State v. LaMar

[This decision has been published in Ohio Official Reports at 

.]




             THE STATE OF OHIO, APPELLEE, v. LAMAR, APPELLANT.
                      [Cite as State v. LaMar, 

.]
Criminal law—Aggravated murder of five prison inmates during prison riot—
        Death penalty upheld, when.
   (No. 1998-1983—Submitted November 14, 2001—Decided May 15, 2002.)
      APPEAL from the Court of Appeals for Lawrence County, No. 95CA31.
                                  __________________
        COOK, J.
        {¶1} The appellant, Keith LaMar, was convicted of murdering five prison
inmates during the infamous April 1993 riot at the Southern Ohio Correctional
Facility (“SOCF”) in Lucasville. The trial court sentenced LaMar to death for four
of these murders. For the reasons that follow, we affirm.
                                 I. Factual Background
        {¶2} On the afternoon of April 11, 1993, a group of Muslim inmates seized
control of cellblock “L” (“L-Block”) at SOCF. The rioting inmates took several
guards hostage and locked inmates considered “snitches” into various cells in the
L-6 section of L-Block. The Muslim inmates maintained control of unit L-6 while
two other dominant groups—the Aryan Brotherhood (a racist group of white
inmates) and the Black Gangster Disciples (a prison gang)—controlled other units
within L-Block.
        {¶3} On the day of the riot, LaMar was an SOCF inmate serving a sentence
of eighteen years to life for a 1989 murder conviction. LaMar, who was not a
Muslim, did not plan or participate in the prison takeover and was in the prison
recreation yard when the riot began. But after the commotion began, LaMar and
two other inmates, Louis Jones and Derek Cannon, went back inside L-Block to
check the personal belongings in their respective cells. When the three were unable
                             SUPREME COURT OF OHIO




to get back outside because the Muslims had closed access to and from L-Block,
LaMar said to Jones and Cannon, “Ain’t no need in us staying in here getting caught
up in something we’re not a part of. Let’s kill all the snitches and get out to the
yard.”
         {¶4} LaMar approached Cecil Allen, a leader of the Muslim group of
inmates, and asked, “if we kill the snitches, could we be let out to the yard so we
don’t be a part of this?” Allen consulted with the Muslim leadership and returned
a few minutes later to tell LaMar that the “orders has [sic] been granted to kill the
snitches.”
         {¶5} After Allen granted permission to “kill the snitches,” LaMar, Jones,
and Cannon walked around the L-Block corridor to enlist other inmates to help
them. Eventually, the group recruited Hiawatha Frezzell (a.k.a. “Pittsburgh”), Eric
Scales (a.k.a. “Tiger”), Derrick Mathews, Rasheem Matthews, Albert Young (a.k.a.
“Da-Da”), and Gregory Curry to join the newly formed death squad. LaMar’s
group proceeded to unit L-2, where they retrieved bats, shovels, and weight bars to
use as weapons. The men also wore masks fashioned from T-shirts, towels, and
bandannas.
         {¶6} After arming and disguising themselves, LaMar and his group returned
to L-6. Inmate Timothy Grinnell was operating the console that controlled the cell
doors within L-6. LaMar led his group to the upper tier of the cellblock and
instructed Grinnell to open a cell occupied by Andre Stockton. After Grinnell
complied with the demand, LaMar and Curry entered the cell and beat Stockton
with a shovel and a baseball bat. Other members of the group dragged Stockton
from the cell and participated in the beating.
         {¶7} After beating Stockton, the group went downstairs to the lower tier of
L-6. LaMar yelled at Grinnell to open the cells occupied by inmates Ellis Walker
and Darrell Depina. After Walker refused to comply with LaMar’s command to
come out of the cell, LaMar and Curry dragged him to the main floor of the




                                          2
                                January Term, 2002




cellblock and beat him repeatedly.       Other members of the death squad also
participated in Walker’s beating. LaMar then ordered Depina out of his cell. When
Depina refused, LaMar entered the cell and hit him several times before dragging
him to the main floor, as he had done with Walker. LaMar continued to beat Depina
with a baseball bat, striking him several times. Other members of LaMar’s group
joined in beating Depina, who died from his injuries.
       {¶8} When LaMar finished beating Depina, he ordered Grinnell to open a
cell occupied by Bruce Vitale. When Vitale refused to come out of the cell, LaMar
hit him on the head with a shovel. LaMar continued beating Vitale on the head and
at one point knocked a tooth out of Vitale’s mouth. Vitale tried to defend himself
by crawling under the bed, but LaMar and Curry dragged him out of the cell and
continued the beating, joined by other members of the death squad. At one point,
LaMar told Jones, “I didn’t bring you all in here to stand around,” when he noticed
that Jones was not participating in the assault. Vitale was still alive when the group
left him but died after Frezzell and another member of LaMar’s group stabbed and
beat him again.
       {¶9} LaMar continued on to a nearby cell occupied by Thomas Taylor,
another suspected snitch. Before LaMar could order Taylor’s cell opened, a
Muslim inmate named Harris intervened and told LaMar that Taylor was under
Muslim protection. LaMar angrily pushed Harris out of the way, saying, “If he
[Taylor] is in there, he’s a snitch. Fuck it. Kill him.” After Taylor told LaMar that
he was not a snitch, LaMar agreed to spare Taylor’s life, but only if Taylor would
kill Albert Staiano, who was locked in an adjacent cell. To save his own life, Taylor
agreed. LaMar ordered Taylor’s and Staiano’s cells opened and commanded one
of the other inmates to give a baseball bat to Taylor. Staiano tried to run from his
cell, but fell to the ground when Frezzell tripped him. Taylor hit Staiano over the
head several times with the baseball bat and then, after the bat broke, with a fire
extinguisher. Other death-squad members, not including LaMar, joined in the




                                          3
                             SUPREME COURT OF OHIO




assault and stabbed Staiano repeatedly. When the beating ended, LaMar ordered
Taylor to return to his cell. Taylor eventually pleaded guilty to involuntary
manslaughter for his role in Staiano’s death.
       {¶10} The death squad’s next stop was a cell occupied by Michael
Trocadero and four to five other inmates. LaMar ordered Grinnell to open the cell,
but Grinnell refused, saying that the Muslim leadership did not want those inmates
killed. As LaMar and his group began to leave L-6, it passed the cell of William
Svette, an elderly inmate who used a walker to move himself around. Svette, who
appeared to have been beaten earlier, cursed the death squad with obscenities and
racial epithets. On LaMar’s order, Grinnell opened Svette’s cell, where LaMar and
Curry beat Svette over the head with a baseball bat and a shovel. LaMar started to
leave the cell but returned to beat Svette again after noticing that Svette’s legs were
moving.
       {¶11} Svette remained alive after the death squad left his cell. A short time
later, on Grinnell’s instructions to make sure all of the victims in L-6 were dead,
inmate Eric Girdy struck Svette across the head twice more with a baseball bat.
Svette continued to live after Girdy’s beating and was still alive after inmate Robert
Bass, on orders from one of the Muslim inmates, dragged Svette’s body to a ramp
near a prison recreation area. Svette eventually died after yet another inmate,
Freddie Frakes, beat him yet again with a baseball bat.
       {¶12} After finishing their rampage, LaMar and the others left L-Block and
joined the large contingent of inmates gathered in the recreation yard. Many of the
participants in the L-6 killings remained together and discussed what had
transpired. During this time, LaMar saw inmate Dennis Weaver in the recreation
yard and told Curry, “I wish Weaver was in there. I’d have killed him, too.”
       {¶13} Early the following morning, law enforcement officers surrounded
the approximately three hundred inmates gathered in the recreation yard and herded
them to a gymnasium on the SOCF grounds, where the inmates were handcuffed




                                          4
                                January Term, 2002




and taken to various cells around the prison. LaMar occupied a cell in K-Block
with nine other inmates: Scales, Frezzell, Weaver, William “Geno” Washington,
Jeffrey Mack, Michael Childers, Ricky Rutheford, William Bowling, and John
Malveaux. These ten inmates remained in the cell without incident for the rest of
the day.
       {¶14} The next day, however, tensions began rising in the cell. LaMar and
Scales began harassing Weaver, accusing him of being a snitch and telling him that
“all snitches should be killed.” Weaver denied being a snitch and urged his fellow
cellmates to protest what he perceived as mistreatment of the inmates who were not
involved in the riot. LaMar became incensed by Weaver’s comments, yelled “shut
up, snitch,” punched Weaver in the face, and relegated him to a corner of the cell.
Scales and Mack also joined in the attack on Weaver. LaMar later ordered that
Weaver, Malveaux, Bowling, and Childers be tied up.
       {¶15} Later that day, LaMar announced to the cellmates that “I want Mr.
Weaver dead. I want that snitch dead right now.” LaMar then accused Bowling of
being a snitch and threatened to kill Bowling if Bowling did not kill Weaver.
LaMar untied Bowling, handed him some string, and watched Bowling choke
Weaver. LaMar also threatened Rutheford, who then aided Bowling in the assault
by holding Weaver’s feet. LaMar became impatient with Bowling’s progress and
told Childers, “[I]f you want to live, if you ain’t no snitch, then you help kill him.”
LaMar then untied Childers, who complied with LaMar’s order by choking Weaver,
using the ropes with which LaMar had tied Childers’s wrists. When Childers began
hitting and kicking Weaver, LaMar told him to “just strangle him” because LaMar
wanted “to make it look like he hung hisself.” LaMar aided Childers by stuffing
toilet paper and pieces of plastic down Weaver’s throat in an effort to silence him.
Weaver eventually died while Childers was choking him.
       {¶16} After Weaver died, LaMar instructed Bowling and Malveaux to
move the body to a corner of the cell. He also ordered them to tie a string from a




                                          5
                                 SUPREME COURT OF OHIO




cell mattress around Weaver’s neck “and hook it to the coat hook to make it look
like a suicide.” And before corrections officers removed Weaver’s body, LaMar
instructed everyone in the cell to tell them that Weaver had killed himself.
        {¶17} The grand jury indicted LaMar on nine counts of aggravated murder
for his role in the deaths of Depina, Vitale, Staiano, Svette, and Weaver. Five of
the aggravated-murder counts alleged that LaMar killed each of the victims with
prior calculation and design. R.C. 2903.01(A). The remaining counts charged
LaMar with murdering Depina, Vitale, Staiano, and Svette while committing or
attempting to commit kidnapping. R.C. 2903.01(B). In addition, the grand jury
charged LaMar with four death-penalty specifications attached to the first eight
counts of the indictment: R.C. 2929.04(A)(4) (murder committed in a detention
facility); (A)(5) (prior murder conviction); (A)(5) (murdering two or more victims);
(A)(7) (murder committed while committing or attempting to commit kidnapping).
The ninth count, charging Weaver’s murder, alleged only three of these
specifications; it did not charge LaMar with the kidnapping specification.1
        {¶18} At trial, LaMar testified on his own behalf and denied committing
any of the five murders. LaMar testified that he was in the recreation yard when
the riot began and went back inside L-6 briefly to get his personal belongings.
LaMar explained that while inside, he spoke briefly with Allen after Grinnell had
accused LaMar of trying to “get guys out the cells.” According to LaMar, Allen
did not believe Grinnell and allowed LaMar to leave the cellblock. LaMar testified
that he returned to the recreation yard and never went back into L-6 that day. He
told the jury that he stayed in the recreation yard until the early morning hours of
April 12, when corrections officers and state troopers surrounded the yard and
ordered the inmates into the gymnasium. LaMar’s alibi testimony was corroborated



1. The indictment did not include any counts relating to the assaults on Stockton and Walker.




                                                6
                                 January Term, 2002




by four inmate witnesses who each testified to having seen and talked to LaMar in
the yard during the early stages of the riot.
       {¶19} LaMar also testified to the events surrounding Weaver’s murder,
which took place after officers placed the two men, along with eight others, in a
holding cell in K-Block. LaMar stated that he and Scales argued with Bowling
about the distribution of food and admitted to punching Bowling in the face. He
denied, however, tying up other inmates or assaulting Weaver. According to
LaMar, Bowling tied up Childers and started punching Weaver after Weaver came
to Childers’s defense. LaMar testified that Bowling then grabbed Weaver around
the neck in a “half Nelson” until Weaver lost consciousness. Bowling then untied
Childers, who also choked Weaver until Weaver died. LaMar admitted lying to
investigators about the events leading to Weaver’s death, but said that he lied
because he didn’t “want nothing to do with it.”
       {¶20} Two defense witnesses corroborated LaMar’s account of Weaver’s
murder. Inmate Cory Perkins, who was in an adjacent cell, testified that he heard
Bowling call Weaver a “snitch.” Perkins also testified that he heard someone else
in the cellblock suggest that Weaver be killed. William Washington, who was in
the K-Block cell with LaMar and Weaver, also corroborated LaMar’s story by
identifying Bowling and Childers as the inmates who killed Weaver. According to
Washington, LaMar did not touch Weaver, did not order anyone to hurt Weaver,
and did not say anything about Weaver. On cross-examination, however, the
prosecution impeached Washington with a prior statement in which he identified
LaMar as one of Weaver’s assailants.
       {¶21} The jury returned guilty verdicts on all the charges and specifications
alleged in the indictment. Following the penalty-phase proceedings, the jury
recommended the death penalty for the murders of Depina, Vitale, Svette, and
Weaver. For Staiano’s murder, the jury found that LaMar should be sentenced to
life imprisonment with parole eligibility after thirty years. The trial court issued a




                                           7
                              SUPREME COURT OF OHIO




sentencing opinion in which it agreed with the jury’s recommendation and
sentenced LaMar to death for the murders of Depina, Vitale, Svette, and Weaver.
LaMar appealed to the Fourth District Court of Appeals, asserting nineteen
assignments of error. The court of appeals overruled each of the assignments and
affirmed the convictions and death sentence. The cause is now before this court
upon an appeal as of right.
                                 II. Settled Issues
       {¶22} LaMar presents twenty propositions of law for our review. Although
R.C. 2929.05 grants a capital defendant an appeal of right to this court, we are not
required to discuss in opinion form each proposition raised in the appeal. State v.
Davis (1996), 

, 

. We may therefore
summarily overrule those propositions of law that this court has previously resolved
and address only those issues that warrant discussion. 

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

, 

.
       {¶23} Accordingly, we summarily overrule LaMar’s eighteenth proposition
of law challenging the constitutionality of death-penalty proportionality review
under R.C. 2929.05. See, e.g., State v. Smith (1997), 

, 

; State v. Steffen (1987), 

, 31 OBR 273, 

, paragraph one of the syllabus.          We also overrule LaMar’s twentieth
proposition of law, which challenges the constitutionality of Ohio’s death-penalty
statutory scheme on various grounds. We have considered all of these arguments
and summarily reject them. See, e.g., State v. Stallings (2000), 

, 

; State v. Mills (1992), 

, 

; State v. Seiber (1990), 

, 

. In neither
proposition does LaMar offer any arguments that this court has not already rejected.




                                         8
                                January Term, 2002




                                III. Pretrial Issues
                   A. Failure to Disclose Exculpatory Evidence
        {¶24} In his first proposition of law, LaMar asserts that the state failed to
disclose material evidence tending to exculpate him in the murders, thereby
denying him his constitutional right to a fair trial. See Brady v. Maryland (1963),

, 

, 

. Prior to trial, LaMar’s counsel
asked the state to produce all evidence of an exculpatory nature, as required by
Crim.R. 16(B)(1)(f). The state’s response did not provide a complete list of inmate
statements, purportedly because of concerns about the safety of inmates who had
given statements to law enforcement about the events of the SOCF riot. Instead,
the state submitted to the trial court an eleven-page document containing summaries
of inmate interviews.
        {¶25} At a pretrial hearing, the trial court read summaries of inmate
statements from the bench and, with a few exceptions, did not identify who made
them.   The contents of the summaries varied widely, ranging from useless
information (e.g., “He was in a cell adjoining K-2-36 but gave no useful
information”) to pure speculation (e.g., “He was in an adjoining cell to K-2-36 and
heard a commotion and thought Weaver hung himself”) to statements with
exculpatory value (e.g., “he observed Eskridge kill Svette in L-corridor”; “[h]e was
in an adjoining cell … and identified Greg Curry telling Keith LaMar to kill
Weaver because he was a snitch”). Many of the statements, however, corroborated
LaMar’s participation in the killings, while other statements named other assailants
without eliminating LaMar as a participant.
        {¶26} After reading all of the summaries, the trial court granted a
continuance to the defense and authorized funds for a second defense investigator
to conduct additional interviews of inmate witnesses. The trial court did not,
however, require the prosecution to provide the full statements (i.e., contents of the
statement with the name of the inmate who gave it) to the defense. Instead, the




                                          9
                                  SUPREME COURT OF OHIO




court ordered the prosecution to provide the defense with the names of forty-three
inmates who gave statements to law enforcement. Although the prosecution
complied with the trial court’s directive and provided a list of forty-three names, it
did not match the statements with the names supplied.
         {¶27} Suppression by the prosecution of evidence that is favorable to the
accused and “material either to guilt or to punishment” is a violation of due process.
Brady, 

, 

, 

. Evidence suppressed by the
prosecution is “material” within the meaning of Brady only if there exists a
“reasonable probability” that the result of the trial would have been different had
the evidence been disclosed to the defense. Kyles v. Whitley (1995), 

, 

, 

; see, also, United States v. Bagley
(1985), 

, 

, 

. As the United States
Supreme Court has stressed, “the adjective [‘reasonable’] is important.                        The
question is not whether the defendant would more likely than not have received a
different verdict with the evidence, but whether in its absence he received a fair
trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles, 

, 

, 

; see, also, Strickler v. Greene (1999),

, 

, 

.
         {¶28} Assuming arguendo that the prosecution “suppressed” the evidence
LaMar complains of within the meaning of Brady,2 we find no due process
violation. On the record before us, we find no reasonable probability of a different
trial outcome had the defense received the full statements. Many of the statements


2. Because the defense knew before trial of the contents of inmate statements and the names of the
inmates who gave them, there is arguably no Brady violation as a matter of law. At least two federal
appellate courts have found Brady applicable only to the discovery after trial of information that
was known to the prosecution and unknown to the defense. United States v. Gonzales (C.A.8, 1996),

, 1368; United States v. Soto-Alvarez (C.A.1, 1992), 

. See, also,
United States v. Clark (C.A.6, 1991), 

 (no Brady violation exists where a
defendant knows of essential facts permitting him to take advantage of exculpatory information or
where evidence is available from another source), citing United States v. Grossman (C.A. 2, 1988),

, and United States v. Davis (C.A.11, 1986), 

.




                                                10
                                January Term, 2002




identified LaMar as a participant in the murders. And statements identifying other
inmates as participants did not exculpate LaMar because each victim had been
attacked by multiple assailants. Cf. State v. Waddy (1992), 

,

 (holding evidence not to be material within the meaning of Brady
when the evidence did not eliminate the defendant as the perpetrator). Finally, with
respect to murders in cellblock L-6, none of the statements assisted LaMar’s alibi
defense (i.e., that LaMar was in the recreation yard at the time of the killings). In
short, nothing in the contents of the statements “could reasonably be taken to put
the whole case in such a different light as to undermine confidence in the verdict.”
Kyles, 

, 

, 

.
       {¶29} As a separate Brady claim, LaMar argues that the trial court should
have found a Brady violation and granted his motion for a new trial after defense
counsel discovered that the prosecution had provided complete inmate
statements—the same material the defense had requested at the pretrial hearing in
LaMar’s case—in the criminal trials of two other SOCF inmates (Derek Cannon
and Rasheem Matthews). LaMar argues that the disclosure in these two noncapital
cases undercuts the prosecution’s proffered reason (i.e., inmate safety) for failing
to disclose the information in his case. As we stated above, however, the statements
were not material to LaMar’s case within the meaning of Brady. We therefore
reject this argument.
       {¶30} In his final Brady claim, LaMar claims that he should have received
a new trial in light of evidence the defense discovered after trial. The evidence
consisted of (1) Ohio State Highway Patrol summaries of two statements given by
inmate Willie Kastner to investigators and (2) transcripts of interviews conducted
by law enforcement officers with inmates David Hackett, Tyronne Golphin, Gerald
Kelly, William Turner, and Daniel Davidson. These witnesses identified several
persons other than LaMar as being involved in the murders of Vitale, Staiano,
Depina, and Svette. LaMar further notes that the interviews with Hackett and




                                         11
                              SUPREME COURT OF OHIO




Davidson suggest that Vitale and Staiano may not have been dead at the time their
assailants left L-6. Because the state failed to disclose these potentially exculpatory
statements, LaMar argues that there has been a Brady violation warranting a new
trial.
         {¶31} We reject this Brady claim for reasons similar to the ones we stated
above. While these statements identified other inmates, none of them exonerated
LaMar. At best, these witnesses established that there were several persons who
joined in beating the L-6 victims to death. The state’s theory all along was that
LaMar was one of many assailants who participated in murdering the victims in L-
6. Therefore, the existence of this evidence does not undermine our confidence in
the trial outcome.
         {¶32} Finding no Brady violation that would warrant reversal, we reject
LaMar’s first proposition of law.
                          B. Allegations of a Biased Judge
         {¶33} The trial court’s treatment of the exculpatory evidence complained
of in the first proposition of law also forms the basis of LaMar’s second proposition
of law. Because of the trial judge’s actions, LaMar contends that he was deprived
of his constitutional right to a fair trial before an impartial judge.
         {¶34} It is well settled that a criminal trial before a biased judge is
fundamentally unfair and denies a defendant due process of law. See Rose v. Clark
(1986), 

, 

, 

; Tumey v. Ohio (1927),

, 

, 

. We have described judicial bias as
“a hostile feeling or spirit of ill will or undue friendship or favoritism toward one
of the litigants or his attorney, with the formation of a fixed anticipatory judgment
on the part of the judge, as contradistinguished from an open state of mind which
will be governed by the law and the facts.” State ex rel. Pratt v. Weygandt (1956),

, 

, 

, paragraph four of the syllabus;
see, also, Cleveland Bar Assn. v. Cleary (2001), 

, 

                                    January Term, 2002




235. LaMar argues that the trial judge exhibited bias by “actually aid[ing] the
prosecution in intermingling names, adding irrelevant inmate names and generally
obfuscating the information that appellant was clearly entitled to.” We do not
agree.
         {¶35} We first note that LaMar did not raise the issue of judicial bias in his
appeal to the court of appeals. He has therefore forfeited this claim. State v.
Jalowiec (2001), 

, 

. Moreover, LaMar failed
to avail himself of the procedures described in R.C. 2701.03, which allows a party
to file an affidavit of bias and prejudice with this court seeking disqualification of
a biased judge.
         {¶36} Even if LaMar had raised this issue before the court of appeals, we
would find no merit to his contention. LaMar relies on a general characterization
of unfairness and bias by the trial court during the March 6, 1995 pretrial hearing
to support his claim, without referring to any specific evidence of bias. But viewing
the transcript as a whole, and taking all of the judge’s comments in their proper
context, we see nothing to suggest that the trial court harbored a hostile feeling of
ill will toward either LaMar or his attorneys during the course of the trial. We
accordingly reject the second proposition of law.
                                   C. Pretrial Discovery
         {¶37} As a branch of his fourth proposition of law (alleging prosecutorial
misconduct in various respects), LaMar argues that the prosecution improperly
withheld discovery before trial.3 Specifically, LaMar alleges that the prosecutor
(1) ignored the trial court’s order to provide transcripts of statements given by
inmate witnesses, (2) repeatedly refused the trial court’s orders to fully answer
defense interrogatories in support of the defense’s motion to dismiss on selective-prosecution grounds, and (3) failed to disclose summaries of inmate statements on


3. We consider LaMar’s remaining arguments under the fourth proposition of law in Part VI, infra.




                                               13
                             SUPREME COURT OF OHIO




grounds of “confidentiality” and inmate safety, only to turn them over in other
cases. We construe LaMar’s argument, which asserts many of the same claims
raised in the first proposition of law, as asserting violations of the discovery
provisions contained in Crim.R. 16.
       {¶38} Violations of Crim.R. 16 by the prosecution may result in reversible
error only upon a showing that (1) the prosecution’s failure to disclose was a willful
violation of the rule, (2) foreknowledge of the information would have benefited
the accused in preparing a defense, and (3) the accused has suffered prejudice. State
v. Joseph (1995), 

, 

. For the reasons we
stated in overruling the first proposition of law, LaMar cannot establish prejudice
because there was no reasonable probability of a different trial result even if the
prosecution had disclosed the inmate statements LaMar complains of. And as for
the prosecutor’s alleged failure to answer defense interrogatories relevant to
LaMar’s selective-prosecution claim, LaMar’s claim likewise fails. As we shall
explain infra in disposing of the seventh proposition of law, LaMar did not make a
prima facie showing of selective prosecution. Because he did not produce credible
evidence of selective prosecution, he was not entitled to discovery on the issue.
United States v. Armstrong (1996), 

, 

, 

. We accordingly reject LaMar’s pretrial-discovery argument.
                         D. Limitations on Jury Voir Dire
       {¶39} LaMar’s third proposition of law attacks the trial court’s actions
during jury selection. He argues that the trial court unreasonably and arbitrarily
prevented him from “inquiring into proper subjects of voir dire including factors
affecting credibility, the meaning of the presumption of innocence, defendant’s
right to remain silent, the burden of proof, and the juror’s ability to follow
instructions.” LaMar cites numerous instances from voir dire when the trial court
sustained prosecution objections to defense counsel’s questions relating to areas
such as (1) a potential juror’s methods of evaluating a witness’s credibility, (2)




                                         14
                                     January Term, 2002




whether the juror could convict just because LaMar presented no evidence, and (3)
how a juror would feel if LaMar did not testify at trial. At one point, the trial court
fined one of LaMar’s attorneys $50 after the attorney, in apparent frustration,
complained (in the presence of the jury venire) that he was “not getting a fair trial
in this case” if he was not allowed to delve into certain areas with the potential
jurors during voir dire.4
         {¶40} Crim.R. 24 and R.C. 2945.27 afford both prosecution and defense
counsel the opportunity to conduct reasonable voir dire of prospective jurors.
Nevertheless, the length and scope of voir dire fall within a trial court’s sound
discretion and vary depending on the circumstances of a given case. State v.
Lundgren (1995), 

, 

. Accordingly, we will
not find prejudicial error in how the trial court qualified venirepersons “as fair and
impartial jurors” unless the appellant can show “a clear abuse of discretion.” State
v. Cornwell (1999), 

, 

; see, also, State v.
Beuke (1988), 

, 

. A trial court does not abuse
its discretion unless it acts arbitrarily, unreasonably, or unconscionably. State v.
Adams (1980), 

, 

, 

.
         {¶41} We find no abuse of discretion warranting reversal in this case. The
voir dire limitations cited by LaMar paint an incomplete picture of how the trial
court conducted the jury-selection process. At one point, when defense counsel
expressed concerns that the trial court was limiting his ability to ask jurors “what
their opinion will be if [LaMar] does not take the stand,” the court agreed to allow
him to inquire into this area with appropriate questions phrased in terms of the
jurors’ ability to follow instructions. The trial court also reconsidered its position
on objections previously sustained and allowed the defense to “get back into that



4. The trial court later revoked this order, which it described as a contempt citation, and returned
the $50 to LaMar’s counsel.




                                                15
                              SUPREME COURT OF OHIO




area [of credibility].” As a result, the defense was allowed to ask numerous
questions of prospective jurors about their methods of assessing credibility, how
they would feel if LaMar exercised his right to refuse to testify, and their views on
the concept of reasonable doubt. Thus, notwithstanding LaMar’s arguments to the
contrary, the record shows that defense counsel was allowed some latitude to
explore these areas. Viewed in its entirety, we find no undue restriction in the
manner the trial court conducted voir dire and therefore reject LaMar’s third
proposition of law.
                               E. Selective Prosecution
        {¶42} In the seventh proposition of law, LaMar contends that he is the
victim of selective prosecution. LaMar, who is African-American, argues that the
trial court should have dismissed the indictment against him on grounds that the
state chose to prosecute him for capital offenses because of his race. Although the
state prosecuted numerous inmates for murders committed during the SOCF riot,
LaMar states that he was the only inmate charged with capital murder for killing
other inmates.
        {¶43} The decision whether to prosecute a criminal offense is generally left
to the discretion of the prosecutor. United States v. Armstrong, 

,

, 

.           That discretion is, however, subject to
constitutional equal-protection principles, which prohibit prosecutors from
selectively prosecuting individuals based on “ ‘an unjustifiable standard such as
race, religion, or other arbitrary classification.’ ” 

 quoting Oyler v. Boles (1962),

, 

, 

. Although a selective-prosecution
claim is not a defense on the merits to the criminal charge itself, a defendant may
raise it as an “independent assertion that the prosecutor has brought the charge for
reasons forbidden by the Constitution.” State v. Getsy (1998), 

, 

; see, also, Armstrong, 

, 

, 

.




                                          16
                                 January Term, 2002




        {¶44} To support a claim of selective prosecution, “ ‘a defendant bears the
heavy burden of establishing, at least prima facie, (1) that, while others similarly
situated have not generally been proceeded against because of conduct of the type
forming the basis of the charge against him, he has been singled out for prosecution,
and (2) that the government’s discriminatory selection of him for prosecution has
been invidious or in bad faith, i.e., based upon such impermissible considerations
as race, religion, or the desire to prevent his exercise of constitutional rights.’ ”
State v. Flynt (1980), 

, 

, 

, quoting
United States v. Berrios (C.A.2, 1974), 

. In this case, LaMar
has failed to satisfy either prong.
        {¶45} LaMar asserts that out of the more than twenty-five inmates who
were indicted for homicide offenses relating to the SOCF riot, he was the only one
charged with capital murder for “killing only inmates.” LaMar also states that four
other inmates, at least one of whom was white, were charged with noncapital
offenses for participating in the same murders for which LaMar was convicted.
Even accepting these assertions as true, LaMar fails to satisfy the first prong of the
Flynt analysis because he has not shown that the state has treated him differently
from other similarly situated individuals. The state built its case against LaMar on
the theory that he organized and led a small group of inmates on a murderous
rampage.    The state presented considerable evidence that LaMar acted in a
leadership role and participated in all five murders by either beating his victims or
forcing other inmates to kill. Because of LaMar’s extensive involvement, we
cannot conclude that he was “similarly situated” with other inmates charged with
noncapital offenses.
        {¶46} LaMar also fails to satisfy the second Flynt prong. There is no
evidence to suggest that the prosecution singled him out for death-penalty
prosecution because of his race. Just two years ago, in fact, this court affirmed the
convictions of a white inmate who received the death penalty for aggravated




                                         17
                             SUPREME COURT OF OHIO




murders committed during the SOCF riot. See State v. Robb (2000), 

, 

. Although LaMar emphasizes that Robb involved a white
inmate convicted of killing both an inmate and a corrections officer, we fail to see
how this distinction matters for purposes of a selective-prosecution analysis. And
even if it did, LaMar has done nothing more than make a bald assertion of differing
treatment motivated by race. Absent some demonstration of an invidious motive,
this court will not presume intentional or purposeful discrimination from a mere
showing of different treatment. State v. Freeman (1985), 

, 20
OBR 355, 

.
       {¶47} Under this proposition of law, LaMar also argues that the trial court
erred when it denied his motion to dismiss the indictment on selective-prosecution
grounds without stating its essential factual findings, as required by former Crim.R.
12(E) (now Crim.R. 12[F]). There was no such error in this case, however, because
LaMar failed to request the findings he now claims were necessary. See State v.
Eley (1996), 

, 

. By failing to invoke the rule,
LaMar has forfeited any error. 

 We reject LaMar’s seventh proposition of law.
                               F. Prejudicial Joinder
       {¶48} In his eighth proposition of law, LaMar argues that the trial court
should have granted his pretrial motion to sever count nine of the indictment,
alleging aggravated-murder and death-penalty specifications for Weaver’s murder,
from the remaining eight counts. LaMar claims that the Weaver count should have
been tried separately from the other counts because the allegations relating to
Weaver’s murder “were quite different” from the allegations relating to the deaths
of the other four victims. LaMar further contends that he was unduly prejudiced
by the joinder of all nine counts because “trying these cases together gave the
benefit to the state of permitting the jury to infer from the evidence presented in the
deaths of the first four victims that Mr. LaMar was quite capable of directing the
death of Dennis Weaver two days later.”




                                         18
                                 January Term, 2002




        {¶49} “The law favors joining multiple offenses in a single trial under
Crim.R. 8(A) if the offenses charged ‘are of the same or similar character.’ ” State
v. Lott (1990), 

, 

. Crim.R. 8(A) also allows
joinder of two or more offenses that “are based on the same act or transaction, or
are based on two or more acts or transactions connected together or constituting
parts of a common scheme or plan, or are part of a course of criminal conduct.”
Notwithstanding the policy in favor of joinder, an accused may move to sever
counts of an indictment on the grounds that he or she is prejudiced by the joinder
of multiple offenses. See Crim.R. 14. An appellate court will reverse a trial court’s
decision to deny severance only if the trial court has abused its discretion. Lott, 

, 

.
        {¶50} The state may rebut a defendant’s claim of prejudicial joinder in two
ways. The first way is by satisfying the “other acts” test. 

 If in separate trials
the state could introduce evidence of the joined offenses as “other acts” under
Evid.R. 404(B), a defendant cannot claim prejudice from the joinder. 

 See, also,
State v. Coley (2001), 

, 

. The state
may also negate a claim of prejudice by satisfying the less stringent “joinder test,”
which requires a showing “that evidence of each crime joined at trial is simple and
direct.” Lott, 

, 

; see, also, State v. Torres
(1981), 

, 

, 

.
        {¶51} The trial court did not abuse its discretion by denying severance in
this case because the state satisfied both tests. Even if the state had tried the Weaver
count separately from the others, the evidence of LaMar’s participation in the L-6
murders would have been admissible under Evid.R. 404(B). The rule allows the
admission of other-acts evidence for purposes other than proving that the accused
acted in conformity with a particular character. In this case, count nine of the
indictment contained an R.C. 2929.04(A)(5) specification alleging that LaMar had
murdered Weaver as part of a “course of conduct” that involved the “purposeful




                                          19
                             SUPREME COURT OF OHIO




killing of or attempt to kill” two or more persons. Even if this count had been tried
separately, the state would have had to present some evidence of the L-6 murders
in order to prove this specification.     Thus, there would have been a valid
noncharacter purpose for admitting evidence of the other murders. Cf. State v.
Wilkinson (1980), 

, 

, 

 (noting
the admissibility of other-crimes evidence when “ ‘ “they are so blended or
connected with the one on trial as that proof of one … tends logically to prove
any element of the crime charged,” ’ ” quoting United States v. Turner [C.A.7,
1970], 

, and United States v. Wall [C.A.7, 1955], 

).
       {¶52} Even if we were to hold that evidence of the L-6 murders would not
have been admissible “other acts” in a separate trial for Weaver’s murder, we are
satisfied that the evidence for Weaver’s murder was sufficiently “simple and direct”
to negate LaMar’s claims of prejudicial joinder. As LaMar’s brief acknowledges,
the Weaver murder occurred two days after the L-6 murders in a different cellblock
and was accomplished by strangulation rather than bludgeoning. Accordingly, it is
highly unlikely that the jury was confused as to which evidence tended to show that
LaMar killed Weaver and which tended to show that he killed the L-6 victims. See,
e.g., Coley, 

, 

.
       {¶53} The eighth proposition of law is overruled.
                              IV. Trial Phase Issues
                            A. Gruesome Photographs
       {¶54} In the fifth proposition of law, LaMar contends that the trial court
prejudiced his defense by allowing the prosecution to admit “gruesome and
misleading photos” into evidence. In particular, LaMar challenges the admission
of Svette’s postmortem photographs. LaMar contends that Svette’s photographs
were particularly prejudicial in light of evidence that (1) Svette had multiple
assailants apart from LaMar’s group and (2) the photos did not depict how Svette




                                        20
                                January Term, 2002




looked after the death squad left his cell. LaMar further argues that the prejudicial
effect of all the admitted photographs was exacerbated by the prosecution’s use of
them during closing arguments.
       {¶55} “Properly authenticated photographs, even if gruesome, are
admissible in a capital prosecution if relevant and of probative value in assisting
the trier of fact … as long as the danger of material prejudice to a defendant is
outweighed by their probative value and the photographs are not repetitive or
cumulative in number.” State v. Maurer (1984), 

, 15 OBR 379,

, paragraph seven of the syllabus. We review a trial court’s decision
to admit photographs under an abuse-of-discretion standard. State v. Morales
(1987), 

, 

. We will not disturb a trial court’s
balancing of the probative value against the prejudicial effect unless the trial court
has “ ‘clearly abused its discretion and the defendant has been materially prejudiced
thereby.’ ” State v. Slagle (1992), 

, 

, quoting
State v. Hymore (1967), 

, 

, 

;
see, also, State v. Phillips (1995), 

, 

.
       {¶56} We agree with LaMar that the two Svette photographs he challenges
here—Exhibits 20H and 20K—were decidedly gruesome. Each depicted Svette’s
head split open at the crown, with Exhibit 20K showing a portion of Svette’s
bloodied brain. In addition, Exhibit 20H offered a frontal view of Svette’s head,
allowing jurors to see that Svette’s face was also beaten badly. Notwithstanding
the nature of the photographs, however, we cannot say that the trial court erred in
admitting them. Both photographs supported the forensic pathologist’s testimony
that Svette had sustained four major blows to the head and that any of the four was
sufficient to cause death. Even though there was testimony from an inmate witness
that Svette’s head “wasn’t that far open” when LaMar had finished beating him, the
court was well within its discretion to admit the photos and afford the jury an
opportunity to see the effects of all of the blows to Svette’s head, including any




                                         21
                             SUPREME COURT OF OHIO




inflicted by LaMar. Inasmuch as LaMar inflicted at least one of the major blows
that could have been sufficient to cause Svette’s death, the photographs helped
establish LaMar’s intent to kill by graphically portraying the force with which
Svette was beaten. See State v. Tibbetts (2001), 

, 

.
       {¶57} LaMar also complains about the trial court’s admission of mugshotstyle photographs showing Svette, Staiano, Depina, Vitale, and Weaver while all
were still alive. We reject LaMar’s arguments as to these photos. Pre-death
photographs are relevant and admissible for purposes of identifying the victims.
See State v. Davie (1997), 

, 

; State v. Roe
(1989), 

, 

. LaMar’s fifth proposition of
law is overruled.
                               B. Hearsay Testimony
       {¶58} LaMar’s sixth proposition of law attacks the trial court’s admission
of “highly prejudicial hearsay evidence.” Inmate Robert Bass, who witnessed the
actions of LaMar’s death squad at L-6 on the day of the SOCF riot, testified that he
heard Allen tell LaMar, “Get your boys together and come on. Come with me.”
The trial court overruled defense objections to this testimony.
       {¶59} Out-of-court statements offered to prove the truth of the matter
asserted within them are generally inadmissible as hearsay. Evid.R. 801 and 802.
If a statement is not offered for the truth of the matter asserted, however, it is not
prohibited by the hearsay rule and will be admissible, subject to the standards
governing relevancy and undue prejudice. State v. Maurer, 

-
263, 15 OBR 379, 

. Accordingly, “testimony which explains the
actions of a witness to whom a statement was directed, such as to explain the
witness’ activities, is not hearsay.” 

, 15 OBR 379, 

.
       {¶60} In this case, the trial court properly overruled LaMar’s objection
because Allen’s statement was not offered for its truth. Rather, the prosecution




                                         22
                                January Term, 2002




offered it to show that LaMar was the target of Allen’s command. Allen’s comment
was therefore admissible as a nonhearsay statement showing that LaMar heard
Allen’s instruction and acted upon it.
       {¶61} LaMar’s counsel also objected to testimony by Bass about a
statement made by Cannon. Bass testified that Cannon asked Bass whether he had
seen LaMar before the group had embarked on its plan to kill snitches in L-6. The
trial court properly overruled the hearsay objection because Cannon’s question was
not a “statement” within the meaning of the hearsay rule. Evid.R. 801(A) defines
a “statement,” for hearsay purposes, as “(1) an oral or written assertion or (2)
nonverbal conduct of a person, if it is intended by him as an assertion.” (Emphasis
added.) “An ‘assertion’ for hearsay purposes ‘simply means to say that something
is so, e.g., that an event happened or that a condition existed.’ ” (Emphasis sic.)
State v. Carter (1995), 

, 

, quoting 2
McCormick on Evidence (4th Ed.1992) 98, Section 246. Inasmuch as Cannon’s
question asserted nothing “because a true question or inquiry is by its nature
incapable of being proved either true or false,” it cannot be hearsay within the
meaning of Evid.R. 801. 

       {¶62} We accordingly overrule the sixth proposition of law.
                            C. Sufficiency of Evidence
       {¶63} In his ninth, tenth, and eleventh propositions of law, LaMar argues
that the evidence was insufficient to support several of his convictions.         He
therefore argues that the trial court should have granted his Crim.R. 29 motions for
acquittal with respect to Svette’s murder, the course-of-conduct specification
attached to Weaver’s murder, and the kidnapping specification attached to the
murders of Depina, Vitale, Staiano, and Svette.
       {¶64} When reviewing the sufficiency of evidence to support a criminal
conviction, “[t]he relevant inquiry is whether, after viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact could have found the




                                         23
                             SUPREME COURT OF OHIO




essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks
(1991), 

, 

, paragraph two of the syllabus; see,
also, Jackson v. Virginia (1979), 

, 

, 

.
When conducting this review, we do not weigh the evidence; our inquiry is limited
to whether reasonable minds could reach the conclusion reached by the trier of fact.
See Tibbetts, 

, 

. Issues concerning the weight
given to the evidence and the credibility of witnesses are primarily for the trier of
fact. State v. DeHass (1967), 

, 

, 

,
paragraph one of the syllabus.
                         1. Aggravated Murder of Svette
       {¶65} In connection with Svette’s death, LaMar was convicted of
aggravated murder under R.C. 2903.01(B), which at the time of the SOCF riot
provided:
       {¶66} “No person shall purposely cause the death of another while
committing or attempting to commit, or while fleeing immediately after committing
or attempting to commit kidnapping ….” 139 Ohio Laws, Part I, 1, 3.
       {¶67} LaMar insists that the state did not present sufficient evidence
showing that he caused Svette’s death. He points to testimony showing that others
beat Svette and that Svette remained alive after LaMar and his group allegedly left
L-6 after their rampage. LaMar also emphasizes testimony attesting to the fact that
Svette’s postmortem photographs did not accurately depict how Svette looked after
LaMar and his group beat him. Because of all these factors, LaMar contends that
there is insufficient evidence to support a conclusion that he “caused the death of
William Svette.” At best, he contends, there was sufficient evidence only of
attempted murder. We reject LaMar’s argument.
       {¶68} At least two witnesses testified that LaMar struck Svette’s head
multiple times with either a shovel or baseball bat. One of the witnesses added that
LaMar even went back to Svette’s cell to beat him a second time after noticing that




                                         24
                               January Term, 2002




Svette was still alive. Furthermore, the forensic pathologist who testified for the
state opined that Svette sustained four major blows to his head with a heavy object
and that any one of those would have independently killed Svette. The jury was
well within its province to infer that LaMar had struck one of those blows.
       {¶69} The fact that others assaulted Svette and perhaps hastened his death
does not undermine the sufficiency of the evidence to convict LaMar. Despite the
actions of inmates Girdy and Frakes, who, according to witness testimony, finished
Svette off, the evidence at trial supports an inference that LaMar’s actions bore a
causal connection to Svette’s death. An offender who has inflicted injuries capable
of causing death cannot escape culpability for homicide simply because intervening
assailants have inflicted injuries that also contributed to the victim’s death. See
State v. Keene (1998), 

, 

; see, also, People
v. Bailey (1996), 

, 

; Holsemback v. State
(Ala.Crim.App.1983), 

. Because sufficient evidence
supports the conclusion that LaMar caused Svette’s death, we overrule the ninth
proposition of law.
            2. Course-of-Conduct Specification for Weaver’s Murder
       {¶70} With respect to Weaver’s murder, LaMar argues that the evidence is
insufficient to support his conviction for one of the capital specifications.
Specifically, LaMar argues that the state failed to present sufficient evidence that
Weaver’s murder “was part of a course of conduct involving the purposeful killing
of or attempt to kill two or more persons.” R.C. 2929.04(A)(5). Even assuming
that he participated in the four murders committed in L-6, LaMar urges that “there
is no evidence that the Weaver killing was related” to them because Weaver’s
murder involved “a different scheme and a different mode of operation” and took
place at a different time. We are not persuaded.
       {¶71} The “course of conduct” specification applies to multiple murders
that an offender commits as part of a continuing course of criminal conduct, even




                                        25
                             SUPREME COURT OF OHIO




if the offender does not necessarily commit them as part of the same transaction.
See State v. Benner (1988), 

, 

. In this
case, a reasonable jury could have found that the circumstances surrounding the
Weaver murder were intertwined with the four murders in L-6 that took place two
days earlier. The state presented testimony that LaMar and his group murdered the
L-6 victims and Weaver as part of a concerted effort to kill “snitches” at SOCF,
indicating a common motive for all of the killings. And even though the Weaver
murder happened at a different time than the other four murders, that fact does not
preclude a finding of sufficient evidence to support a conviction for the course-ofconduct specification. Conduct taking place over several days may satisfy the R.C.
2929.04(A)(5) specification so long as the offender’s actions were part of a
continuing course of criminal conduct. See, e.g., State v. Dunlap (1995), 

, 

 (two murders, ten days apart, committed in two
states); State v. Fautenberry (1995), 

, 

 (five
murders committed in four states during a five-month period).            The tenth
proposition of law is overruled.
                           3. Kidnapping Specifications
       {¶72} With respect to four of the victims—Depina, Vitale, Staiano, and
Svette—the jury found LaMar guilty of the death-penalty specification alleging that
he committed the murders while “committing, attempting to commit, or fleeing
immediately after committing or attempting to commit kidnapping.”              R.C.
2929.04(A)(7). LaMar contends that there was insufficient evidence of kidnapping
to support a conviction for this specification.
       {¶73} The trial court instructed the jury on the definition of kidnapping set
forth in R.C. 2905.01(A)(3), which states:
       {¶74} “No person, by force, threat, or deception … shall remove another
from the place where the other person is found or restrain the liberty of the other
person, for any of the following purposes:




                                         26
                               January Term, 2002




       {¶75} “…
       {¶76} “(3) To terrorize, or to inflict serious physical harm on the victim or
another.”
       {¶77} In State v. Maurer, 

, 15 OBR 379, 

, this court considered a constitutional challenge to the validity of the
R.C. 2929.04(A)(7) specification. The defendant argued that “in virtually every
aggravated murder the victim will be restrained from liberty for the purpose of
terrorizing or the infliction of serious physical harm” and that the specification
therefore violated the constitutional requirement that aggravating circumstances
adequately distinguish between offenses that are death-eligible and those that are
not. See, generally, Godfrey v. Georgia (1980), 

, 

, 

.     This court rejected the argument by interpreting the R.C.
2929.04(A)(7) specification to require proof of something more than a restraint or
movement incidental to the commission of a murder. That is, the court held that
R.C. 2929.04(A)(7) requires “prolonged restraint, secretive confinement, or
significant movement apart from that involved in the underlying crime in order to
justify the application of the aggravating circumstance of kidnapping.” Maurer, 

, 15 OBR 379, 

; see, also, State v. Jenkins (1984),

, 15 OBR 311, 

; State v. Logan (1979),

, 

, 

.
       {¶78} LaMar argues that there was not enough evidence of either prolonged
restraint, secretive confinement, or significant movement to sustain a conviction on
the kidnapping specification. For example, he argues, the evidence showed that
Depina and Vitale were beaten inside their respective cells and in the range
immediately in front of the cells. As to the Staiano murder, LaMar points to
evidence that Staiano tripped and fell as he tried to escape his cell, after which
Taylor attacked him. And with respect to the Svette murder, LaMar argues that
there was no evidence suggesting that LaMar restrained Svette or removed him




                                        27
                            SUPREME COURT OF OHIO




from his cell. Accordingly, LaMar contends that any restraint or movement was
merely incidental to the beatings, distinguishing this case from others in which we
have upheld convictions for the R.C. 2929.04(A)(7) specification.
       {¶79} If our focus were confined solely to the circumstances immediately
preceding the murder of each victim, LaMar would have a substantial argument
that any movement or restraint associated with any of them was incidental, at best,
to the vicious assaults that caused their deaths. But beyond the evidence of
movement incidental to the killings themselves, there was evidence that rioting
inmates confined their victims in various cells and would not allow them to escape
to the recreation yard with the nonrioting inmates. There was evidence that Allen,
while each victim was locked in a cell, told LaMar and his group to “kill the
snitches.” Thus, a reasonable jury could find that the inmates in control of L-6
confined suspected snitches for the purpose of terrorizing or inflicting serious
physical harm. Cf. State v. Simko (1994), 

, 

 (finding sufficient evidence to support kidnapping specification when
defendant restrained and terrorized victim for approximately a half-hour before
murdering her as she tried to escape); State v. Seiber, 

, 

 (kidnapping specification supported by evidence that, prior to shooting
the victim, the defendant restrained bar patrons by ordering them on the floor and
blocking exits). In turn, a reasonable jury could conclude that LaMar assumed
control over the victims’ confinement after Allen relayed the order for LaMar to
“kill the snitches.” Indeed, there was evidence that LaMar ordered Grinnell to open
each victim’s cell, supporting the inference that LaMar had some measure of
control over the physical location and movement of the victims. Construing the
evidence most strongly in the prosecution’s favor, as we are required to do in a
sufficiency-of-the-evidence inquiry, there was sufficient evidence that LaMar was
at least an aider and abettor in the victims’ confinement and thus capable of being
“prosecuted and punished as if he were a principal offender” in the kidnappings.




                                        28
                               January Term, 2002




R.C. 2923.03(F); see, also, State v. Bies (1996), 

, 

. We therefore conclude that the trial court properly overruled LaMar’s Crim.R.
29 motion for acquittal on the kidnapping specifications.
       {¶80} The eleventh proposition of law is overruled.
                              D. Surprise Testimony
       {¶81} LaMar’s thirteenth proposition of law asserts that the defense was
unfairly prejudiced by “surprise” testimony on cross-examination by William
“Geno” Washington, a defense witness. Washington was one of the ten inmates,
including LaMar and Weaver, placed in the K-Block cell after corrections officers
cleared the recreation yard on the morning after the riot began.         On direct
examination by defense counsel, Washington testified that Bowling and Childers
had killed Weaver. He also testified that LaMar did not say anything about Weaver,
did not order anyone to kill Weaver, and did not touch Weaver. On cross-examination, however, the state impeached Washington with the contents of an
interview during which he told an investigator, among other things, that LaMar was
one of the persons responsible for Weaver’s murder. Washington repeatedly denied
any memory of making the statement.          LaMar argues that the defense was
“completely surprised” by Washington’s prior statement and that a new trial was
therefore warranted.
       {¶82} LaMar’s counsel, citing Washington’s testimony, filed a post-trial
motion for new trial under Crim.R. 33(A)(3). This rule allows for a new trial on
the grounds of “surprise which ordinary prudence could not have guarded against.”
To warrant a new trial, the surprise of which the defendant complains must have
materially affected the defendant’s substantial rights. A reviewing court will not
disturb a trial court’s decision granting or denying a Crim.R. 33 motion for new
trial absent an abuse of discretion. See State v. Schiebel (1990), 

, 

.




                                        29
                                 SUPREME COURT OF OHIO




        {¶83} LaMar has not met his burden of establishing an entitlement to a new
trial under Crim.R. 33(A)(3). Although LaMar’s counsel claimed surprise in his
motion for new trial, he did not raise this issue during Washington’s testimony. A
trial court acts well within its discretion to deny a post-trial Crim.R. 33(A)(3)
motion when defense counsel fails to raise the issue of surprise during trial. We
accordingly reject the thirteenth proposition.
                             E. Newly Discovered Evidence
        {¶84} In the twelfth proposition of law, LaMar claims that he was entitled
to a new trial on the grounds of newly discovered evidence. Following trial,
LaMar’s attorneys moved for a new trial under Crim.R. 33(A)(6) after two inmates,
James Were and Derek Cannon, had contacted them with information about
LaMar’s case. Were signed an affidavit stating that he was present in L-6 at the
time of the murders and that LaMar did not participate in them. Were also stated
that other inmates had been “displeased” with LaMar for refusing to participate in
the riot and “considered him a traitor and coward.”5 Cannon provided LaMar’s
attorneys with two letters that inmate Anthony Walker had written to Rasheem
Matthews, an alleged member of the group that attacked the L-6 victims. In one
letter, Walker wrote that “LaMar’s trail [sic] starts on Monday so try and stay up
on it althrough [sic] you no [sic] he’s hit anyway.” In the second letter, Walker told
Cannon, “I came from court and Sweat is hit.” (“Sweat” was LaMar’s nickname.)
LaMar argues that the new evidence from Were and Cannon contradicted several
of the state’s witnesses, including Walker himself, and therefore raised a genuine
issue concerning his guilt.
        {¶85} The decision whether to grant a new trial on grounds of newly
discovered evidence falls within the sound discretion of the trial court. State v.


5. Were was himself found guilty of capital murder for his actions during the SOCF riot. See State
v. Were (Sept. 30, 1998), Hamilton App. No. C-950908, 

, reversed (2002), 

, 

.




                                               30
                                 January Term, 2002




Hawkins (1993), 

, 

. To warrant the granting
of a new trial, the new evidence must, at the very least, disclose “ ‘a strong
probability that it will change the result if a new trial is granted,’ ” and must not be
“ ‘merely cumulative to former evidence.’ ” 

 quoting State v. Petro (1947), 

, 

, 

, syllabus. We find no abuse of discretion
in this case because the newly discovered evidence forming the basis of LaMar’s
motion failed to satisfy these standards.
       {¶86} Were’s information was largely cumulative of other defense
witnesses who likewise testified that LaMar was not present in L-6 at the time of
the murders. And his affidavit testimony about other inmates thinking LaMar was
a “traitor or coward” was speculative. As such, Were’s testimony on this point was
of questionable inadmissibility and therefore could not have provided a “strong
probability” of an acquittal. Similarly, we see nothing in the Walker letters that
would have disclosed a strong probability of a different trial result. Contrary to
LaMar’s arguments, the Walker comment about LaMar being “hit” did not suggest
that there was perjured testimony at LaMar’s trial.            Walker’s comment is
reasonably—and perhaps better—construed as a statement of Walker’s belief that
the state had a strong case against LaMar. The trial court therefore did not abuse
its discretion in finding the proffered newly discovered evidence insufficient to
warrant a new trial.
       {¶87} We also find unpersuasive LaMar’s argument that the new evidence
would have created “residual doubt” about his guilt, thus providing a mitigating
factor that would have led the jury to choose a life sentence. Residual doubt is not
an acceptable mitigating factor in determining the appropriate sentence in a capital
case. State v. McGuire (1997), 

, 

. The
twelfth proposition of law is overruled.
                              V. Penalty-Phase Issues
                       A. Admission of Trial Phase Evidence




                                            31
                               SUPREME COURT OF OHIO




          {¶88} In the fourteenth proposition of law, LaMar claims prejudicial error
in the trial court’s admission in the penalty phase of “all evidence submitted by the
state in the guilt-innocence phase.” In LaMar’s view, some of the evidence was
entirely irrelevant to the issue of whether the aggravating circumstances
outweighed mitigating circumstances beyond a reasonable doubt. The defense
specifically objected to the readmission of the trial exhibits, including all
photographs of the victims, demonstrative evidence of the weapons used, and a
walker that belonged to Svette.
          {¶89} In State v. Gumm (1995), 

, 

,
syllabus, this court recited the broad categories of evidence that the state may
introduce during the penalty phase of a capital prosecution under R.C.
2929.03(D)(1) and (2). We held that, subject to applicable Evidence Rules, the
state may introduce (1) any evidence raised at trial that is relevant to the aggravating
circumstances specified in the indictment of which the defendant was found guilty,
(2) any other testimony or evidence relevant to the nature and circumstances of
those aggravating circumstances, (3) evidence rebutting the existence of any
statutorily defined or other mitigating factors first asserted by the defendant, (4) the
presentence investigation report, and (5) the mental examination report. 

          {¶90} Under this standard, we find no error in the trial court’s admission of
the photographs and demonstrative exhibits depicting the weapons used. These
items bore some relevance to the nature and circumstances surrounding the R.C.
2929.04(A)(5) course-of-conduct specification of which the jury found LaMar
guilty.    As for the admission of Svette’s walker, we find merit in LaMar’s
contention that this item of evidence has only a tenuous connection, if that, to any
of the aggravating circumstances for which LaMar was convicted. We do not,
however, find that the admission of this item warrants reversal. The record of the
sentencing hearing reveals no emphasis whatsoever on the walker or the fact that
Svette used one. Thus, based on the record before us, we deem any error in




                                           32
                                January Term, 2002




admitting this item of evidence to be harmless. And in any event, this court’s
independent reassessment can eliminate any possible error in the court’s admission
of this evidence. State v. Williams (1996), 

, 

.
We accordingly overrule LaMar’s fourteenth proposition of law.
                      B. Improper Penalty-Phase Argument
       {¶91} LaMar’s fifteenth proposition of law alleges that the prosecutor
engaged in improper argument during the sentencing proceeding. LaMar argues
that the prosecutor improperly argued that the jury should evaluate the mitigating
factors in light of LaMar’s culpability for the murders. For example, LaMar cites
a portion of the closing argument in which the prosecutor rhetorically asked the
jury, “[A]ll of the testimony that you have heard over the last two days, number
one, is it mitigating? Does that lessen what he did? Does that explain what he did
or justify what he did?” And even though the trial court sustained a defense
objection to these remarks, LaMar notes that the prosecutor later continued along
that same line of argument, telling the jury that “[n]othing was presented that
mitigated what he did, and any mitigation is greatly outweighed and absolutely
eclipsed by the aggravating circumstances.” The trial court overruled LaMar’s
motion for mistrial following this comment.
       {¶92} As LaMar correctly notes, “mitigating factors under R.C. 2929.04(B)
are not related to a defendant’s culpability but, rather, are those factors that are
relevant to the issue of whether an offender convicted under R.C. 2903.01 should
be sentenced to death.” State v. Holloway (1988), 

, 

. Thus, we have held that it is improper for prosecutors to make any
comment to the jury during the penalty phase that the nature and circumstances of
the murder are “aggravating circumstances.” State v. Wogenstahl (1996), 

, 

, paragraph two of the syllabus. Nevertheless, LaMar
overstates the significance of the prosecutor’s comments in this case. For one thing,
the trial court sustained a defense objection to the prosecutor’s first foray into




                                         33
                             SUPREME COURT OF OHIO




questionable argument by instructing the jury to disregard the remark about whether
the mitigating factors “justify” what LaMar did. We will ordinarily presume that
the jury followed such an instruction by the court. See State v. Loza (1994), 

, 

. For another thing, the second remark by the
prosecutor complained of by LaMar did not warrant a mistrial. The trial court
ultimately gave correct penalty-phase instructions to the jury, including an
instruction that the mitigating factors are “relevant to the issue of whether the
Defendant should be sentenced to death.” Thus, despite whatever complaints
LaMar raises about the prosecutor’s argument, the trial court cured any defect by
essentially instructing that the mitigating factors are relevant to the question of
whether LaMar should be sentenced to death and not simply to the question of
whether LaMar’s culpability is somehow reduced. We can therefore find no abuse
of discretion in the trial court’s decision to deny LaMar’s motion for mistrial. See
State v. Garner (1995), 

, 

 (noting that the
decision whether to grant a mistrial lies within trial court’s sound discretion). And
in any event, this court’s independent sentence reassessment eliminates the effect
of any error in the prosecutor’s argument in this particular case. See State v. Wilson
(1996), 

, 

. The fifteenth proposition of law
is overruled.
                         C. Penalty-Phase Jury Instructions
       {¶93} In his sixteenth proposition, LaMar takes issue with the jury
instructions used by the trial court at the sentencing phase. He asserts that the trial
court’s instructions prejudiced him by (1) failing to inform the jury that a “solitary
juror could prevent the death sentence” and (2) placing undue emphasis on jury
unanimity in returning a penalty verdict. LaMar’s claims of error are without merit.
       {¶94} In State v. Brooks (1996), 

, 

, this
court held that it is error for a trial court to require a jury to unanimously reject a
death verdict before considering a sentence of life imprisonment. 

, 661




                                         34
                                 January Term, 

. This court reasoned that “R.C. 2929.03(D)(2) contains no limiting
language as to when a jury may contemplate a life sentence.” 

 Thus, when the
jury cannot unanimously agree on death as the appropriate punishment, it can
properly consider alternative sentences. Accordingly, Brooks counseled courts in
capital cases to instruct the jury that “a solitary juror may prevent a death penalty
recommendation by finding that the aggravating circumstances in the case do not
outweigh the mitigating factors.” Id. at 162, 

.
        {¶95} In this case, the trial court instructed the jury as follows:
        {¶96} “You shall make a finding for the sentence of death if you
unanimously, all 12, find by proof beyond a reasonable doubt that the aggravating
circumstances outweigh the mitigating factors as to each given death.
        {¶97} “If you do not so find, you shall unanimously, and that’s all 12, make
a finding for either a life sentence with parole eligibility after serving 20 full years
of imprisonment or a life sentence with parole eligibility after serving 30 full years
of imprisonment.
        {¶98} “Verdict forms with these three options will be furnished to you for
each decedent. You will consider each death and the aggravating circumstances as
to that death separately. The fact that you … unanimously agree on a sentence
as to one death does not require you to impose the same sentence for any other
death. You must unanimously decide the sentence for the death of each decedent
applying the instructions I have just given you and uninfluenced by your verdict as
to any other death.
        {¶99} “…
        {¶100} “With regard to the verdict that you render, all 12 of you, each and
every one of you must sign in ink on the lines provided for your signature, the
foreperson signing on the 12th line under which is printed the phrase foreperson.
        {¶101} “Your verdict must be unanimous.”




                                          35
                              SUPREME COURT OF OHIO




        {¶102} We reject LaMar’s contention that Brooks requires reversal in this
case. The above instruction was virtually identical to the proposed penalty-phase
instructions that LaMar’s counsel submitted to the trial court. LaMar thus cannot
complain of any alleged error in the instructions. Under the invited-error doctrine,
a party cannot take advantage of an error that the party invited or induced the court
to commit. State v. Bey (1999), 

, 

.
        {¶103} Even if the invited-error doctrine were not applicable, we would still
reject LaMar’s argument. LaMar’s counsel did not object to the penalty-phase
instructions and thereby forfeited all but plain error. See State v. Lundgren, 

, 

. Although this court had not yet decided Brooks
at the time of LaMar’s trial, that fact did not obviate defense counsel’s
responsibility to object to instructions that were potentially erroneous. See State v.
Madrigal (2000), 

, 

 (collecting cases in which
this court applied a plain-error analysis to alleged Brooks errors in cases tried before
Brooks was decided). There was no plain error in this case.
        {¶104} The instruction given by the trial court is vastly different from the
one this court rejected in Brooks. The trial court never instructed the jury that it
had to unanimously reject the death penalty before it could consider sentencing
LaMar to life imprisonment. Accordingly, nothing in the instruction prevented the
jury from considering a life sentence even if it had not unanimously rejected the
death penalty. Bey, 

, 

; see, also, State v.
Stallings, 

, 

 (upholding similar instruction
against Brooks challenge); State v. Smith (2000), 

, 

 (same). We reject the sixteenth proposition of law.
             D. Instructing Jury that Verdict was a Recommendation
        {¶105} In the nineteenth proposition of law, LaMar argues that the trial
court committed constitutional error by repeatedly informing the jury that its
sentencing decision would be only a recommendation. Specifically, LaMar takes




                                          36
                                January Term, 2002




issue with how the trial court explained the penalty phase to prospective jurors
before voir dire:
       {¶106} “[D]epending on your decision in the guilt or innocent [sic]
proceeding, you might then be involved in a second proceeding. If this second
proceeding takes place, the jury will have to make a recommendation of sentence
for the aggravated murder charges. One of the recommendations could be the death
penalty.
       {¶107} “If you are selected and if you’re required to make a
recommendation of sentence and if that recommendation is death, then before that
sentence may be ordered the Court must independently determine if the
recommendation is supported with proof of evidence beyond a reasonable doubt.”
       {¶108} The trial court used similar language with other panels of
prospective jurors. LaMar claims further prejudice from the fact that the jury
verdict forms also used the term “recommend,” thereby solidifying the concept that
the jury was not ultimately responsible for a death verdict.
       {¶109} The United States Supreme Court has held that “it is constitutionally
impermissible to rest a death sentence on a determination made by a sentencer who
has been led to believe that the responsibility for determining the appropriateness
of the defendant’s death rests elsewhere.” Caldwell v. Mississippi (1985), 

, 

, 

. Accordingly, the Caldwell court
reversed a defendant’s death sentence because the prosecutor’s argument had left
jurors with a mistaken impression that Mississippi’s appellate courts—and not the
jury itself—would be the ones actually responsible for imposing a death sentence.
See 

, 

, 

. To establish a Caldwell
violation, however, a defendant    “ ‘necessarily must show that the remarks to the
jury improperly described the role assigned to the jury by local law.’ ” Buell v.
Mitchell (C.A.6, 2001), 

, quoting Dugger v. Adams (1989), 

, 

, 

. LaMar cannot show that in this




                                         37
                             SUPREME COURT OF OHIO




case. There is no Caldwell error in a case where, as here, a trial court’s statements
accurately reflect Ohio law and do not induce reliance on the appellate review
process. State v. Durr (1991), 

, 

; see, also,
State v. Davie, 

, 

.
       {¶110} Moreover, the penalty-phase instructions belie any claim that the
jury misapprehended its role in the sentencing process. The trial court specifically
instructed the jury during the sentencing phase that it “should not      … impose
a greater sentence than is deserved with the thought that the Judge will lessen the
sentence, nor impose a lesser sentence than is deserved with the thought that the
Judge will increase the penalty since the Court cannot increase the sentence.” This
instruction sufficiently informed the jury of its “awesome responsibility” to
evaluate the “appropriateness of death” without regard to what the court may or
may not do when the jury has completed its evaluation. Caldwell, 

,

, 

. Because the trial court correctly explained the
capital sentencing process in this case, we reject LaMar’s nineteenth proposition.
                        E. Trial Court’s Sentencing Opinion
       {¶111} In his seventeenth proposition of law, LaMar claims that the trial
court’s sentencing opinion failed to comport with R.C. 2929.03(F), which requires
a trial court imposing a sentence of death to “state in a separate opinion its specific
findings as to the existence of any of the mitigating factors set forth in [R.C.
2929.04(B)], the existence of any other mitigating factors, the aggravating
circumstances the offender was found guilty of committing, and the reasons why
the aggravating circumstances the offender was found guilty of committing were
sufficient to outweigh the mitigating factors.” In particular, LaMar contends that
the trial court weighed several “nonstatutory aggravating circumstances” in
reaching its decision to accept the jury’s recommendation and impose the death
penalty.




                                         38
                                January Term, 2002




        {¶112} The trial court’s sentencing opinion accurately recited the
aggravating specifications that LaMar was found guilty of committing in
connection with each of the murders for which he was sentenced to death. LaMar
takes umbrage, however, with the trial court’s subsequent discussion of the
circumstances of the murders under a heading entitled, “Aggravating
Circumstances.” In this section, the trial court mentioned the non-lethal assaults on
inmates Andre Stockton and Ellis Walker, noting that “[t]he State elected to not
charge the Defendant for these assaults, although the evidence was that he was a
participant.” The trial court continued with the facts of each murder and referred
to the fact that both Depina and Vitale had begged and cried for mercy. And with
regard to Svette’s murder, the court wrote:
        {¶113} “Once the death squad decided to leave L-6, they were confronted
by an alleged Cleveland Mafia hit man, William Svette, serving his second life
sentence for murder. … This time it was really and truly a life sentence, since
Mr. Svette, age 69, and who walked with a walker, was killed. … Mr. Svette’s
head was so grossly injured that some pictures were kept from the jury’s view.
Suffice it to say that one could put his hand directly through the crack in Svette
[sic] skull to his brain.”
        {¶114} The trial court later added that the rampage of LaMar and his group
“is indicative of the Defendant’s mental process, his power, control, cruel, violent
and unremorseful attitude.” According to LaMar, the trial court effectively treated
all of these factors as “aggravating circumstances,” meaning that the court
impermissibly sentenced him to death based on aggravating circumstances not
listed in R.C. 2929.04(A).     LaMar further notes that there was no evidence
presented at trial to support the trial court’s recitation of facts about Svette’s
criminal record. Accordingly, LaMar contends that the trial court “improperly
weighed findings on the aggravating side which were not permissible.” We reject
LaMar’s contentions.




                                         39
                             SUPREME COURT OF OHIO




       {¶115} It is permissible for the trial court to rely upon and cite the nature
and circumstances of the offense as reasons to support its finding that the
aggravating circumstances of which the jury found the defendant guilty outweigh
the mitigating factors beyond a reasonable doubt. State v. Fautenberry, 

, 

; State v. Stumpf (1987), 

, 

, paragraph one of the syllabus. It is sufficiently clear from the structure
and organization of the sentencing opinion that this was the purpose of the trial
court’s recitation of the facts surrounding the murders. The trial court discussed
the facts of each murder only after it had listed the statutory aggravating factors
that the jury had found to exist. We are therefore convinced that the trial court
knew the difference between statutory aggravating circumstances and the nature
and circumstances of the offense. See Fautenberry, 

, 

. And to the extent the trial court relied upon nonrecord evidence
about Svette’s criminal record and the fact that Svette required a walker, we find
nothing that would taint its findings that the aggravating circumstances outweighed
the mitigating factors.
       {¶116} Under this proposition of law, LaMar also argues that the trial court
“improperly” analyzed the mitigating factors offered during the sentencing phase.
In support of his argument, LaMar cites the following passage from the sentencing
opinion:
       {¶117} “It is true that the defendant was raised in a [sic] environment which
suggested that he was destined to get into trouble. However, the same community
allowed others to live and work within a community and society in a peaceful
fashion when they chose to, compelling this court to conclude that the defendant
functioned as a rational being during the period of time surrounding the criminal
activity of which he has been convicted.”
       {¶118} Because the trial court openly refuted the notion that LaMar’s
background carried significant mitigating weight, LaMar contends that the trial




                                         40
                               January Term, 2002




court did not properly weigh the mitigating evidence, thereby depriving him of an
individualized determination of whether the death penalty was appropriate in this
case. We reject this argument. Contrary to LaMar’s contention, the passage
suggests that the trial court analyzed whether LaMar’s background affected his
mental status in any appreciable manner at the time of the offenses committed, as
the defense’s mitigating evidence suggested.
       {¶119} LaMar also argues that the trial court failed to consider testimony
from Dr. Jeffrey Smalldon, indicating that LaMar suffered from a borderline
personality disorder. LaMar contends that the trial court “wholly discounted” Dr.
Smalldon’s testimony as mitigating evidence. We disagree with LaMar’s reading
of the sentencing opinion on this point. The trial court specifically mentioned that
LaMar “has been diagnosed over many years as having a borderline personality
disorder which manifests itself in antisocial behavior.” Thus, LaMar’s argument is
aimed more at the weight the trial court gave to the evidence. Matters involving
the weight to be given to mitigating evidence are within the trial court’s domain.
State v. Lott, 

, 

. “The fact that mitigation
evidence is admissible ‘does not automatically mean that it must be given any
weight.’ ” State v. Mitts (1998), 

, 

, quoting
State v. Steffen, 

, 31 OBR 273, 

, paragraph two
of the syllabus. Moreover, this court’s independent sentence reassessment can
correct any error in the trial court’s treatment of the mitigating evidence. Mitts.
See, also, State v. Robb, 

, 

; State v. Fox (1994),

, 

.
       {¶120} Finally, LaMar claims that the trial court “wholly failed” to specify
why the aggravating circumstances outweighed the mitigating factors beyond a
reasonable doubt. This contention is simply incorrect. The trial court’s sentencing
opinion devoted almost three full pages to weighing the aggravating circumstances
against the mitigating factors. The seventeenth proposition of law is overruled.




                                        41
                              SUPREME COURT OF OHIO




                          VI. Prosecutorial Misconduct
       {¶121} In the fourth proposition of law, LaMar claims that the prosecutor
committed misconduct throughout his trial. To address these arguments, we must
determine (1) whether the prosecutor’s conduct was improper and (2) if so, whether
it prejudicially affected LaMar’s substantial rights. State v. Smith (1984), 

, 14 OBR 317, 

. The touchstone of this analysis “is the
fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips (1982),

, 

, 

. We will not deem a trial unfair
if, in the context of the entire trial, it appears clear beyond a reasonable doubt that
the jury would have found the defendant guilty even without the improper
comments. State v. Treesh (2001), 

, 

; see,
also, Smith, 

, 14 OBR 317, 

.
                               A. Improper Voir Dire
       {¶122} LaMar claims that the prosecutor committed misconduct during jury
voir dire. He first complains that the prosecutor ignored the trial court’s request
that the attorneys not “get into the facts” and “basically attempted to give an
opening statement.” LaMar cites one passage in which the prosecutor told potential
jurors that “in this particular case Keith LaMar did hands-on killing of some of
these people.” The record shows, however, that the trial court sustained a defense
objection to this statement and admonished the potential jurors not to treat such
comments as evidence. Accordingly, LaMar has not shown any prejudice flowing
from the prosecutor’s remark.
       {¶123} LaMar next claims that the prosecutor improperly vouched for the
credibility of witnesses whom the state would call during trial. For example, the
prosecutor discussed the credibility of inmate witnesses by telling the potential
jurors that “most of the people involved at Lucasville, a lot of them are very, very
decent people that have made mistakes in the past.” Despite the trial court
sustaining an objection to this remark, the prosecutor continued this line of




                                          42
                                  January Term, 2002




discussion by adding that “a majority of people in that particular situation did not
want to be involved.”
        {¶124} “It is improper for an attorney to express his or her personal belief
or opinion as to the credibility of a witness.” State v. Williams (1997), 

, 

. We do not, however, view the prosecutor’s comments
as improper vouching for the credibility of the inmate witnesses he would call at
trial. Rather, the prosecutor was validly exploring the possibility that potential
jurors would be predisposed to discredit certain witnesses simply because they were
inmates. A prosecutor may properly try to “ensure that jurors would not be biased
against his witnesses.” State v. Lundgren, 

, 

.
And even if we believed that the prosecutor’s comments were improper, they were
harmless error at worst, particularly in view of the fact that the defense also relied
upon inmate witness testimony.
                       B. Conduct During Opening Statement
        {¶125} During his opening statement, the prosecutor read the indictment
and recited the results from the autopsies performed on the murder victims. LaMar
argues that this constituted an improper “attempt to focus the jurors on the horror
of the crime rather than the evidence.” We are not persuaded.
        {¶126} As to the prosecutor reciting the autopsy results to the jury, LaMar’s
counsel did not object, thereby forfeiting all but plain error. See State v. Clemons
(1998), 

, 

. Even if defense counsel had
objected, however, the objection would have been overruled because there was no
error. In view of the fact that the state admitted the autopsy results into evidence,
the prosecutor’s remarks about them were nothing more than a fair commentary on
the facts to be presented at trial.
        {¶127} As for the prosecutor’s reading of the indictment during opening
statement, the trial court properly overruled defense counsel’s objection. LaMar
cites no authority for the proposition that a prosecutor may not read from the




                                          43
                             SUPREME COURT OF OHIO




indictment during opening statement. Indeed, our precedent suggests that it is not
improper to do so. In State v. Graven (1977), 

, 

,

, for example, this court held that a trial court has discretion in a
criminal case to let the jury take a copy of the indictment into the jury room. 

 at
syllabus. If it is proper for the jury to read an indictment in the jury room, a
defendant cannot claim prejudice from a prosecutor’s reading the indictment during
opening statement. Further, the trial court instructed the jury that neither the
opening statement nor the indictment is considered to be evidence of an accused’s
guilt.
         C. Inappropriate Comments, Questions, and Arguing with the Court
         {¶128} LaMar also claims that the prosecutor acted improperly by
questioning trial court rulings on defense objections, asking improper questions,
arguing with witnesses, and making inappropriate comments. LaMar first cites the
prosecutor’s remarks during defense counsel’s cross-examination of two
prosecution witnesses. At one point, while the defense was attempting to impeach
Robert Bass’s testimony with the fact that Bass had reviewed the transcript of his
prior statement before testifying, the prosecutor interrupted the questioning in an
apparent attempt to explain the circumstances of Bass’s receiving the transcript.
Similarly, during the defense’s cross-examination of Thomas Taylor, the
prosecutor interjected, “I’ll stipulate that I prepared my case and talked to every
witness” when the defense was inquiring about Taylor’s previous interviews with
investigators and/or prosecutors. The trial court admonished the prosecutor not to
make comments during the cross-examination.
         {¶129} Second, LaMar points to an instance of improper questioning during
the prosecutor’s cross-examination of Cory Perkins, a defense witness. LaMar
complains of the following exchange, which occurred while the prosecutor was
questioning Perkins about a statement Perkins had made to investigators about the
Weaver murder.




                                         44
                                 January Term, 2002




        {¶130} “Q. [by the prosecutor] What depth or details didn’t you go in that
you went into with the jury now?
        {¶131} “A. Well, I mean, to be frank, I told them the same thing I told
them. Just different things left out that ain’t really no big thing.
        {¶132} “Q. What did you leave out? We’ll decide if it’s a big thing or not.
        {¶133} “MR. CARSON [defense counsel]: Objection, your Honor.
        {¶134} “THE COURT: Sustained. It’s argumentative.”
        {¶135} LaMar also complains of improper cross-examination when LaMar
was on the witness stand. When the trial court instructed the prosecutor to limit his
cross-examination about LaMar’s boxing career to the fact of whether LaMar was
in fact a boxer, the prosecutor ignored the admonition:
        {¶136} “Q. [by the prosecutor] You are a heavyweight boxing champion in
the institution, are you not?
        {¶137} “MR. CARSON: Objection, your Honor. That’s not the question
you allowed.
        {¶138} “THE COURT: Overruled.
        {¶139} “A. [by LaMar] I’m a heavyweight boxer. I tried but I failed, and
right before the riot took place—well, the riot stopped me from trying again. To
answer your question, no, I’m not nor have I ever been a heavyweight champion
within the institution.
        {¶140} “Q. You are a boxer, are you not?
        {¶141} “A. Yeah, that’s correct.
        {¶142} “Q. And as a boxer, you’re trained to deliver a knockout blow?
        {¶143} “MR. CARSON: Objection.
        {¶144} “THE COURT: Overruled—or sustained. Excuse me.
        {¶145} “Q: And as a boxer, you have a killer instinct, don’t you Mr. LaMar?
        {¶146} “MR. CARSON: Objection.
        {¶147} “THE COURT: Sustained. Go to a different line of questions.”




                                          45
                             SUPREME COURT OF OHIO




       {¶148} LaMar also notes that the trial court “sustained a total of forty-five
objections in the space of fifty-nine pages of transcript—several more than once”
during his testimony. LaMar also complains that the prosecutor continually ignored
the court’s rulings by continuing improper lines of questioning with LaMar and
other witnesses.
       {¶149} Upon review of the record, we agree that the prosecutor engaged in
some improper and unprofessional behavior. We find no reason for the prosecutor
to have ignored admonitions by the trial court about improper questions. Similarly,
we find it improper for the prosecutor to have interjected comments in open court,
particularly when he interrupted testimony to make statements of fact and
essentially testify in place of the witness. See State v. Fears (1999), 

, 

 (reminding prosecutors to “be diligent in their efforts” to
“refrain from the desire to make outlandish remarks, misstate evidence, or confuse
legal concepts”). That being said, however, we disagree with LaMar about the
prejudicial nature of the prosecutor’s conduct; the misconduct cited by LaMar did
not pervade the trial to such a degree that there was a denial of due process. See
State v. Keenan (1993), 

, 

. The trial court
sustained numerous objections by defense counsel and, on the state of the record
before us, we have no reason to believe that the outcome of the trial was affected
by the prosecutor’s improper comments. See Fears, 

, 

.
                   D. Improper Impeachment of the Defendant
       {¶150} LaMar also claims misconduct in the manner in which the
prosecutor asked questions about his prior conviction for murder. During trial and
prior to LaMar’s testimony, the defense had stipulated that LaMar had been
convicted of murder in Cuyahoga County in 1989 and that, as a result, LaMar was
incarcerated at SOCF at the time of the murders for which he was on trial.
Nevertheless, during cross-examination of LaMar, the prosecutor delved into the




                                        46
                                 January Term, 2002




details of LaMar’s prior murder conviction. The trial court sustained a defense
objection after the prosecutor asked LaMar if he had shot his victim “with a gun”
and “in the heart.”
       {¶151} When an accused testifies at trial, Evid.R. 609(A)(2) allows the state
to impeach the accused’s credibility with evidence that the accused has been
convicted of an offense punishable by imprisonment in excess of one year. Under
Evid.R. 609, the trial court has broad discretion to prohibit questioning about more
than the “name, date and place of the conviction, and the punishment imposed,
when the conviction is admissible solely to impeach credibility.” State v. Amburgey
(1987), 

, 

. Acting within its discretion, the
trial court sustained an objection to the prosecutor’s line of questioning, which in
any event consisted of only two questions about the circumstances surrounding
LaMar’s prior conviction.        We find nothing unduly prejudicial about the
prosecutor’s conduct in this respect.
                      E. Improper Trial-Phase Closing Argument
       {¶152} In his next claim of misconduct, LaMar alleges improper argument
during the trial phase. Specifically, LaMar contends that the prosecutor denigrated
defense counsel, used gruesome photographs in an unfair manner, and implored the
jury to return a guilty verdict on a capital specification simply so they could proceed
to the penalty phase.
       {¶153} As to the denigration of the defense, LaMar calls our attention to the
following passage of the prosecutor’s closing argument:
       {¶154} “Mr. Toy [defense counsel] told all of you on voir dire that this is
the first case like this he’s ever handled. He’s never done this before. He got very
excited, and he put on a show.
       {¶155} “Let’s look at the case carefully. First, let’s look at some of the
things that have been stressed to you by the Defense. Have you noticed that they
always call the Defendant Keith? Has anybody noticed that?




                                          47
                             SUPREME COURT OF OHIO




       {¶156} “[Defense objection overruled.]
       {¶157} “Out of the hundreds or thousands of times that Keith LaMar has
been referred to by the Defense, almost every time they refer to him as Keith, his
first name. They have an angle to present to you in this case, and it’s to call him—
to humanize him, to call him by his first name.”
       {¶158} This is not the lone instance in which LaMar claims that the
prosecution denigrated the defense. LaMar also calls our attention to another
portion of the closing argument, in which the prosecutor compared his case to that
of the defense. Even after the trial court sustained an objection to a comment in
which the prosecutor accused the defense of having a strategy aimed at criticizing
the prosecution and its witnesses, the prosecutor continued along this same theme:
       {¶159} “First of all, let’s talk about me. The Defendant told you on the
witness stand that I put together a case against him, intimating to you that somehow
I orchestrated all these witnesses like a puppet master or something and got them
to come in here and testify against him. I agree I did prepare my case. I did put
together a case; but I put together a truthful case, an honest case.
       {¶160} “The Defendant and the defense attorney implied that I orchestrated
perjury. This is totally inaccurate. It was implied that I know that these inmate
witnesses came up here and lied and presented it in court anyway.
       {¶161} “…
       {¶162} “It was told to you that this was a fiasco and that Sergeant Hudson
and Sergeant Brink, supervisors in the patrol, were sloppy and unprofessional with
regard to this entire investigation. It was criticized by Mr. Toy the way the yard
removal was handled. … It’s very easy in hindsight to criticize the efforts of
somebody else, a professional in that field.
       {¶163} “…




                                         48
                                  January Term, 2002




        {¶164} “But, again, Mr. Toy gets up here with his charts and his pencils and
his pens and his pointer and tells you that Corrections Officer Clarkson, he just
really dropped the ball.
        {¶165} “These are good, honest men and women that are trying to do the
right thing and because of him they have to get up here and get dragged through the
mud in front of you, a court reporter, a judge, television cameras, and everything
else. I guess it’s all part of the job.
        {¶166} “Why is this done? It’s done to deflect attention away from Keith
LaMar in the courtroom. … It’s an attack on everything. What does that tell you
about their defense?” (Emphasis added.)
        {¶167} It is true, of course, that the prosecution is entitled to some latitude
and freedom of expression in closing argument. Keenan, 

, 

. “Realism compels us to recognize that criminal trials cannot be
squeezed dry of all feeling.” 

 That being said, however, some of the prosecutor’s
comments exceeded the scope of proper argument. In the first passage cited above,
the prosecutor denigrated defense counsel by pointedly ridiculing the defense’s
apparent effort to remind the jury that LaMar was a human being. This tactic was
just as improper as disparaging defense counsel for raising objections, which this
court has condemned. See, e.g., 

, 

. As for the second
passage complained of by LaMar, the prosecutor’s juxtaposition of his “honest”
case with the defense’s case, particularly when viewed in light of the pointed
criticism of one of LaMar’s defense attorneys, unfairly suggested that the defense’s
case was untruthful and not honestly presented. In the context in which they were
stated, the prosecution’s comments imputed insincerity to defense counsel and were
therefore improper. 

, 

; State v. Clemons, 

, 

.
        {¶168} The fact that the prosecutor engaged in some improper argument,
however, does not warrant reversal unless the remarks prejudicially affected




                                          49
                             SUPREME COURT OF OHIO




substantial rights of the accused. State v. Hessler (2000), 

,

. In making this determination, we must consider the effect of any
misconduct in the context of the entire trial. Keenan, 

, 

. We must also view the prosecutor’s closing argument in its entirety
when determining prejudice. State v. Hill (1996), 

, 

. Using these standards, we see no basis for reversing LaMar’s
conviction based on the prosecutor’s comments.          Even though some of the
prosecutor’s argument was improper, such comments did not pervade the entire
trial, let alone the closing argument. We are unconvinced that the result of LaMar’s
trial would have been different without the few instances of improper commentary
by the prosecution.
       {¶169} LaMar also complains of the prosecutor’s displaying and
commenting on photographs of the victims during the closing argument. LaMar’s
counsel failed to object to this action by the prosecutor, thereby forfeiting all but
plain error. See Getsy, 

, 

. There was no
plain error here. Although a prosecutor may not use gruesome photographs during
closing argument in an effort to appeal to the jurors’ emotions, see Keenan, 

, 

, we see no such effort here. The prosecutor focused
his comments on what the photographs proved and did not make any emotional
appeals to the jury to find LaMar guilty simply on the basis of what the photographs
showed.    We therefore disagree with LaMar’s contention that the prosecutor
committed misconduct in this respect.
       {¶170} LaMar also contends that the prosecutor committed misconduct in
the trial-phase closing argument when he remarked to the jury, “The Defendant is
guilty of aggravated murder and specification. That’s the way, the only way to get
to the penalty phase.” The trial court sustained a defense objection and instructed
the jury to disregard this comment, which LaMar argues was an improper ploy by
the prosecution to implore the jurors “to find the specification so they could get to




                                         50
                                 January Term, 2002




the sentencing phase.” Even if we agreed with LaMar’s characterization of the
prosecutor’s comment and motive for saying it, we would be unable to find
reversible error. The trial court’s curative instruction was sufficient to relieve any
prejudice. Loza, 

, 

.
                    F. Improper Penalty-Phase Closing Argument
          {¶171} In addition to claiming misconduct in the prosecutor’s trial-phase
closing argument, LaMar also alleges that the prosecutor committed misconduct
during the sentencing proceedings. He cites the following passages as instances of
improper argument:
          {¶172} • “But there are plenty of people who have lived successful lives,
have made something of themselves when they were raised in poverty, when they
were raised by a single parent.”
          {¶173} • “Keith LaMar made the conscious choices to kill a friend of his
by shooting him twice in the heart.”
          {¶174} • “The prior purposeful killing, he has killed before; and [defense
counsel] called that random violence. I think he used those words to you. There
was no randomness in that. He took a gun and put it to the man’s heart and he fired
twice.”
          {¶175} • “As far as the mitigation, again, I might have heard things
differently, but I heard that he was a very happy, well-adjusted child from the ages
of birth to four or five years old.”
          {¶176} • “He was already given a chance at a life sentence and look what
happened. There may be some mitigation in this case, but it certainly does not rise
to nearly the level of the aggravating circumstances. Nothing was presented that
mitigated what he did, and any mitigation is greatly outweighed and absolutely
eclipsed by the aggravating circumstances.”




                                          51
                            SUPREME COURT OF OHIO




         {¶177} Because defense counsel did not object to any of these comments,
our analysis is limited to ascertaining whether there was plain error. We find that
none of the comments, either individually or in the aggregate, constitutes plain
error.
         {¶178} In the first comment complained of above, the prosecutor merely
noted that not everyone with a troubled background similar to LaMar’s has
committed crimes of this magnitude. There is nothing wrong with this type of
argument. State v. Wilson, 

, 

. Such comment
is fair rebuttal to the defense’s argument that the jury should consider LaMar’s
background to be a significant mitigating factor in determining whether he should
be sentenced to death.
         {¶179} As for the second and third statements quoted above, we also see
nothing improper. One of the aggravating circumstances in this case was the fact
that LaMar had been previously convicted of murder. In its penalty-phase closing
argument, the defense had told the jury to view the prior murder as an act of
“random violence” that was typical of the environment in which LaMar was
brought up. In light of the defense’s comments, the prosecutor’s comment about
LaMar’s prior offense constituted proper rebuttal.
         {¶180} We also see nothing improper about the last two comments
complained of by LaMar. The prosecutor’s argument about LaMar’s childhood
rebutted defense contentions about LaMar’s upbringing. Indeed, “the contention
that the jury is to be carefully fed only that information which reflects positively
upon the capital defendant [is] ‘ludicrous.’ ” Gumm, 

, 

, quoting State v. Greer (1988), 

, 

. Similarly, we see nothing wrong with the last comment by the prosecutor. In
it, the prosecutor merely argues his view on what the outcome of the case should
be—that the jury should find that the aggravating circumstances outweigh the
mitigating circumstances beyond a reasonable doubt. For these reasons, we find




                                        52
                                January Term, 2002




LaMar’s complaints about the prosecutor’s penalty-phase argument to be without
merit.
                             G. Pattern of Misconduct
         {¶181} Apart from all of the specific instances of misconduct, LaMar
complains that the prosecutor engaged in a pattern of misconduct that “permeated”
the proceedings and deprived him of a fair trial. LaMar urges that we cumulate the
above-identified instances of misconduct and conclude that the entire trial was so
tainted as to warrant reversal and remand for a new trial. We are not persuaded.
         {¶182} Admittedly, we have recognized that there were some instances of
questionable conduct by the prosecutor. But none of the instances of misconduct
cited by LaMar, either individually or collectively, deprived him of a fair trial. The
prosecutorial actions pinpointed by LaMar were relatively few and far between in
the context of a trial that took over two weeks to complete. In numerous instances
in this case, the trial court sustained defense objections and gave curative
instructions when necessary. Cf. Keenan, 

, 

(noting that prosecutor’s conduct can be exacerbated by lack of curative
instructions and by trial court consistently overruling defense objections to
misconduct). Although LaMar may not have received a perfect trial, we conclude
that nothing in the prosecutors’ conduct deprived him of a fair one. See State v.
Wilson, 

, 

.
         {¶183} The fourth proposition of law is overruled.
                       VII. Independent Sentence Review
         {¶184} Having rejected each of LaMar’s propositions of law, we now turn
to our statutory duty to independently weigh the aggravating circumstances against
the mitigating factors and, in addition, determine whether LaMar’s sentence is
disproportionate to sentences in similar cases. See R.C. 2929.05(A). Our review
at this stage is limited to the four murders for which LaMar was given the death
penalty. 

                                         53
                             SUPREME COURT OF OHIO




       {¶185} The evidence in this case supports the existence of the aggravating
circumstances found by the jury and the trial court. LaMar stipulated to the
existence of two aggravating circumstances: (1) that LaMar was a prisoner in a
detention facility at the time of the offense and (2) that LaMar had previously been
convicted of murder. See R.C. 2929.04(A)(4) and (5). We further find that the
evidence in the record proves that LaMar committed each aggravated murder as
part of a course of conduct involving the purposeful killing of more than one person.
R.C. 2929.04(A)(5). Finally, the evidence supports LaMar’s conviction of the R.C.
2929.04(A)(7) specification attached to the aggravated murders of Vitale, Depina,
and Svette. The state’s evidence proved that LaMar was, at the very least, a
complicitor in the Muslim inmates’ kidnapping of the suspected snitches in L-6.
       {¶186} In mitigation, several witnesses testified about LaMar’s troubled
background. LaMar, along with his siblings, grew up in a poor neighborhood where
illegal drug activity and violence were common. LaMar’s aunt, Carolyn LaMar,
testified that LaMar lived with a stepfather who was “mean” to him and who would
beat him for minor transgressions, such as failing to take out the garbage or
touching his stepfather’s things. And although LaMar’s mother tried to look out
for LaMar and his siblings, “she wasn’t there for them because she was having her
own problems.”     Carolyn also testified about shortcomings she perceived in
LaMar’s living conditions. For example, she testified that LaMar and his siblings
were not well fed and lived in a house that was inadequately heated. Eventually,
while still a teenager, LaMar quit school and moved out of the house to live with
friends in an apartment, which was located in a neighborhood with lots of illegal
drug activity.
       {¶187} LaMar’s older brother, Nelson LaMar, also testified for the defense
and corroborated Carolyn LaMar’s description of their upbringing. He testified that
their stepfather was physically and mentally abusive and showed interest in the
boys’ lives only because of their athletic talent.     According to Nelson, their




                                        54
                               January Term, 2002




stepfather wanted them to be athletes and would beat them when they did not
perform well athletically. Nelson also testified that he introduced his brother to
drug dealing. Nelson told the jury that he “taught [LaMar] everything of the
criminal element.” At the time of his testimony, Nelson was himself in prison for
a robbery conviction.
        {¶188} Kim Granger, a former girlfriend who had known LaMar since the
two were in high school, testified that LaMar did not have a good relationship with
either his mother or his stepfather. She described LaMar as a “nice guy” who was
heavily involved in sports before he started “getting into illegal activities like
stealing and being in the streets a lot.” LaMar told her that he did these things
because he needed money for food and clothing. Granger, who remained friends
with LaMar after he went to prison, also testified that LaMar had become “really
spiritual” and described him as a “compassionate person.”
        {¶189} Charles R. See, a social service administrator with experience
working with inner-city youth, also gave mitigation testimony for the defense. See
interviewed LaMar and numerous members of LaMar’s family to familiarize
himself with LaMar’s background. See described the area in which LaMar grew
up as “socially and economically depressed,” but noted that LaMar’s athletic talent
could have been his “ticket out of the ghetto” if he had received support and
guidance. In See’s view, however, LaMar’s mother failed to provide strong
parental support and LaMar’s stepfather was excessively abusive. And when
LaMar eventually moved to an apartment of his own, See noted that he began living
in one of the “most dangerous areas in the city of Cleveland.” Based on his
background and living conditions, See testified that it was “ninety percent
predictable” that LaMar would become involved in drugs and other illegal
activities.
        {¶190} Dr. Jeffrey L. Smalldon, a clinical psychologist, was the defense’s
final mitigation witness. He testified that LaMar was “unfailingly polite and




                                        55
                             SUPREME COURT OF OHIO




respectful” during their meetings and described LaMar as “an unusually thoughtful,
reflective, introspective” person.     Dr. Smalldon noted that LaMar denied
involvement in the offenses for which he was convicted; this denial was unusual,
Dr. Smalldon testified, in light of LaMar’s usual disinclination to “shift blame onto
other people … for various illegal things he’s done over the years.”
       {¶191} As for LaMar’s personal background, Dr. Smalldon opined that the
absence of a stable male role model left a “profound void” in LaMar’s life. Dr.
Smalldon noted that LaMar never knew his biological father and that LaMar’s
stepfather, as well as an uncle, subjected him to “very, very harsh physical
treatment.” In turn, the abuse inflicted by LaMar’s stepfather created a feeling of
“helplessness” in LaMar, particularly because LaMar could not predict when the
abuse would occur. In Dr. Smalldon’s view, LaMar was also affected by his
mother’s “limited repertoire of parenting skills” and the death of another brother at
a young age.
       {¶192} Dr. Smalldon also testified to the effect that drugs and alcohol had
on LaMar’s life. LaMar used and sold marijuana when he was fourteen years old
and eventually began abusing alcohol, cocaine, crack, and PCP. According to Dr.
Smalldon, LaMar developed a serious crack cocaine habit that persisted until he
went to prison in 1989. The drugs provided LaMar with a means of “escape” and
served a “numbing function” that desensitized LaMar from the painful aspects of
his day-to-day life.   Dr. Smalldon ultimately diagnosed LaMar as drug- and
alcohol-dependent. He also diagnosed LaMar as suffering from a “personality
disorder not otherwise specified but one having antisocial and narcissistic features.”
       {¶193} In his unsworn statement, LaMar told the jurors that he was
disappointed in their verdict but that he did not hold it against them. He also
explained that his previous murder conviction resulted from a shootout in which he
had also been shot. LaMar expressed some regret about that incident because the
victim he shot “twice in the heart” had been a childhood friend.              LaMar




                                         56
                                January Term, 2002




acknowledged that his background had been difficult and added that he had
instructed his mother not to testify for him because he “didn’t want her to feel that
she had to justify, you know, or apologize for doing the best that she could.”
        {¶194} In conducting our independent assessment of the appropriateness of
the death sentence, we must weigh the aggravating circumstances against (1) the
nature and circumstances of the crime, (2) the history, background, and character
of the offender, and (3) any applicable mitigating factors enumerated in R.C.
2929.04(B)(1) through (B)(7). State v. Treesh, 

, 

. Here, the nature and circumstances of the aggravated murders offer little to
nothing in terms of mitigation. LaMar was the leader of a death squad that brutally
beat the L-6 victims simply because they were suspected “snitches.” And as to
Weaver’s murder, LaMar ordered others to strangle the victim and threatened
cellmates with physical harm if they did not comply with his orders. Moreover,
these circumstances convince us that the statutory mitigating factors enumerated at
R.C. 2929.04(B)(1) (victim inducement), (B)(2) (duress, coercion, strong
provocation), and (B)(6) (accused not being principal offender) are inapplicable in
this case.
        {¶195} As for the evidence relating to LaMar’s background, we
acknowledge that it is entitled to some weight. See, e.g., Tibbetts, 

, 

. We accord it only modest weight, however, just as we have
done in other capital cases of defendants with similarly troubled backgrounds. See,
e.g., State v. Spivey (1998), 

, 

. We also give
some weight to Dr. Smalldon’s diagnosis of LaMar’s drug addiction. See Treesh,

, 

.
        {¶196} The remaining statutory mitigating factors            are   generally
inapplicable in this case. Although Dr. Smalldon testified that LaMar suffers from
a personality disorder, we are unable to conclude that this condition rises to the
level of a “mental disease or defect” that would trigger the R.C. 2929.04(B)(3)




                                         57
                             SUPREME COURT OF OHIO




mitigating factor in light of the absence of testimony that the condition prevented
LaMar from appreciating the criminality of his conduct. See, e.g., Tibbetts, 

, 

.           LaMar’s criminal record rendered R.C.
2929.04(B)(5) (lack of significant criminal history) inapplicable and we see no
reason why LaMar’s age at the time of the offenses should trigger the R.C.
2929.04(B)(4) “youth of the offender” factor. Finally, the evidence does not
suggest the existence of any other mitigating factors. See R.C. 2929.04(B)(7).
         {¶197} Against the modest mitigating evidence, we weigh the aggravating
circumstances of which LaMar was found guilty. In this case, the aggravating
circumstances are grievous: LaMar, already incarcerated as a convicted murderer,
was the ringleader in a murder spree that killed five victims. We further note that
the R.C. 2929.04(A)(5) prior-murder specification is of particular significance. As
we just recently observed, “the (A)(5) prior-murder circumstance ‘can be even
more grave than other aggravating circumstances.’ ” State v. Campbell (2002), 

, 

, quoting State v. Taylor (1997), 

, 

. We therefore agree with the jury and the trial court that the
aggravating circumstances outweigh the mitigating factors beyond a reasonable
doubt.
         {¶198} We also find that the death sentence in this case is appropriate and
proportionate when compared with similar capital cases in which the death penalty
has been imposed. See State v. Steffen, 

, 31 OBR 273, 

, paragraph one of the syllabus. We have affirmed the imposition of the death
penalty in other cases involving murders committed during the SOCF riot. See
State v. Sanders (2001), 

, 

; State v. Robb, 

, 

.       LaMar’s sentence also appears appropriate and
proportional when compared to other death-penalty cases involving similar
aggravating circumstances. See, e.g., State v. 

,

 (aggravated murder committed during a kidnapping by an offender




                                         58
                               January Term, 2002




with a prior murder conviction); State v. Carter (1992), 

, 

 (aggravated murder committed in a detention facility by an offender
with a prior murder conviction); State v. Zuern (1987), 

, 

 (aggravated murder in a detention facility); State v. Hessler, 

, 

 (course of conduct involving multiple murders); State
v. Seiber, 

, 

 (aggravated murder during a
kidnapping).
       {¶199} For the foregoing reasons, we affirm LaMar’s convictions,
including the sentences of death for the murders of Vitale, Depina, Svette, and
Weaver.
                                                               Judgment affirmed.
       MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY and LUNDBERG
STRATTON, JJ., concur.
       PFEIFER, J., concurs in judgment.
                              __________________
                                   APPENDIX
       {¶200} Proposition of Law No. 1: The suppression by the prosecution of
evidence favorable to an accused violates due process where the evidence is
material to guilt or punishment. Brady v. Maryland (1963), 

, 

, 

; Kyles v. Whitley (1995), 

, 

, 

.
       {¶201} When a trial court refuses to order the prosecution to provide
witnesses’ names and their corresponding exculpatory statements it denys [sic]
appellant a meaningful opportunity to obtain the information thereby denying
appellant due process as guaranteed by the federal and state Constitutions.
       {¶202} The trial court erred in failing to grant defendant’s motion for new
trial under Brady v. Maryland following trial when it was discovered that the state




                                        59
                               SUPREME COURT OF OHIO




had provided the requested information in other cases although claiming it could
not provide it in Mr. LaMar’s case because they promised inmates confidentiality.
       {¶203} The trial court erred in failing to grant defendant’s motion for new
trial under Brady v. Maryland following trial when it was discovered that the state
had withheld exculpatory evidence that was not the subject of the information and
statements discussed in (A).
       {¶204} Proposition of Law No. 2: The Due Process Clause of both the
federal and state Constitutions entitles an accused to trial before an impartial judge.
       {¶205} Proposition of Law No. 3: When a trial court unreasonably and
arbitrarily restricts a defendant’s voir dire examination prejudicial error occurs in
that the defendant is denied the right to a fair and impartial jury in violation of the
Sixth and Fourteenth Amendments to the United States Constitution and Article I,
Sections 2, 9, 10 and 16 of the Ohio Constitution.
       {¶206} Proposition of Law No. 4: A capital defendant is denied his rights
to a fair trial, due process and a reliable determination of his guilt and sentence as
guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United
States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution when
the prosecutor repeatedly engages in improper argument and other misconduct prior
to and throughout the trial.
       {¶207} Proposition of Law No. 5: Admission of gruesome and misleading
photos when their prejudicial effect outweighs their probative value denys [sic]
appellant a fair trial, due process and a reliable determination of his guilt and
sentence as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to
the United States Constitution and Article I, Sections 10 and 16 of the Ohio
Constitution.   This error was compounded by the trial court’s admission of
irrelevant photographs lacking any probative value used solely to inflame the jury.
       {¶208} Proposition of Law No. 6: The admission of highly prejudicial
hearsay evidence in violation of the Ohio Evidence Rules denys [sic] appellant his




                                         60
                                January Term, 2002




federal and state constitutional rights to a fair trial and his right to cross-examine
witnesses against him.
       {¶209} Proposition of Law No. 7: The trial court erred in failing to grant
appellant LaMar’s motion to dismiss based on selective prosecution, thereby
denying Mr. LaMar his constitutional rights under the Fifth and Fourteenth
Amendments to the U.S. Constitution and Article I, Section 2, 10 and 16 of the
Ohio Constitution. The trial court further erred in failing to require the state to
properly comply with the defendant’s discovery requests and to state its essential
findings of fact regarding the denial of this motion on the record.
       {¶210} Proposition of Law No. 8: In a case where the evidence is not simple
and direct the refusal to sever charges where a jury is likely to confuse the offenses,
cumulate the evidence and consider one offense as corroborative of other offenses,
creates prejudicial error which denies a defendant his rights to a fair trial as
guaranteed by both the Ohio and United States Constitutions.
       {¶211} Proposition of Law No. 9: Appellant’s convictions relating to the
death of William Svette were based on insufficient evidence as a matter of law
thereby denying the appellant due process of law. The trial court erred in failing to
sustain appellant’s motion for acquittal for the charges relating to William Svette,
pursuant to Crim.R. 29, as the convictions of the appellant were based on
insufficient evidence.
       {¶212} Proposition of Law No. 10: Appellant’s conviction of the
specification alleging that the offense was a part of a course of conduct involving
the purposeful killing or attempt to kill two or more persons pursuant to R.C.
2929.04(A)(5) as applied to the death of Dennis Weaver was based on insufficient
evidence as a matter of law thereby denying the appellant due process of law. The
trial court erred in failing to sustain appellant’s motion for acquittal for the
specification pursuant to Crim.R. 29, as the conviction of the appellant was based
on insufficient evidence.




                                          61
                             SUPREME COURT OF OHIO




       {¶213} Proposition of Law No. 11: Appellant’s convictions for the
aggravating circumstance alleging that the offense was committed while the
offender was committing, attempting to commit, or fleeing immediately after
committing or attempting to commit kidnapping and either the offender was the
principal offender in the commission of the aggravated murder or, if not the
principal offender committed the aggravated murder with prior calculation and
design were based on insufficient evidence as a matter of law thereby denying the
appellant due process of law. The trial court erred in failing to sustain appellant’s
motion for acquittal for the kidnapping specification on the charges relating to
Darrell Depina, Bruce Vitale, Albert Staino [sic, Staiano] and William Svette,
pursuant to Crim.R. 29, as the convictions of the appellant were based on
insufficient evidence.
       {¶214} Proposition of Law No. 12: The trial court committed prejudicial
error in failing to grant Mr. LaMar’s motion for a new trial based on newly
discovered evidence thereby denying Mr. LaMar his constitutional rights to due
process, a fair trial, effective assistance of counsel and a reliable sentencing
determination as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the U.S. Constitution and Article I, Sections 2, 9, 10 and 16 of the
Ohio Constitution.
       {¶215} Proposition of Law No. 13: The trial court erred in failing to grant
defendant’s motion for new trial pursuant to Crim.R. 33(3) [sic, 33(A)(3)], thereby
denying appellant LaMar his rights to due process, a fair trial, and effective
assistance of counsel as guaranteed by the U.S. Constitution and the Ohio
Constitution.
       {¶216} Proposition of Law No. 14: The trial court committed prejudicial
error in admitting all evidence submitted by the state in the guilt-innocence phase
into the mitigation phase as much of the evidence was not relevant to any specific
aggravating circumstance. Such error denied Keith LaMar his rights under the




                                        62
                                January Term, 2002




Fifth, Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution and his
corresponding state constitutional rights.
       {¶217} Proposition of Law No. 15: The trial court erred in failing to grant
a mistrial, or in the alternative, to dismiss the jury when the prosecutor repeatedly
argued inappropriately regarding mitigating factors which acted to deny Mr. LaMar
the individualized sentencing determination required by the Fifth, Sixth, Eighth,
and Fourteenth Amendments to the U.S. Constitution and corresponding provisions
of the Ohio Constitution.
       {¶218} Proposition of Law No. 16: The trial court erred in instructing the
jury during the sentencing phase by (A) failing to inform the jury a solitary juror
could prevent the death sentence and (B) in placing undue influence on the
requirement of unanimity such that Mr. LaMar’s death sentences lack the reliability
required by the Eighth and Fourteenth Amendments to the U.S. Constitution and
Article I, Section[s] 2, 9, 10, and 16 of the Ohio Constitution.
       {¶219} Proposition of Law No. 17: The trial court erred when it failed to
comply with the dictates of R.C. 2929.03 by weighing non-statutory aggravating
circumstances, by relying on evidence that was not a part of the record, by
discounting the mitigating factors and by failing to articulate the reasons why the
aggravating circumstances the offender was found guilty of committing were
sufficient to outweigh the mitigating factors. This failure denied the appellant his
due process rights as guaranteed by the United States and Ohio Constitution[s].
       {¶220} Proposition of Law No. 18: The Fifth, Eighth, and Fourteenth
Amendments to the United States Constitution, Sections 10 and 16, Article I of the
Ohio Constitution and R.C. 2929.05 guarantee a convicted capital defendant a fair
and impartial review of his death sentence.              The statutorily mandated
proportionality process in Ohio does not comport with this constitutional
requirement and thus is fatally flawed.




                                          63
                             SUPREME COURT OF OHIO




       {¶221} This court, in performing its proportionality review, should compare
Mr. LaMar’s sentence with other inmate defendant’s sentences received for crimes
committed during the Lucasville riot. Such comparison would guarantee Mr.
LaMar the rights set forth in the U.S. Constitution as well as those sought to be
protected by the Ohio Constitution and Ohio capital statutory framework.
       {¶222} In performing this comparison this court will find that from
initiation of the charges through the trial and sentencing of Mr. LaMar, the
prosecution selectively sought to impose a heavier penalty on appellant than any
other inmate accused or convicted of killing inmates. Such selective prosecution
cannot withstand scrutiny and accordingly this court will find that Keith LaMar’s
death sentences are in violation of both U.S. and state constitutional principles.
       {¶223} Proposition of Law No. 19: Repeatedly instructing that a jury’s
verdict is only a recommendation violates the Fifth, Eighth and Fourteenth
Amendments to the U.S. Constitution and Article I, Section[s] 2, 9, 10 and 16 of
the Ohio Constitution. The prejudice an appellant suffers from this constitutional
violation is further exacerbated by using the term “recommendation” on the actual
verdict forms.
       {¶224} Proposition of Law No. 20: The Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution and Article I, Sections 2, 9, 10 and
16 of the Ohio Constitution establish the requirements for a valid death penalty
scheme. R.C. 2903.01, 2929.02, 2929.021, 2903.022, 2929.023, 2929.03, 2929.04
and 2929.05, Ohio’s statutory provisions governing the imposition of the death
penalty, do not meet the prescribed constitutional requirements and are
unconstitutional, both on their face and as applied.
                               __________________
       Mark E. Piepmeier, Special Prosecuting Attorney, and William E. Breyer,
Assistant Special Prosecuting Attorney, for appellee.
       Carol A. Wright and Kristin Burkett, for appellant.




                                         64
January Term, 2002




__________________




        65