State v. Franklin

[This decision has been published in Ohio Official Reports at 

.]




           THE STATE OF OHIO, APPELLEE, v. FRANKLIN, APPELLANT.
                     [Cite as State v. Franklin, 

.]
Criminal law—Aggravated murder—Death penalty upheld.
     (No. 1998-2061—Submitted May 21, 2002—Decided October 16, 2002.)
          APPEAL from the Court of Common Pleas of Montgomery County, No.
                                       97-CR-1139.
                                  __________________
        FRANCIS E. SWEENEY, SR., J.
        {¶1} Appellant, Antonio Sanchez Franklin, appeals from his convictions
and accompanying death sentences for the aggravated murders of Ophelia Franklin,
Ivory Franklin, Sr., and Anthony Franklin.
                                         I. FACTS
                                   A. Causes of Deaths
        {¶2} At 1:53 a.m. on April 18, 1997, the Dayton Fire Department was
dispatched to a fire at 39 Riegel Street, where appellant lived with his grandmother,
Ophelia Franklin, his grandfather, Ivory Franklin, Sr., and his uncle, Anthony
Franklin. Upon entering the house, firefighters found three bodies. Ophelia
Franklin was found lying on the floor with blood on her head. A bloody baseball
bat lay next to her. The body of Ivory Franklin was found upstairs. When
firefighters carried his body outside, their gear was covered with blood. Once the
fire was under control, firefighters then observed the charred body of Anthony
Franklin in the center room of the first floor.
        {¶3} An autopsy revealed that Ophelia Franklin had sustained a gunshot
wound to her forehead and a bullet track through her brain. Forensic pathologist
Dr. David Smith observed at least eight blunt force injuries to her head, consistent
                           SUPREME COURT OF OHIO



with the use of a baseball bat. He concluded that either the gunshot wound or the
blunt force injuries would have killed her.
       {¶4} Dr. Smith further found that Ivory Franklin had been subjected to at
least five hard blows to the back of the head, which fractured his skull. However,
the examination suggested that the weapon used to cause these injuries was
something other than a baseball bat. Anthony Franklin also sustained multiple
fractures to his skull, which were consistent with the use of a baseball bat. Dr.
Smith concluded that both Ivory Franklin and Anthony Franklin died of “blunt
impact injuries of the head and inhalation of products of combustion.”
                                     B. Arrest
       {¶5} Later in the morning, appellant was involved in an automobile accident
while driving Ivory Franklin’s car in Tennessee. Appellant abandoned the vehicle.
Then, around 6:00 p.m., after receiving reports of a suspicious person in a
Nashville, Tennessee neighborhood, two police officers found and questioned
appellant. Appellant gave officers a false name and claimed to be a juvenile. He
carried no identification, and his answers to questions were suspicious. An officer
then asked appellant about the bulge in his jacket pouch. When appellant began to
reach into that pouch, the officer told him to stop and tried to frisk him. However,
appellant ran from the officers. Upon catching up to him, the officers searched
appellant, found a loaded gun and jewelry, and arrested appellant for carrying a
weapon and resisting a stop. The gun later was determined to be Ivory’s, and a
firearms examiner concluded that it had fired the bullet recovered from Ophelia
Franklin’s skull. Blood was found on the shoes, pants, and jacket that appellant
was wearing when he was arrested.
       {¶6} Two days later, when appellant was in police custody in a Tennessee
jail, a Dayton police detective spoke with him. After receiving Miranda warnings,
appellant signed a waiver and said to the detective, “You figured out I did it.” When
asked why he committed the crimes, appellant replied, “They weren’t treating me




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                                  January Term, 2002



right.” He said that he and his family “were always bumpin’ heads” and that they
had threatened to kick him out of the house. He also said that he had killed his
relatives because Anthony Franklin had raped him when appellant was fourteen
years old.
                               C. Trial Court Proceedings
        {¶7} Appellant was charged in a seventeen-count indictment with four
death specifications,1 inter alia, for the aggravated murders of Ophelia Franklin,

1.       {¶a}      Appellant was charged as follows:
{¶b}     Count I: Aggravated arson, R.C. 2909.02(A)(2);
{¶c}     Count II: Aggravated arson to the person of Anthony Franklin, R.C. 2909.02(A)(1);
{¶d}     Count III: Aggravated arson to the person of Ivory Franklin, Sr., R.C. 2909.02(A)(1);
{¶e}     Count IV: Aggravated robbery of Ophelia Franklin, R.C. 2911.01, with an accompanying
firearm specification, R.C. 2941.145;
{¶f}     Count V: Aggravated robbery, R.C. 2911.01(A)(3);
{¶g}     Count VI: Aggravated murder of Anthony Franklin, R.C. 2903.01(B), with death
specifications for violations of the following: R.C. 2929.04(A)(3) (murder for the purpose of
escaping detection for another offense), R.C. 2929.04(A)(7) (murder during commission of
aggravated robbery), R.C. 2929.04(A)(7) (murder during commission of aggravated arson), and
R.C. 2929.04(A)(5) (multiple murder);
{¶h}     Count VII: Aggravated murder of Anthony Franklin with prior calculation and design,
R.C. 2903.01(A), with the same specifications as were attached to Count VI;
{¶i}     Count VIII: Aggravated murder of Ivory Franklin, Sr. with prior calculation and design,
R.C. 2903.01(A), with the same specifications as were attached to Count VI;
{¶j}Count IX: Aggravated murder (felony-murder) of Ivory Franklin, Sr., R.C. 2903.01(B), with
the same specifications as were attached to Count VI;
{¶k}     Count X: Aggravated murder of Ophelia Franklin with prior calculation and design, R.C.
2903.01(A), with a firearm specification, R.C. 2941.145, and the same specifications as were
attached to Count VI;
{¶l}     Count XI: Aggravated murder (felony-murder) of Ophelia Franklin, with the same
specifications as were attached to Count X;
{¶m} Count XII: Aggravated arson for exposing firefighter Russell Scott Bennett to a risk of
serious physical harm, R.C. 2909.02(A)(1);
{¶n}     Count XIII: Aggravated arson for exposing firefighter Michael Fink to a risk of serious
physical harm, R.C. 2909.02(A)(1);
{¶o}     Count XIV: Aggravated arson for exposing Captain Barry Holbrook to a risk of serious
physical harm, R.C. 2909.02(A)(1);
{¶p}     Count XV: Aggravated arson for exposing firefighter Kevin Bushur to a risk of serious
physical harm, R.C. 2909.02(A)(1);
{¶q}     Count XVI: Aggravated arson for exposing firefighter Kevin Green to a risk of serious
physical harm, R.C. 2909.02(A)(1); and
{¶r}     Count XVII: Aggravated arson for exposing firefighter Todd Shiverdecker to a risk of
serious physical harm, R.C. 2909.02(A)(1).




                                               3
                              SUPREME COURT OF OHIO



Ivory Franklin, Sr., and Anthony Franklin. Appellant entered a plea of not guilty
by reason of insanity and claimed to be incompetent to stand trial. The trial court
rejected this claim, and the case proceeded to trial.
        {¶8} At trial, the judge granted defense motions to dismiss two of the counts
against appellant.2 The jury found appellant guilty of all remaining counts and
specifications. After the penalty phase, the jury recommended death sentences on
each aggravated murder count. The trial court sentenced appellant to death on each
aggravated murder count and to a total of 91 years in prison on the noncapital counts
in the indictment.
        {¶9} The cause is now before this court upon an appeal as of right.
Appellant has set forth seventeen propositions of law for our consideration, which
we have reviewed thoroughly.             We have considered the death penalty for
appropriateness and proportionality, and we have independently weighed the
aggravating circumstances against the evidence presented in mitigation. For the
reasons that follow, we affirm appellant’s convictions and the sentences imposed.
                                    II. DISCUSSION
                                       Pretrial Issues
                                  A. Search and Seizure
        {¶10} In his ninth proposition of law, appellant contends that police
conducted an improper search and seizure and asks this court to reverse the trial
court’s denial of his motion to suppress items seized in connection with the search.
These include the gun used to shoot Ophelia Franklin and the jewelry stolen from
her. He also seeks suppression of all post-arrest statements that he made as a result.
        {¶11} We reject this argument. It is well settled that a law enforcement
official is permitted to stop and briefly detain a person for investigative purposes if
the officer has a reasonable suspicion supported by articulable facts that “criminal

2. The motions for judgment of acquittal were granted with respect to Counts XV and XVII.




                                              4
                               January Term, 2002



activity may be afoot,” even if the officer lacks probable cause. Terry v. Ohio
(1968), 

, 

, 

. Thus, police officers are
generally permitted to approach an individual, even if they have no basis to
conclude that he is suspicious, and may ask questions of and request identification
from the individual “as long as the police do not convey a message that compliance
with their requests is required.” Florida v. Bostick (1991), 

, 

, 

.
       {¶12} In this case, the police were justified in making a Terry stop. Not
until the officer ordered appellant to submit to a frisk was there any demonstration
of authority that would constitute a stop. Instead of submitting to the officers’ order
to stop and put his hands behind his back, which began a reasonable search for
Fourth Amendment purposes, appellant fled. Based on these facts, the trial court
correctly concluded that this stop and the subsequent arrest were justified. The
officers had been alerted that illegal activity might be taking place at the location
where appellant was found. Appellant could not provide identification and was
evasive in his responses to the officers.      Additionally, the bulging pouch of
appellant’s jacket suggested a weapon and caused the officers to fear for their
safety. These facts created more than enough reasonable suspicion to warrant the
Terry stop.
       {¶13} In Pennsylvania v. Mimms (1977), 

, 

, 

, an officer observed a bulge in the jacket of a motorist whom he had
stopped. When the officer frisked him, he found a handgun. The frisk was held
permissible since it was reasonable for the officer to discern that the motorist was
armed and could pose a threat. Similarly, in the case sub judice, the officers could
have reasonably concluded that there was a risk to their safety. Under the totality
of the circumstances, the stop and frisk and the subsequent arrest were justified,
and the evidence obtained as a result was admissible. Appellant’s ninth proposition
of law is overruled.




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                            SUPREME COURT OF OHIO



                                     Trial Issues
                           B. Competence to Stand Trial
        {¶14} In his third proposition of law, appellant contends that the trial court
sua sponte should have reconsidered the issue of whether he was competent to stand
trial. This argument lacks merit.
        {¶15} The question of whether to hold a competency hearing after the
commencement of trial is left to the court’s discretion. State v. Rahman (1986), 

, 23 OBR 315, 

.                  A defendant has a
constitutional right to such a hearing only when there is sufficient “indicia of
incompetence” to alert the court that an inquiry is needed to ensure a fair trial. State
v. Berry (1995), 

, 

. Considerations in this
regard might include supplemental medical reports, specific references by defense
counsel to irrational behavior, and the defendant’s demeanor during trial. See State
v. Chapin (1981), 

, 

, 

, paragraph
one of the syllabus.
        {¶16} Appellant points to psychologist Dr. Eugene Cherry’s finding that
appellant was a paranoid schizophrenic as an indication of his incompetency.
However, this evidence did not need to be reconsidered because similar testimony
had been presented at appellant’s pretrial competency hearing.            Furthermore,
appellant argues that his erratic behavior at trial, which included belching loudly
and interrupting the judge, further demonstrated his incompetency. Although these
actions did indeed constitute strange behavior, they illustrated a pattern of rudeness
rather than incompetency to stand trial. Therefore, the evidence upon which
appellant relies does not shed any new light on appellant’s ability to understand the
proceedings, to interact with his counsel, or to assist in his defense. Consequently,
we do not believe that the trial court abused its discretion by declining to revisit the
competency issue. Appellant’s third proposition of law is without merit.
                             C. Denial of Continuance




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                              January Term, 2002



       {¶17} Appellant also contends, in proposition of law number ten, that the
trial court deprived him of due process in denying his motion for a continuance.
We disagree. In appellant’s case, arson investigators William Fricker and William
Yeazell inspected the victims’ home after the fire. The defense had planned to call
Fricker as an expert witness on arson, but he died unexpectedly two days before the
defense began its case. Appellant moved for a continuance, seeking one to two
additional weeks to find a new expert. The trial court denied the motion, pointing
out that appellant had another expert witness, Yeazell, available to testify. Before
resting his case, appellant renewed the motion and briefly proffered Fricker’s
expected testimony. The motion was once again denied.
       {¶18} The decision of whether to grant a continuance rests in the broad
discretion of the trial court. See, e.g., Morris v. Slappy (1983), 

, 

, 

; State v. Lorraine (1993), 

, 

.     While there is no bright-line test for determining whether a
continuance should be allowed, a court should be guided by consideration of several
factors, including the length of the requested delay, whether other continuances
have been requested and received, the inconveniences likely to result, the reasons
for the delay, and whether the defendant contributed to the circumstances giving
rise to the need for delay. State v. Unger (1981), 

, 

, 

.
       {¶19} Applying these factors, we find that the trial court did not abuse its
discretion in denying the request for a continuance. Appellant requested the delay
in the middle of the trial, which would have inconvenienced everyone involved and
would have placed the jurors out of the court’s control for a great deal of time.
Additionally, this continuance would have been the second granted to the defense;
the court had previously postponed the beginning of the trial for seven months due
to an auto accident involving one of appellant’s attorneys. Moreover, the defense




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called Yeazell, another arson expert, who had inspected the home with Fricker.
These factors weighed heavily against granting the continuance.
       {¶20} It is true that the timing of the death was no fault of the defense, but
this factor does not override the numerous reasons for denying appellant’s motion.
Upon our review of the trial court’s decision to deny a continuance, we find that
the surrounding facts and circumstances support that decision. Proposition of law
number ten is without merit.
                                 D. Photographs
       {¶21} In his fourth proposition of law, appellant argues that certain postmortem photographs of the victims should have been excluded from evidence
because they are gruesome. Gruesome photographs are inadmissible in capital
cases if their probative value is outweighed by the danger of unfair prejudice to the
defendant, or if they are repetitive or cumulative. State v. Morales (1987), 

, 

. Exhibits 56 and 61, two photos that feature the
covered bodies of Ophelia Franklin and Ivory Franklin lying in the back of an
ambulance and a close-up of Ivory’s bloody stocking feet, are not gruesome, and
their admission was proper.
       {¶22} Although separate autopsy slides presented by the prosecution were
gruesome, their probative value was high, since they corroborated the medical
examiner’s testimony as to the nature and extent of the victims’ injuries. They were
also pertinent to prove prior calculation and design.
       {¶23} We also note that the record contains a lengthy discussion of whether
individual photographs should be admitted. In fact, the judge excluded three slides
and five photos when applying the above test. This action convinces us that the
trial judge subjected each photo to the proper scrutiny before admitting them.
Proposition of law number four is overruled.
                           E. Prosecutorial Misconduct




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                               January Term, 2002



        {¶24} In his fifth proposition of law, appellant alleges several instances of
prosecutorial misconduct. The conduct of a prosecuting attorney cannot be the
ground for error unless the conduct deprived the defendant of a fair trial. State v.
Maurer (1984), 

, 15 OBR 379, 

. A claim of
prosecutorial misconduct is waived unless raised at trial, and if so waived, can serve
as the basis for relief only if the conduct constitutes plain error. State v. Wogenstahl
(1996), 

, 

. Plain error analysis requires an
inquiry into whether, but for the error, the outcome of the trial would have been
different. 

 In each instance of alleged prosecutorial misconduct in the case at
bar, defense counsel failed to object. Therefore, our review is subject to a plain
error analysis.
        {¶25} Appellant first asserts error in the prosecutor’s eliciting of evidence
of victim impact.       One alleged instance concerned testimony from Ophelia
Franklin’s daughter.      Stephanie Franklin testified that, around the time that
appellant’s grandparents had directed appellant to find work, go to school, or leave
their home, he “would do things to intentionally upset my mother or hurt my mother
… things like go into the bathroom mid-afternoon and stay in there for three
hours. She has a bladder problem. He would do it intentionally.” Appellant
contends that this testimony was irrelevant and constitutes prosecutorial
misconduct.       We disagree, because the testimony was relevant to show that
appellant had a penchant for causing harm to Ophelia. Since it was relevant, there
was no plain error and thus no misconduct.
        {¶26} Appellant also argues that evidence introduced at trial regarding
appellant’s tattoos was irrelevant and inflammatory.         Two tattoos depicted a
tombstone bearing the words “R.I.P….Franklin’s” and the phrase “BOUT IT
BOUT IT” above the drawing. Another tattoo read “URTRU SOLDIER”, and a
fourth displayed the letters “CCP,” referring to appellant’s association with the
Chelsea Court Players, a group whose members were said to “smoke pot together




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                           SUPREME COURT OF OHIO



[and] have a good time.” Any references to these tattoos were relevant to counter
the defense theory that appellant was delusional. As the prosecution argued, the
first three tattoos demonstrate a manifestation of bravado by appellant regarding
the murders and were relevant to rebut the defense’s argument. The “CCP” tattoo
was also relevant, since the prosecution used it to show appellant’s legitimate fear
of a local gang. This evidence rebutted the defense’s theory that appellant’s
concern about being harmed by a local gang was delusional, since it tended to show
his possible membership in a rival gang. Therefore, the presentation of these tattoos
was not prosecutorial misconduct.
       {¶27} Appellant also alleges prosecutorial misconduct when the prosecutor
described appellant as “rude,” “conniving,” “mean,” and “one of the most meanspirited individuals you will ever encounter.”        We have stated that “[t]he
prosecution may, of course, comment on the accused’s appearance.” State v. Brown
(1988), 

, 

. Similarly, this rule can be
extended to commentary on a defendant’s actions at trial. Given appellant’s rude
demeanor at trial, the prosecutor’s characterization of appellant was not
prosecutorial misconduct. It is clear that the prosecutor was not merely undertaking
a personal attack on appellant. Rather, the labeling of appellant summed up the
argument that his personality traits were consistent with that of a cold-blooded
killer. Thus, the characterizations did not constitute misconduct for which a
reversal is warranted.
       {¶28} In another assertion of misconduct, appellant contends that the
prosecutor improperly accused one of the defense’s expert witnesses, arson
investigator William Yeazell, of lying on the stand. While it is true that the
prosecution should not be permitted to refer to defense evidence as “lies” when
nothing supports such an accusation, State v. Stephens (1970), 

, 

, 

, in the instant matter there was evidence to
corroborate the prosecution’s observation. For instance, Yeazell testified that, as




                                         10
                               January Term, 2002



an arson investigator, he would not form an opinion as to the cause of a fire until
he had sent samples to the laboratory and had seen the resulting lab report. The
prosecutor countered with two reports that Yeazell had written for the State Fire
Marshal’s Office before he had seen lab results. Additionally, rebuttal witnesses
said that Yeazell had testified untruthfully about his conversations with them.
Yeazell’s credibility was called into question by the prosecution and was properly
considered by the jury. When the prosecutor stressed this point by characterizing
the witness’s testimony as “lies,” he was merely highlighting what the evidence
could be seen to indicate. This was entirely proper.
       {¶29} A more difficult matter is appellant’s assertion that it was misconduct
for the prosecution to suggest at trial that the defense had planted evidence. In fact,
the trial judge referred to this characterization as “improper” and “illegitimate.”
However, we do not find plain error.
       {¶30} Yeazell had inspected the fire scene at 39 Riegel Street on a few
previous occasions but claims not to have observed a space heater in the center
room of the house until his final visit. In Yeazell’s opinion, the heater had fallen
on its side and had started the fire. Conversely, the state argues that the evidence
supports the conclusion that the heater was not in the house when it burned, and
contends that planting of evidence was a plausible inference, especially since
Yeazell’s credibility had been impeached.
       {¶31} We find that the prosecution’s statements did not deny appellant a
fair trial since they did not misstate or manipulate the evidence. Instead, the
argument was conjoined with an attack on Yeazell’s credibility. When considered
in this light, it cannot be said that, but for the error, the verdict would have been
otherwise. See State v. Johnson (1989), 

, 

.
       {¶32} None of appellant’s assertions of prosecutorial misconduct has merit,
so we find no plain error. Appellant’s fifth proposition of law is overruled.
                              F. Ineffective Assistance




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        {¶33} In his seventh proposition of law, appellant claims that his counsel
failed to render effective assistance at various points during trial. “To win a reversal
on the basis of ineffective assistance of counsel, the defendant must show, first, that
counsel’s performance was deficient and, second, that the deficient performance
prejudiced the defense so as to deprive the defendant of a fair trial.” State v. Jones
(2001), 

, 

, citing Strickland v. Washington
(1984), 

, 

, 

. To show such
prejudice, “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.”
State v. Bradley (1989), 

, 

, paragraph three of the
syllabus.
        {¶34} Appellant first alleges ineffective assistance during voir dire by his
trial counsel’s failure to ensure that the proper standard was used to qualify the jury
for a capital case. We disagree. The relevant inquiry during voir dire is whether
the juror’s beliefs would prevent or substantially impair his or her performance of
the duty in accordance with the instructions and oath. Wainwright v. Witt (1985),

, 

, 

. In the present case, the trial
judge asked jurors whether they were capable of signing a death verdict. Clearly,
a juror who is incapable of signing a death verdict demonstrates substantial
impairment in his ability to fulfill his duties. Although the judge’s inquiry differed
in form from that endorsed by the Witt court, the substance of his interrogation was
the same. Thus, the failure to object to the judge’s line of questioning in voir dire
did not constitute deficient performance by appellant’s counsel.
        {¶35} Appellant next argues that his counsel failed to properly question
prospective jurors about pretrial publicity in an effort to support a motion for a
change of venue. Since the record is replete with instances where the trial judge
asked questions regarding pretrial publicity, we find that trial counsel’s decision
not to elicit more answers from the jurors was acceptable.




                                          12
                              January Term, 2002



       {¶36} Appellant further contends that counsel should have objected when
the trial judge told prospective jurors that information from the media constituted
“facts.” In particular, the judge stated that certain things mentioned in the media
“are all facts. … But that doesn’t tell you what happened, does it?” Furthermore,
he stated to the jurors that when they read or hear reports in the media, “you really
don’t know if that’s how it happened.”
       {¶37} The trial judge’s statements were not improper. By “fact,” the judge
did not imply that he meant “truth.” Instead, he went out of his way to stress that
media statements might not be true and that the jurors must make their decisions
without regard to extraneous influences. Thus, there was no need for appellant’s
counsel to object.
       {¶38} Appellant next contends that his attorneys should have objected to
the trial court’s statements that the jury’s recommendation concerning the
appropriate penalty to be imposed would be a recommendation and that if the jury
recommended death, the judge would independently determine whether the
recommendation was supported by proof beyond a reasonable doubt.                 This
contention is also flawed, since the trial court’s statements accurately reflect Ohio
law. State v. Keenan (1998), 

, 

; State v.
Rogers (1986), 

, 28 OBR 480, 

, paragraph one of
the syllabus.
       {¶39} Appellant further contends that the trial court “forced [counsel] into
ineffectiveness” by not permitting them to ask jurors during voir dire about
potential mitigating evidence. Consequently, appellant asserts, his counsel were
unable to ensure the seating of a fair and impartial jury. We find that the failure to
object to the trial court’s restrictions on questioning did not amount to error.
“[W]eighing aggravating circumstances against mitigating factors is a complex
process. … Realistically, jurors cannot be asked to weigh specific factors until
they have heard all the evidence and been fully instructed on the applicable law.”




                                         13
                          SUPREME COURT OF OHIO



State v. Lundgren (1995), 

, 

. The defense
was given the opportunity to otherwise question affected jurors, and the trial judge
was not required to permit defense counsel to inquire as to factors that had not yet
been admitted into evidence.
       {¶40} Appellant also presents myriad allegations of ineffective assistance
during the guilt phase of trial. He argues that his attorneys should have moved to
suppress his May 6, 1997 statements to police while he was being transported from
Tennessee to Ohio on the ground that the Miranda warnings he had been given in
Nashville had gone stale and should have been re-administered. This argument is
erroneous.   Interrogation involves express questioning or words or actions
reasonably likely to elicit an incriminating response. Rhode Island v. Innis (1980),

, 

, 

. Since the record does not
yield evidence of an interrogation, any statements made by appellant were
admissible without regard to Miranda warnings, and the filing of any motion on
this premise would have been futile.
       {¶41} Appellant next contends that his counsel acted ineffectively by
failing to request a second competency hearing. However, we have found in our
discussion of appellant’s third proposition of law that no such hearing was
warranted. He also alleges that expert witnesses Yeazell and Dr. Cherry were
discredited on cross-examination because his counsel failed to adequately prepare
them. This argument is not supported by the record.
       {¶42} Nor do we find merit in appellant’s argument that his counsel were
guilty of ineffective assistance by failing to object to prosecutorial misconduct in
closing argument and by failing to object to hearsay, leading questions, and
improper jury instructions. A reasonable attorney may decide not to interrupt his
adversary’s argument as a matter of strategy. See State v. Keene (1998), 

, 

. Furthermore, appellant cites no specific instances
of hearsay or leading questions. Appellant’s argument that counsel should have




                                        14
                               January Term, 2002



objected to incorrect jury instructions given with respect to voluntary-manslaughter
is without merit, because we find below that the instruction was not prejudicial.
        {¶43} Appellant further contends that his counsel should not have stipulated
to the chain of custody on the stolen goods found on appellant’s person after his
arrest. “However, the state was not required to prove a perfect, unbroken chain of
custody.” 

, 

. Even if the chain of custody had indeed been
broken, this fact goes to the weight, rather than the admissibility, of the evidence.
State v. Richey (1992), 

, 

. Because the jury
would have considered this evidence in any event, the stipulation did not prejudice
appellant.
        {¶44} Appellant also asserts that his counsel were ineffective because they
failed to object to appellant’s being handcuffed and because they failed to request
a hearing on the issue. Although shackling a defendant can be prejudicial, we find
no apparent prejudice here (see discussion of second proposition of law).
        {¶45} Appellant argues that his lawyers should have objected to the blanket
re-admission of guilt phase evidence into the penalty phase and that they should
have sought merger of the four death penalty specifications against appellant into
two. We discuss these issues at length (see propositions of law one and six) and
have determined that appellant was not prejudiced in these respects. The same can
be said about appellant’s contention that his counsel should not have waived his
presence during discussions with the trial judge. Since we cannot find that there
exists a reasonable probability that, but for counsel’s actions, the result of the trial
would have been different, there was no prejudice.
        {¶46} We find no basis to reverse appellant’s convictions or sentences on
the grounds of ineffective assistance of counsel. Therefore, proposition of law
number seven is overruled.
                                      G. Merger




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       {¶47} In his sixth proposition of law, appellant argues that several counts
and specifications in his indictment should have been merged. Appellant was
indicted on two counts of aggravated murder for each of the three victims. He now
asserts that the trial court should have required the state to elect, during the penalty
phase of trial, only one aggravated murder count to be submitted to the jury for each
victim. We reject this argument, as this court has consistently held otherwise. See
State v. Goff (1998), 

, 

; State v. Waddy
(1992), 

, 

.
       {¶48} Appellant also argues that the six aggravated arson counts against
him are allied offenses of similar import and should merge into one, because he set
only one fire and thus committed only one arson. Under R.C. 2909.02(A)(1),
aggravated arson requires that a defendant knowingly set a fire that creates a
substantial risk of serious harm or injury to another person. Even though appellant
set only one fire, each aggravated arson count recognizes that his action created a
risk of harm to a separate person. In State v. Jones (1985), 

,
18 OBR 148, 

, the court construed this state’s aggravated vehicular
homicide statute to allow convictions for separate violations “for each person killed
as the result of a single instance of [the defendant’s] reckless operation of his
vehicle.” By analogy with Jones, appellant’s conduct caused six offenses of
dissimilar import because six different people were placed at risk. For this reason,
appellant’s argument fails.
       {¶49} Appellant next asserts that the trial court should have merged the four
death specifications into two for the penalty phase of trial so that the jury would
have considered only the aggravated arson and aggravated robbery specifications.
This argument is based on the rule that where two or more aggravating
circumstances arise from the same act or indivisible course of conduct and are thus
duplicative, they will be merged for sentencing purposes. State v. Jenkins (1984),

, 15 OBR 311, 

, paragraph five of the syllabus.




                                          16
                               January Term, 2002



Appellant first argues that the R.C. 2929.04(A)(3) specification (escaping
detection) should have merged into the aggravated arson felony murder
specification for the penalty phase of his trial. The state asserts that appellant would
have been entitled to a merger of the escaping detection and felony murder
specifications had he so requested, but, in any event, reversal is not required.
       {¶50} Where duplicative aggravating circumstances are submitted to a jury
but should have been merged during the penalty phase of trial and this court effects
such a merger upon appellate review, “resentencing is not automatically required
where the reviewing court independently determines that the remaining aggravating
circumstances outweigh the mitigating factors beyond a reasonable doubt and that
the jury’s consideration of duplicative aggravating circumstances in the penalty
phase did not affect the verdict.” Jenkins, 

, 15 OBR 311, 

, paragraph five of the syllabus. Upon our thorough weighing of the
aggravating circumstances in this case against the mitigating factors, we find
beyond a reasonable doubt that the jury’s verdict here would have been no different
in the absence of the allegedly duplicative aggravating circumstances.             Our
independent review cures any error.
       {¶51} Appellant also asserts that the aggravated arson specification should
have been merged with the course-of-conduct specification. We do not agree. This
court uses the same analysis to determine whether two aggravating circumstances
merge as it utilizes to decide whether two offenses are allied offenses of the same
import. 

, 15 OBR 311, 

. In summary, this test
requires two specifications to merge only if their elements correspond to such a
degree that commission of conduct described in one specification results in
commission of conduct described in the other. State v. Logan (1979), 

, 

, 

.
       {¶52} The aggravated arson specification has no such correspondence with
the course of conduct specification. The course of conduct specification, R.C.




                                          17
                           SUPREME COURT OF OHIO



2929.04(A)(5), imposes punishment for killing multiple victims through a course
of conduct. R.C. 2929.04(A)(7) imposes a specification when the offender has
effected a killing while committing aggravated arson. Though the arson had the
effect of producing multiple murder victims, committing multiple murders does not
always involve arson as the course of conduct leading to the deaths. Thus, we fail
to see how these specifications can meet the above test, and we decline to impose
a merger.
       {¶53} On the subject of the death penalty specifications, appellant lastly
asserts that the instructions given by the trial court allowed the jury to group
together all of the aggravating circumstances for all of the counts against appellant.
It is true that “[o]nly the aggravating circumstances related to a given count may be
considered in assessing the penalty for that count.” State v. Cooey (1989), 

, 

, paragraph three of the syllabus. No lengthy analysis is
required here, since we find no evidence that the lower court violated this maxim.
Its instructions concisely guided the jury in its consideration of the aggravating
circumstances.
       {¶54} Appellant’s assertions relating to his sixth proposition of law are all
without merit. We decline to grant a reversal on this basis.




                                         18
                               January Term, 2002



                             H. Sufficiency of Evidence
        {¶55} In appellant’s thirteenth proposition of law, he asserts that the state
failed to prove prior calculation and design as charged in Counts VII, VIII, and X.
We reject this argument.
        {¶56} In reviewing a record for sufficiency of the evidence, “[t]he relevant
question is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt.” (Emphasis sic.) Jackson v. Virginia
(1979), 

, 

, 

. See, also, State v. Jenks
(1991), 

, 

, paragraph two of the syllabus. The
following considerations are pertinent to determining whether prior calculation and
design exist: “(1) Did the accused and victim know each other, and if so, was that
relationship strained? (2) Did the accused give thought or preparation to choosing
the murder weapon or murder site? and (3) Was the act drawn out or ‘an almost
instantaneous eruption of events?’ ” State v. Taylor (1997), 

,

, citing State v. Jenkins (1976), 

, 

, 

. This court has never set forth a bright-line test for discerning
the presence or absence of prior calculation and design but instead undertakes a
unique analysis of the facts of each case. Taylor, 

, 

. In the instant matter, the facts demonstrate prior calculation and design.
        {¶57} Obviously, appellant knew his victims very well, since they were
close relatives with whom appellant resided. His relationship with each was clearly
strained. The evidence indicates that despite the wishes of Ophelia and Ivory
Franklin, appellant created friction by refusing to get a job or attend school. In fact,
approximately two weeks prior to the murders, his grandparents gave him thirty
days to find another place to live, a prospect that caused appellant to act in a hostile
manner toward his family.




                                          19
                            SUPREME COURT OF OHIO



       {¶58} Moreover, appellant was at odds with Anthony Franklin. While he
was being questioned by Dayton police in Nashville, appellant, in reference to
Anthony, exclaimed, “Son of a bitch raped me, that’s why I killed ’em all. … He
raped me when I was fourteen, and the old man knew about it, but that was his son,
so he didn’t do anything about it.” Appellant also revealed that Anthony had
accused him of being gay.
       {¶59} There is also evidence to support the view that the accused gave
thought and preparation to choosing the murder weapon and the murder site. He
used various weapons on the three victims. He shot Ophelia and struck her
repeatedly with a blunt instrument, and beat Ivory and Anthony with blunt
instruments as well. Unsatisfied, appellant proceeded to intentionally set a fire.
These events occurred in a place where appellant knew that all three individuals
could be found at once.
       {¶60} Finally, it does not appear that the murders were instantaneous
events, but instead were carried out over a period of time. “[T]he jury could find
prior calculation and design, … based on the protracted nature of the murder.”
State v. Allen (1995), 

, 

. To that end, this
court has found the presence of prior calculation and design in much less
compelling but equally disturbing circumstances. Taylor, 

, 

; State v. Toth (1977), 

, 

, 

;
State v. Robbins (1979), 

, 

, 

; State v.
Cotton (1978), 

, 

, 

. We thus conclude
that, when reviewing the evidence in a light most favorable to the prosecution, a
rational trier of fact could have found that appellant committed the acts in Counts
VII, VIII, and X with prior calculation and design. Therefore, we reject appellant’s
thirteenth proposition of law.




                                        20
                               January Term, 2002



                                 I. Jury Instructions
        {¶61} In his fourteenth proposition of law, appellant challenges jury
instructions in the guilt phase of his trial. He identifies four alleged errors. Since
appellant failed to object to these instructions, he has waived all but plain error.
State v. Underwood (1983), 

, 3 OBR 360, 

,
syllabus.
        {¶62} The first alleged error is that the trial court prevented the jury from
considering Dr. Cherry’s testimony for purposes of determining appellant’s guilt.
Specifically, Dr. Cherry’s testimony was that appellant stated that his uncle had
accused him of being gay. The jury’s belief that appellant killed as a result of
provoked rage would have reduced his offense to voluntary manslaughter, as
defined by R.C. 2903.03. The trial court addressed the jury as follows:
        {¶63} “You have heard the testimony regarding certain statements …
made by the Defendant to Dr. Cherry and Dr. Martin during interviews with the
Defendant. You are instructed that no statements made by the Defendant to these
doctors may be considered … in determining the issue of the Defendant’s guilt
as to any of the offenses charged …. You may consider these statements on the
issue of sanity.”
        {¶64} R.C. 2945.371 provides for a court-ordered mental evaluation of a
defendant who places his competence or sanity at issue. R.C. 2945.371(J) provides:
“No statement that a defendant makes in an evaluation or hearing under … this
section … shall be used against the defendant on the issue of guilt in any criminal
proceeding.” In light of this statute, the court was correct in its instruction that his
statements to Dr. Martin, the state’s psychologist, could be considered only on the
issue of sanity and not guilt. However, appellant now contends that, with respect
to Dr. Cherry, this was error, because R.C. 2945.371(J) applies only to statements
made during a court-ordered mental evaluation. While it is true that the statute
applies to court-ordered mental evaluations, it does not follow that appellant had a




                                          21
                            SUPREME COURT OF OHIO



right to have his out-of-court assertions to Dr. Cherry, who was not court-appointed,
considered on the issue of guilt. Such statements are hearsay and are not to be
considered for the truth of the matters asserted therein. See Evid.R. 801(C) and
802. Thus, it was proper for the trial court to restrict use of the statements to Dr.
Cherry.
        {¶65} Appellant next asserts that another instruction given by the trial court
improperly created a “mandatory rebuttable presumption of mens rea.” The lower
court instructed the jury that “[t]he purpose with which a person acts is determined
from the manner in which the action is done, the means used, and all other facts
and circumstances in evidence.” This court has rejected claims against similar
instructions on other occasions. See State v. Montgomery (1991), 

, 

; State v. Wilson (1996), 

, 

. Hence, appellant cannot show plain error.
        {¶66} Appellant also argues that the instruction given by the trial court on
causation was prejudicial. It stated, “The Defendant’s responsibility is not limited
to the immediate or most obvious result of … his act. The Defendant is also
responsible for the natural and foreseeable consequences that follow in the ordinary
course of events from his action.” Appellant argues that this instruction, by
defining causation in terms of foreseeability, permitted a conviction without a
finding of specific intent to kill.
        {¶67} Although we have found that this causation instruction is confusing,
see State v. Burchfield (1993), 

, 

, we have
stated, “The use of that instruction, however, 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 (1995), 

, 

. Here,
the trial court gave thorough instructions to the jury on the requirement of purpose
and intent after giving the causation instruction. See State v. Goodwin (1999), 84




                                          22
                               January Term, 

, 346, 

. Thus, the causation instruction was not
plain error.
         {¶68} Finally, appellant objects to the following instruction from the trial
court:
         {¶69} “If you find the State proved beyond a reasonable doubt all of the
essential elements of the offense of Aggravated Murder as charged in any one or
more of the Counts of the Indictment, then your Verdict must be Guilty of that
offense, and in that event, you will not consider any lesser charge.
         {¶70} “If you find that the State failed to prove beyond a reasonable doubt
Aggravated Murder, or if you are unable to agree that the State proved Aggravated
Murder, you will proceed with your deliberations and decide whether the State has
proved beyond a reasonable doubt the elements of the lesser included offense of
Murder.”
         {¶71} “The jury is not required to determine unanimously that the defendant
is not guilty of the crime charged before it may consider a lesser included offense.”
State v. Thomas (1988), 

, 

, paragraph three of the
syllabus. Therefore, an “acquittal first” instruction is improper. 

, 

. We disagree with appellant’s view that the jury instruction in question
was an impermissible “acquittal first” instruction. The instruction was clear that
the jury could proceed with deliberations to consider the lesser included offense of
murder only if it was “unable to agree” that appellant was guilty of aggravated
murder. There should have been no doubt in the jurors’ minds that they need not
unanimously dismiss the aggravated murder charge before they could address the
lesser charge.
         {¶72} The court also gave the jury the following instruction: “If you find
that the State failed to prove any one of the essential elements of Murder, …
[y]ou will then proceed with your deliberations and decide whether the State has
proven beyond a reasonable doubt the essential elements of the lesser offense of




                                          23
                           SUPREME COURT OF OHIO



Voluntary Manslaughter as it applies to the death of Anthony Franklin.” Appellant
contends that this instruction was erroneous because voluntary manslaughter is an
inferior degree, not a lesser included offense, of aggravated murder, and in fact its
provocation component is a defense to aggravated murder. Yet, the jury was not
permitted to consider evidence of provocation.
       {¶73} “An offense is an ‘inferior degree’ of the indicted offense where its
elements are identical to or contained within the indicted offense, except for one or
more additional mitigating elements.” State v. Deem (1988), 

,

, paragraph two of the syllabus. Voluntary manslaughter is an
inferior degree of aggravated murder. State v. Tyler (1990), 

,

. It is not, however, a lesser included offense of aggravated murder.
State v. Shane (1992), 

, 

. It consists of knowingly
causing a death “while under the influence of sudden passion or in a sudden fit of
rage, … brought on by serious provocation occasioned by the victim that is
reasonably sufficient to incite the [offender] into using deadly force ….” R.C.
2903.03(A).
       {¶74} The instruction was erroneous, since there was no evidence adduced
to entitle appellant to a jury instruction on voluntary manslaughter. However, the
erroneous instruction does not require reversal.
       {¶75} In order to have a jury instruction on voluntary manslaughter
included in the court’s charge, a jury must be able to reasonably find that Anthony
had seriously provoked appellant and that the serious provocation was reasonably
sufficient to have incited him to use deadly force. State v. Lawrence (1989), 

, 

. The only provocation alleged was Anthony’s
calling appellant “gay.” However, this evidence was inadmissible hearsay, since it
involved out-of-court statements made to Dr. Cherry and to a detective. Evid.R.
801(C) and 802. Even if the jury had been allowed to consider the statements, it
could not reasonably have found that the statement was a serious provocation. The




                                         24
                              January Term, 2002



provocation must be such that a reasonable person would be provoked to use deadly
force, but “[w]ords alone will not constitute reasonably sufficient provocation to
incite the use of deadly force in most situations.” Shane, 

, 

, paragraph two of the syllabus. Anthony’s use of words toward
appellant did not rise to the level of sufficient provocation in this case. Therefore,
the instruction, while erroneously labeling voluntary manslaughter as a lesser
included offense of murder, did not amount to plain error. Regardless of the label,
appellant could not be found to have committed voluntary manslaughter.
Proposition of law number fourteen is overruled.
                 J. Questions from Jury in Absence of Defendant
       {¶76} In his eighth proposition of law, appellant contends that it was error
for the trial judge to answer questions from the jury outside appellant’s presence.
However, appellant’s counsel agreed to this action. See State v. Green (2000), 

, 

, citing United States v. Gagnon (1985), 

, 

, 

. Therefore, the issue has been waived,
and a plain error analysis must be invoked. This court has held that a trial judge
may not communicate with the jury in the defendant’s absence. State v. Abrams
(1974), 

, 

, 

, paragraph one of the
syllabus; Bostic v. Connor (1988), 

, 

.
However, since appellant’s counsel were present via telephone and were consulted
on the answer to be given, the error was harmless. State v. Taylor (1997), 

, 

. For these reasons, the eighth proposition of law is
overruled.
                                   Penalty Phase
                           K. Handcuffing of Appellant
       {¶77} In his second proposition of law, appellant alleges that the trial court
violated his due process rights and his right to a fair trial and fair sentencing when
it allowed him to be handcuffed with two deputies positioned beside him during the




                                         25
                           SUPREME COURT OF OHIO



penalty phase of his trial. He asserts that these actions forced the jury to view him
as dangerous, thus prejudicing its decision on whether to impose a death sentence.
Appellant cites a videotape of the lower court proceedings as evidence of the
handcuffing and the presence of the security officials.
       {¶78} While the state concedes in its brief that these procedures were in fact
utilized, there is no written transcript of any debate as to whether the actions were
improper. Appellant never objected to the handcuffs or the presence of the two
deputies. Therefore, the issue is waived unless we determine that the trial court’s
actions were plain error. We find no such error.
       {¶79} The usual practice, of course, is for a defendant to appear in court
while free of shackles. State v. Woodards (1966), 

, 

, 

. This is the accepted procedure because the presence of
restraints tends to erode the presumption of innocence that our system attaches to
every defendant. State v. Carter (1977), 

, 

,

. But it is widely accepted that a prisoner may be shackled where
there is danger of violence or escape. Woodards, 

, 

,

. The decision to impose such a restraint is left to the sound
discretion of the trial court, Richey, 

, 

, which
is in a position to consider the prisoner’s actions both inside and outside the
courtroom, as well as his demeanor while court is in session. We also note that a
court need not sit by helplessly waiting for a defendant to commit a violent or
disruptive act in the courtroom before being cloaked with the power to invoke extra
security measures. Loux v. United States (C.A.9, 1968), 

.
       {¶80} While the use of restraints is a fairly unusual measure, it has been
upheld in some cases. See State v. Henry (1997), 

, 

(capital defendant had prior record of serious violent felonies); McGervey v. State
(1998), 

, 

 (defendant was difficult to control in jail
and had assaulted another inmate). Here, appellant demonstrated a propensity for




                                         26
                              January Term, 2002



violence. Not only had he just been convicted of three brutal murders, but he also
had stabbed a fellow inmate with a pen six times in a dispute over turning out a
light. It is certainly proper to seek to prevent similar violent incidents in the
courtroom.
       {¶81} Furthermore, the testimony of Dr. Cherry, the defense’s own witness,
revealed that appellant “is a time bomb waiting to happen. … [O]ne can never
tell when he will become violent.” The videotape even reveals the trial judge
stating that the deputy “wants permission to cuff him … when the verdict comes
in, because he says his personality is beginning to change a little the last couple of
days.” These statements shed light on appellant’s tendency for violence at the time.
       {¶82} Although we stress that the preferred and encouraged practice prior
to handcuffing a defendant during any phase of trial is to hold a hearing on the
matter, we do not find this to be an absolute rule. Where the facts and circumstances
surrounding a defendant illustrate a compelling need to impose exceptional security
procedures, the trial court’s exercise of discretion in this regard should not be
disturbed unless its actions are not supported by the evidence before it. Had the
lower court in the case sub judice held a hearing on the matter, it would be much
easier to review its decision to handcuff appellant and to place the deputies with
him. Even though such a hearing did not take place, we find that the trial judge’s
actions did not amount to plain error. Appellant’s proposition of law number two
is overruled.
                                L. Sentencing Issues
       {¶83} In his first proposition of law, appellant contends that the jury was
permitted to consider guilt-phase evidence that was irrelevant to the sentencing
phase. In particular, he asserts that the slides showing the victims’ injuries,
evidence of appellant’s hit-and-run accident in Tennessee, and evidence relating to
the endangerment of firefighters should not have been considered by the jury. We
disagree. The slides were relevant to the nature and circumstances of the multiple-




                                         27
                           SUPREME COURT OF OHIO



murder aggravating circumstance. The car accident, which involved a vehicle
stolen from Ivory Franklin, was relevant to the aggravated robbery circumstance,
and the information about the fire was relevant to the aggravated arson
circumstance. Appellant’s first proposition of law is overruled.
       {¶84} In his twelfth proposition of law, appellant attacks the trial court’s
sentencing opinion. He argues that the trial court discussed the mitigating evidence
but failed to articulate what factors it found and gave weight to and did not explain
why the aggravating circumstances outweighed the mitigating factors.               We
disagree. Our review of the sentencing opinion convinces us that the lower court’s
discussion of the mitigating factors is sufficient to explain its weighing process.
       {¶85} Appellant also argues that the trial court failed to reach its own
independent judgment on imposing a death sentence, since the lower court’s
opinion states that the trial court “agrees with” the jury’s determinations on these
matters. This argument lacks merit. We find nothing to indicate that the judge did
anything but undertake a separate consideration of the relevant issues and reach his
own conclusion, which happens to mirror the view of the jury.
       {¶86} Appellant also asserts error because the trial court, in discussing the
mitigating value of appellant’s youth, did not mention testimony from Dr. Cherry
that appellant was not functioning above an eight-to-ten-year-old level mentally.
This is incorrect. The trial court is not required to specifically address every item
of evidence in its opinion, and its failure to do so does not justify an inference that
the evidence was ignored. See, e.g., State v. Sanders (2001), 

, 

.
       {¶87} Appellant’s fifteenth proposition of law challenges the trial court’s
decision to allow the victims’ family members to address the court immediately
before sentencing. Ivory Franklin, Jr. addressed the court and stated that appellant
had committed “the ultimate crime” and should “be awarded the ultimate jackpot.”
Julius Franklin then stated that the Franklin family was “divided” but that




                                          28
                                 January Term, 2002



appellant’s death would not bring back the victims or heal the family. On behalf
of these family members, he asked the judge to consider imposing life
imprisonment rather than the death penalty.
       {¶88} Appellant now argues that admission of these statements was error,
but since he did not object to them at trial, the issue has been waived absent plain
error. A victim’s family may not recommend a sentence in a capital case. State v.
Fautenberry (1995), 

, 

. However, where
such opinion is expressed to the judge only, as was the case here, it is not reversible
error unless there is some indication that the judge actually considered it in
sentencing the defendant to death. 

 While appellant contends that the trial court
must have considered the statements in sentencing him to death, since R.C.
2930.14(B) required the court to consider them in sentencing appellant on the
noncapital crimes, we cannot concur. There is no evidence of this either in the
record or in the sentencing opinion. Proposition of law fifteen is overruled.
                                      Settled Issues
       {¶89} Two of appellant’s propositions of law deal with well-settled issues.
Thus, we summarily dismiss them. In his sixteenth proposition of law, appellant
attacks the trial court’s reasonable-doubt instruction.3 We find that the instruction
comports with R.C. 2901.05, so appellant’s assertion of error should be rejected.
See State v. Van Gundy (1992), 

, 

. In his

3.     {¶a}      The trial court instructed the jury as follows:
       {¶b}      “A Defendant is presumed innocent until his guilt is established beyond a
       reasonable doubt. The Defendant must be acquitted, that is, found Not Guilty, unless the
       State produces evidence which convinces you beyond a reasonable doubt of every essential
       element of the crime or crimes charged in the Indictment.
       {¶c}      “Reasonable doubt is present when, after you have carefully considered and
       compared all the evidence, you cannot say you are firmly convinced of the truth of the
       charge or charges. It is a doubt based on reason and common sense. Reasonable doubt is
       not mere possible doubt, because everything relating to human affairs or depending on
       moral evidence is open to some possible or imaginary doubt. Proof beyond a reasonable
       doubt is proof of such character that an ordinary person would be willing to rely and act
       upon it in the most important of his or her own affairs.”




                                             29
                           SUPREME COURT OF OHIO



seventeenth proposition of law, appellant attacks capital punishment and
accompanying statutes on Eighth Amendment grounds. This court has rejected this
argument on many previous occasions. See State v. Jenkins, 

, 15 OBR 311, 

; State v. Mapes (1985), 

, 19 OBR 318, 

; State v. Durr (1991), 

,

; State v. Phillips (1995), 

, 

.
                         Independent Sentence Evaluation
       {¶90} Having fully considered each of appellant’s assertions of error, we
must next undertake an independent review of the death sentence imposed upon
appellant to determine its appropriateness and proportionality to the offenses
committed. This court should affirm the death sentence “only if the … court is
persuaded from the record that the aggravating circumstances the offender was
found guilty of committing outweigh the mitigating factors present in the case and
that the sentence of death is the appropriate sentence in this case.”           R.C.
2929.05(A). In making this determination, the court must be persuaded beyond a
reasonable doubt that the aggravating circumstances make the sentence appropriate.
Jenkins, 

, 15 OBR 311, 

. We now find beyond
a reasonable doubt that the death sentence imposed by the trial court was proper.
       {¶91} With respect to each murder count, the jury found four aggravating
circumstances.4 The evidence is sufficient to prove each of these aggravating
circumstances beyond a reasonable doubt.5 First of all, the testimony of arson


4.      {¶a}    These aggravating circumstances were as follows:
        {¶b} 1. The offense was committed for the purpose of escaping detection,
        apprehension, trial, or punishment for another offense, R.C. 2929.04(A)(3);
        {¶c} 2. Felony-murder predicated on aggravated robbery, R.C. 2929.04(A)(7);
        {¶d} 3. Felony-murder predicated on aggravated arson, R.C. 2929.04(A)(7); and
        {¶e} 4. Course of conduct involving two or more purposeful killings, R.C.
2929.04(A)(5).




                                         30
                                   January Term, 2002



investigator Russell Scott Bennett is sufficient to prove aggravated arson. He
concluded that the fire had been set by the arsonist’s pouring of accelerant on the
first floor of the home and lighting it. Bennett observed that no appliances had been
left on in the house, and there were no short circuits, arcs, or sparks in the electrical
system that would have caused the inferno. What Bennett did find was a cigarette
lighter and a container of lighter fluid that was one-quarter full on the back porch
of the Franklins’ home, in addition to one empty and two full gasoline containers
in the back yard. Although samples taken from the burned home tested negative
for accelerants, Bennett testified that this is not unusual in arson cases because an
intense fire can consume accelerant residue, and water can wash it away.
        {¶92} The evidence of aggravated robbery is also sufficient. Appellant was
caught with Ivory’s gun and Ophelia’s jewelry on his person, and he had driven
Ivory’s car to Tennessee. Furthermore, the evidence is sufficient to support a
finding that appellant acted with a course of conduct involving two or more
purposeful killings. Three people were killed in a calculated manner, and this
manner indicates purpose.          Thus, all aggravating circumstances were proven
beyond a reasonable doubt.
        {¶93} Appellant offered the following in mitigation. R.C. 2929.04(B)(3)
states that a mitigating factor exists if “at the time of committing the offense, the
offender, because of a mental disease or defect, lacked substantial capacity to
appreciate the criminality of [his] conduct or to conform [his] conduct to the
requirements of the law.” There was a wealth of evidence presented in the lower
court in support of and in opposition to this theory.
        {¶94} In the penalty phase of the trial, appellant’s mother testified that she
had tried to induce an abortion of her son while he was in the womb, both by taking

5. As the state concedes, the specification under R.C. 2929.04(A)(3) merges into the felony-murder
specifications, so we undertake a weighing of the remaining three aggravating circumstances only.




                                               31
                           SUPREME COURT OF OHIO



drugs and by sticking a pencil into her womb to “dislodge the thing.” She also
drank large quantities of alcohol during the pregnancy. In later times, appellant
was severely abused by his mother. On the other hand, testimony indicated that
appellant performed well and stayed out of trouble in elementary and middle
schools, which would tend to weigh against a finding of mental disease. His former
girlfriend talked of appellant as a lovable and enjoyable person at one time who
exhibited more and more strange behavior as time went on.
       {¶95} Appellant was examined on numerous occasions by different
psychologists. Dr. Cherry testified on appellant’s behalf at trial and determined
that appellant was experiencing delusions and hallucinations. He further opined
that appellant’s mental functioning was not “above an eight to ten-year-old …
level ….” However, on cross-examination, Cherry admitted that he had relied
on what appellant had told him with respect to his symptoms, and he conceded that
malingering was a possibility. Testifying for the state, psychologist Dr. Thomas
Martin, after conducting three interviews with appellant and reviewing Dr. Cherry’s
report, found that appellant displayed no symptoms of mental illness. He also found
some indications of malingering.
       {¶96} In addition, psychologist Dr. Kim Stukey undertook an evaluation of
appellant and testified for the state. She found no evidence of mental illness and
concluded that appellant “understood what he was doing, and … that what he
was doing was wrong.” Taking into consideration all of the expert psychiatric
testimony submitted at trial, we are not inclined to submit that the evidence supports
appellant’s claim of mental illness. The testimony of Dr. Martin and Dr. Stukey
supports our conclusion, and even Dr. Cherry’s testimony leaves open the
possibility that appellant was acting to feign a mental disability. Appellant’s
upbringing is troubling, and the resulting effect on his psyche may be tangible, but
not to the extent that he was unable to appreciate the criminal nature of his acts.
We find that this factor deserves little mitigating weight.




                                         32
                              January Term, 2002



       {¶97} Appellant also argues in mitigation that his uncle Anthony “induced
or facilitated” his own murder, a mitigating factor under R.C. 2929.04(B)(1),
because, appellant claimed, his uncle raped him four years earlier and called
appellant “gay” on the date of the murders. He contends that this placed the
offender under “duress, coercion, or strong provocation,” which are mitigating
factors under R.C. 2929.04(B)(2). Even if these claims are true, they do not amount
to strong provocation. Mere use of offensive words directed at an offender by a
victim does not rise to that level. Nor does an alleged, yet unproven, rape of the
offender by a victim that occurred some four years earlier constitute strong
provocation at the time of the murders. Thus, we find that appellant’s contentions
in this regard are void of any merit.
       {¶98} It also has been argued that appellant’s youthful age at the time of the
crimes should weigh in favor of mitigation. Youth is a mitigating factor under R.C.
2929.04(B)(4). Appellant was approximately eighteen and one-half years old when
he committed the murders. This factor is entitled to some weight, especially since
eighteen is the minimum age for death penalty eligibility. R.C. 2929.02(A) and
R.C. 2929.023.
       {¶99} Finally, we find nothing mitigating in the nature and circumstances
of the crimes. These were not simple crimes. The aggravating circumstances of
multiple murder and arson-murder demonstrate a long and drawn out strategy to
kill that played out over a substantial time frame. We have considered other cases
in which the imposition of capital punishment was upheld and used them as
benchmarks. Our research convinces us that appellant’s death sentence is not
excessive and is proportionate to the sentences imposed in similar factual situations.
See, e.g., State v. Webb (1994), 

, 

; State v. Grant
(1993), 

, 

; and State v. DePew (1988), 

, 

.




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                             SUPREME COURT OF OHIO



          {¶100} We find that the aggravating circumstances in this case outweigh
the mitigating factors beyond a reasonable doubt. Appellant engaged in a course
of conduct that involved careful planning and execution, and when his plan was
brought to fruition, he left three family members dead. After a thorough review of
the evidence and record before us, we can reach but one conclusion: that a death
sentence is appropriate in this case.
                                 III. CONCLUSION
          {¶101} For the foregoing reasons, we affirm the judgment of the trial court
and uphold the sentence of death.
                                                                  Judgment affirmed.
          MOYER, C.J., DOUGLAS, RESNICK, PFEIFER and LUNDBERG STRATTON, JJ.,
concur.
          COOK, J., concurs in judgment.
                                __________________
          Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, and
Carley J. Ingram, Assistant Prosecuting Attorney, for appellee.
          David H. Bodiker, State Public Defender, Pam Prude-Smithers and Diane
M. Menashe, Assistant State Public Defenders, and Joseph E. Wilhelm, Appellate
Supervisor, for appellant.
                                __________________




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