State v. Yarbrough

. See,
also, Lilly v. Virginia (1999),

527 U.S. 116, 130-134

 (plurality opinion).
       {¶47} For this reason, the Confrontation Clause of the Sixth Amendment
permits such a statement to be admitted only if it exhibits adequate indicia of
reliability. Madrigal,

87 Ohio St.3d at 386

. See, generally, Ohio
v. Roberts (1980),

448 U.S. 56, 66

100 S.Ct. 2531

65 L.Ed.2d 597

. Moreover,
“the fact that other evidence corroborates the statement is irrelevant. … The
relevant circumstances include ‘only those that surround the making of the
statement and that render the declarant particularly worthy of belief.’ (Emphasis
added.)” Madrigal,

87 Ohio St.3d at 387

, quoting Idaho v. Wright
(1990),

497 U.S. 805, 819

110 S.Ct. 3139

111 L.Ed.2d 638

.
       {¶48} Relying heavily on the plurality opinion in Lilly v.

Virginia, supra,

appellant contends that Calvin Davis’s statement to Jewel Davis was not
surrounded by “circumstances … that render the declarant particularly worthy of
belief.” Therefore, appellant contends, the statement’s admission violated his
rights under the Confrontation Clause.
       {¶49} We disagree. Calvin Davis’s statement to his wife is distinguishable
from the statement at issue in Lilly on every relevant point. This is not a case where
“the government [was] involved in the statements’ production.” Lilly,

527 U.S. at 137

. Calvin Davis was not in custody when he
made the statement, nor was he speaking “under the supervision of governmental
authorities.”

Id. at 139

. Thus, he had no “natural
motive to attempt to exculpate himself as much as possible” by implicating




                                         11
                             SUPREME COURT OF OHIO




appellant.

Id.

 Nor was he “responding to      … leading questions.”

Id.

 See State
v. Issa (2001),

93 Ohio St.3d 49, 61

.
       {¶50} Nor can we accept appellant’s contention that Calvin Davis was
shifting blame from himself. Like the declarant in Issa, he “had nothing to gain
from inculpating appellant in the crime.” Issa,

93 Ohio St.3d at 61

. “At best, [declarant’s] statement would ‘shift’ enough blame so that he and
[defendant] would share responsibility for the crime. [Declarant] would be exposed
to an equally severe penalty on the basis of his confession alone.” People v. Petros
(1993),

198 Mich.App. 401, 416

499 N.W.2d 784

.
       {¶51} “Lilly’s main concern was with statements in which, as is common in
police-station confessions, the declarant admits only what the authorities are
already capable of proving against him and seeks to shift the principal blame to
another (against whom the prosecutor then offers the statement at trial).” United
States v. Shea (C.A.1, 2000),

211 F.3d 658

, 669. The statement in Lilly whose
admission violated the Confrontation Clause fit that description. Calvin Davis’s
spontaneous statement to his wife, in his own home, with no state involvement
whatsoever, does not. “Lilly does not change the fact that statements to close family
members have ‘particularized guarantees of trustworthiness.’ ” United States v.
Westmoreland (C.A.7, 2001),

240 F.3d 618, 628

, quoting United States v. Tocco
(C.A.6, 2000),

200 F.3d 401, 416

. See, also, Latine v. Mann (C.A.2, 1994),

25 F.3d 1162, 1166-1167

 (distinguishing between custodial statements to police and
statements to a perceived ally).
       {¶52} Appellant goes so far as to contend that Calvin Davis’s statement is
unreliable because he was speaking to his wife; he argues that Calvin Davis “had
every reason to believe that his conversations with his wife would never be
disclosed and would never subject him to criminal liability.”
       {¶53} Although a few courts have found similar reasoning persuasive in
part, see United States v. Hoyos (C.A.9, 1978),

573 F.2d 1111, 1115

; United States




                                         12
                                 January Term, 2002




v. Battiste (N.D.Ill.1993),

834 F.Supp. 995, 1006

, and fn. 11; State v. Myers (1981),

229 Kan. 168, 175

625 P.2d 1111

, others have not. See Linton v. State (Alaska
App.1994),

880 P.2d 123, 127-128

; State v. Kiewert (1992),

135 N.H. 338

605 A.2d 1031

. We believe the latter courts take the better position. “Even to people
we trust completely, we are not likely to admit serious fault of which we are
innocent ….” 4 Mueller & Kirkpatrick, Federal Evidence (2d Ed.1994) 822-823,
Section 496. Thus, where a declarant makes a statement to someone with whom
he has a close personal relationship, such as a spouse, child, or friend, courts usually
hold that the relationship is a corroborating circumstance supporting the
statement’s trustworthiness. See, e.g., Green v. Georgia (1979),

442 U.S. 95, 97

99 S.Ct. 2150

60 L.Ed.2d 738

; United States v.

Tocco, supra;

 United States v.
Boone (C.A.9, 2000),

229 F.3d 1231, 1234

; Westmoreland,

240 F.3d at 627-628

.
        {¶54} To sum up: Calvin Davis was speaking to his wife, not to police; he
was at home, not in custody; his statement was spontaneous, and he had nothing to
gain by incriminating appellant. These are corroborating circumstances that render
his statement worthy of belief. The admission of that statement did not, therefore,
violate either the Confrontation Clause or Evid.R. 804(B)(3).




                                          13
                             SUPREME COURT OF OHIO




                          C. Statement to Jermaine Jelks
        {¶55} Jermaine Jelks testified to a conversation that took place in Calvin
Davis’s van before the murder. Jelks testified that Calvin Davis “was speakin’
based upon our drug cases and suggested they should … pay Kevin Yarbrough
to do a hit on Wilma. … It was $10,000 apiece.” Over objection, this testimony
was admitted under the rule for statements by coconspirators, Evid.R. 801(D)(2)(e),
and under the hearsay exception for statements against interest when the declarant
is unavailable, Evid.R. 804(B)(3).
        {¶56} The court of appeals upheld the admission of this statement to Jelks
on essentially the same grounds that it upheld the admission of Calvin Davis’s
statement to Jewel Davis that Calvin Davis had paid appellant to have Wilma Arnett
killed. We agree with the court of appeals that this statement also was admissible
under Evid.R. 804(B)(3) as a statement against interest. We also agree that the
corroborating circumstances render the statement sufficiently trustworthy that the
Confrontation Clause was not violated.
        {¶57} The trial court properly admitted each of the statements in question.
Appellant’s first proposition of law is therefore overruled.
                    II. Exclusion of Hearsay—Due Process Issue
        {¶58} In his second proposition of law, appellant contends that certain out-of-court statements by Calvin Davis should have been admitted as statements
against interest.
        {¶59} Appellant proffered the testimony of Kenneth Henderson, who had
been in jail with Calvin Davis in November or December 1994. According to
Henderson, Calvin Davis told him “that Tyrone McGhee and Jermaine Jelks and
Darren Taborn killed Wilma. … He said that … they came to his house early
that morning and cleaned blood off ‘em or somethin’.”
        {¶60} The defense argued that Calvin Davis’s statements to Henderson
were admissible as statements against Calvin Davis’s penal interest. The trial judge




                                         14
                                January Term, 2002




found that no corroborating circumstances supported the truthfulness of these
statements. He therefore excluded them.
       {¶61} Appellant argues that the statements meet every requirement of
Evid.R. 804(B)(3) and therefore should have been admitted. He further argues that
excluding the statements denied him due process.
A. Evid.R. 804(B)(3)
       {¶62} Calvin Davis’s statement that McGhee, Jelks, and Taborn killed
Arnett was clearly not against Calvin Davis’s penal interest. On the other hand, his
statement that McGhee, Jelks, and Taborn washed blood from themselves at Calvin
Davis’s house was against his penal interest, at least arguably. The statement could
be construed as implying that he permitted the others to wash off the blood, which
could be deemed to violate R.C. 2921.32(A), obstructing justice.
       {¶63} However, the rule requires that the statement so far subjected him to
criminal liability that a reasonable person would not make the statement unless true.
Issa,

93 Ohio St.3d at 58

. Appellant concedes that the statement
represents an effort to shift blame to Taborn, McGhee, and Jelks. The evidence at
trial shows that Calvin Davis was far more deeply involved in Arnett’s murder than
his statement to Henderson would suggest. A reasonable person might easily make
a false statement that minimized his involvement in the offense. Compare People
v. Petros (1993),

198 Mich.App. 401

499 N.W.2d 784

.
       {¶64} Moreover, there is little to indicate that the statement is trustworthy.
The sole corroborating circumstance is that Calvin Davis was not speaking to police
and therefore was not trying to curry favor. However, while “jailhouse confessions
to cellmates” may be “trustworthy and admissible,” we cannot say the same of a
statement that shifts blame from the declarant to others.        (Emphasis added.)
Westmoreland,

240 F.3d at 628

.
       {¶65} Appellant purports to find further corroboration in the facts that
Henderson and Calvin Davis were discussing their cases, that Henderson knew




                                         15
                                SUPREME COURT OF OHIO




Calvin Davis was in jail on drug charges, and that “prior indictments, convictions,
or dismissals” were therefore a likely topic of conversation between them.
Appellant offers no explanation of how these facts show the trustworthiness of
Calvin Davis’s statements. On balance, we find that the exclusion of Calvin
Davis’s statements comported with Evid.R. 804(B)(3).
                                      B. Due Process
        {¶66} Appellant further argues that, irrespective of whether the statements
were admissible under Evid.R. 804(B)(3), their exclusion denied him due process
of law. Here, appellant relies on Chambers v. Mississippi (1973),

410 U.S. 284

. Chambers holds that due process “affords criminal
defendants the right to introduce into evidence third parties’ declarations against
penal interest—their confessions—when the circumstances surrounding the
statements ‘provid[e] considerable assurance of their reliability.’ ” Lilly,

527 U.S. 116, 130

 (plurality opinion) (emphasis added),
quoting Chambers,

410 U.S. at 300

.
        {¶67} In this case, the circumstances surrounding Calvin Davis’s
statements provide no assurances of reliability remotely comparable to those in
Chambers. There, the declarant confessed to the murder, and his confession
exonerated the defendant. Chambers,

410 U.S. at 297

. But Calvin Davis’s statements did not amount to a confession; he may have
exposed himself to some liability, but he was accusing other people of killing
Arnett. Furthermore, Calvin Davis’s statements did not exonerate appellant; the
possible involvement of three other persons in the murder hardly disproves
appellant’s guilt.
        {¶68} In Chambers, the declarant’s statement was corroborated both by the
circumstances of its making and by other evidence.2

410 U.S. at 300

93 S.Ct. 1038, 2

. Although “the fact that other evidence corroborates the statement is irrelevant” to the
Confrontation Clause analysis when the state attempts to introduce a statement against interest




                                              16
                                    January Term, 2002

; see, also, Green v. Georgia,

442 U.S. 95

99 S.Ct. 2150

60 L.Ed.2d 738

. In this case, Calvin Davis’s statements were corroborated to some extent by
the circumstances of their making (in that they were not made to police), but not at
all by other evidence. Finally, the Chambers declarant was available to be crossexamined. Chambers,

410 U.S. at 301

. Calvin
Davis was not.
        {¶69} “Chambers was an exercise in highly case-specific error correction.”
Montana v. Egelhoff (1996),

518 U.S. 37, 52

116 S.Ct. 2013

135 L.Ed.2d 361

(plurality opinion). The case “establish[ed] no new principles of constitutional
law” but “h[e]ld quite simply that under the facts and circumstances of this case
the rulings of the trial court deprived Chambers of a fair trial.” (Emphasis added.)
Egelhoff, quoting Chambers,

410 U.S. at 302-303

.
        {¶70} The quite different “facts and circumstances” of this case call for a
contrary result. Unlike the trial court in Chambers, the court here did not apply the
hearsay rule “mechanistically to defeat the ends of justice.” Chambers,

410 U.S. at 302

. Rather, the court applied the rule properly
for its historic purpose: to exclude statements of dubious reliability that cannot be
tested by cross-examination. Appellant’s second proposition is overruled.
                        III. Sufficiency and Weight of Evidence
        {¶71} In his fourteenth proposition, appellant contends that the evidence
was insufficient to convict him.
        {¶72} The state’s evidence showed that Calvin Davis wanted Arnett dead
and that he had brought appellant to Shelby County no more than a week before her
murder. Arnett was last seen alive late in the evening on May 9, and appellant
returned to Georgia the very next morning. He traveled under false names, carried


(Madrigal,

87 Ohio St.3d 378, 387

), the same is not true when the defense attempts
to introduce such a statement as a matter of due process. See Chambers,

410 U.S. 284

; Green v. Georgia,

442 U.S. at 97

99 S.Ct. 2150

60 L.Ed.2d 738

17
SUPREME COURT OF OHIO

no identification during his Ohio sojourn, and went out of his way to avoid the
Sidney bus station.
{¶73} Jelks was present when Calvin Davis proposed that he and McGhee
pay appellant to “hit” Arnett “so [their] drug cases would get dropped.” Jelks saw
McGhee give appellant $10,000 in a duffel bag, and he watched appellant count it.
Calvin Davis told his wife that he had paid appellant $5,000.
{¶74} Appellant had a large cyst near his eye. On the night of the murder,
one witness saw a black man with a “mole” or “knot” near his eye carrying a pistol.
Another saw Arnett that night in the company of a black man with a “bump” near
his eye.
{¶75} Later that night, McGhee was present when appellant described the
murder to Calvin Davis. According to McGhee, appellant also told Calvin Davis
that he “threw the gun up there in the woods” near the home of Calvin Davis’s
nephew. A .38-caliber pistol was later found in that vicinity; two witnesses
identified that gun as belonging to Calvin Davis. Jewel Davis testified that Calvin
Davis gave that gun to appellant. Calvin Davis’s gun was .38-caliber; so was the
bullet removed from Arnett’s corpse.
{¶76} Appellant also mentioned “the window being broke out” of Arnett’s
car, McGhee testified. Arnett’s car had a broken window when her husband found
it on the morning of May 10, and broken glass was found near Arnett’s body.
{¶77} Appellant was identified as the source of semen found on a vaginal
swab taken during Arnett’s autopsy. After initially denying to a detective that he
knew Arnett, appellant eventually admitted that he had had sexual relations with
her.
{¶78} On sufficiency-of-the-evidence review, “the relevant question is
whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime

18
January Term, 2002

beyond a reasonable doubt.” Jackson v. Virginia (1979),

443 U.S. 307, 319

99 S.Ct. 2781

61 L.Ed.2d 560

.
       {¶79} Appellant argues that the testimony implicating him was
“contradictory and incredible.” However, this contention calls for an evaluation of
the witnesses’ credibility, which—as we have repeatedly pointed out—is not proper
on review for evidentiary sufficiency. See, e.g., State v. Murphy (2001),

91 Ohio St.3d 516, 543

747 N.E.2d 765

; State v. Waddy (1992),

63 Ohio St.3d 424, 430

588 N.E.2d 819

; State v. DeHass (1967),

10 Ohio St.2d 230

39 O.O.2d 366

227 N.E.2d 212

, paragraph one of the syllabus.
       {¶80} Appellant contends that we should not consider Calvin Davis’s
statements in this sufficiency review because, as appellant claims in his first
proposition, they were inadmissible hearsay. He is mistaken. The statements were
properly admitted, and on a claim of insufficient evidence, the reviewing court
considers all the evidence admitted against the appellant at trial. See Lockhart v.
Nelson (1988),

488 U.S. 33, 40-42

109 S.Ct. 285

102 L.Ed.2d 265

.
       {¶81} Appellant further claims that there was insufficient evidence that the
murder was committed for hire. But this ignores Jelks’s testimony. Jelks not only
heard the conversation in which Calvin Davis hired appellant to kill Arnett, he
actually saw McGhee pay his portion in cash.
       {¶82} The evidence, if believed, proves that appellant killed Arnett, that he
did so to prevent her testimony against Calvin Davis’s drug ring, and that he did so
for hire. Appellant’s fourteenth proposition of law is therefore overruled.
       {¶83} In his third proposition, appellant contends that his conviction was
against the manifest weight of the evidence. “Pursuant to R.C. 2953.02, [this court]
can overturn a conviction as being against the manifest weight of the evidence in a
capital case, but only where the crime was committed after January 1, 1995.” State
v. Sanders (2001),

92 Ohio St.3d 245, 254

750 N.E.2d 90

. Arnett was murdered
in May 1994. Appellant’s third proposition is therefore overruled.




                                        19
                              SUPREME COURT OF OHIO




                                    IV. Venue
        {¶84} In his eleventh proposition, appellant asserts that the trial court
should have granted his motion for a change of venue because “extensive news
coverage and widespread media exposure” of Arnett’s murder prevented him from
obtaining a fair trial.
        {¶85} A trial court has discretion to grant or deny a change-of-venue
motion; its ruling will not be disturbed on appeal unless that discretion was abused.
See, e.g., State v. Lundgren (1995),

73 Ohio St.3d 474, 479

653 N.E.2d 304

.
        {¶86} Ordinarily, a defendant claiming that pretrial publicity denied him a
fair trial must show that one or more jurors were actually biased. See Mayola v.
Alabama (C.A.5, 1980),

623 F.2d 992, 996

. However, “[p]rejudice is presumed *
… when pretrial publicity is sufficiently prejudicial and inflammatory and …
saturated the community where the trials were held.” Coleman v. Kemp (C.A.11,
1985),

778 F.2d 1487, 1490

, citing Murphy v. Florida (1975),

421 U.S. 794

, 798-
799,

95 S.Ct. 2031

44 L.Ed.2d 589

; Sheppard v. Maxwell (1966),

384 U.S. 333

86 S.Ct. 1507

16 L.Ed.2d 600

; Estes v. Texas (1965),

381 U.S. 532

85 S.Ct. 1628

14 L.Ed.2d 543

; Rideau v. Louisiana (1963),

373 U.S. 723, 726-727

83 S.Ct. 1417

10 L.Ed.2d 663

; Mayola v. Alabama

623 F.2d at 997

.
        {¶87} Forty-seven veniremen were individually questioned in the voir dire
process. Of these, forty-six were asked about pretrial publicity. Of these, forty-two had read or heard something about the case. But although the voir dire suggests
that local media gave attention to the case, the record does not demonstrate that the
publicity “saturated the community.”       Coleman v. Kemp,

778 F.2d at 1490

.
Moreover, despite appellant’s allegations of “inflammatory” media coverage, there
is nothing in the record to show the content of the coverage.
        {¶88} Thus, appellant has shown neither that the media coverage saturated
the community nor that it was inflammatory. Absent such a showing, we have no
basis to presume prejudice.




                                         20
                                January Term, 2002




       {¶89} In order to prevail on his change-of-venue claim, appellant must
show that one or more of the jurors were actually biased by pretrial publicity. State
v. Treesh (2001),

90 Ohio St.3d 460, 464

739 N.E.2d 749

. We have closely
examined the voir dire transcript, mindful that “[t]he examination of jurors on their
voir dire affords the best test as to whether prejudice exists in the community
against the defendant, and whether it appears that opinions as to the guilt of the
defendant of those called for examination for jurors are not fixed but would yield
readily to evidence, it is not error to overrule an application for a change of venue,
in absence of a clear showing of an abuse of discretion.” State v. Swiger (1966),

5 Ohio St.2d 151

34 O.O.2d 270

214 N.E.2d 417

, paragraph one of the syllabus.
       {¶90} The voir dire record shows that of the forty-two jurors who had read
or heard something about the case, thirty-eight said that they had not formed a firm
opinion and could base a verdict on the trial evidence. One admitted forming
opinions, but she had not formed one as to the defendant’s guilt or innocence, and
she stated that he could set her opinions aside. Three stated that they had formed
opinions they could not set aside; the trial court promptly dismissed all three.
       {¶91} The United States Supreme Court has recognized that voir dire
denials of bias may not always be reliable: “In a community where most veniremen
will admit to a disqualifying prejudice, the reliability of the others’ protestations
may be drawn into question; for it is then more probable that they are part of a
community deeply hostile to the accused, and … may unwittingly have been
influenced by it.” (Emphasis added.) Murphy,

421 U.S. at 803

95 S.Ct. 2031

44 L.Ed.2d 589

.
       {¶92} Here, however, only three veniremen of forty-two admitted that they
had formed preconceived opinions that they could not set aside. In Murphy, where
a far larger proportion of the venire (twenty of seventy-eight) was excused for bias,
the court stated: “This … by no means suggests a community with sentiment so
poisoned against petitioner as to impeach the indifference of jurors who displayed




                                         21
                             SUPREME COURT OF OHIO




no animus of their own.”

421 U.S. at 803

95 S.Ct. 2031

44 L.Ed.2d 589

. Thus,
the trial judge here, as in Murphy, was entitled to rely on the truthfulness of the
veniremen who stated under oath that they could be impartial.
        {¶93} Significantly, the defense did not challenge any prospective juror for
cause on the ground that the juror had been biased by pretrial publicity. In fact,
defense counsel specifically “passed for cause” (i.e., declined to challenge) thirtytwo prospective jurors who had heard something about the case. Compare State v.
Davis (1996),

76 Ohio St.3d 107, 111

666 N.E.2d 1099

.
        {¶94} On these facts, we cannot say that the trial court abused its discretion
by denying a change of venue. Appellant’s eleventh proposition is overruled.
                              V. Jury Selection Issues
        {¶95} In his twelfth proposition, appellant complains about various aspects
of the jury selection.
                         A. Motion for Individual Voir Dire
        {¶96} The trial court allowed individual, sequestered voir dire only for
pretrial publicity and death qualification issues. This was within the trial court’s
discretion: “There is no requirement that voir dire in a capital case must be
conducted in sequestration.” State v. Fears (1999),

86 Ohio St.3d 329, 338

715 N.E.2d 136

.
        {¶97} Nevertheless, appellant claims that the entire venire was “tainted” by
hearing the answers that two prospective jurors gave during general voir dire.
When asked if he “would give a police officer more credibility simply because he’s
a police officer,” Juror No. 48 said “Yes.” Juror No. 34 was asked by defense
counsel whether “sometimes the courts … are too soft on criminals.” He said,
“Yes” and explained, when asked, why he thought so.
        {¶98} Nothing in the record indicates that the statements at issue biased the
other veniremen. Absent some such indication, we decline to speculate that hearing
these opinions must somehow have irretrievably tainted the other prospective




                                          22
                                January Term, 2002




jurors. See State v. Sanders (2001),

92 Ohio St.3d 245, 248

750 N.E.2d 90

, citing
State v. Doerr (1998),

193 Ariz. 56, 62

969 P.2d 1168

, and Lucero v. Kerby
(C.A.10, 1998),

133 F.3d 1299, 1308-1309

. Compare Mach v. Stewart (C.A.9,
1997),

137 F.3d 630

 (prejudice presumed where a venirewoman made repeated,
definite assertions about a factual matter about which the venirewoman happened
to be an expert that was germane to the trial).
       {¶99} Finally, appellant complains that the trial court “cut off” his
questioning of a juror. The record does not support this claim. When defense
counsel began to question Juror No. 73, counsel began with the comment, “I
haven’t heard from you yet today.” The trial court admonished counsel: “Just
because some jurors did not answer questions, I’m not going to allow you to go
through and pick each one just because they didn’t answer a question or raise a
question. If you have a specific question to ask them, fine; but just because they
haven’t answered is no reason to ask them specific questions.” Counsel then
proceeded to examine Juror No. 73 without further interruption from the court.
                            B. Peremptory Challenges
       {¶100} Appellant complains that the prosecutor used peremptory
challenges to exclude jurors who opposed capital punishment. Appellant did not
object at trial and thus has waived this claim. See State v. Allen (1995),

73 Ohio St.3d 626, 629

653 N.E.2d 675

, and State v. Lundgren (1995),

73 Ohio St.3d 474

,
484,

653 N.E.2d 304

. See, also, State v. Reynolds (1998),

80 Ohio St.3d 670, 675

687 N.E.2d 1358

, where we rejected the claim that this practice is unconstitutional.
                              C. Challenge for Cause
       {¶101} On voir dire, Juror No. 16 indicated a belief that murderers should
get the death penalty to protect society and stated that “probably fear in me would
try [to] persuade going the other, towards death.” She also repeatedly affirmed that
she would set aside her feelings and consider mitigating circumstances. Appellant
passed Juror No. 16 for cause, and she was seated on the jury.




                                         23
                             SUPREME COURT OF OHIO




        {¶102} Appellant now contends that this juror was predisposed to vote in
favor of death irrespective of mitigation and should therefore have been excused
for cause. However, by declining to challenge the juror for cause, appellant waived
this issue.
                       D. Venire Drawn from Electors List
        {¶103} Finally, appellant complains that the venire was drawn exclusively
from registered voters rather than from licensed drivers. This, he alleges, produced
a venire with no black members.
        {¶104} Under R.C. 2313.08(B), each county may compile its jury list either
(1) exclusively from the list of electors certified by the county board of elections,
or (2) from that list, combined with the list of licensed drivers certified by the
Registrar of Motor Vehicles. Shelby County uses the electors list.
        {¶105} Appellant contends that drawing the venire solely from registered
voters deprived him of his Sixth Amendment right to a jury drawn from “a fair cross
section of the community.” Taylor v. Louisiana (1975),

419 U.S. 522, 527

95 S.Ct. 692

42 L.Ed.2d 690

. See, generally, State v. Fulton (1991),

57 Ohio St.3d 120

566 N.E.2d 1195

, paragraph two of the syllabus, citing Duren v. Missouri (1979),

439 U.S. 357, 364

99 S.Ct. 664

58 L.Ed.2d 579

.
        {¶106} However, we have consistently upheld the calling of venires from
voter registration lists. See, e.g., State v. Moore (1998),

81 Ohio St.3d 22, 28

689 N.E.2d 1

; State v. Johnson (1972),

31 Ohio St.2d 106

60 O.O.2d 85

285 N.E.2d 751

, paragraph two of the syllabus. This practice does not systematically exclude
blacks from the jury-selection process.

Moore, supra.

    Moreover, appellant
submitted no evidence that blacks are underrepresented in Shelby County venires,
nor that the use of voter lists caused such underrepresentation. Appellant’s twelfth
proposition is overruled.
                                  VI. Instructions




                                         24
                                 January Term, 2002




        {¶107} In his fourth proposition, appellant contends that the trial court’s
guilt-phase instructions were deficient as to the death specifications. According to
appellant, the trial court should have defined the term “for hire” in the murder-forhire specification and the terms “witness” and “criminal proceeding” in the witness-murder specification.
        {¶108} Appellant did not request an instruction defining these terms. Thus,
he can prevail only if the court’s failure to define the terms was plain error. “Plain
error is an obvious error … that affects a substantial right.” State v. Keith (1997),

79 Ohio St.3d 514, 518

684 N.E.2d 47

. An alleged error is plain error only if the
error is “obvious,” State v. Sanders (2001),

92 Ohio St.3d 245, 257

750 N.E.2d 90

,
and “but for the error, the outcome of the trial clearly would have been otherwise.”
State v. Long (1978),

53 Ohio St.2d 91

7 O.O.3d 178

372 N.E.2d 804

, paragraph
two of the syllabus. See, generally, State v. Barnes (2002),

94 Ohio St.3d 21

, 27-
28,

759 N.E.2d 1240

.
        {¶109} “Failure of a trial court to separately and specifically instruct the
jury on every essential element of each crime with which an accused is charged
does not per se constitute plain error under Crim.R. 52(B).” State v. Adams (1980),

62 Ohio St.2d 151

16 O.O.3d 169

404 N.E.2d 144

, paragraph two of the syllabus.
        {¶110} Appellant concedes that “many of the elements from the statute
[delineating aggravating circumstances] are commonly understood terms.” While
he contends that “hire” and “criminal proceeding” are terms “open to
interpretation,” he does not explain how the trial court should have defined them,
nor what incorrect meanings the jury might have given them. “Not every term or
phrase in our criminal statutes possesses some hidden metaphysical legal meaning
requiring lengthy instruction for a juror to understand.” United States v. Hall
(C.A.8, 1986),

801 F.2d 356, 360

.
        {¶111} It is hardly likely that the verdict hinged upon the trial court’s failure
to define the terms “for hire,” “witness,” and “criminal proceeding.” Consequently,




                                           25
                              SUPREME COURT OF OHIO




no plain error exists, and appellant’s failure to request such instructions waived the
issue. Appellant’s fourth proposition is overruled.
         {¶112} In his tenth proposition, appellant contends that the trial court failed
to give a required penalty-phase instruction. The trial court instructed:
         {¶113} “You shall recommend the sentence of death if you unanimously,
all twelve of you, find by proof beyond a reasonable doubt that the aggravating
circumstances outweigh the mitigating factors. If you do not so find, you shall
unanimously, all twelve, recommend either life imprisonment with parole
eligibility after serving 20 years of imprisonment or a life sentence with parole
eligibility after serving 30 years of imprisonment.”
         {¶114} In State v. Brooks (1996),

75 Ohio St.3d 148

661 N.E.2d 1030

, this
court held that a jury need not unanimously reject the death penalty in order to
recommend a life sentence. However, “the jury, when it cannot unanimously agree
on a death sentence, [is required] to move on … to a consideration of which life
sentence is appropriate, with that determination to be unanimous.”

75 Ohio St.3d at 162

661 N.E.2d 1030

. Nothing in the above instruction is inconsistent with the
holding of Brooks.
         {¶115} Brooks also contains dictum urging trial courts to specifically
instruct that “a solitary juror may prevent a death penalty recommendation ….”
Id.; but, see, Jones v. United States (1999),

527 U.S. 373, 379-383

119 S.Ct. 2090

144 L.Ed.2d 370

; Buell v. Mitchell (C.A.6, 2001),

274 F.3d 337, 354-355

.
Appellant claims that the trial court erred by not giving such an instruction.
However, he did not request it, and he therefore waived any claim he may have had
to it.
         {¶116} In light of what the trial court did instruct, we cannot find plain
error. The court instructed: “You shall recommend the sentence of death if you
unanimously, all twelve of you, find by proof beyond a reasonable doubt that the
aggravating circumstances outweigh the mitigating factors.” (Emphasis added.)




                                           26
                                January Term, 2002




“When read as a whole, the trial court’s instruction effectively informed the jury
that a death penalty recommendation could be returned only after a unanimous vote
….” State v. Davis (1996),

76 Ohio St.3d 107, 117

666 N.E.2d 1099

.
       {¶117} Appellant has waived this claim, and there is no plain error.
Consequently, we overrule his tenth proposition of law.
                           VII. Prosecutorial Misconduct
       {¶118} In his eighth proposition of law, appellant claims that prosecutorial
misconduct tainted both phases of trial. Only one of the comments that he cites
was objected to at trial, however. The others are waived.
       {¶119} In the guilt phase, the prosecutor argues that appellant was “seen by
Tanya Counts” with Arnett. Appellant’s objection was overruled. Appellant claims
the argument was improper because Counts did not identify him as the man she saw
with Arnett.
       {¶120} However, the prosecutor neither said nor implied that Counts
actually identified appellant. Counts testified that the man had a “bump” on his
face in the same place as appellant’s. And, she added, appellant’s photograph
looked like the same man. From this evidence, it was reasonable to infer that
appellant was the man whom Counts saw with Arnett. A prosecutor is entitled to
draw reasonable inferences from the evidence. See, e.g., State v. Waddy (1992),

63 Ohio St.3d 424, 436

588 N.E.2d 819

.
       {¶121} For these reasons appellant’s eighth proposition of law lacks merit
and is overruled.
                        VIII. Crime-Scene Photos & Video
       {¶122} Appellant did not object to the admission of the crime-scene
photographs and videotape. Hence, he has waived this issue. No plain error exists;
therefore, his thirteenth proposition is overruled.
                                     IX. Merger




                                          27
                             SUPREME COURT OF OHIO




        {¶123} In his fifth proposition, appellant claims that the two death
specifications arose from “one indivisible act” and therefore should have been
merged. However, he did not request merger at trial. Thus, he can prevail only if
he can demonstrate that not merging the specifications amounted to plain error.
        {¶124} In the penalty phase of a capital case “where two or more
aggravating circumstances arise from the same act or indivisible course of conduct,
and are thus duplicative,” they will be merged for sentencing purposes. State v.
Jenkins (1984),

15 Ohio St.3d 164

, 15 OBR 311,

473 N.E.2d 264

, paragraph five
of the syllabus.    The analysis used to determine whether two aggravating
circumstances merge is the same as that used to determine whether two offenses
are allied offenses of similar import.

Id. at 197-198

, 15 OBR 311,

473 N.E.2d 264

,
citing State v. Logan (1979),

60 Ohio St.2d 126

.
        {¶125} Logan sets forth the following test: “[I]n order for two crimes to
constitute allied offenses of similar import, … [t]he offenses and their elements
must correspond to such a degree that commission of the one offense will result in
the commission of the other.”

60 Ohio St.2d at 128

.    Thus, the R.C. 2929.02(A)(2) specification merges with the R.C.
2929.04(A)(8) specification only if the elements of the two specifications
“correspond to such a degree that commission of one [specification] will result in
the commission of the other.”
        {¶126} Between the two specifications at issue here, no such
correspondence exists. The R.C. 2929.04(A)(2) specification requires only that
“[t]he offense was committed for hire.” The elements of the R.C. 2929.04(A)(8)
specification are that (1) the victim was a witness to an offense; and (2) that the
purpose of the killing was to prevent the victim from testifying in a criminal
proceeding.
        {¶127} These two specifications are by no means “indivisible” even though
they happen to apply to the same murder. Indeed, their elements do not overlap.




                                         28
                                January Term, 2002




Hired killers do not solely kill witnesses, nor are witnesses killed only by hired
killers. Thus, it is not the case that “commission of the one [specification] will
result in the commission of the other.” Logan,

60 Ohio St.2d at 128

.
       {¶128} Appellant has not demonstrated that plain error occurred. We
overrule his fifth proposition of law.
                              X. Sentencing Opinions
       {¶129} In his sixth proposition, appellant attacks the trial court’s sentencing
opinion, arguing that it failed to consider mitigating factors and improperly
considered nonstatutory aggravating circumstances.
       {¶130} Appellant contends that the trial court failed to consider the
mitigating factor set forth in R.C. 2929.04(B)(5): “lack of a significant history of
prior criminal convictions ….” The parties stipulated at trial that appellant’s
criminal record “consists of a conviction for aggravated trafficking in drugs here in
this county in 1995.”
       {¶131} It is clear that the trial court did consider the (B)(5) factor: a
paragraph of the sentencing opinion is devoted exclusively to appellant’s record.
The court concluded that it could “give no weight to [appellant’s] lack of a
significant criminal record as a mitigating factor.” (Emphasis added.) “The fact
that an item of evidence is admissible … does not automatically mean that it
must be given any weight.” State v. Steffen (1987),

31 Ohio St.3d 111

, 31 OBR
273,

509 N.E.2d 383

, paragraph two of the syllabus.
       {¶132} Appellant also contends that the trial court weighed nonstatutory
aggravating circumstances against him. After noting that appellant “was raised in
a very loving, supportive and religious family,” the sentencing opinion states: “The
Court finds no mitigating factors in any of the evidence produced regarding the
Defendant’s history or family background.         If anything, such evidence only
exacerbates the Defendant’s involvement in this crime.” (Emphasis added.)




                                         29
                              SUPREME COURT OF OHIO




       {¶133} To “exacerbate” is “ … to intensify the bad qualities of.”
Webster’s Third New International Dictionary (1961) 790. Thus, the trial judge’s
use of this word may suggest that he treated appellant’s family background as an
aggravating circumstance. But that overlooks his use of the words “If anything” to
preface the remark.
       {¶134} In any case, we need not parse the sentencing opinion. The opinion
of the court of appeals contains nothing to indicate that it treated appellant’s
background as aggravating. Hence, that court’s independent review cured any error
by the trial court, and so will our own independent review. See State v. Bies (1996),

74 Ohio St.3d 320, 325

658 N.E.2d 754

; State v. Lorraine (1993),

66 Ohio St.3d 414, 422

613 N.E.2d 212

; State v. Bradley (1989),

42 Ohio St.3d 136, 148

538 N.E.2d 373

.
       {¶135} Finally, appellant contends that the trial court should not have
discussed his lack of remorse, since he did not claim remorse as a mitigating factor.
See State v. DePew (1988),

38 Ohio St.3d 275, 289

528 N.E.2d 542

. But the
opinion contains no language suggesting that the court used this as an aggravating
circumstance. Rather, the court was simply noting the absence of a possible
mitigating factor. Appellant’s sixth proposition is overruled.
       {¶136} In his seventeenth proposition, appellant claims that the court of
appeals “refused to consider” the R.C. 2929.04(B)(6) mitigating factor. R.C.
2929.04(B)(6) requires that “[i]f the offender was a participant in the offense but
not the principal offender, [the court shall consider] the degree of the offender’s
participation in the offense and … in the acts that led to the death of the victim.”
The court of appeals found the (B)(6) factor “entitled to no weight” because “a jury
convicted appellant of aggravated murder as well as two death penalty
specifications.”
       {¶137} Even though the guilty verdict did not entail a specific finding that
appellant was the principal offender, the (B)(6) factor does not apply, since the




                                          30
                                January Term, 2002




evidence clearly indicates that appellant was the principal offender. For that reason,
the court of appeals’ assignment of no weight to the (B)(6) factor was not error.
Appellant’s seventeenth proposition is without merit and is overruled.
                             XI. Ineffective Assistance
        {¶138} In his sixteenth proposition of law, appellant contends that his trial
counsel failed to render effective assistance.
        {¶139} Ineffective assistance claims are governed by a two-part test. To
prevail, the defendant must show (1) deficient performance by counsel, i.e.,
performance falling below an objective standard of reasonable representation, and
(2) resulting prejudice, i.e., a reasonable probability that, but for counsel’s errors,
the proceeding’s result would have been different. See Strickland v. Washington
(1984),

466 U.S. 668, 687-688

104 S.Ct. 2052

80 L.Ed.2d 674

; Williams v. Taylor
(2000),

529 U.S. 362, 390-391

120 S.Ct. 1495

146 L.Ed.2d 389

; State v. Bradley
(1989),

42 Ohio St.3d 136

538 N.E.2d 373

.
        {¶140} First, appellant contends that, since this case involved a white victim
and black defendant, his counsel should have questioned veniremen on their racial
attitudes during individual, sequestered voir dire. Counsel did question the panel
about racial attitudes during general voir dire. However, appellant argues that this
topic is so sensitive that jurors will not answer questions about it honestly in the
presence of other veniremen.
        {¶141} However, appellant ignores the fact that his counsel requested
individual, sequestered voir dire, and the trial court denied the motion.
Consequently, appellant’s counsel did not have the opportunity to query jurors in
sequestration with regard to subjects other than pretrial publicity and deathqualification. Counsel can hardly be blamed for following a procedure ordered by
the trial court.
        {¶142} Second, appellant contends that his counsel should have tried to
impeach Jermaine Jelks with prior inconsistent statements.           However, those




                                          31
                            SUPREME COURT OF OHIO




statements are not in the record before us. Hence, appellant cannot show either
deficient performance or prejudice.
       {¶143} Finally, appellant contends that his counsel failed to object to eight
alleged errors. Five of his proposed objections, however, would have been contrary
to existing law. See State v. Grant (1993),

67 Ohio St.3d 465, 472

620 N.E.2d 50

(“recommendation” instruction); State v. Logan (1979),

60 Ohio St.2d 126

 (merger); State v. Van Gundy (1992),

64 Ohio St.3d 230

594 N.E.2d 604

 (reasonable doubt instruction); State v. Phillips (1995),

74 Ohio St.3d 72, 100

656 N.E.2d 643

 (purpose instruction); Tuilaepa v. California
(1994),

512 U.S. 967, 976

114 S.Ct. 2630

129 L.Ed.2d 750

 (“nature and
circumstances” instruction); State v. McNeill (1998),

83 Ohio St.3d 438, 453

700 N.E.2d 596

 (same).
       {¶144} Regarding counsel’s failure to request an instruction defining “for
hire,” “witness,” and “criminal proceeding,” appellant fails to show prejudice.
Since these are commonly understood terms, there is no reasonable probability that,
had they been defined, the trial’s outcome would have been otherwise.
       {¶145} Regarding counsel’s failure to request an instruction that a single
juror may block a death sentence, see State v. Brooks (1996),

75 Ohio St.3d 148

661 N.E.2d 1030

, appellant fails to suggest how he was prejudiced by the lack of
such an instruction.
       {¶146} Regarding counsel’s failure to object to the gruesome crime scene
photos and videotape, there was no prejudice. Since the photos and video had
legitimate probative value, there is no question that some of them would have been
admitted.   An objection would have done little more than eliminate some
duplicative photos. The evidence against appellant was strong. The prosecutor did
not use the gruesome images to inflame the jury. There is no reasonable likelihood
that the result of the trial would have been otherwise had counsel objected to the
photos and tapes.




                                        32
                                 January Term, 2002




       {¶147} Appellant’s sixteenth proposition is without merit and is overruled.
                                 XII. Settled Issues
       {¶148} Appellant’s ninth proposition, in which he claims that the trial court
erred by calling the jury’s recommendation a “recommendation,” is summarily
overruled. See, e.g., State v. Mitts (1998),

81 Ohio St.3d 223, 232-233

690 N.E.2d 522

. Additionally, his eighteenth proposition, which questions the death penalty’s
constitutionality, is without merit and is also overruled.
                        XIII. Independent Sentence Review
       {¶149} In his seventh and fifteenth propositions, appellant contends that the
death sentence in this case is inappropriate, excessive, and disproportionate.
       {¶150} Under R.C. 2929.05, we must independently reweigh the
aggravating circumstances against the mitigating factors submitted by appellant.
The aggravating circumstances are murder for hire and murder of a witness to
prevent her testimony. The evidence is sufficient to prove these circumstances
beyond a reasonable doubt.
       {¶151} During appellant’s case in mitigation, three members of his family
testified: his older brother, Sam Yarbrough, Jr., his sister, Virginia Martin-Brown,
and his aunt, Evelyn Stringer.
       {¶152} Appellant, born in 1958, was 36 when he murdered Arnett.
Although he was raised in public housing, his relatives testified that the area was
not a high-crime area. Appellant’s sister, Virginia, recalled the neighborhood as “a
big extended family.”     She remembered “everybody being [her] mother and
brothers and everybody being [her] father. … And when we got out of school, if
our parents worked, somebody else’s parents would say … don’t do this, don’t
do that; and they watched after us as a unit.”
       {¶153} Appellant’s father was an alcoholic whose spending on liquor
created friction. His parents broke up in 1965. Four years later, when appellant
was about 11, his mother died. His grandmother then cared for him and his siblings.




                                          33
                               SUPREME COURT OF OHIO




Appellant’s grandmother attended church regularly, worked hard, was a good
person who knew right from wrong, and raised the children with sound values.
        {¶154} Appellant’s relatives described him as a “happy-go-lucky” child,
“mischievous” but respectful, “never … mean” or quarrelsome. In school, he
was learning-disabled but displayed no behavior problems.
        {¶155} As an adult, appellant was a hard worker, capable of exercising
responsibility. His brother Sam, a carpenter who frames houses, let him supervise
other workers because he could be trusted to make sure a job was done right.
        {¶156} Appellant had two sons by different mothers. Although he lived
full-time with neither, he was a caring father who took time to involve himself in
his sons’ lives, attending parent-teacher conferences and making sure that they had
clothes for school.
        {¶157} Appellant’s relatives unanimously declared that murder and
involvement with drugs were out of character for him. He was never in trouble
except for a traffic ticket.
        {¶158} The defense also presented Dr. Douglas Johnson, a psychologist.
Johnson interviewed appellant four times, gave him tests, reviewed school and
court records, and talked with his family.
        {¶159} Appellant’s school records indicated his placement in a program for
the learning-disabled; Johnson speculated that he may have been classified as
“educationally mentally retarded,” although Johnson’s testing did not “put him
quite into that category.” Appellant’s performance IQ was 93 on the Wechsler
scale, 7 points below normal; his verbal IQ was 82. He reads below a third grade
level. His IQ and reading level were consistent with a learning disability. However,
his ability to “figure things out” was “fairly good.”
        {¶160} Johnson found appellant to be moderately depressed, seeing himself
as a chronic failure. According to Johnson, depressed people often pursue “illicit




                                         34
                                  January Term, 2002




activity” because they think, “Well, what’s the difference what I do, everything I
do ends in failure … anyway.”
        {¶161} Appellant also displayed elevated “psychopathic deviate” and
paranoid scales and an elevated “hysterical conversion” scale, indicating a tendency
to “overreact … to threats and issues.”
        {¶162} Johnson described appellant as “rather passive,” “nonviolent,”
lacking initiative, and inclined to “go along … and try to please people.” But he
was also “very distrusting” and had a “very high autonomy scale,” indicating a high
degree of independence. His personality profile indicates a tendency to feel
“trapped, bitter, resentful,” and “vulnerable.”
        {¶163} Johnson felt that the crimes that appellant committed were
somewhat out of character for him and that appellant’s passivity would probably
make him “a model prisoner.”
        {¶164} Appellant’s history or background is entitled to no mitigating
weight. Nothing in his environment predisposed him to crime. Although he lost
his parents, he lived in a close-knit neighborhood that functioned like an “extended
family,” and his grandmother instilled sound values.
        {¶165} Certain elements of appellant’s character deserve some weight as
mitigating factors. The evidence indicates that the crimes that he committed in this
case are out of character. With his passive, nonviolent nature and capacity for work,
he may adjust well to prison, as Dr. Johnson suggested. On the other hand, it is
questionable whether a “trapped, bitter, resentful” and “distrusting” prisoner with
a high autonomy scale and a tendency to overreact will really be, in Dr. Johnson’s
words, a “model prisoner.” In the end, Dr. Johnson’s prediction, and appellant’s
character, carry little weight.
        {¶166} Appellant does not claim, nor does the record suggest, the
applicability of any factors set forth in R.C. 2929.04(B)(1) through (B)(4). He does
contend that he “lack[s] … a significant history of prior criminal convictions and




                                          35
                             SUPREME COURT OF OHIO




delinquency adjudications,” R.C. 2929.04(B)(5). However, inasmuch as appellant
was convicted in 1995 of aggravated drug trafficking, we find that R.C.
2929.04(B)(5) does not apply.
       {¶167} Under R.C. 2929.04(B)(6), “[i]f the offender was a participant in
the offense but not the principal offender,” the sentencer must consider “the degree
of the offender’s participation in the offense and … in the acts that led to the
death of the victim” as a mitigating factor. Appellant argues that this mitigating
factor applies to him, as he claims that he was “only a participant” in the murder
and that Calvin Davis and McGhee were “more culpable” than he.
       {¶168} However, by its terms, the (B)(6) factor applies only to a defendant
who was “not the principal offender,” i.e., the actual killer. In the penalty phase,
the defendant has the burden of proving, by a preponderance of the evidence, the
existence of mitigating factors. See State v. Jenkins (1984),

15 Ohio St.3d 164, 171-172

, 15 OBR 311,

473 N.E.2d 264

. Thus, the (B)(6) factor does not apply
unless a preponderance of the evidence shows that he was “a participant in the
offense but not the principal offender.”
       {¶169} No evidence suggests that appellant was not the actual killer; in fact,
the evidence overwhelmingly proves that he was. Two witnesses testified that
appellant admitted shooting Arnett. Appellant was given a photo of Arnett before
the murder, he was the last person seen with Arnett, and he was seen with Calvin
Davis’s gun, which was later found near the murder scene. Appellant admitted to
having sexual relations with Arnett, and his semen was found in her body at the
autopsy.
       {¶170} Nor is there any evidence that appellant was, as he claims,
“manipulated by powerful local drug dealers.” The record does not support the
statement in appellant’s brief that he was lured to Ohio by “the promise of a painting
job.” Calvin Davis and McGhee did not, so far as the evidence shows, “manipulate”
appellant. Compare State v. Lawson (1992),

64 Ohio St.3d 336, 352

595 N.E.2d 36

January Term, 2002 902

. They simply offered him money in exchange for murder. He accepted. That
is not a mitigating factor but the essence of the murder-for-hire aggravating
circumstance.
        {¶171} Moreover, appellant’s role in the crime belies any suggestion that
his participation was merely a matter of “going along.” His role was too active for
that. To begin with, the evidence suggests that he personally killed Arnett. In
addition, he apparently got to know her and worked his way into her confidence
before he killed her: she was seen in his company on the last night of her life, and
at some point he had sexual intercourse with her.
        {¶172} Finally, the record affords no glimpse of appellant’s taking orders
from anyone; he appears to have been more analogous to an independent contractor
than an employee of the Davis gang. Indeed, the record shows him giving orders
to Paul Smith on the day after the murder. We find that the (B)(6) mitigating factor
is absent.
        {¶173} The aggravating circumstances of murder for hire and witness-murder carry great weight, and appellant’s mitigation is distinctly unimpressive.
Accordingly, we find that the aggravating circumstances outweigh the mitigating
factors beyond a reasonable doubt.
        {¶174} The death sentence is proportionate to those approved in other
murder-for-hire cases, see State v. Issa (2001),

93 Ohio St.3d 49