State v. Hanna

[This decision has been published in Ohio Official Reports at 

.]




             THE STATE OF OHIO, APPELLEE, v. HANNA, APPELLANT.
                      [Cite as State v. Hanna, 

.]
Criminal law—Aggravated murder—Death penalty upheld, when.
     (No. 1999-0093—Submitted February 5, 2002—Decided May 22, 2002.)
  APPEAL from the Court of Common Pleas of Warren County, No. 98CR17677.
                                  __________________
        ALICE ROBIE RESNICK, J.
        {¶1} Defendant-appellant, James G. Hanna, has raised fifteen propositions
of law. We have reviewed each and have determined that none justifies reversal of
appellant’s convictions. Pursuant to R.C. 2929.05(A), we have also independently
weighed the aggravating circumstances against the mitigating factors and reviewed
the death penalty for appropriateness and proportionality. For the reasons that
follow, we affirm appellant’s convictions and death sentence.
        {¶2} Appellant and Peter Copas were cellmates for four days at the Lebanon
Correctional Institution (“LCI”).        In the early morning on August 22, 1997,
appellant thrust a sharpened paintbrush into Copas’s right eye socket. Appellant
also hit Copas in the head with a padlock placed in a sock. The paintbrush
penetrated the cranial cavity and entered the brain stem. Surgeons removed the
paintbrush lodged in Copas’s brain; however, Copas died on September 10, 1997.
        {¶3} Appellant was convicted by a jury of the aggravated murder of Copas
and sentenced to death. Appellant directly appeals as a matter of right to this court,
challenging his convictions and death sentence.
                                I. Facts and Case History
        {¶4} On or about August 18, 1997, Copas was moved into appellant’s cell.
From the outset, Copas and appellant did not get along. Appellant was upset
because prison authorities had moved Copas into his cell without appellant’s prior
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knowledge, because Copas had altered the condition of the cell, and because Copas
had used appellant’s property without his permission.
       {¶5} Around August 20, 1997, Ricardo Lee, another inmate, asked
appellant to allow Copas to remain in appellant’s cell until Lee and Copas could
become cellmates. According to Lee, appellant “acted as if he was just tolerating
him as long as he could until they could move him.” The next day, appellant told
Lee that “Mr. Copas had bothered his TV set and broken it and that … he couldn’t
really tolerate him anymore, that [he] should do whatever [he] had to do to help
him move out of the cell.” During a third conversation, on the day before the
murder, appellant told Lee that he had “better do something because his wick was
getting short.”
       {¶6} On August 21, when appellant returned to his cell, he found the cell
door open, and some of his belongings were “laying about” or “stolen.” Appellant
was upset, since “you don’t leave your cell door open so that someone can come in
and take your cellmate’s belongings.” Around 9:15 p.m., Copas returned to the
cell, appeared intoxicated, crawled into his top bunk, and then vomited.
       {¶7} Appellant decided “that he had had enough.” Around 4:00 a.m. or
5:00 a.m. on August 22, 1997, appellant “took a paintbrush, sharpened … the tip
of it down, took matches and lit the end that he had sharpened as to stiffen it up so
that it would be brittle.” Appellant created another weapon by taking “a lock off of
Mr. Copas’ lock box” and then placing it inside a sock. While Copas was asleep,
appellant “stood up and plunged the paintbrush handle into Mr. Copas’ eye,” and
the handle broke off. Appellant “didn’t mean for it to break;     … he wanted it
to go further in than what it did, but it broke off.” Appellant said that he did not
stick Copas in the ear “[b]ecause the ear is too hard. You would use an ice pick in
the ear. The eye is much softer.”
       {¶8} After being attacked, Copas “rose up out of bed” and asked, “Why the
hell did you do that?” Then, appellant struck Copas in the head with the lock and




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also “took his fist and struck” Copas. Copas passed out and fell over the television
set at the foot of the bed. At that point, appellant “flushed the paintbrush handle
remains and the sock down the toilet, placed the padlock back on the locker box,
and then sat back in his bed” and smoked a cigarette.
         {¶9} Around 6:00 a.m., Copas arose out of his unconscious condition and
“jumped up, ran to the cell door and started screaming that, ‘My celly’s trying to
kill me.’ “ Doug Stewart, a corrections officer at LCI, heard yelling, went to
Copas’s cell, and saw Copas “standing at the door, bleeding.” Copas was taken to
the prison infirmary. In the meantime, appellant was backed out of his cell and
handcuffed. When a guard asked him what happened, appellant replied, “I told
them not to put him in here with me.”
         {¶10} Upon arriving at the prison infirmary, Copas told Linda Young, a
registered nurse, that “he was shanked in the head and hit with a battery in a sock.”
Copas was transferred to the Middletown Regional Hospital about thirty minutes
later.
         {¶11} Dr. Ralph Talkers, an emergency physician at Middletown, treated
Copas for head lacerations; “his right eye was extremely swollen,” consistent with
an assault. However, Copas was not treated for stab wounds, since neither his
medical records nor Copas himself had indicated that he had been stabbed. Dr.
Talkers examined Copas’s eye, but there was “no indication whatsoever” that there
was a foreign object lodged in or behind his eye. Moreover, results of X-rays of
the face and skull proved negative. Thus, Dr. Talkers concluded that Copas’s “eye
was traumatized … because of the blunt injury” during the assault.
         {¶12} According to Dr. Talkers, a CAT (computerized axial tomography)
scan of Copas’s head was not conducted, since “the patient was awake and talking
and did not have … focal neurological findings.” Moreover, Copas was
“observed in the emergency room for approximately five hours” and never lost




                                         3
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consciousness. Copas was sent back to the prison infirmary and arrived at around
1:45 p.m. on August 22.
       {¶13} Dr. James McWeeney, the medical director at LCI, found that Copas
was “very lucid,” and “his speech was clear and deliberate” when he examined
Copas on August 23. According to Dr. McWeeney, Copas “did not exhibit any
signs of an intracranial injury or severe head trauma.” However, Dr. McWeeney
ordered an ophthalmology consult and a CAT scan.
       {¶14} On August 26, 1997, Dr. Steven Katz, a neuro-ophthalmologist,
examined Copas at the Corrections Medical Center. Copas’s eye was swollen, and
there appeared to be “swelling or congestion in the socket behind the eye.” A CAT
scan completed later that evening showed “a large foreign object … like a pen or
pencil … lodged in the socket just behind the eye, inside the eye muscle cone.”
According to Dr. Katz, “it appeared to penetrate the pons, which is part of the brain
stem, and go back far enough to enter the cerebellum.”
       {¶15} On August 27, 1997, neurosurgeons conducted a “pterional
craniotomy” and removed the remnant of the paintbrush, which was approximately
five inches long, from inside Copas’s head. Copas recovered “very quickly from
surgery” and was treated with “broad-spectrum intravenous antibiotics” to fight
possible infection.   However, on September 5, 1997, his medical condition
deteriorated. Copas died on September 10, 1997.
       {¶16} Dr. Keith Norton, a Franklin County forensic pathologist and deputy
coroner, concluded that Copas had suffered extensive brain injuries extending into
the cerebellum. These injuries included bleeding surrounding the underside of the
brain, swelling of the brain, insufficient blood flow to the brain’s nerve cells, and
“bacterial colonies in the basilar meninges.” Dr. Norton stated that “the penetrating
injury to the head” caused by the paintbrush was the cause of death.
       {¶17} At trial, the prosecution introduced appellant’s letter to Dennis
Borowski, an inmate at the Southern Ohio Correctional Facility (“SOCF”). In the




                                         4
                                 January Term, 2002




letter, dated January 10, 1998, appellant stated, “Well, it’s like this Dennis, I caught
a murder #1 case on my cellie at Lebanon. He was a maggot baby-raper-killer I
found out, and those idiots of the administration there wouldn’t move him the hell
out of my cell, so I took him out of his misery. I made him suffer pretty good too,
because first of all, I stabbed one of his eyeballs up out of its socket, and then I beat
all on his stupid-ass-head off-and-on for two (2) hours (4:00 a.m. to 6:00 a.m.) in
the morning until count time when they came and got us both up out of the cell. —
He lived for twenty-and-a-half (20½) hours after that before he croaked.”
        {¶18} Bryan Freeze, an inmate at LCI in August 1997, was appellant’s
cellmate before Copas. Three or four days after the August 22 incident, Freeze and
appellant were in the segregation unit at the prison. Freeze asked appellant about
the attack. In response, appellant admitted stabbing Copas in the eye and said, “I
tried to bash the mother fucker’s brains in.” Freeze asked appellant “why he had
done it,” and appellant said, that Copas “had turned his TV off on him.”
        {¶19} Barnard Williams, a state investigator, talked to Copas at the
Middletown Regional Hospital on August 22, 1997. Copas said that prior to the
attack, he had put on head phones and had put a white T-shirt over his eyes so that
he could sleep better. He then “laid there for a couple of hours and was sleeping.”
Then, Copas said, “I felt something hit my head, by my mouth area. I looked up,
but I don’t know what [happened]. I saw [appellant’s] hand covered with a gauze,
with a pencil like shank in it. He hit me with it and I sat up trying to protect myself.”
Thereafter, appellant hit him with the lock in the sock. After he had been hit four
or five times, Copas said, “I tried to plead with him but he kept hitting me.”
        {¶20} Dr. Bruce Janiak, an emergency physician, testified by videotaped
deposition that Copas should have received a CAT scan of his head during medical
treatment on August 22, 1997. Dr. Janiak reached that opinion “because it’s wellknown in the literature that in instances which I described, i.e., the head injury with
questionable loss of consciousness and in addition the vomiting, that that would be




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an indication for a head CAT scan, and that’s the standard, … so I think it should
have been.” Furthermore, Dr. Janiak stated, “I can say with 100 percent certainty
that had a CAT scan been done, you would have seen the piece of wood and known
that there was a foreign body.” Finally, Dr. Janiak testified that earlier removal of
the wooden shaft from inside Copas’s head would have reduced the possibility of
infection.
        {¶21} Dr. Paul Schwetschenau, a neurosurgeon, agreed with the coroner’s
findings that Copas had died of a brain infarction from a massive subarachnoid
hemorrhage. He surmised that the hemorrhage was caused by “trauma to the blood
vessels or bacterial weakening of the wall of the blood vessels.”             In Dr.
Schwetschenau’s opinion, a CAT scan would have “revealed the presence of a
wooden object in Mr. Copas’s brain,” and its “earlier detection and removal would
have significantly improved the chances of reducing the bacterial contamination
and the bacterial growth.”
        {¶22} Dr. Schwetschenau also reviewed Copas’s frontal X-ray of August
22 and identified “two very distinct parallel lines that are not natural and do not
belong in anybody’s skull.” Dr. Schwetschenau testified, “I believe that this is the
outline or the size of a straight or cylindrical object.”
        {¶23} The grand jury indicted appellant for aggravated murder with prior
calculation and design with two death penalty specifications. The specifications
were for murder committed in a detention facility pursuant to R.C. 2929.04(A)(4),
and for conviction of a prior purposeful killing pursuant to R.C. 2929.04(A)(5).
        {¶24} Appellant was also indicted with a third specification for being a
repeat violent offender as defined in R.C. 2929.01. In a second count, he was
indicted for possession of a deadly weapon under detention and charged with an
accompanying specification for being a repeat violent offender.
        {¶25} The jury found appellant guilty of Count One and the R.C.
2929.04(A)(4) specification. Upon appellant’s election, the trial judge separately




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                                  January Term, 2002




found appellant guilty of the R.C. 2929.04(A)(5) specification and the repeat
violent offender specification. Count Two and the accompanying specification
were dismissed.
       {¶26} The jury recommended death for Copas’s murder. The trial court
sentenced appellant to death for Copas’s murder and eight years for the repeat
violent offender specification.
                                    II. Trial Issues
                             A. Warden’s Testimony
       {¶27} In his first proposition of law, appellant claims that the trial court
erred by refusing to allow LCI Warden Harry Russell’s testimony about shanks or
weapons confiscated at the prison and the charges filed against inmates for
possessing such weapons. Appellant asserts that this information would show that
prisoners’ possession of weapons is common and does not indicate intent to kill. In
support, at trial, appellant proffered an exhibit “concerning the number of shanks
and other weapons at LCI that have been confiscated” and “charges that were filed
in relation to possession and use of those items.” The trial court rejected the
warden’s testimony, finding that it was not relevant and that its probative value was
outweighed by its prejudicial impact.
       {¶28} The admission of Warden Russell’s testimony rested upon a question
of relevancy. Evid.R. 401 provides, “ ‘Relevant evidence’ means evidence having
any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without
the evidence.” The admission or exclusion of relevant evidence rests within the
sound discretion of the trial court. See State v. Sage (1987), 

, 31 OBR 375, 

.
       {¶29} Evid.R. 403(A) provides:          “Although relevant, evidence is not
admissible if its probative value is substantially outweighed by the danger of unfair
prejudice, of confusion of the issues, or of misleading the jury.” When considering




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evidence under Evid.R. 403, the trial court is vested with broad discretion, and an
appellate court should not interfere absent a clear abuse of discretion. State v. Allen
(1995), 

, 

, citing State v. Morales (1987), 

, 

.
       {¶30} The trial court could legitimately conclude that the warden’s
testimony focused on side issues (e.g., prison administration, inmate discipline, and
inmate violence) substantially unrelated and prejudicial to a fair resolution of the
issues in this case. Thus, we find no abuse of discretion in excluding Warden
Russell’s testimony.
       {¶31} Finally, appellant argues that the jury should have been allowed to
consider the warden’s testimony as part of the nature and circumstances of the
offense during sentencing.
       {¶32} The Eighth Amendment to the United States Constitution addresses
criminal sentencing. It “allows a capital defendant to introduce ‘any aspect of [his]
character or record and any of the circumstances of the offense that the defendant
proffers as a basis for a sentence less than death.’ “ (Emphasis sic.) State v. Sanders
(2001), 

, 

, quoting Lockett v. Ohio (1978),

, 

, 

. R.C. 2929.04(B) also requires
the sentencer to consider “the nature and circumstances of the offense.” The
warden’s testimony regarding the number of shanks present, the number
confiscated, and the general use of shanks within LCI was not related to the
circumstances of appellant’s offense. Such evidence did not provide relevant
mitigation. Accordingly, we reject appellant’s first proposition.
                                    B. Jury View
       {¶33} In his third proposition of law, appellant asserts that the trial court
abused its discretion in denying his request for a jury view. Appellant claims a jury
view was necessary to show the jurors “the size and shape of the cell, the lighting
conditions in the cell, and the positioning of Peter Copas at the time of the assault”




                                          8
                                January Term, 2002




so that the jury could see “how difficult it would be for James Hanna to intentionally
stab Peter Copas in the eye.”
       {¶34} R.C. 2945.16 provides, “When it is proper for the jurors to have a
view of the place at which a material fact occurred, the trial court may order them
to be conducted … to such place ….” Moreover, “the trial court is vested with
a broad discretion in such matters, and its judgment will not be disturbed absent an
abuse of discretion.” State v. Zuern (1987), 

, 

(denying jury view of confinement cell). See, also, Sanders, 

,

 (denying jury view of prison).
       {¶35} The trial court overruled appellant’s motion for a jury view because
of “the inherent problems of security and possible prejudice to the case via other
inmates.” Moreover, the trial court held that “the dimensions and all aspects of the
cell can be fully presented to the jury with the aid of diagrams and photographs and
without them being physically present.” Thus, we find no abuse of discretion.
       {¶36} Although he claims that the state’s photographs were insufficient,
appellant failed to present any diagrams of his cell during the trial. Appellant also
fails to demonstrate that diagrams and photographs of the cell were inadequate to
provide the jury with a full understanding of conditions in his cell. Accordingly,
we reject appellant’s third proposition.
                          C. Sufficiency of the Evidence
       {¶37} In his sixth proposition of law, appellant challenges the sufficiency
of the evidence showing appellant’s prior calculation and design. He claims that
his use of weapons (e.g., a shank and a lock in a sock), the location of stab wounds
in a nonvital organ, and Copas’s medical care showed that he intended only to injure
Copas and not to kill him.
       {¶38} In reviewing a record for sufficiency, “[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 essential elements of the crime proven




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beyond a reasonable doubt.” State v. Jenks (1991), 

, 

, paragraph two of the syllabus, citing Jackson v. Virginia (1979), 

,

, 

. “[T]he weight to be given the evidence and the
credibility of the witnesses are primarily for the trier of the facts.” State v. DeHass
(1967), 

, 

, 

, paragraph one of the
syllabus.
        {¶39} As to prior calculation and design, no “bright-line test” exists that
“emphatically distinguishes between the presence or absence of ‘prior calculation
and design.’ Instead, each case turns on the particular facts and evidence presented
at trial.” State v. Taylor (1997), 

, 

. In State v.
Cotton (1978), 

, 

, 

, paragraph three of
the syllabus, this court held that “[w]here evidence adduced at trial reveals the
presence of sufficient time and opportunity for the planning of an act of homicide
to constitute prior calculation, and the circumstances surrounding the homicide
show a scheme designed to implement the calculated decision to kill, a finding by
the trier of fact of prior calculation and design is justified.”
        {¶40} Appellant’s intent to kill Copas was clearly proved. Not only did
appellant express hostility towards Copas over a four-day period prior to the attack,
but he also fashioned a paintbrush into a murder weapon an hour or so before the
attack. Appellant then thrust the shank into Copas’s eye when he was most
vulnerable, while asleep. Moreover, appellant told investigators that he wanted the
shank to “go further in than what it did, but it broke off.” In his letter to another
inmate, appellant boasted that he “stabbed one of [the victim’s] eyeballs,” and beat
“on his stupid-ass-head” for two hours. Thus, there was compelling evidence that
appellant purposely murdered Copas with prior calculation and design.
        {¶41} Appellant also claims that the prevalence of shanks in prison and their
use in nonlethal altercations showed that he had never intended to kill Copas.
However, appellant’s action in planning and carrying out the attack and not his




                                           10
                                January Term, 2002




choice of weapon (i.e., a shank) showed that he intended to murder Copas and did
so with prior calculation and design. In Zuern, 

, 

, a prison inmate stabbed a corrections officer with a shank. The prisoner
fashioned the shank into the “desired shape” and “sharpened it to a very fine edge”
prior to the murder. Under these facts, Zuern held that the defendant’s actions
showed that he had acted with prior calculation and design. Similarly, appellant’s
actions leading up to the murder demonstrated his prior calculation and design.
       {¶42} Further, appellant argues that he stabbed Copas in a nonvital organ
(i.e., the eye), and this showed that he never intended to kill him. In reality,
appellant stabbed Copas in one of the most vital areas of the body by thrusting the
shank through the soft tissue area of Copas’s eye and into his cerebellum. Cf. State
v. Phillips (1995), 

, 

 (intent to kill shown
by defendant’s blows to the victim’s “head, certainly a vital area”). Moreover,
appellant admitted that he “wanted [the shank] to go further in than what it did, but
it broke off.” Thus, we also reject this argument.
       {¶43} Finally, appellant claims that he could not have known that he had
inflicted a fatal wound on Copas, since two doctors failed to recognize the
seriousness of Copas’s injuries when he was taken to the emergency room. This
argument ignores a significant fact. Appellant knew that a long segment of the
shank was lodged deep inside Copas’s head, whereas the physicians did not know
that fact. Thus, appellant’s intent had nothing to do with the doctors’ awareness of
Copas’s injuries. Accordingly, we reject appellant’s sixth proposition.
                            D. Guilt Phase Instructions
       {¶44} In his second proposition of law, appellant argues that the trial court
erred in rejecting his proposed instruction on medical malpractice as an independent
cause of death.
       {¶45} Generally, “one who inflicts injury upon another is criminally
responsible for that person’s death, regardless of whether different or more skillful




                                         11
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medical treatment may have saved his life.” State v. Johnson (1978), 

, 

, 

. Moreover, “medical treatment for homicide
victims is not an intervening cause.” State v. Carter (1992), 

, 

. “Only gross negligence or willful maltreatment will relieve
the defendant from liability. Simple negligence is not enough.” (Citation omitted.)
State v. Beaver (1997), 

, 

. See, also,
Annotation, Homicide:       Liability Where Death Immediately Results from
Treatment or Mistreatment of Injury Inflicted by Defendant (1997), 

.
       {¶46} Appellant proposed the following jury instruction on intervening
cause, relying on Johnson, 

, 

, 

:
“[O]ne who inflicts injury upon another is criminally responsible for that person’s
death, regardless of whether different or more skillful medical treatment may have
saved his life. This rule has been qualified where there has been a gross or willful
maltreatment of the patient by the medical personnel which is shown to have been
an independent intervening cause of the patient’s death.” (Citations omitted.)
       {¶47} The trial court refused to give the proffered instruction. The court
stated that the issue was “sufficiently covered” and found the proposed instruction
to be “duplicative at best and confusing at worst.” Rather, the trial court provided
jury instructions on intervening cause and independent intervening cause based on
4 Ohio Jury Instructions (“OJI”), Section 409.56, as follows:
       {¶48} “Intervening causes. The defendant is responsible for the natural
consequences of the defendant’s unlawful act, even though death was also caused
by the intervening act of another person or agency.”
       {¶49} “Independent intervening cause of death. If the defendant inflicted
an injury not likely to produce death, and if the sole and only cause of death was
something else or someone else, the defendant who inflicted the original injury is
not responsible for the death.”




                                        12
                                January Term, 2002




       {¶50} Appellant was not entitled to his instruction on independent
intervening cause. First, the trial court provided adequate instructions from OJI on
intervening cause and independent intervening cause of death.
       {¶51} Second, there was no evidence that Copas was the victim of gross or
willful maltreatment. There were no clinical symptoms of neurological damage
when Dr. Talkers treated Copas. The patient was wide awake and talking, and
Copas was observed in the emergency room and never lost consciousness. Based
upon these observations and the history provided to him by Copas, Dr. Talkers
concluded that a CAT scan was not warranted. Even though defense experts
testified that Dr. Talkers breached the standard of care by not ordering a CAT scan,
the evidence at most is conflicting on this point and would not support a finding of
gross negligence or willful maltreatment. Cf. Cook v. Foltz (C.A.6, 1987), 

 (not entitled to instruction on grossly erroneous medical treatment
where the record did not support such a claim).
       {¶52} Finally, the coroner’s testimony established that appellant’s attack
was the cause of Copas’s death. According to Dr. Norton, the deputy coroner, “the
penetrating injury to the head, the instrument going in is what caused death.”
Indeed, Dr. Janiak, the defense expert, concurred in the coroner’s findings. He
stated that, “clearly the foreign body was responsible for multiple problems that
ensued” with the victim. Therefore, we find that the trial court did not err by
rejecting appellant’s proposed jury instruction.     We reject appellant’s second
proposition.
       {¶53} In his seventh proposition of law, appellant contends that the
instructions defining causation in terms of foreseeability undermined the burden of
proof on the mens rea element of the aggravated murder charge. See State v.
Burchfield (1993), 

, 

. Appellant objects to
the following jury instruction: “The defendant’s responsibility is not limited to the
immediate or most obvious result of the defendant’s act. The defendant is also




                                         13
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responsible for the natural and foreseeable results that follow, in the ordinary course
of events, from the act.”
       {¶54} We have recognized that the use of the foreseeability instruction in
aggravated murder cases is questionable. See Burchfield, 

, 

; State v. Goodwin (1999), 

, 

.
However, “[t]he use of that instruction … does not require reversal where the
instructions as a whole make clear that the jury must find purpose to kill in order to
convict.” State v. Phillips, 

, 

. Accord State v.
Frazier (1995), 

, 

.
       {¶55} In the case sub judice, the trial court provided the jury with extensive
instructions on the state’s burden of proof and the requirement to prove purpose to
kill both before and after the foreseeability instruction was given to the jury. Thus,
the instructions as a whole made clear that the jury was required to find purpose to
kill in order to convict. See Phillips, 

, 

. We
find no prejudicial error and reject appellant’s seventh proposition.
       {¶56} In his fourteenth proposition of law, appellant challenges the
instructions on reasonable doubt during both the guilt and sentencing phases of the
trial. However, appellant failed to object to these instructions at trial and waived
all but plain error. Crim.R. 30(A); State v. Long (1978), 

, 

, 

, paragraphs one and two of the syllabus.               Moreover,
appellant’s complaints about the statutory definition of “reasonable doubt” lack
merit. See State v. Jones (2001), 

, 

; State
v. Hessler (2000), 

, 

; State v. Van Gundy
(1992), 

, 

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

, 

; State v. Taylor, 

, 

. We reject appellant’s fourteenth proposition.
                            E. Sealing the Prosecutor’s File




                                          14
                                  January Term, 2002




       {¶57} In his eighth proposition of law, appellant argues that the trial court
erred by failing to order the prosecution to seal its file upon discovering that the
prosecution had failed to disclose exculpatory information. Appellant filed a
pretrial motion requesting that a complete copy of the prosecutor’s file be made,
reviewed by the trial court, and sealed for appellate review. The trial court denied
this motion.
       {¶58} As Trooper James Ertel reviewed his investigative report to refresh
his recollection, it appeared that the report disclosed possible exculpatory
information. The trial court ordered the prosecution to provide this information to
the defense, which it did. The defense made no further motions to seal the
prosecutor’s file.
       {¶59} According to appellant, the trial court was alerted to the possibility
that the prosecutor’s file might contain other Brady material after Ertel’s report was
disclosed. See Brady v. Maryland (1963), 

, 

, 

. Thus, appellant argues that the trial court had a sua sponte obligation to review
and seal the prosecutor’s file.
       {¶60} The trial court was not required to examine the prosecutor’s file to
determine the prosecutor’s truthfulness or seal the prosecutor’s file for purposes of
appellate review. Cf. State v. Chinn (1999), 

, 

; State v. Williams (1995), 

, 

. The
prosecutor was fully aware of his continuing obligation to divulge exculpatory
evidence.      Appellant’s claim that the prosecution may have withheld other
exculpatory evidence from the defense is purely speculative. The record discloses
no such evidence, and we reject appellant’s eighth proposition.
                            F. Prosecutorial Misconduct
       {¶61} In his ninth proposition of law, appellant contends that he was denied
a fair trial due to prosecutorial misconduct during the guilt phase. “The test for
prosecutorial misconduct is whether remarks were improper and, if so, whether they




                                          15
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prejudicially affected substantial rights of the accused.” State v. Jones (2000), 

, 

, citing State v. Smith (1984), 

, 14 OBR 317, 

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

, 

, 

.
                         1. Denigrating Reasonable Doubt
       {¶62} Appellant complains that the prosecutor denigrated the reasonable
doubt standard during voir dire when he compared crossing a bridge to making
decisions about the most important daily affairs.
       {¶63} A prospective juror, an engineer, stated that as “an engineer, you
want facts, everything to be backed up with facts.” While discussing the concept
of reasonable doubt, the prosecutor asked this prospective juror the following series
of questions:
       {¶64} “Q: Have you ever driven down 75 over the river to Kentucky, over
… the Brent Spence bridge?
       {¶65} “A: Uh-huh.
       {¶66} “Q: Okay. And you had your family with you?
       {¶67} “A: Uh-huh.
       {¶68} “Q: I’ll ask you this because you’re the engineer. Did you ever stop
before you got to the bridge and get out and check the bridge to make sure it was
safe before you crossed?
       {¶69} “A: (Juror moves head from side to side.)
       {¶70} “…
       {¶71} “Q: But you crossed the bridge, didn’t you?
       {¶72} “A: Yes.
       {¶73} “Q: That was an important affair, was it not?
       {¶74} “A: Uh-huh.




                                          16
                                January Term, 2002




       {¶75} “Q: So you understand we talk about important affairs, we do
important things every day. And I’m asking you not to do any more than you do
every day in your important affairs in deciding this case; can you do that?
       {¶76} “A: Uh-huh.”
       {¶77} The defense counsel did not object to the prosecutor’s questions and
thus waived all but plain error. State v. Wade (1978), 

, 

, 

, paragraph one of the syllabus.
       {¶78} Moreover, the defense counsel used the prosecutor’s bridge analogy
to appellant’s advantage during subsequent voir dire and opening statement. In his
opening statement, defense counsel stated, “In jury questioning, the prosecutor Mr.
Beaton talked to you a little bit about a bridge in Cincinnati and how you don’t stop
and look under the bridge before you drive over it and you assume it’s okay. …
I know some of you are old enough to remember the Silver Bridge collapse over
the Ohio River and, in fact, that happened. … What I’m asking you to do in this
case is listen to all the evidence. You make the prosecutor take you under the bridge
and show you the underpinnings and show you it’s clear. And if he cannot do that,
he hasn’t proven his case.”
       {¶79} While the prosecutor’s comments were perhaps inappropriate, we do
not find that the comments denigrated the reasonable doubt standard. Moreover,
the trial court’s “reasonable-doubt instructions negated any misconception by the
jury.” State v. Lundgren (1995), 

, 

. In any
event, appellant shows no prejudice. Appellant turned the tables on the state by
effectively using the bridge analogy in presenting his own defense. Accordingly,
we reject this claim.
               2. Peremptory Challenge of “Death Hesitant” Jurors
       {¶80} Appellant also argues that the prosecutor improperly exercised his
peremptory challenges to exclude three jurors who had expressed reluctance to
impose the death penalty. However, “ ‘apart from excluding jurors based on race




                                         17
                              SUPREME COURT OF OHIO




or gender, “prosecutors can exercise a peremptory challenge for any reason, without
inquiry, and without a court’s control.” ‘ “ State v. Biros (1997), 

, 

, quoting State v. Ballew (1996), 

,

. Thus, we reject this assertion.
                  3. Failure to Comply with Discovery Requests
        {¶81} Appellant argues that the prosecutor committed misconduct by
failing to provide the defense with exculpatory information from Ertel’s
investigative report until ordered to do so at trial, in violation of Brady v. Maryland,

, 

, 

. Information provided to the defense
from Ertel’s report included Officer Hagar’s statement that Copas was unconscious
after the attack, statements that Copas was intoxicated at the time of the attack, and
interviews of inmates from appellant’s cellblock reporting what they heard on the
night of the attack.
        {¶82} Despite appellant’s claims, the state did not violate Brady v.
Maryland by withholding exculpatory evidence. Ertel’s report was presented
during the trial (and not after the trial as in Brady), and no Brady violation exists.
See State v. Green (2000), 

, 

; State v.
Wickline (1990), 

, 

.
                           4. Improper Closing Argument
        {¶83} Appellant claims that the prosecutor committed misconduct during
his closing argument by suggesting that murder one was the same as prior
calculation and design. Appellant attacks the following segment of the prosecutor’s
closing argument: “… [T]elling Trooper Ertel and Scott Male what happened
wasn’t good enough. He had to tell somebody else what he had done. And he
wrote a letter … to another inmate, … Dennis Borowski. That letter was
written in January, 1998, about two weeks before the defendant was indicted for
this charge, for this crime. And in that letter he used the term murder one case. I
caught a murder one case on my celly in Lebanon. Murder one. Ladies and




                                          18
                                January Term, 2002




gentlemen, I suggest, submit to you that’s a term that most people recognize as
synonymous with premeditated murder. And he was telling somebody this before
he’d even been charged, before he even knew that he would be facing this.”
(Emphasis added.)
       {¶84} However, appellant failed to object to this argument and thus waived
all but plain error. See State v. Wade, 

, 

, 

, paragraph one of the syllabus. No such error occurred.
       {¶85} “Prosecutors are entitled to some latitude in arguing what the
evidence has shown and what the jury may infer from the evidence.” State v.
Tibbetts (2001), 

, 

.
       {¶86} Moreover, contrary to appellant’s claim, the prosecutor was not
equating “murder one” with “prior calculation and design.” Rather, the prosecutor
used appellant’s own words (i.e., from his letter to Borowski) to prove that he
intended to murder Copas. Appellant’s own words, as the prosecutor pointed out,
contradicted appellant’s defense that he intended only to injure Copas, not kill him.
The prosecutor’s argument represented fair comment on the evidence. Tibbetts, 

, 

.
       {¶87} In summary, we find no prosecutorial misconduct during the guilt
phase justifying reversal, and we reject appellant’s ninth proposition.
                             III. Penalty Phase Issues
                           A. Prosecutorial Misconduct
       {¶88} In his tenth proposition of law, appellant argues that the prosecutor
committed misconduct during the penalty phase’s closing arguments. The test for
prosecutorial misconduct in closing arguments is “ ‘whether the remarks were
improper and, if so, whether they prejudicially affected substantial rights of the
defendant.’ “ State v. Hessler, 

, 

, quoting
State v. Smith, 

, 14 OBR 317, 

.




                                         19
                              SUPREME COURT OF OHIO




        {¶89} However, appellant failed to object to the portions of the prosecutor’s
argument that he complains about now. Thus, he waived all but plain error. State
v. Wade, 

, 

, 

, paragraph one of the
syllabus. No plain error occurred. Moreover, as discussed below, none of the
allegations of prosecutorial misconduct has merit.
         1. Misleading the Jury About Life Imprisonment Without Parole
        {¶90} Appellant claims that the prosecutor improperly argued that he would
not be punished for his crime if he did not receive a death sentence. Appellant
objects to the prosecutor’s rebuttal argument: “Now, ladies and gentlemen, if you
don’t decide on the death penalty in this case, nothing really is going to change for
the Defendant. He’s still going to—things are going to go on as usual. He’s got
three meals a day, he’s got a roof over his head. Granted, he’s locked up in prison.
But, so, he’s been locked up in prison for a while. He doesn’t have any worries.
Doesn’t have to go to work. As I said, life’s pretty much the same.”
        {¶91} The prosecutor’s argument was not improper, since it rebutted
defense assertions that the severity of life in prison without parole was a mitigating
factor. According to defense arguments, appellant would be sent to a maximum
security prison, he would be kept away from other inmates, he could not leave his
cell “unless he’s in the company of guards under high security,” and “[l]ike the
death penalty, this life sentence is unchangeable.”
        {¶92} The “state may … comment upon ‘evidence rebutting the existence
of any statutorily defined or other mitigating factors first asserted by the defendant,’
“ and thus the prosecutor’s rebuttal was proper. State v. Stojetz (1999), 

, 

, quoting State v. Gumm (1995), 

, 

.
                               2. Belittling Mitigation
        {¶93} Appellant complains that the prosecutor improperly minimized the
severity of his abuse as a child by labeling it acceptable parenting. Appellant points




                                          20
                                 January Term, 2002




to the prosecutor’s comments that “it wasn’t unusual back then [the 1950s] if you
were bad that you’d get swatted with a paddle on your rear.”
       {¶94} The prosecutor’s comments simply responded to defense claims that
a mitigating factor in appellant’s case was the “history of a dysfunctional family,
an aggressive mother, [and] inconsistent and hostile treatment.” The prosecutor’s
remarks did not belittle the abuse that appellant suffered. Rather, the prosecutor’s
rebuttal placed the mother’s actions in the context of her personal situation (i.e., the
hardships of a single mother with six children at home) and suggested the
acceptability of harsher forms of corporal punishment during the 1950s. Thus, the
prosecutor’s rebuttal argument represented fair comment. See State v. Murphy
(1992), 

, 

.
       {¶95} Appellant also claims that the prosecutor belittled the long-term
effects of appellant’s impoverished background. Specifically, appellant complains
about the following remarks: “They talk about this house — to play on your
emotions, they talk about this house with no plumbing. Now, you might want to
laugh, but Abe Lincoln didn’t have any plumbing. If any of you have traveled in
other parts of the world, other people live in conditions without electricity or
without plumbing.”
       {¶96} The prosecutor’s comparison to Lincoln was a way to point out that
many people rise from impoverished backgrounds similar to appellant’s. By so
doing, the prosecutor was simply arguing that the jury should give appellant’s
background little weight in mitigation. See State v. Richey (1992), 

, 

. “Prosecutors can urge the merits of their cause and
legitimately argue that defense mitigation evidence is worthy of little or no weight.”
State v. Wilson (1996), 

, 

. Moreover,
prosecutors are “afforded wide latitude during closing argument” and can be
“colorful or creative.” State v. Brown (1988), 

, 

. The prosecutor’s argument was not improper.




                                          21
                              SUPREME COURT OF OHIO




          {¶97} Finally, appellant claims that the prosecutor erred by comparing him
with his brothers and sisters. The prosecutor argued that while his brothers and
sisters came from the same family environment, only appellant ended up in adult
prison.
          {¶98} The prosecutor could legitimately argue that appellant’s brothers and
sisters came from the same deprived background but did not kill anybody or end up
in adult prison. See Wilson, 

, 

; Richey, 

, 

. Moreover, the record supported the prosecutor’s
argument.
          {¶99} In summary, we find no prosecutorial misconduct during the penalty
phase, and we reject appellant’s tenth proposition.




                                          22
                                January Term, 2002




                              B. Sentencing Opinion
       {¶100} In his twelfth proposition of law, appellant argues that his death
sentence should be reversed because of flaws in the trial court’s sentencing opinion.
       {¶101} First, appellant claims that the trial court improperly compared him
with his siblings by stating that “[n]one of his siblings [has] been involved in any
felony crime,” while he has been in prison for “nearly twenty years.” However,
such comparison was not improper. See State v. Campbell (2000), 

, 

; State v. White (1999), 

, 

.
       {¶102} Second, appellant argues that the trial court improperly evaluated
evidence of his various psychological and mental disorders. Appellant complains
that the trial court incorrectly evaluated such evidence when finding that “[t]he
court fails to see any relationship … between the contended character and/or
psychological defects advocated by the defendant and the actions in this case which
would warrant a finding in mitigation.”
       {¶103} This court has stated that “the assessment and weight to be given
mitigating evidence are matters for the trial court’s determination.” State v. Hill
(1995), 

, 

, citing State v. Lott (1990), 

, 

. Moreover, “[t]he fact mitigation evidence is
admissible ‘does not automatically mean it must be given any weight.’ “ 

, quoting State v. Steffen (1987), 

, 31 OBR
273, 

, paragraph two of the syllabus. The sentencing opinion fully
reviewed Dr. Kathleen Burch’s testimony about appellant’s character and
psychological defects. The trial court could reasonably assign any or no weight to
such evidence. Thus, there was no error.
       {¶104} Third, appellant incorrectly asserts that the trial court failed to
consider his offer to plead guilty. The trial court specifically mentioned that
appellant “had asked for the prosecution to allow him to plead guilty as charged




                                          23
                              SUPREME COURT OF OHIO




and accept a sentence of life in prison without parole.” However, the trial court
gave “no weight” to appellant’s offer to plead, since he was already serving a life
sentence for aggravated murder and attempted aggravated murder, and thus “his
offer to plea was conceding little regardless of the outcome of the trial.” The trial
court exercised permissible discretion in giving no weight to appellant’s offer to
plead. Cf. State v. Stumpf (1987), 

, 

 (guilty
plea in face of a hopeless trial entitled to little weight as mitigation).
        {¶105} Appellant also contends that the trial court failed to consider
evidence that he was sexually abused as a child. The trial court’s sentencing
opinion did not specifically mention appellant’s child abuse. However, it is clear
that the trial judge carefully considered Dr. Burch’s testimony, since he discussed
Dr. Burch’s opinions about appellant’s various psychological disorders. Thus,
there was no error.
        {¶106} We find that the trial court’s sentencing opinion fully complied with
the requirements of R.C. 2929.03 and R.C. 2929.04. For these reasons, we reject
appellant’s twelfth proposition.
                                   C. Proportionality
        {¶107} In his fourth proposition of law, appellant argues that the death
penalty is disproportionate when his case is compared to similar cases in which the
death penalty has been imposed. We will consider appellant’s argument in our
independent review of his death sentence.
               D. Weighing and Determination of the Death Penalty
        {¶108} In his fifth proposition of law, appellant argues that the death
penalty must be vacated because the aggravating circumstances do not outweigh
the mitigating factors. We will also consider this argument in our independent
review of appellant’s death sentence.




                                           24
                                January Term, 2002




                       IV. Ineffective Assistance of Counsel
       {¶109} In his eleventh proposition of law, appellant alleges multiple
instances of ineffective assistance of counsel.      Reversal of convictions for
ineffective assistance of counsel requires that the defendant show, first, that
counsel’s performance was deficient and, second, that the deficient performance
prejudiced the defense so as to deprive the defendant of a fair trial. Strickland v.
Washington (1984), 

, 

, 

. Accord
State v. Bradley (1989), 

, 

, paragraph two of the
syllabus. “To show that a defendant has been prejudiced by counsel’s deficient
performance, the defendant must prove that there exists a reasonable probability
that, were it not for counsel’s errors, the result of the trial would have been
different.” 

 paragraph three of the syllabus.
             A. Failure to Conduct Voir Dire about Pretrial Publicity
       {¶110} Appellant complains that his counsel failed to inquire adequately
about pretrial publicity during voir dire.
       {¶111} We have recognized that “ ‘[t]he conduct of voir dire by defense
counsel does not have to take a particular form, nor do specific questions have to
be asked.’ “ State v. Cornwell (1999), 

, 

,
quoting State v. Evans (1992), 

, 

.
Moreover, “counsel is in the best position to determine whether any potential juror
should be questioned and to what extent.” State v. Murphy, 

,

; see, also, State v. Bradley, 

, 

.
       {¶112} The trial counsel filed a pretrial motion to conduct sequestered voir
dire on pretrial publicity, and this motion was granted. During voir dire, the trial
court asked the first panel of jurors about pretrial publicity, and one prospective
juror indicated that she had read a newspaper account about the event. However,




                                             25
                             SUPREME COURT OF OHIO




the trial counsel did not ask any questions about pretrial publicity during voir dire
examination.
       {¶113} The trial counsel retained flexibility to forgo voir dire on pretrial
publicity once the trial had started, and the defense counsel were not locked into
this line of questioning solely because of their pretrial motion. We find that counsel
were not ineffective, since their action falls “within the wide range of reasonable
professional assistance.” Strickland v. Washington, 

, 

, 

. Moreover, there is no evidence that pretrial publicity
affected appellant’s case, and any prejudicial impact is purely speculative.
Therefore, we reject this claim.
    B. Failure to Object to the Prosecutor’s Denigration of Reasonable Doubt
       {¶114} Appellant argues that his counsel were ineffective for failing to
object to the prosecutor’s use of a bridge analogy to explain reasonable doubt to the
jury and further erred by using the analogy during the defense opening statement.
We previously found that the prosecutor committed no misconduct in using the
bridge analogy at trial.     Moreover, appellant’s counsel effectively used the
prosecutor’s bridge analogy to defense advantage during their opening statement.
Under these circumstances, we find that appellant’s attorneys made a legitimate
tactical decision and were not ineffective. See State v. Bradley, 

, 

.
               C. Failure to Again Move to Seal the Prosecutor’s File
       {¶115} Appellant also asserts that his counsel were ineffective by failing to
again move to seal the prosecutor’s file. We held in regard to appellant’s eighth
proposition of law that the trial court committed no error by refusing to seal the
prosecutor’s file. Moreover, appellant’s claim that the prosecution withheld other
exculpatory evidence is purely speculative. Thus, this claim has no merit.




                                         26
                               January Term, 2002




               D. Failure to Recall Witnesses or Request a Mistrial
        {¶116} Appellant argues that his counsel were ineffective by failing to
recall witnesses or request a mistrial after learning that the prosecution withheld
evidence about Copas’s unconsciousness. During Ertel’s testimony, the defense
learned that Officer Hagar’s statement showed that Copas was unconscious after
the attack.
        {¶117} Appellant claims that his counsel should have recalled Copas’s
physicians and confronted them with Hagar’s statement. Appellant asserts that his
counsel could have used evidence of Copas’s unconsciousness to show that the
doctors’ failure to order an immediate CAT scan was gross medical malpractice.
Appellant also asserts that trial counsel could have used Hagar’s statement to
“create the inference that the physicians were lying about their lack of knowledge
of Copas’s unconsciousness.”
        {¶118} However, “counsel’s decision whether to call a witness falls within
the rubric of trial strategy and will not be second-guessed by a reviewing court.”
State v. Treesh (2001), 

, 

; see, also, State v.
Jackson (2001), 

, 

. No evidence exists that
Hagar informed Dr. Talkers or other treating physicians of Copas’s
unconsciousness, and thus this information played no role in Copas’s medical
treatment. Counsel could legitimately decide not to recall physicians to reiterate
that they were unaware of Copas’s unconsciousness. Furthermore, it was also
unlikely that trial counsel could have used Hagar’s statement to show that Copas’s
physicians were untruthful. Thus, we also reject this ineffectiveness claim.
         E. Failure to Develop Inconsistencies During Cross-examination
        {¶119} Appellant argues that his counsel were ineffective in their cross-examination of Dr. Katz and Dr. McWeeney, the state’s medical experts.
        {¶120} This court has recognized that “ ‘[t]rial counsel need not cross-examine every witness …. The strategic decision not to cross-examine witnesses




                                        27
                             SUPREME COURT OF OHIO




is firmly committed to trial counsel’s judgment ….’ “ State v. Campbell, 

, 

, quoting State v. Otte (1996), 

, 

.
       {¶121} First, appellant argues that his counsel were ineffective for failing
to bring out inconsistencies in Dr. Katz’s testimony about Copas’s numbness. On
direct examination, Dr. Katz testified that “tingling and numbness in his … face”
were two of several medical findings that led him to request a CAT scan.
Subsequently, however, Dr. Katz mentioned that the absence of any “weakness or
tingling or numbness in [Copas’s] body” was a reason why the “average
ophthalmologist” or “average emergency room physician” might not have ordered
a CAT scan.
       {¶122} Appellant does not explain how his attorneys’ failure to highlight
Dr. Katz’s inconsistencies made a difference in the outcome of his case. According
to Dr. Katz, the absence of numbness was only one of several factors that might
explain why an average emergency room doctor did not order a CAT scan. If
challenged, Dr. Katz likely would have corrected his misstatement about numbness
and clarified his testimony. However, it is unclear whether Dr. Katz’s clarification
would have worked in appellant’s favor.
       {¶123} Thus, counsel could decide to forgo further cross-examination to
avoid the danger of reinforcing the state’s evidence (i.e., numbness as only one
factor) and clarifying expert testimony that might not come out in appellant’s favor
(i.e., numbness as a subtlety that might be overlooked). Moreover, the jurors heard
Dr. Katz’s testimony, and they could evaluate his inconsistencies during their
deliberations.   We find that appellant’s attorneys made a legitimate “tactical
decision” and were not ineffective. State v. Bradley, 

, 

.
       {¶124} Second, appellant contends that his counsel were ineffective by
failing to cross-examine Dr. McWeeney on the implications of Copas’s numbness.




                                         28
                                January Term, 2002




Dr. McWeeney testified that Copas told him on August 23 that “he felt his face was
numb at times.” Thus, appellant argues that his counsel should have challenged
Dr. McWeeney’s failure to order a CAT scan in view of Dr. Katz’s testimony about
numbness of the face.
       {¶125} Appellant has not demonstrated how further cross-examination of
Dr. McWeeney would have made a difference in his case. In fact, Dr. McWeeney
testified that he ordered a CAT scan of Copas’s head because of his “traumatic
facial injuries.” Counsel made a legitimate “tactical decision” on the scope of
cross-examination, and we reject this claim.
            F. Failure to Call Witness on Conditions of Confinement
       {¶126} Appellant complains about his attorneys’ failure to present adequate
evidence about confinement for life without the possibility of parole or conditions
of confinement at the Ohio State penitentiary in Youngstown.
       {¶127} During mitigation, Trooper Ertel testified about conditions at the
maximum security prison at Youngstown based on his one visit to the prison. Ertel
said that inmates were housed individually and confined to their cells for up to
twenty-three hours a day. During appellant’s unsworn statement, he told jurors, “If
I get a life sentence, I will go to a super maximum prison where I will stay isolated
from others except contact with guards.”
       {¶128} Appellant claims that counsel were ineffective for failing to
subpoena “someone from Youngstown or the Department of Rehabilitation and
Corrections” to testify about conditions of confinement. According to appellant,
the jurors were interested in confinement conditions, since during sentence
deliberations, they had asked the trial court, “If given a life sentence, how is it
assured it will be served in a maximum security prison?” and “How will we be
assured he will be in his cell 23 hours a day?”
       {¶129} However, “[t]he decision to forgo the presentation of additional
mitigating evidence does not itself constitute proof of ineffective assistance of




                                         29
                             SUPREME COURT OF OHIO




counsel.” State v. Keith (1997), 

, 

. The
defense attorneys were not ineffective in relying on Ertel’s testimony about the
realities of prison life were appellant sentenced to life without parole. Moreover, “
‘[a]ttorneys need not pursue every conceivable avenue; they are entitled to be
selective.’ “ State v. Murphy, 

, 

, quoting United
States v. Davenport (C.A.7, 1993), 

.
       {¶130} Testimony about prison conditions was of questionable relevance,
since evidence about future conditions of confinement involves speculation as to
what future officials in the penal system will or will not do. Such evidence did not
relate to appellant, his background or the nature and circumstances of the crime and
therefore is not mitigating. See State v. White, 

, 

; see, also, People v. Thompson (1988), 

, 

,

; People v. Coddington (2000), 

, 

, 

 (conditions of confinement irrelevant to a capital sentencing
scheme); Schmitt v. Commonwealth (2001), 

, 

(evidence of prison life and security features of a maximum security prison not
admissible); but, c.f., State v. Rhines (1996), 

, 175, 

(prison life relevant when weighing alternatives of life imprisonment and the death
penalty). Thus, this claim of ineffectiveness has no merit.
            G. Failure to Present Adequate Evidence of Child Abuse
       {¶131} Appellant also complains about his attorneys’ failure to present
evidence about his child abuse.
       {¶132} Patricia Cutcher, appellant’s sister, testified that their mother was a
harsh disciplinarian and mentioned that appellant was sexually abused as a child,
although she did not elaborate.
       {¶133} Similarly, Dr. Burch testified that appellant’s mother was a very
abusive parent. Dr. Burch also testified that appellant’s relationship with his
mother was ambivalent, and it seemed that he was “pampered, but also abused later




                                         30
                                January Term, 2002




on.” Further, Dr. Burch mentioned “an allegation by one of the sisters that in one
of the foster placements she believed that there may have been some sexual abuse.”
         {¶134} Considerable evidence was introduced about parental abuse and
neglect for the jury’s consideration. The record does not support appellant’s
speculation that his counsel failed to present other available evidence to the jury
about the conditions of his upbringing. Indeed, appellant did not mention any abuse
during his unsworn statement. Thus, “ ‘[i]t may be … that counsel conducted a
diligent investigation, but [were] unable to find [more] substantial mitigation
evidence.’ “ State v. Otte, 

, 

, quoting State v.
Hutton (1990), 

, 

. Accordingly, we reject this
claim.
           H. Failure to Explain the Significance of Appellant’s Records
         {¶135} Appellant argues that his counsel failed to adequately explain the
significance of Lucas County Children Services records regarding one of his sister’s
problems with appellant’s mother in 1972 and appellant’s juvenile records from the
early 1960s.
         {¶136} Appellant contends that his counsel “merely handed over these
records to the jury” and asked them to read through them without providing the jury
with any guidance concerning their significance as mitigation. This is incorrect.
Dr. Burch’s extensive testimony about appellant’s childhood in a poor and abusive
household referenced information contained in appellant’s juvenile and family
records. Moreover, these records were not voluminous, and the jurors could readily
review this information during their deliberations.
         {¶137} We find that counsel made a legitimate “tactical” choice in
introducing appellant’s juvenile and family records without highlighting specific
items of information for the jury’s consideration. See State v. Jones, 

, 

. Appellant’s attorneys were not deficient, and we reject
this claim.




                                         31
                              SUPREME COURT OF OHIO




                  I. Failure to Object to Prosecutorial Misconduct
        {¶138} Appellant recasts his objections to prosecutorial misconduct into
claims of ineffective assistance of counsel without showing deficient performance
or how reasonably probable that, but for his attorneys’ errors, the result of the trial
would be different. State v. Bradley, 

, 

, paragraph
three of the syllabus. However, “ ‘[t]he failure to object to error, alone, is not
enough to sustain a claim of ineffective assistance of counsel.’ “ State v. Fears
(1999), 

, 

, quoting State v. Holloway (1988),

, 

; see, also, State v. Hartman (2001), 

, 

. Since appellant does not show that any
particular failure to object substantially violated any essential duty or was otherwise
prejudicial, we reject this claim.
                         J. Failure to Object to Instructions
        {¶139} Appellant also complains that his counsel were ineffective by
failing to object to two of the trial court’s instructions.
        {¶140} First, appellant argues that his counsel should have objected to the
trial court’s instructions on reasonable doubt. Earlier in this opinion, we found no
error in the court’s instructions on reasonable doubt. Thus, appellant’s attorneys
were not ineffective, and this claim lacks merit.
        {¶141} Second, appellant claims that counsel erred by failing to object to
the following instructions about his unsworn statement: “Now, Mr. Hanna will take
the stand in the mitigation presentation, but will not testify under oath and,
therefore, cross examination is not permitted. It is his right under Ohio law to do
so and the exercising of that right may not be considered by you to impair in any
way the value of what he tells you.”
        {¶142} The trial court’s instructions on unsworn statements did not
prejudice appellant. See State v. Grant (1993), 

, 

; see, also, State v. Davis (1996), 

, 

; State




                                           32
                                January Term, 2002




v. DePew (1988), 

, 

, paragraph two of the
syllabus. Thus, appellant’s attorneys were not deficient by failing to object, and we
reject this claim.
        {¶143} In summary, since none of appellant’s claims establishes ineffective
assistance of counsel, we find that his eleventh proposition lacks merit.
                             V. Constitutional Issues
        {¶144} In his fifteenth proposition of law, appellant disputes the
constitutionality of Ohio’s death penalty statute. We reject these claims and so
reject appellant’s fifteenth proposition. See State v. Carter (2000), 

, 

; State v. Clemons (1998), 

, 

; State v. Jenkins (1984), 

, 15 OBR 311, 

.
                               VI. Cumulative Error
        {¶145} In his thirteenth proposition of law, appellant argues that the
cumulative effect of errors in this case necessitates reversal of his conviction and
death sentence. However, we find that appellant received a fair trial and a fair
sentencing determination, and no significant cumulative error occurred. Therefore,
we reject appellant’s thirteenth proposition.
                      VII. Independent Sentence Evaluation
                          A. Aggravating Circumstances
        {¶146} The evidence established that appellant was properly convicted of
aggravated murder with prior calculation and design with death penalty
specifications for murder while a prisoner in a detention facility under R.C.
2929.04(A)(4) and for a prior purposeful killing under R.C. 2929.04(A)(5).




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                              B. Mitigation Evidence
       {¶147} Appellant called three mitigation witnesses, provided his own
unsworn statement to the jury, and submitted documentary evidence for the jury’s
consideration.
       {¶148} Patricia Cutcher, appellant’s sister, testified about appellant’s
upbringing. According to Cutcher, her appearance at the trial provided her with the
first opportunity to see appellant in twenty-one years. Cutcher was the youngest of
nine children (seven sisters and two brothers) in the Hanna family. The family
lived in a “little house” in Toledo, Ohio, that had no indoor plumbing.
       {¶149} Appellant’s mother raised the family after their father died. Their
mother did not work and supported the family on Social Security benefits received
after their father died in 1956. Only two of the nine children graduated from high
school. Appellant’s mother was a harsh disciplinarian. She would use a shoe, the
hard part of a vacuum hose, and willow switches to discipline her children.
Appellant was described as her mother’s favorite child. Appellant’s mother was
“slack with him” in enforcing rules. However, appellant got into trouble with “theft
and stuff like that” because of a lack of supervision at home.
       {¶150} According to Cutcher, appellant was sexually abused as a child,
although she provided no details. Finally, Cutcher mentioned that appellant was
placed in foster homes “more than twice” when he was growing up.
       {¶151} Dr.    Kathleen    Burch,        a   clinical   psychologist,   conducted
psychological testing of appellant, reviewed appellant’s records, and talked to his
mother and three of his sisters. According to Dr. Burch, appellant’s clinical history
showed that he was raised in a very dysfunctional family. Appellant’s family was
“extremely poor, to the point of living in an Army surplus tent for several years.”
       {¶152} Appellant’s father died when appellant was six years old.
Thereafter, appellant’s mother raised the family on her own. She was “rather
aggressive and abusive toward the children.” Appellant was his mother’s favorite




                                          34
                                January Term, 2002




child, and “he was allowed to pull the girls’ hair and be mean to them and not get
punished for it.” Meanwhile, his sisters were frequently punished, and on one
occasion, “the mother broke the sister’s nose because she made [appellant] get
angry. So it was very, very inconsistent and also humiliating, … for both the
daughters and James.” In sum, his mother “overprotected him in the sense of not
allowing him to accept responsibility or to be made … responsible for any of his
behaviors, but also treated him in a humiliating and overly controlling fashion.”
       {¶153} Appellant told Dr. Burch that he had killed Copas because he “had
been very careless and left the cell open when James was at work. And when this
guy left, he would leave the cell open and that a number of James’ personal
belongings were stolen.” According to appellant, Copas also “enlisted the support
of some of his friends and that threats were made against James.” On the night of
the stabbing, Copas “came back to the cell late and he was drunk and he was loud
and noisy and James was trying to sleep and could not sleep because of this guy’s
disruption.” Appellant then stabbed Copas in the eye and beat him when he stirred
around.
       {¶154} Family members told Dr. Burch that a neighbor had sexually abused
appellant. One of appellant’s sisters stated “that in one of the foster placements she
believed that there may have been some sexual abuse.” However, Dr. Burch was
not able to substantiate this abuse.
       {¶155} According to Dr. Burch, “[t]here were a lot of efforts to treat
[appellant],” beginning at about age 12 when he was admitted to the Child Study
Institute. “And then there were a couple of foster placements in between those
admissions. And then he was involved in Ohio Youth Services and several
placements.”
       {¶156} Neuropsychological testing showed that appellant has attention
deficit disorder, which was never diagnosed or treated, frontal lobe impairment in
the brain, and dysfunction in the right posterior aspect of his brain. Appellant was




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also diagnosed with a “personality disorder, predominantly antisocial, and he has a
passive/aggressive style and also hostile/dependent style of relating.” According
to Dr. Burch, appellant is “not a person who functions very well. He had a lifelong
history of poor performance in most areas. He’s not ever really showed the ability
to look ahead, to behave in his best interests, to delay gratification toward a future
goal, to regulate his feelings and his behavior in a way that allows healthy,
productive, effective relationships with other people.”
       {¶157} Dr. Burch stated that appellant’s imprisonment in a maximum
security prison, where there was virtually no contact with other inmates, would
likely cause his mental health to go more “off the beam.” However, “[i]t would be
safer for him and, from that aspect, for other people.”
       {¶158} During cross-examination, Dr. Burch stated that appellant’s
intelligence quotient (IQ) was in the normal range, between 91 and 111. There was
also no information that any of appellant’s brothers or sisters went to adult prison
for violent crimes.
       {¶159} Trooper Ertel described the conditions of imprisonment at the
maximum security prison at Youngstown based upon his one visit to that facility.
Ertel stated that prisoners were housed individually in cells for up to twenty-three
hours a day. During cross-examination, Ertel stated that prisoners at Lucasville
were housed in single cells and that prison guards escorted prisoners everywhere.
       {¶160} In his unsworn statement, appellant expressed “deepfelt regret and
remorse and, yes, also sorrow that I have in turn inflicted upon Peter Copas and
others innocent of any type of wrongdoing.” Appellant also said, “Considering the
type of isolation and incarceration that I exist under these days, weeks, months, and
years, I foresee no human contact other than corrections officers and officials, with
most of that being strictly limited to visual contact alone. My confinement consists
of a steel cement bed, mattress with bedding, light fixture, toilet and sink




                                         36
                                 January Term, 2002




combination, but without a window for fresh air, just the vent circulated variety
inside my cell.”
        {¶161} Appellant added, “I wanted an offer to plead guilty to aggravated
murder and receive a sentence of life in prison without parole. This would have
saved a trial. … [T]he prosecutor told my lawyers they would not agree.” If he
received a life sentence, appellant said, “I will go to a super maximum prison where
I will stay isolated from others except contact with guards.” In concluding remarks,
appellant said, “I again express my remorse and thanks (sic) you for listening to my
statement.”
        {¶162} Lucas County Juvenile Court records from 1962 through 1966
showed that appellant was a runaway, charged with being ungovernable,
unsuccessfully placed in foster care, and later placed in various juvenile institutions.
A probation counselor’s report dated September 21, 1962, described appellant’s
mother’s hardship as a single parent raising a large family with few financial
resources, appellant’s inability to get along with his mother, and the family’s
inadequate living conditions.
        {¶163} Records from 1963 showed that appellant was unable to adjust to
foster care. A psychologist’s report dated November 15, 1963, stated that appellant
was “disturbed emotionally and that institutional placement where he will receive
psychiatric counseling and training in accepting rules, regulations and limits” was
considered the preferred treatment approach. Appellant was committed to the
Youth Commission and transferred to the Boys’ Industrial School on December 27,
1963.   Records from 1964 through 1966 showed truancy infractions, parole
violations for disorderly conduct and theft, and parole violations for burglary and
larceny. In 1966, appellant escaped from the Fairfield School for Boys four times,
but he was apprehended and returned to the school on each occasion.
        {¶164} Lucas County children’s records from 1972 pertaining to
appellant’s sister Patricia discussed the family’s living situation and illustrated Mrs.




                                          37
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Hanna’s lack of concern for her children’s home placement. Mrs. Hanna was
described as a “dramatic woman with a loud, almost piercing voice.”
                             C. Sentence Evaluation
       {¶165} We find that the evidence proves beyond a reasonable doubt that
appellant was guilty of the charged aggravating circumstances, i.e., murder while a
prisoner in a detention facility, R.C. 2929.04(A)(4), and a prior purposeful killing
under R.C. 2929.04(A)(5).
       {¶166} We find nothing in the nature and circumstances of this offense to
be mitigating. Appellant fashioned the sharpened end of a paintbrush into a deadly
weapon, thrust it into Copas’s right eye socket while he was sleeping, and then
broke off the paintbrush handle, leaving five inches of it lodged inside Copas’s
brain. Appellant then continued the attack by hitting Copas about the head with a
padlock in a sock. Later, appellant bragged about killing this “maggot baby-raperkiller,” making him suffer by stabbing “one of his eyeballs up out of its socket,”
and then beating on “his stupid-ass-head off-and-on for two (2) hours.” Thus, the
facts show a senseless, horrific murder that lacks any mitigating features.
       {¶167} Appellant’s history and background provide some mitigating
features. Appellant grew up as one of nine children in a dysfunctional family.
Appellant’s father died when he was young, and he was raised by an abusive, overly
controlling mother. His teenage years were turbulent as he was removed from his
home, placed in foster care, and later spent time in various juvenile institutions.
Appellant’s character offers no redeeming features.
       {¶168} We conclude that, pursuant to R.C. 2929.04(B)(7), these facts are
applicable but entitled to little weight. Dr. Burch testified that appellant has
attention deficit disorder, antisocial personality disorder, and suffers from some
organic injury to his brain. However, psychological and mental disorders do not
mitigate the aggravating circumstances of this crime. See State v. Stojetz, 

                                 January Term, 2002




St.3d at 472, 

 (paranoid schizoid personality and post-traumatic
stress disorder entitled to only modest weight under [B][7]).
        {¶169} Other factors in mitigation include appellant’s unsworn statement.
Appellant expressed remorse for killing Copas. Appellant’s remorse represented a
sharp contrast to his sentiments about the murder in his letter to Borowski in
January 1998. Then, he boasted about killing Copas. Thus, we attach little weight
to appellant’s expression of remorse during his unsworn statement. See State v.
Keene (1998), 

, 

 (retrospective remorse
entitled to little weight in mitigation).
        {¶170} Appellant’s unsworn statement also mentioned that he offered to
plead guilty as charged if allowed to accept a sentence of life without parole.
However, appellant had been in prison since 1978 for aggravated murder and
attempted aggravated murder. Thus, given his status at the time of the offense, we
agree with the trial court that appellant’s “offer to plea was conceding little
regardless of the outcome of the offense.” We find that appellant’s offer to plea is
entitled to little weight in mitigation.
        {¶171} In summary, appellant’s collective mitigation is weak. His family
background, psychological disorders, and his unsworn statement are entitled to
modest weight in mitigation.        Overall, the mitigating factors are of minimal
significance, and the aggravating circumstances substantially outweigh them.
        {¶172} We find that appellant’s death sentence is proportionate to death
sentences approved for murders by inmates in detention facilities, see State v.
Stojetz, 

, 

; State v. Bradley, 

, 

; State v. Zuern, 

, 

, and for
offenders with prior murder convictions, see State v. Taylor, 

,

; State v. Carter, 

, 

; State v.
Mapes (1985), 

, 19 OBR 318, 

.




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                           SUPREME COURT OF OHIO




       {¶173} For the foregoing reasons, we affirm appellant’s convictions and
death sentence.
                                                             Judgment affirmed.
       MOYER, C.J., DOUGLAS, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG
STRATTON, JJ., concur.
                             __________________
       Timothy A. Oliver, Warren County Prosecuting Attorney, Kenneth A.
Ewing and James D. Beaton, Assistant Prosecuting Attorneys, for appellee.
       David H. Bodiker, Ohio Public Defender, Stephen A Ferrell, Kelly L.
Culshaw and Diane M. Menashe, Assistant Public Defenders, for appellant.
                             __________________




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