16, 693 N.E.2d 772 (R.C. 2929.04[A][3] and [A][6] specifications treated as
separate).
Penalty Phase Instructions
{¶ 61} In his twelfth proposition of law, appellant challenges several of the
trial court’s instructions to the jury at the penalty phase. First, appellant argues that
the trial court erred when it instructed the jury that “only that testimony and
evidence which was presented in the first phase that is relevant to the aggravating
circumstances [appellant] was found guilty of committing, or to any of the
mitigating factors that will be described below, is to be considered by you.”
Appellant suggests that this instruction improperly permitted the jury to determine
what evidence was relevant. Because appellant failed to raise this issue in the trial
court, he waives all but plain error. Joseph, 73 Ohio St.3d at 455,
653 N.E.2d at
291. We find no plain error here.
{¶ 62} The trial court’s instruction was ambiguous as to whether relevance
was to be determined by the court or the jury. We agree that the trial court’s
instruction could reasonably be interpreted by one or more members of the jury as
implying that it was their responsibility to determine the relevance of evidence
presented during the first phase of trial. Of course, jurors may also have interpreted
the court’s statement as instructing them to consider only that evidence that the
court deemed relevant. This interpretation is particularly plausible given that
immediately after the trial court gave the challenged instruction, it further instructed
the jury that it would allow it to consider during deliberations only those exhibits
which it, as the trial court, determined to be relevant.
{¶ 63} To the extent that the jury interpreted the trial court’s instruction as
allowing them to determine relevancy, the trial court misled the jury. It is “the trial
court’s responsibility, not the jury’s, to determine what evidence [is] relevant.”
Getsy, 84 Ohio St.3d at 201,
702 N.E.2d at 887. We find, however, that the trial
court’s misstatement did not prejudice the outcome of this case. Much of the trial
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phase evidence was relevant at the sentencing phase because it was related to the
aggravating circumstances, the nature and circumstances of the offense, and the
asserted mitigating factors. See State v. Gumm (1995), 73 Ohio St.3d 413,
653
N.E.2d 253, syllabus. Moreover, we find that the aggravating circumstances in this
case outweigh the mitigating evidence. Therefore, no basis exists for finding
outcome-determinative plain error in the trial court’s instruction on relevance.
{¶ 64} Appellant also challenges, in his twelfth proposition of law, the trial
court’s denial of defense counsel’s requested instruction that a sole juror could
prevent a verdict of death. We find no error in the trial court’s instruction. Trial
courts must instruct juries that “[i]n Ohio, a solitary juror may prevent a death
penalty recommendation by finding that the aggravating circumstances in the case
do not outweigh the mitigating factors.” State v. Brooks (1996), 75 Ohio St.3d 148,
162,
661 N.E.2d 1030, 1042. In advising juries of the need for a unanimous verdict,
no specific language has to be used as long as the “substance” of what the jury must
determine is included in the charge given. See State v. Goff (1998),
82 Ohio St.3d
123, 129,
694 N.E.2d 916, 922.
{¶ 65} The substance of the trial court’s charge adequately conveyed the
need for unanimity. The court instructed the jury that “[i]n order for you to decide
that the sentence of death shall be imposed upon [the appellant], the State of Ohio
has the burden to prove to each member of this jury beyond a reasonable doubt that
the aggravating circumstances … outweigh the factors in mitigation.” At another
point in its charge, the trial court instructed that “all twelve members” of the jury
had to find that the aggravating circumstances outweigh mitigation before death
could be imposed. Finally, the trial court instructed that the jury had to consider life
sentence options “if any one or more of you conclude the State has failed to prove
that the aggravating circumstances outweigh the mitigating factors.” The need for
a unanimous verdict was more than adequately conveyed by these instructions.
22
January Term, 2001
{¶ 66} Finally, appellant argues that the trial court denied him due process
of law when it failed to instruct the jury on the issue of sympathy. We summarily
reject this argument. It is well established that sympathy and mercy are not relevant
sentencing criteria. See Taylor, 78 Ohio St.3d at 30,
676 N.E.2d at 96; State v. Allen
(1995),
73 Ohio St.3d 626, 638,
653 N.E.2d 675, 687.
Constitutional Error in the Trial Court’s Sentencing Opinion
{¶ 67} In his fourteenth proposition of law, appellant challenges two
aspects of the trial court’s sentencing opinion. First, appellant contends that the
court failed to properly consider psychological evidence submitted under R.C.
2929.04(B)(7). R.C. 2929.04(B)(7) requires trial courts to consider, in addition to
the specific mitigating factors set forth in R.C. 2929.04(B), “[a]ny other factors that
are relevant to the issue of whether the offender should be sentenced to death.”
{¶ 68} We conclude that the trial court thoroughly considered the evidence
submitted by the appellant under R.C. 2929.04(B)(7). The trial court made specific
findings as to the existence of appellant’s psychological disorders as required under
R.C. 2929.03(F). The court found that this mitigation evidence was entitled to little
weight. Specifically, the court weighed against appellant’s mitigation evidence
other evidence that appellant’s psychological disorders did not prevent him from
understanding the criminality of his conduct or conforming his conduct to the
requirements of the law. The trial court concluded that this evidence, along with
evidence that appellant was fairly sophisticated and intelligent, required that the
psychological disorders be accorded little weight. The court acted well within its
discretion in making this determination. “ ‘[T]he assessment and weight to be given
mitigating evidence are matters for the trial court’s determination.’ ” State v. Mitts
(1998), 81 Ohio St.3d 223, 235,
690 N.E.2d 522, 532, quoting State v. Lott (1990),
51 Ohio St.3d 160, 171,
555 N.E.2d 293, 305.
{¶ 69} Appellant contends that the trial court’s reference to appellant’s
ability to conform his conduct to the requirements of the law suggests that the court
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confused appellant’s psychological evidence, offered by the defense under the R.C.
2929.04(B)(7) catchall provision, with evidence offered under R.C. 2929.04(B)(3),
a provision that makes the defendant’s ability to conform his conduct to the
requirements of the law a mitigating factor. Appellant’s argument lacks any merit.
We fail to see how the trial court’s alleged weighing of the psychological evidence
under (B)(3) rather than (B)(7) could possibly have prejudiced the appellant,
especially in light of the fact that the trial court weighed the psychological evidence
against other evidence unrelated to (B)(3), namely, appellant’s intelligence. In any
event, “[t]he process of weighing mitigating factors … is a matter for the
discretion of the individual decisionmaker.” State v. Fox (1994), 69 Ohio St.3d 183,
193,
631 N.E.2d 124, 132. We find no abuse of that discretion here.
{¶ 70} In his fourteenth proposition of law, appellant also argues that the
trial court improperly accorded “exceptional weight” to the fact that the victim in
this case was a law enforcement officer—the R.C. 2929.04(A)(6) aggravating
circumstance. Appellant accuses the trial court of creating “a kind of ‘super’
aggravating circumstance that no amount of mitigation could outweigh.”
Specifically, appellant challenges the trial court’s statement that “the act of killing
a police officer who, in the pursuit of his duties is attempting to apprehend a person
accused of a felony crime, strikes at the very heart of the justice system.”
{¶ 71} We reject appellant’s argument. The trial court never suggested that
the mitigating evidence in this case could not outweigh this aggravating factor. The
trial court’s statement regarding the severity of killing a police officer was not
improper. Courts are certainly entitled to consider the gravity of the aggravating
circumstances. See, e.g., State v. Keene (1998), 81 Ohio St.3d 646, 671,
693 N.E.2d
246, 266-267 (noting that the killing of a witness in order to avoid prosecution is
an act that strikes at the heart of the criminal justice system); State v. Coleman
(1999),
85 Ohio St.3d 129, 145,
707 N.E.2d 476, 491.
PROSECUTORIAL MISCONDUCT
24
January Term, 2001
{¶ 72} In his eleventh proposition of law, appellant contends that
prosecutorial misconduct at several stages of his trial denied him due process of
law. First, appellant argues that the prosecution engaged in misconduct when,
during voir dire, it informed prospective jurors that they could determine what
evidence was mitigating. Because appellant failed to raise this objection during
trial, he now waives all but plain error. Joseph, 73 Ohio St.3d at 455,
653 N.E.2d
at 291.
{¶ 73} We find no error, plain or otherwise, in the prosecution’s statements
to prospective jurors regarding mitigation. The prosecution merely reminded
prospective jurors that it was their duty to determine what evidence does in fact
mitigate the appellant’s crime and what weight to give this evidence. This was not
improper. “Prosecutors can urge the merits of their cause and legitimately argue
that defense mitigation evidence is worthy of little or no weight.” Wilson, 74 Ohio
St.3d at 399,
659 N.E.2d at 309. The prosecution’s statements correctly
summarized the law on mitigation. “[T]he jury … may properly choose to assign
absolutely no weight to … evidence if it considers it to be non-mitigating.” State
v. Steffen (1987),
31 Ohio St.3d 111, 129, 31 OBR 273, 289,
509 N.E.2d 383, 399.
Even if the prosecution’s statements were improper, we can find no plain error here.
Statements made during voir dire cannot reasonably be thought to affect sentencing
verdicts. See Darden v. Wainwright (1986),
477 U.S. 168, 183-184,
106 S.Ct. 2464,
2472-2473,
91 L.Ed.2d 144, 158-159, fn. 15.
{¶ 74} Appellant also cites as prosecutorial misconduct the prosecution’s
remark, made in its opening statement of the penalty phase and essentially repeated
in closing, that “there can be no mitigating factors which outweigh the aggravating
circumstances of the murder of a police officer in order to escape apprehension for
another crime or the murder of a police officer while doing his duty.” Here again,
appellant has waived all but plain error.
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SUPREME COURT OF OHIO
{¶ 75} We reject appellant’s contention that the prosecution’s statement
constituted misconduct. As noted above, prosecutors are permitted to urge the
merits of their cause and, in so doing, are permitted to argue that defense mitigation
evidence is entitled to no weight. Wilson, 74 Ohio St.3d at 399,
659 N.E.2d at 309.
It is difficult for prosecutors to argue vigorously for the death penalty without
making what might arguably be statements of personal opinion. A prosecutor may
offer his or her opinion if it is based on the evidence presented at trial. State v.
Stephens (1970),
24 Ohio St.2d 76, 83,
53 O.O.2d 182, 186,
263 N.E.2d 773, 777.
Finally, we note that any potential error here was cured by the trial court’s
instruction to the jury that statements and arguments made by the attorneys are not
evidence. State v. Palmer (1997),
80 Ohio St.3d 543, 562,
687 N.E.2d 685, 702.
{¶ 76} Last, appellant argues that the prosecution engaged in misconduct
when, during the cross-examination of a witness, it implied that appellant had been
involved in another homicide. During the cross-examination of a witness named
Charles See, the prosecution elicited information that an acquaintance of the
appellant, Emasio Hull, had been involved in an altercation with the appellant and
had, during this altercation, hit the appellant in the head with a hammer. The
prosecution then asked the witness whether he was aware of the fact that, after this
incident, Hull was murdered. Defense counsel objected. The trial court sustained
the objection and informed the jury to disregard the question because Hull’s murder
had no relevancy to the matter before it.
{¶ 77} In light of the trial court’s sustaining of defense counsel’s objection
and the trial court’s subsequent instruction to the jury, we find no prejudicial error
in the prosecution’s question. Juries are presumed to follow trial court instructions.
Raglin, 83 Ohio St.3d at 264, 699 N.E.2d at 492.
INEFFECTIVE ASSISTANCE OF COUNSEL
{¶ 78} In his thirteenth proposition of law, appellant argues that he received
ineffective assistance of counsel during the pretrial, trial, and penalty phases. To
26
January Term, 2001
win a reversal on the basis of ineffective assistance of counsel, the defendant must
show, first, that counsel’s performance was deficient and, second, that the deficient
performance prejudiced the defense so as to deprive the defendant of a fair trial.
Strickland v. Washington (1984), 466 U.S. 668, 687,
104 S.Ct. 2052, 2064,
80
L.Ed.2d 674, 693. Accord State v. Bradley (1989),
42 Ohio St.3d 136,
538 N.E.2d
373, paragraph two of the syllabus. “To show that a defendant has been prejudiced
by counsel’s deficient performance, the defendant must prove that there exists a
reasonable probability that, were it not for counsel’s errors, the result of the trial
would have been different.”
Id., paragraph three of the syllabus.
Ineffective Assistance of Counsel at the Pretrial and Trial Phases
{¶ 79} Appellant raises several alleged instances of ineffective assistance
during the pretrial and trial phases. First, appellant contends that he received
ineffective assistance of counsel when, during voir dire, his counsel failed to move
that Juror McCollum be excused for cause on the basis of that juror’s alleged bias.
Above, we noted that juror McCollum indicated to the trial court that, if selected as
a juror, he would follow the law and would assume appellant’s innocence. We have
already held that the trial court did not err in declining to excuse this juror sua
sponte. Thus, defense counsel could quite reasonably have concluded that a motion
to dismiss Juror McCollum for cause would not have been successful. “Counsel
need not raise meritless issues or even all arguably meritorious issues.” Taylor, 78
Ohio St.3d at 31,
676 N.E.2d at 97. The record reveals that defense counsel instead
used one of its peremptory challenges to exclude Juror McCollum. These kinds of
tactical decisions fall “well within the range of professionally reasonable
judgments.” Strickland,
466 U.S. at 699,
104 S.Ct. at 2070,
80 L.Ed.2d at 701.
{¶ 80} As a second instance of ineffective assistance, appellant points to
defense counsel’s failure to object to the admission of evidence regarding Officer
Glover’s medical treatment and the efforts to save his life. We have already
thoroughly discussed this issue and have concluded that this evidence was relevant
27
SUPREME COURT OF OHIO
and admissible as evidence illustrating the nature and circumstances of the crime.
Again, counsel need not raise meritless issues or even all arguably meritorious
issues for that matter. Taylor, 78 Ohio St.3d at 31,
676 N.E.2d at 97. Accordingly,
defense counsel’s failure to object did not constitute deficient performance.
{¶ 81} Third, appellant challenges defense counsel’s failure to move for
merger of the second and third death penalty specifications until after the guilt
phase of the trial had concluded, at which time defense counsel moved for, and was
granted, merger. These death penalty specifications constituted duplicative
aggravating circumstances under R.C. 2929.04(A)(6) and did in fact have to be
merged. See Jenkins, 15 Ohio St.3d 164, 199-200, 15 OBR 311, 341-342,
473
N.E.2d 264, 296-297. However, we do not believe that defense counsel acted
unreasonably in waiting until the penalty phase to move for merger. Certainly, this
tactical decision caused no prejudice to the appellant.
{¶ 82} Finally, appellant argues that he received ineffective assistance when
defense counsel failed to move for dismissal of the R.C. 2929.04(A)(3) death
penalty specification. We have held that the prosecution proved each element of
this specification by proof beyond a reasonable doubt. Accordingly, there was no
basis for moving to dismiss this specification and, hence, no ineffective assistance
of counsel. Taylor, 78 Ohio St.3d at 31,
676 N.E.2d at 97 (counsel need not raise
meritless objections).
Ineffective Assistance of Counsel at the Penalty Phase
{¶ 83} Appellant raises four alleged instances of ineffective assistance at
the penalty phase of his trial. First, appellant challenges defense counsel’s failure
to object when the trial court instructed the jurors that they had to determine what
evidence was relevant. We have already examined this instruction and concluded
that the instruction could reasonably have been interpreted by jurors to mean that
they were to consider only evidence deemed relevant by the trial court. Certainly,
defense counsel could reasonably have attached the same meaning to the trial
28
January Term, 2001
court’s statement and declined to object for this reason. In any event, we have
already determined that this instruction did not prejudice the outcome of the case.
{¶ 84} Second, appellant challenges defense counsel’s failure to object
when the prosecution informed jurors that no amount of mitigation could outweigh
the killing of a police officer. We have already held that these statements from the
prosecution were not improper. The statements did not warrant an objection.
{¶ 85} Third, appellant argues that defense counsel should have objected to
allegedly “irrelevant” exhibits, photos, and medical evidence relating to Officer’s
Glover’s wounds and treatment. We have concluded that much of this evidence was
relevant and admissible because it illustrated the nature and circumstances of the
crime. Moreover, given the serious nature of the aggravating circumstances, the
admission of some or all of this evidence could not have affected the outcome of
the trial.
{¶ 86} Finally, appellant argues that he was provided ineffective assistance
when defense counsel failed to emphasize to the jury specific facts from mitigation
exhibits submitted to the jury. Specifically, appellant challenges defense counsel’s
failure to point out that, just before appellant was born, a physician had referred to
appellant’s mother as noncommunicative and in need of guidance. Appellant also
challenges defense counsel’s failure to point out to the jury that appellant’s mother
had committed suicide by intentional drug overdose. The record indicates that
appellant’s defense counsel had presented an abundance of evidence regarding
appellant’s mother, including her inability to form an attachment with appellant and
the effect her suicide had upon him. The subtle tactical choices that appellant now
challenges were decisions that lay within the realm of professionally reasonable
judgment. We further find that defense counsel’s failure to highlight to the jury
specific items of mitigation contained in exhibits submitted to it could not have
affected the outcome of the trial, especially in light of the weight and gravity of the
aggravating circumstances.
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SUPREME COURT OF OHIO
{¶ 87} We have reviewed each of appellant’s alleged instances of
ineffective assistance of counsel and conclude that appellant received
constitutionally adequate representation at each phase of his trial. Accordingly, we
reject appellant’s thirteenth proposition of law.
CONSTITUTIONALITY OF OHIO’S DEATH PENALTY LAW
{¶ 88} In his fifteenth and final proposition of law, appellant raises several
constitutional challenges to Ohio’s death penalty law, which we summarily reject.
Appellant’s arguments have been rejected in numerous previous decisions issued
by this court. See, e.g., State v. Hill (1996), 75 Ohio St.3d 195, 201,
661 N.E.2d
1068, 1076; State v. Coleman (1989),
45 Ohio St.3d 298, 308-309,
544 N.E.2d 622,
633-634.
INDEPENDENT SENTENCE EVALUATION
{¶ 89} Having considered appellant’s propositions of law, we must now
independently review the death sentence for appropriateness and proportionality.
We find beyond a reasonable doubt that the balance of aggravating circumstances
against mitigating factors in this case weighs in favor of a death sentence.
{¶ 90} Much of appellant’s mitigation evidence focused upon his
relationship with his mother. In mitigation, appellant presented testimony that he
was born to an eighteen-year-old mother who foisted the bulk of his care onto
others. Appellant’s primary caregiver was his foster grandmother, Theresa Lyons.
Appellant had no relationship with his father. Nor did appellant have any positive
male role models in his life. Appellant’s natural mother was a drug user. Her legal
and substance abuse problems caused her to drift in and out of her son’s life. When
appellant was only six years old, his mother was incarcerated for theft. When
appellant was thirteen, his mother died from a drug overdose, an apparent suicide.
The testimony of several witnesses suggests that the death of his mother was a
turning point in appellant’s life. Appellant became involved with gangs and began
to run afoul of the law. He was frequently truant from school until he was expelled.
30
January Term, 2001
Testimonial evidence in the record suggests that appellant suffers from antisocial
personality and attachment disorders, which may have created in appellant an
inability to empathize and a tendency to violate the rights of others.
{¶ 91} Appellant’s mitigation evidence suggests that violence and death
have characterized much of appellant’s life. Both his grandmother and greatgrandmother, for example, died from gunshot wounds. Like his mother, a cousin,
who was a close friend to appellant, committed suicide. One of his own daughters
died young. An uncle is in prison serving time for murder. At the age of sixteen,
appellant was severely beaten and robbed by someone he had considered to be a
friend.
{¶ 92} Nothing in the nature and circumstances of the offense mitigates the
appellant’s crime. A mere week before he killed Officer Glover, appellant professed
to his cousin that he would kill any officer who attempted to arrest him. To this end,
appellant armed himself with a .38 caliber revolver and loaded it with hollow point
bullets, a particularly deadly form of ammunition. Appellant displayed chilling
mercilessness in his killing of Officer Glover, firing the fatal shots at point-blank
range. He then fled the scene, stopping only to kick the wounded and defenseless
officer. Appellant surrendered only when all available means of escape had been
exhausted.
{¶ 93} Upon review of the evidence in mitigation, it appears that appellant
had a chaotic and troubled childhood. We find that appellant’s background and
personality disorders are entitled to some weight in mitigation. See State v. Johnson
(2000), 88 Ohio St.3d 95, 123,
723 N.E.2d 1054, 1078. At the time he committed
this offense, appellant was twenty-one years old. Appellant’s relative youth is
entitled to some, but minimal, weight in mitigation.
Id. Nothing in the nature and
circumstances of the crime is mitigating.
{¶ 94} We determine that the R.C. 2929.04(A)(3) and (A)(6) aggravating
circumstances outweigh the mitigating factors presented. In order to escape
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SUPREME COURT OF OHIO
apprehension for his prior aggravated robbery offense, appellant knowingly killed
a police officer who was, at the time, engaged in his professional duties. After
considerable thought and review, we conclude that these aggravating circumstances
outweigh the mitigating evidence beyond a reasonable doubt.
{¶ 95} We have undertaken a comparison of the sentence imposed in this
case to those in which we have previously upheld the sentence of death and have
found that the appellant’s death sentence is neither excessive nor disproportionate
to the sentence imposed in similar cases. See, e.g., White, 82 Ohio St.3d 16,
693
N.E.2d 772; State v. Glenn (1986),
28 Ohio St.3d 451, 28 OBR 501,
504 N.E.2d
701.
{¶ 96} For the foregoing reasons, we affirm the judgment of the trial court
and uphold the sentence of death.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, PFEIFER and LUNDBERG STRATTON, JJ.,
concur.
MOYER, C.J., COOK and LUNDBERG STRATTON, JJ., concur separately.
__________________
COOK, J., concurring.
{¶ 97} Like the majority, I would affirm appellant’s convictions and death
sentence. I respectfully disagree, however, with the majority’s conclusion that the
aggravating circumstance in R.C. 2929.04(A)(3) requires the state to prove beyond
a reasonable doubt that the defendant committed the offense for which he sought to
avoid apprehension.
I
{¶ 98} The (A)(3) specification requires the state to prove, beyond a
reasonable doubt, that the capital offense was committed for a particular purpose—
“for the purpose of escaping detection, apprehension, trial, or punishment for
another offense committed by the offender.” (Emphasis added.) R.C.
32
January Term, 2001
2929.04(A)(3). The (A)(3) specification enhances the potential penalty for
aggravated murder based on the offender’s mens rea—the offender’s purpose—not
the actus reus of a collateral offense. Cf. Apprendi v. New Jersey (2000), 530 U.S.
466, ___,
120 S.Ct. 2348, 2364,
147 L.Ed.2d 435, 457 (finding that, under a New
Jersey hate crime statute, “it is precisely a particular criminal mens rea that the …
* enhancement statute seeks to target”).
{¶ 99} A comparison between the (A)(3) specification and our state’s
kidnapping statute illustrates the distinction between a core mens rea requirement
(an element) and a collateral offense. The kidnapping statute provides:
“No person … shall remove another from the place where the other
person is found … for any of the following purposes:
“…
“(4) To engage in sexual activity … with the victim against the victim’s
will.” (Emphasis added.) R.C. 2905.01(A)(4).
{¶ 100} Like the (A)(3) specification, the kidnapping statute requires the
state to prove, beyond a reasonable doubt, that the offender acted with a specific
purpose. In State v. Powell (1990), 49 Ohio St.3d 255,
552 N.E.2d 191 (superseded
by constitutional amendment on other grounds as noted in State v. Smith [1997],
80
Ohio St.3d 89, 103,
684 N.E.2d 668, 684), the appellant claimed that his conviction
for kidnapping under this section was improper because there was insufficient
evidence to prove that sexual activity actually occurred. This court unanimously
rejected Powell’s contention, deciding that the kidnapping statute “requires only
that the restraint or removal occur for the purpose of non-consensual sexual
activity—not that sexual activity actually take place.” (Emphasis added.)
Id.,49
Ohio St.3d at 262,
552 N.E.2d at 199. The same logic should apply to this court’s
analysis of the (A)(3) specification.
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SUPREME COURT OF OHIO
{¶ 101} The (A)(3) specification has appeared in over forty cases decided
by this court since 1976.4 Like the majority, Jones cites none of them in his brief
as support for his contention that commission of the collateral offense must be
proved beyond a reasonable doubt. Both the majority and Jones simply cite the
general rules from Winship and Jackson that the state has the burden to prove all
the elements of any charge beyond a reasonable doubt. See In re Winship (1970),
397 U.S. 358,
90 S.Ct. 1068,
25 L.Ed.2d 368; Jackson v. Virginia (1979),
443 U.S.
307,
99 S.Ct. 2781,
61 L.Ed.2d 560. Because I do not agree with the majority that
the modifying phrase “committed by the offender” constitutes an element of the
(A)(3) specification, I do not find the constitutional rules of Winship and Jackson
offended by Jones’s conviction of the specification absent proof that he committed
the underlying offense.
{¶ 102} In the present case, the state introduced evidence that Jones had
outstanding felony warrants. The state also showed that a week before the killing,
Jones told his cousin that he was “facing a lot of time for robbing Isaac Coleman,”
and that he “was going to shoot at the police if they ever tried to arrest him.” This
is exactly what occurred. When Officer Glover told Jones, “[Y]ou know why I’m
here, … I’m just doing my job,” Jones fled, eventually shooting and then
viciously kicking Officer Glover. The state proved beyond a reasonable doubt that
Jones fled and killed Officer Glover to escape apprehension for another offense. It
was unnecessary for the state to prove beyond a reasonable doubt that Jones actually
committed the other offense, and it is therefore unnecessary for this court to decide,
as the majority does, that the state met this burden of proof by introducing the single
“admission” Jones made to his cousin.5 As one annotation has put it, “[p]roof that
4. See, e.g., State v. Filiaggi (1999), 86 Ohio St.3d 230,
714 N.E.2d 867; State v. Chinn (1999),
85
Ohio St.3d 548,
709 N.E.2d 1166; State v. Lawson (1992),
64 Ohio St.3d 336,
595 N.E.2d 902; State
v. Hancock (1976),
48 Ohio St.2d 147,
2 O.O.3d 333,
358 N.E.2d 273.
34
January Term, 2001
a law enforcement officer was killed in the course of an investigation or arrest has
been uniformly held sufficient to establish that the murder was committed for the
purpose of avoiding or preventing a lawful arrest.” Annotation (1988), 64
A.L.R.4th 755, 763.
II
{¶ 103} I would also resolve Jones’s tenth proposition of law somewhat
differently from the majority. In his tenth proposition, Jones contends that the trial
court erred when it failed to merge the R.C. 2929.04(A)(3) and (A)(6) death penalty
specifications. Death specifications are duplicative and should be merged when
they arise from the same act or indivisible course of conduct. State v. Jenkins
(1984), 15 Ohio St.3d 164, 15 OBR 311,
473 N.E.2d 264, paragraph five of the
syllabus. Merger is not required when the specifications are not duplicative or arise
from divisible courses of conduct. See State v. Robb (2000),
88 Ohio St.3d 59, 85,
723 N.E.2d 1019, 1047 (declining to merge [A][4], [A][5], and [A][7]
specifications). A trial court’s failure to merge duplicative aggravating
circumstances does not always result in reversible error. State v. Garner (1995),
5. The majority decides that the state proved beyond a reasonable doubt that Jones actually
committed the prior offense of aggravated robbery. The majority states that Jones’s “admission” to
his cousin that he was “facing a lot of time for robbing Isaac Coleman” was all the evidence that the
state needed to introduce in order to prove beyond a reasonable doubt that Jones actually committed
the aggravated robbery. Under the majority’s analysis, if the state charges someone with aggravated
robbery, the state may discharge its burden of proof in the case solely by introducing the testimony
of a witness (not necessarily an eyewitness), who merely testifies that the accused said that he was
“facing a lot of time” for robbery—an offense that differs significantly from aggravated robbery.
Compare R.C. 2911.01 and R.C. 2911.02. Though I deem it unnecessary to resolve this issue in the
first place, see supra, I feel compelled to disagree with the majority’s conclusion that Jones’s
statement to his cousin sufficed, in and of itself, to prove beyond a reasonable doubt that Jones
committed aggravated robbery. In this state, to convict someone of aggravated robbery, the state
must prove, inter alia, either (1) that the offender had a deadly weapon or dangerous ordnance on
or about his person, R.C. 2911.01(A)(1) and (2), or (2) that the offender inflicted or attempted to
inflict serious physical harm. R.C. 2911.01(A)(3). Jones’s “admission” to his cousin did not contain
any information tending to prove these elements of aggravated robbery. Accordingly, even if I
agreed with the majority’s threshold determination that the defendant’s commission of the prior
offense constitutes an essential element of the (A)(3) specification, which I do not, I could not join
its analysis of the sufficiency of the evidence.
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SUPREME COURT OF OHIO
74 Ohio St.3d 49, 53-55,
656 N.E.2d 623, 630-631, citing Jenkins, at paragraph five
of the syllabus. Rather, the reviewing court must determine “whether the jury’s
penalty-phase consideration of those duplicative aggravating circumstances
affected its verdict, and [must] independently determine whether the merged
aggravating circumstances outweigh the mitigating factors beyond a reasonable
doubt.” Id. at 53,
656 N.E.2d at 630.
{¶ 104} Here, Jones was convicted of three capital specifications—one
(A)(3) specification and two (A)(6) specifications. The trial court did merge the
two (A)(6) specifications, and thus presented one (A)(3) specification and one
(A)(6) specification to the jury in the penalty phase. The majority decides that
merger of the (A)(3) and (A)(6) specifications was not required, but I find it
unnecessary to resolve this issue here. Assuming, arguendo, that specifications
(A)(3) and (A)(6) arose from an indivisible course of conduct, and that the trial
court should have merged them, I would nevertheless conclude that the failure to
do so “did not influence the jury to recommend death [where] it would otherwise
have recommended life.” Garner, 74 Ohio St.3d at 54,
656 N.E.2d at 631. As in
Garner, merger of the specifications “would not have significantly changed the
nature of the evidence the jury was statutorily required to consider in making its
recommendation as to a possible sentence of death.”
Id. Accordingly, I would
overrule appellant’s tenth proposition of law without deciding the merger question.
III
{¶ 105} Assessing appellant’s thirteenth proposition of law, the majority
concludes that because the state proved each element of the (A)(3) specification
beyond a reasonable doubt, “there was no basis for moving to dismiss this
specification.” I agree that Jones’s claim of ineffective assistance of counsel must
fail, but not because I share the majority’s view that the state proved each element
of the (A)(3) specification beyond a reasonable doubt. See fn. 5, supra. Because
the trial court was not required to dismiss the (A)(3) specification, counsel’s failure
36
January Term, 2001
to request dismissal cannot be the basis for a claim of ineffective assistance of
counsel.
MOYER, C.J., and LUNDBERG STRATTON, J., concur in the foregoing
concurring opinion.
__________________
APPENDIX
{¶ 106} “Proposition of Law No. I: A capital defendant’s right to a reliable
death sentence under the Eighth Amendment as well as his right to a fair and
impartial jury under the Due Process and Equal Protection Clauses of the
Fourteenth Amendment are violated when the defendant is prohibited, or unduly
restricted from asking questions during voir dire about the prospective jurors’
ability to consider mitigating factors. U.S. Const. Amends. VIII and XIV.
{¶ 107} “Proposition of Law No. II: The death sentence must be vacated
where mitigating factors are not outweighed by the aggravating circumstances.
{¶ 108} “Proposition of Law No. III: Retrial is required where errors that
occurred during voir dire denied a capital appellant a fair and impartial jury. U.S.
Const. Amends. VI, VIII and XIV.
{¶ 109} “Proposition of Law No. IV: Denial of a change of venue based
upon racial imbalance of the jury deprived the appellant of a fair trial. U.S. Const.
Amends. VI and XIV.
{¶ 110} “Proposition of Law No. V: When a trial court denies a capital
defendant his counsel of choice, the trial court deprives that defendant of his rights
to counsel and to due process as guaranteed by the Sixth and Fourteenth
Amendments to the United States Constitution and §§ 10 and 16, Article I of the
Ohio Constitution.
{¶ 111} “Proposition of Law No. VI: The admission of irrelevant evidence
about the extraordinary efforts made to save the victim’s life denied appellant due
37
SUPREME COURT OF OHIO
process and constituted plain error at both phases of this capital trial. U.S. Const.
Amends. VIII and XIV.
{¶ 112} “Proposition of Law No. VII: Where multiple evidentiary errors in
the trial phase prejudice the defendant, the conviction must be reversed. U.S. Const.
Amend. XIV.
{¶ 113} “Proposition of Law No. VIII: The state must present evidence of
a deliberate plan to kill in order to sustain a conviction for a killing with prior
calculation and design under Ohio Rev.Code Ann. § 2903.01(A). The state must
also present evidence on all essential elements of the charged specifications. U.S.
Const. Amends. VI, VIII and XIV.
{¶ 114} “Proposition of Law No. IX: A defendant’s conviction must be
reversed when multiple errors in the trial phase instructions denied him a fair trial
and due process of law. U.S. Const. Amend. XIV.
{¶ 115} “Proposition of Law No. X: Where it is alleged that a defendant
killed a police officer to prevent the defendant’s arrest for another offense, the §
2929.04(A)(3) and (A)(6) aggravating circumstances are duplicative and must be
merged because they arise from the same act or indivisible course of conduct. U.S.
Const. Amends. VIII and XIV.
{¶ 116} “Proposition of Law No. XI: Misconduct by the prosecutor at
Odraye Jones’s capital trial denied him due process of law and undermines
confidence in the trial and the sentencing verdict. U.S. Const. [Amends.] VIII and
XIV.
{¶ 117} “Proposition of Law No. XII: Where penalty phase instructions
allow the jury to decide what evidence is admissible concerning the aggravating
circumstances and where the instructions do not conform to Ohio and federal law,
reversal is required. U.S. Const. Amend[s]. VIII and XIV.
38
January Term, 2001
{¶ 118} “Proposition of Law No. XIII: Counsel’s performance will be
deemed ineffective if it falls below an objective standard of reasonable
representation and prejudice arises therefrom. U.S. Const. Amends. VI and XIV.
{¶ 119} “Proposition of Law No. XIV: Resentencing is required where the
trial court fails to accord weight to (B)(7) mitigating evidence because it does not
qualify as (B)(3) and the court weighs the (A)(6) as a super aggravating
circumstance. U.S. Const. Amends. VIII and XIV.
{¶ 120} “Proposition of Law No. XV: Ohio’s death penalty law is
unconstitutional. The Fifth, Sixth, Eighth and Fourteenth Amendments to the
United States Constitution and §§ 2, 9, 10 and 16, Article I of the Ohio Constitution
establish the requirements for a valid death penalty scheme. Ohio Rev.Code Ann.
§§ 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04 and
2929.05 (Anderson 1996), do not meet the prescribed constitutional requirements
and are unconstitutional on their face and as applied to Odraye Jones.”
__________________
Thomas L. Sartini, Ashtabula County Prosecuting Attorney, and Ariana E.
Tarighati, Chief Assistant Prosecuting Attorney, for appellee.
David H. Bodiker, State Public Defender, and Stephen A. Ferrell, Assistant
Public Defender; and Robert A. Dixon, for appellant.
__________________
39
