[This decision has been published in Ohio Official Reports at
95 Ohio St.3d 48.]
THE STATE OF OHIO, APPELLEE, v. CAMPBELL, APPELLANT.
[Cite as State v. Campbell, 2002-Ohio-1626.]
Criminal law—Aggravated murder—Sentence of death upheld following remand,
when.
(No. 01-1057—Submitted January 30, 2002—Decided April 10, 2002.)
APPEAL from the Court of Common Pleas of Franklin County, No.
97CR-04-2020.
__________________
MOYER, C.J.
{¶ 1} Appellant, Alva E. Campbell, Jr., appeals his sentence of death for the
aggravated murder of Charles Dials.
{¶ 2} In 1972, Campbell was convicted of first-degree murder (former R.C.
2901.01) and sentenced to life imprisonment. Twenty years later, he was paroled.
In 1997, he was arrested in Franklin County on a charge of aggravated robbery.
{¶ 3} On April 2, 1997, Deputy Sheriff Teresa Harrison drove Campbell
from the Jackson Pike Jail to Franklin County for his arraignment. Campbell was
feigning paralysis and was in a wheelchair.
{¶ 4} Around 12:30 p.m., Charles Dials was paying a ticket at the traffic
bureau of the Franklin County Municipal Court. About the same time, Harrison
parked in a courthouse loading dock and began to help Campbell out of the vehicle.
Campbell suddenly assaulted her, stole her pistol, and fled.
{¶ 5} Dials had just driven away from the courthouse in his pickup truck
when Campbell ran out into the street. Campbell stopped Dials’s truck and pulled
open the driver’s door. Campbell told Dials, “I don’t want to hurt you; just move
over.” Campbell got inside and drove off with Dials.
SUPREME COURT OF OHIO
{¶ 6} Campbell drove to a K-Mart on South High Street. He parked there
and talked with Dials, telling him not to be nervous. Then he drove to a factory on
a side street. There, Campbell took Dials’s money and made Dials exchange
clothes with him.
{¶ 7} Campbell then drove back to High Street, bought a forty-ounce bottle
of beer at a drive-through, and returned to the K-Mart. In the parked truck he sat
talking with Dials “probably a good 2 hours,” according to his confession. A radio
report on Campbell’s escape mentioned that he had commandeered a red truck.
Dials said, “That’s you, ain’t it?” Campbell admitted it was, and they talked a while
longer.
{¶ 8} Campbell then moved the truck behind the K-Mart, driving around
the back lot three times before he finally chose a parking space. He told Dials to
“get on the floor board of his truck.” When Dials obeyed, Campbell shot him twice.
{¶ 9} Campbell drove around to the K-Mart’s main parking lot and waited.
Eventually, Katie Workman drove in and parked near the truck. Campbell then
tried to kidnap her. Workman escaped, although Campbell seized her wallet and
car keys. Campbell then drove Workman’s car to a nearby shopping center, where
he tried to kidnap James Gilliam. Gilliam also managed to escape, leaving his car
but keeping his keys.
{¶ 10} Campbell drove around in Workman’s car until a police officer saw
him. He drove away from the officer, then abandoned the car and fled on foot.
Campbell hid in a tree, but was spotted. When police surrounded the tree, Campbell
dropped Deputy Harrison’s gun and surrendered. In police custody, Campbell
made a videotaped confession.
{¶ 11} Campbell was indicted on four counts of aggravated murder. Each
aggravated murder count carried four death specifications: murder to escape
detection, apprehension, trial, or punishment, R.C. 2929.04(A)(3); felony-murder
predicated on aggravated robbery, R.C. 2929.04(A)(7); felony-murder predicated
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on kidnapping, R.C. 2929.04(A)(7); and having a prior murder conviction, R.C.
2929.04(A)(5). The indictment also contained ten noncapital counts.
{¶ 12} Campbell was convicted of all counts and specifications; the trial
court merged the death specifications under R.C. 2929.04(A)(3) into the felony-murder death specifications. Thus, only three specifications were presented to the
jury at the penalty phase. The jury recommended a death sentence and, after
merging the four aggravated murder counts into one, the trial judge sentenced
Campbell to death on Count Three.
{¶ 13} Campbell appealed the judgment directly to this court pursuant to
R.C. 2953.02 and Section 2(B)(2)(c), Article IV, Ohio Constitution. On December
20, 2000, we affirmed Campbell’s convictions. However, we vacated the sentence
because the trial court did not comply with the allocution provisions of Crim.R.
32(A)(1). See State v. Campbell (2000), 90 Ohio St.3d 320, 323-326,
738 N.E.2d
1178 (“Campbell I”). We remanded the cause to the common pleas court “with
instructions to resentence Campbell on Count Three after directly asking him ‘if he
… wishes to make a statement in his … own behalf or present any information
in mitigation of punishment.’ “ Id. at 326,
738 N.E.2d 1178.
{¶ 14} On remand, the trial court heard Campbell’s allocution and
considered an affidavit submitted by the defense. The court then sentenced
Campbell to death. The cause is now before us upon an appeal as of right from the
death sentence imposed on remand.
{¶ 15} In this appeal, the sole issue to be resolved is whether we should
approve Campbell’s sentence of death. Under R.C. 2929.05, we must determine
whether the evidence supports the jury’s finding of aggravating circumstances,
whether the aggravating circumstances outweigh the mitigating factors beyond a
reasonable doubt, and whether the death sentence is proportionate to those affirmed
in similar cases. Campbell contends that the aggravating circumstances present in
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this case do not outweigh the mitigating factors beyond a reasonable doubt and that
death is therefore not the appropriate penalty for the murder of Charles Dials.
I. The Aggravating Circumstances
{¶ 16} Campbell was convicted of three aggravating circumstances: one
under R.C. 2929.04(A)(5), having a prior conviction of an offense involving “the
purposeful killing of or attempt to kill another,” and two under R.C. 2929.04(A)(7),
felony murder predicated upon aggravated robbery and kidnapping.
{¶ 17} The record clearly supports a conclusion that the (A)(5) specification
is satisfied. State’s Exhibit 1, introduced in the guilt phase, is a certified copy of a
judgment of the Cuyahoga County Common Pleas Court. It confirms that Campbell
was convicted of the first-degree murder of William Dovalosky on October 20,
1972.
{¶ 18} The evidence also supports both felony-murder specifications.
Campbell’s confession reveals that he killed Dials while committing kidnapping
and aggravated robbery. Other evidence corroborates that confession. Courthouse
security-camera photos show Campbell hijacking Dials’s truck. Dials was shot
with Deputy Harrison’s gun, which Campbell had stolen, and Campbell’s palm
print was found in the truck. Katie Workman identified Campbell as the man she
encountered in the K-Mart parking lot. Finally, Campbell was arrested while
wearing Dials’s clothing.
II. Mitigating Factors
{¶ 19} A sentencer in a capital case must consider, as a mitigating factor,
“any aspect of a defendant’s character or record and any of the circumstances of
the offense that the defendant proffers as a basis for a sentence less than death.”
Lockett v. Ohio (1978), 438 U.S. 586, 604,
98 S.Ct. 2954,
57 L.Ed.2d 973. See,
also, Eddings v. Oklahoma (1982),
455 U.S. 104, 112,
102 S.Ct. 869,
71 L.Ed.2d
1. Under R.C. 2929.04(B), mitigating factors include “the nature and circumstances
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of the offense, the history, character, and background of the offender,” and the
factors set forth in R.C. 2929.04(B)(1) through (B)(7).
{¶ 20} At the penalty phase, Campbell presented three witnesses in
mitigation: his sister Gwendolyn, Sergeant Don Thomas of the Franklin County
Sheriff’s Department, and Dr. Jeffrey Smalldon, a clinical psychologist.
{¶ 21} Upon remand to the trial court, Campbell elected to make a statement
in allocution. Campbell expressed remorse for killing Dials. He spoke of his
traumatic childhood, his religious conversion, and his health problems. He
concluded by “throw[ing him]self on the mercy of the Court” and asking for
forgiveness. Campbell also presented an affidavit by Sergeant Froilan Ochoa, a
correctional officer who knew Campbell from having worked on death row, in
which Ochoa commended Campbell on his sense of responsibility and good
behavior.
A. Nature and Circumstances of the Offense
{¶ 22} The nature and circumstances of the offense have little mitigating
value. Campbell emphasizes that he drank at least forty ounces of beer during the
crime. Although voluntary intoxication is a mitigating factor, see State v. Sowell
(1988), 39 Ohio St.3d 322, 325-326,
530 N.E.2d 1294, it is a weak one. See State
v. Otte (1996),
74 Ohio St.3d 555, 568,
660 N.E.2d 711.
{¶ 23} Campbell stated in allocution that he had killed Dials by accident.
However, the evidence does not support this contention. “The murder of Charles
Dials culminated a kidnapping that lasted over two hours.” Campbell I, 90 Ohio
St.3d at 330-331, 738 N.E.2d at 1193. Cf. State v. Keenan (1998),
81 Ohio St.3d
133, 140,
689 N.E.2d 929; State v. D’Ambrosio (1993),
67 Ohio St.3d 185, 196,
616 N.E.2d 909. After carefully choosing the site of the murder, Campbell made
Dials lie on the floor of the truck, then shot him at close range in the face and neck.
As we said in Campbell I,
90 Ohio St.3d at 330,
738 N.E.2d 1178, this was “a
calculated, execution-style murder.”
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B. History, Character, and Background
{¶ 24} As in many death penalty cases we have reviewed, Campbell’s
principal mitigation lies in the conditions to which he was subjected by his parents
while he was a minor.
{¶ 25} Campbell was born on April 30, 1948, one of six children raised in
an abusive, loveless, amoral, and unstable environment. His parents got drunk
every weekend. When drunk, they fought physically and verbally. Campbell’s
sister Gwendolyn testified that their father beat their mother viciously, “like he was
in the [boxing] ring,” while the children were forced to watch. He would also expel
Campbell’s mother from the house in cold weather and threaten to kill the children
if they let her back in.
{¶ 26} Despite his father’s threats, Campbell once tried to defend his
mother from his father’s abuse. According to Smalldon, Campbell experienced
“tremendous feelings of powerlessness [and] helplessness” because he was unable
to protect his mother from his father.
{¶ 27} Campbell’s father also abused Campbell and the other children. He
beat them severely, forbade them to have friends, and played cruel, bizarre games
to frighten them. Campbell was especially close to his younger brother, Dennis,
whom he took care of and tried to protect. The death of Dennis at age three was a
traumatic experience for Campbell.
{¶ 28} The Campbell children received no affection, emotional support, or
moral guidance from their parents. Campbell was encouraged to steal as early as
age six or seven. Campbell stole to emulate his father, who bragged about stealing
and praised Campbell for stealing without getting caught.
{¶ 29} Campbell’s father sexually abused two of his four daughters. The
rest of the family knew about the abuse. Campbell’s father was eventually
prosecuted and, in 1958, confined at the Lima State Hospital. In his allocution,
Campbell asserted that, when he was eight years old, his father had sexually
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January Term, 2002
molested him also. However, Campbell had previously denied this when asked by
Smalldon.
{¶ 30} When Campbell’s father was removed from the household,
Campbell was still unsupervised because his mother abused alcohol heavily.
Campbell seldom attended school. When Campbell was eleven, he and the other
children were taken from their mother.
{¶ 31} Over the ensuing six years, Campbell went through further
instability, moving from placement to placement. Between 1959 and 1965,
Campbell was placed in “two different residential treatment facilities in
Pennsylvania, … nine separate detention center placements [and] … two
different foster homes.” Encouraged by his mother, he ran away every chance he
got.
{¶ 32} In his allocution, Campbell stated that a counselor at one of the
Pennsylvania institutions tried to molest him. He also stated that he was sent from
that institution to foster parents who were alcoholics.
{¶ 33} Campbell had what Smalldon described as an “incredibly erratic
history of formal educational experiences” and “multiple contacts with the juvenile
justice system,” beginning around the age of twelve, including theft, assault, and
truancy charges. In 1961, a doctor at the Juvenile Diagnostic Center in Columbus
wrote that Campbell “shows a violent rage under the surface” and “sees the
environment as aggressive and hostile.” At nineteen, he went to prison for the first
time, convicted of shooting a state trooper with intent to kill; he was released in
1971.
{¶ 34} Smalldon examined Campbell seven times prior to testifying,
conducting a “wide-ranging interview” and a battery of psychological and
neuropsychological tests. Smalldon also interviewed three of Campbell’s sisters
and his ex-wife, and reviewed an assortment of Campbell’s records.
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{¶ 35} Smalldon considered the relationship of Campbell’s childhood to his
adult behavior. According to Smalldon, the eleven years between Campbell’s birth
and his father’s removal from the home were crucial: “[T]hat’s when the learning
that provides the foundation for adult personality takes place.”
{¶ 36} Smalldon testified that children raised in a family where sexual
abuse occurs often feel “[d]istrust and hostility toward outsiders.” They also grow
up with a “constricted” emotional range; this is consistent with Campbell’s
personality, in that Smalldon deemed him “profoundly deficient in his ability to
experience empathy.” Frequently, such children adopt an attitude of “narcissism
or arrogance” to compensate for low self-esteem.
{¶ 37} Campbell’s childhood has some mitigating value. See State v.
Cooey (1989), 46 Ohio St.3d 20, 41,
544 N.E.2d 895; State v. Murphy (1992),
65
Ohio St.3d 554, 586,
605 N.E.2d 884. Nevertheless, Campbell was nearly forty-nine years old when he committed the murder that is the subject of this case. He
had reached “an age when … maturity could have intervened” and “had clearly
made life choices as an adult before committing [this] murder.”
Id. at 588,
605
N.E.2d 884 (Moyer, C.J., dissenting). At forty-nine, Campbell had considerable
time to distance himself from his childhood and allow other factors to assert
themselves in his personality and his behavior.
{¶ 38} Moreover, as the trial court noted, Campbell’s sisters endured the
same abusive environment as Campbell endured, yet grew up to be law-abiding
citizens. See State v. Waddy (1992), 63 Ohio St.3d 424, 452,
588 N.E.2d 819; State
v. (Jerome) Campbell (1994),
69 Ohio St.3d 38, 55,
630 N.E.2d 339.
{¶ 39} Finally, we reject Campbell’s argument that he should be spared
because he “has already suffered enough.” This argument is an appeal to sympathy,
whereas “the sentence … should reflect a reasoned moral response to the
defendant’s background, character, and crime rather than mere sympathy or
emotion.” California v. Brown (1987), 479 U.S. 538, 545,
107 S.Ct. 837, 93
8
January Term, 2002
L.Ed.2d 934 (O’Connor, J., concurring). His childhood suffering is relevant, but
only to the extent his “criminal … acts are attributable to” it.
Id.
{¶ 40} For these reasons, although we acknowledge that Campbell was
raised in an abusive and hostile environment, we accord minimal weight to it in
mitigation.
C. Statutory Mitigating Factors, R.C. 2929.04(B)(1) through (B)(6)
{¶ 41} Campbell does not claim that any of the specific mitigating factors
set forth in R.C. 2929.04(B)(1) through (B)(6) exist in this case. Nor did any
evidence at trial suggest that any of these factors exist.
D. “Other Factors,” R.C. 2929.04(B)(7)
{¶ 42} Under R.C. 2929.04(B)(7), we must consider “[a]ny other factors
that are relevant to the issue of whether the offender should be sentenced to death.”
1. Adjustment to Prison/Lack of Future Dangerousness
{¶ 43} A major defense theme in the penalty phase was that Campbell
would conduct himself well in prison and would not be a danger to society if
allowed to live. Accordingly, the defense introduced evidence of Campbell’s good
behavior in prison during his previous sentence and on death row since his
conviction in this case.
{¶ 44} Smalldon studied the records of Campbell’s twenty-year
imprisonment for his earlier murder, and described his adjustment as “a mixed
bag,” but “generally very positive.” The records depict a reliable worker who does
more than required. In 1989 or 1990, Campbell was commended for coming to the
aid of a female guard who was attacked by two inmates she was transporting,
placing himself in “considerable physical danger.”
{¶ 45} As further evidence of good adjustment to prison, the defense
pointed to various prison-sponsored activities in which Campbell had participated.
Campbell coached a softball team, took part in the Jaycees’ “Checkmate Program”
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(described as “a program to assist young people”), and was involved in alcohol and
drug counseling programs.
{¶ 46} Smalldon attributed Campbell’s “generally very positive”
adjustment to prison principally to his “almost frantic rebellion … against the
image of himself as incompetent or not worth anything.” Smalldon did concede
that the hope of parole might have contributed to Campbell’s good behavior: “I
don’t think there’s any question that Mr. Campbell is capable of manipulation.”
{¶ 47} In fact, Smalldon noted in the prison records an incident that showed
Campbell to be “capable of manipulative behavior.” Campbell “cultivated some
kind of a relationship with a prison employee,” leading to “communication between
Mr. Campbell and this [employee] about his obtaining a key that … would have
enabled him to meet with this woman in a private room.”
{¶ 48} Nevertheless, Smalldon thought it unlikely that manipulation can
completely explain Campbell’s good behavior over twenty years, because
Campbell had an “antisocial personality disorder,” and persons with such a disorder
“tend to be short-term planners.”
{¶ 49} Smalldon’s assumption that Campbell is a “short-term planner”
seems inconsistent with Campbell’s admission to police that he “had planned *
… all along” his escape from custody. Still, Smalldon saw no inconsistency. He
interpreted Campbell’s admission to mean only that Campbell watched for an
opportunity to escape after he saw that the jail staff believed his claim of paralysis.
Smalldon thought the escape was improvised, and he did not believe that Campbell
had “any well thought out plan.”
{¶ 50} Smalldon also reviewed Campbell’s Franklin County Jail records,
which show persistent efforts to prepare a second escape, as well as multiple
instances of “manipulative behavior,” during his pretrial incarceration. On two
occasions, Campbell tried to persuade people to smuggle saw blades to him; on one
of those occasions, he wrote out explicit instructions for concealing such a blade in
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January Term, 2002
a piece of mail. Metal towel hooks were twice found concealed in his cell.
Campbell once threatened to stab a sergeant the next time the sergeant came to his
cell; he said he “had nothing to lose” since he was “lookin[g] at the chair anyway.”
Smalldon concluded that Campbell’s overall adjustment to the jail was poor.
{¶ 51} Nonetheless, Campbell argues that “he will behave appropriately in
a state penal institution.” As evidence, he cites the affidavit of Sergeant Froilan
Ochoa, a correctional officer at the Mansfield Correctional Institution formerly
assigned to death row.
{¶ 52} The affidavit stated that during Ochoa’s tour of duty, Campbell
served as death row food porter, which “required him to separate trays and to serve
hot food in equal amounts to the inmates.” Ochoa felt that Campbell “did a great
job.” Campbell “got along with every corrections officer, which is unusual,” and
treated everyone with respect.
{¶ 53} Ochoa urged Campbell to read the Bible, and Campbell did so with
apparent enthusiasm. In Ochoa’s opinion, Campbell was “mature, intelligent, and
responsible,” “clean and orderly,” and “serious.” In fact, Ochoa considered
Campbell “one of the best inmates that [Ochoa] ha[d] dealt with” in seventeen years
as a correctional officer, and he wished Campbell could be his porter again.
{¶ 54} Ochoa’s affidavit also states that Campbell received no
“disciplin[ary] write-ups” while Ochoa worked on death row. The state rebutted
with a hearing officer’s finding that Campbell had possessed contraband in his cell.
However, the record does not disclose whether Ochoa was working on death row
at that time.
{¶ 55} The state also contends that Ochoa’s evaluation of Campbell is
unreliable. At the resentencing hearing, the prosecution introduced documents
showing Ochoa’s disciplinary record. Between 1988 and 1998, Ochoa was
reprimanded twice and received two suspensions totaling eight days. In August
1997, he was evaluated as performing below expectations in six of eight areas. One
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month later, he was demoted from sergeant to correctional officer. (He was
promoted back to sergeant when transferred from death row to another unit.)
{¶ 56} The state argues that Ochoa’s record indicates that his “judgment is
questionable.” This argument is of dubious merit, since prison authorities evidently
trusted Ochoa’s judgment enough to assign him to death row.
{¶ 57} More persuasively, however, the state argues that Campbell has a
record of fooling and manipulating those who have dealt with him in the past. That
was how he escaped from custody in the first place, leading to Dials’s murder. Dr.
Smalldon conceded that Campbell’s jail records show “multiple indications …
of what’s described as manipulative behavior on his part.” Furthermore, Smalldon
observed that Campbell “expends a tremendous amount of energy in impression
management.” Even in state prison, he tried to manipulate a prison employee into
slipping him a key to a private room.
{¶ 58} Campbell’s previous good adjustment to prison is not an impressive
mitigating factor. While it deserves some weight, it must be viewed in light of
Campbell’s manipulative nature and his poor adjustment to incarceration in the
Franklin County Jail. Campbell’s feigning of paralysis, his possession of towel
hooks, his attempts to obtain saw blades, his threats to a guard in the county jail,
and his assault on Harrison tend to refute his claim that he is likely to behave well
in prison.
{¶ 59} A related point raised by Campbell in allocution was his ill health
and the likelihood that he will die in prison. See, generally, Campbell I, 90 Ohio
St.3d at 327,
738 N.E.2d 1178, quoting State v. Bradley (1989),
42 Ohio St.3d 136,
149,
538 N.E.2d 373 (probability that defendant will never be released from prison
if sentenced to life should be considered mitigating under R.C. 2929.04[B][7]).
Campbell stated that he suffered from asthma and emphysema, had recently had
half a lung surgically removed, was facing “major surgery” on his throat, and did
not know how much longer he had to live.
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{¶ 60} Finally, at trial Sergeant Don Thomas of the Franklin County
Sheriff’s Department testified concerning the procedures used to transport
Campbell to and from the jail after his escape and recapture. Campbell was patted
down, placed in handcuffs, leg irons, and a belly chain, and escorted by several
deputies, including a supervisor. This testimony suggests that Campbell can be
rendered harmless with appropriate precautions. However, these precautions were
extraordinary, and Thomas did not know whether similar precautions would be
used in the state prison system.
2. Remorse
{¶ 61} Campbell expressed remorse for killing Dials, both in his confession
to police and in his allocution to the trial court. He also indicated remorse in an
interview with Smalldon. Smalldon believed that his remorse was “genuine” but
not “as deep as we … more normally functioning people without his kind of
severe emotional and personality disturbance think of when we talk about the word
remorse.”
{¶ 62} However, we question Campbell’s sincerity. He falsely claimed in
allocution that he “did not mean to take the life of Mr. Dials. … It was an
accident.” He also lied to Smalldon, claiming that the murder was an act of “selfdefense.” Moreover, Campbell did not surrender to police until surrounded by
them. Cf. State v. Wiles (1991), 59 Ohio St.3d 71, 93-94,
571 N.E.2d 97 (defendant
fled state, but later surrendered spontaneously and voluntarily to police); State v.
Hicks (1989),
43 Ohio St.3d 72, 80,
538 N.E.2d 1030.
{¶ 63} Finally, Smalldon diagnosed Campbell as having an antisocial
personality disorder, and one characteristic of that disorder is lack of remorse. In
fact, Smalldon thought Campbell incapable of “the kind of deep feelings for
someone else” implied by the word “remorse.”
{¶ 64} Retrospective remorse, even when sincere, generally deserves “little
weight.” See State v. Post (1987), 32 Ohio St.3d 380, 394,
513 N.E.2d 754. On
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the record before us, we find that Campbell’s remorse is not sincere, and hence is
entitled to no weight at all.
3. Personality Disorder
{¶ 65} Smalldon testified that Campbell has an antisocial personality
disorder, which is characterized by a pattern of disregard of others’ rights,
lawbreaking, lying, impulsivity, fighting, irresponsibility, and lack of remorse.
However, Smalldon also testified that many people who have an antisocial
personality disorder nonetheless can function in society and do not commit crimes.
Therefore, we find that Campbell’s antisocial personality disorder deserves little
weight. See State v. Cooey, 46 Ohio St.3d at 41,
544 N.E.2d 895.
4. Severity of Life Sentence
{¶ 66} Conceding that he “can never be released from prison” and “should
not be allowed to live in society,” Campbell asks for a sentence of life without
possibility of parole. Campbell argues that, because life imprisonment without
possibility of parole is a “stern” and “very serious” punishment, it is an adequate
one, and the state need not execute him in order to achieve retribution.
{¶ 67} We do not doubt that life imprisonment without possibility of parole
is a stern punishment. Yet we must also observe that Campbell was already under
a life sentence when he escaped from Deputy Harrison and killed Charles Dials.
Since no one can serve more than one life sentence, we have no authority to
lengthen the term of imprisonment Campbell faced before the murder of Dials. If
we reduce Campbell’s sentence in the instant case to life imprisonment without
possibility of parole, the only additional penalty he will incur for murdering Dials
will be that he will no longer be eligible for parole. Thus, the severity of life
imprisonment as a penalty is an unpersuasive reason against imposing a death
sentence in this case and is entitled to little weight in mitigation.
III. Weighing
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{¶ 68} We may affirm Campbell’s death sentence “only if … persuaded
from the record that the aggravating circumstances the offender was found guilty
of committing outweigh the mitigating factors present in the case and that the
sentence of death is the appropriate sentence in the case.” R.C. 2929.05(A).
Moreover, we must be so persuaded beyond a reasonable doubt. State v. Jenkins
(1984), 15 Ohio St.3d 164, 206, 15 OBR 311,
473 N.E.2d 264, 302.
{¶ 69} Against Campbell’s mitigation, we must weigh three aggravating
circumstances. In particular, the (A)(5) prior-murder circumstance “can be even
more grave than other aggravating circumstances.” State v. Taylor (1997), 78 Ohio
St.3d 15, 34,
676 N.E.2d 82, 99, citing State v. Carter (1992),
64 Ohio St.3d 218,
228,
594 N.E.2d 595, 602. In addition, there are two felony-murder aggravating
circumstances. For the reasons discussed in Part II, supra, we find that these
aggravating circumstances outweigh, beyond a reasonable doubt, the mitigating
factors present in this case.
IV. Proportionality
{¶ 70} Finally, we conclude that the death sentence is proportionate to
sentences approved in similar cases. See State v. Spirko (1991), 59 Ohio St.3d 1,
570 N.E.2d 229; State v. Montgomery (1991),
61 Ohio St.3d 410,
575 N.E.2d 167;
State v. D’Ambrosio,
73 Ohio St.3d 141,
652 N.E.2d 710; State v. Otte,
74 Ohio
St.3d 555,
660 N.E.2d 711; State v. Keenan,
81 Ohio St.3d 133,
689 N.E.2d 929.
{¶ 71} We affirm the sentence of death imposed upon Alva E. Campbell,
Jr., for the aggravated murder of Charles Dials.
Judgment affirmed.
DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG
STRATTON, JJ., concur.
__________________
Ron O’Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor,
Assistant Prosecuting Attorney, for appellee.
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David H. Bodiker, Ohio Public Defender, Joseph E. Wilhelm, Appellate
Supervisor, Death Penalty Division, and Kelly L. Culshaw, Assistant Public
Defender, for appellant.
__________________
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