State v. Thomas

[This decision has been published in Ohio Official Reports at 

.]




            THE STATE OF OHIO, APPELLEE, v. THOMAS, APPELLANT.
                     [Cite as State v. Thomas, 

.]
Criminal law—Aggravated murder—Death penalty upheld, when—Claim of
        mental retardation—Defendant may file for post-conviction relief under the
        standards set forth in State v. Lott.
    (No. 1999-1511—Submitted April 9, 2002—Decided December 11, 2002.)
       APPEAL from the Court of Appeals for Lucas County, No. L-96-020.
                                  __________________
        LUNDBERG STRATTON, J.
        {¶1} In this appeal, defendant-appellant, William A. Thomas, raises fifteen
propositions of law. Finding none meritorious, we affirm his convictions. We have
independently weighed the aggravating circumstances against the mitigating
factors and compared his sentence with those imposed in similar cases, as R.C.
2929.05(A) requires. As a result, we affirm defendant’s convictions and sentence
of death.
        {¶2} Defendant broke into Florence “Molly” Newbirt’s home in Toledo,
Ohio, during the early morning of November 23, 1994. The defendant robbed and
murdered 87-year-old Newbirt by repeatedly striking her with a hammer on the
head. Defendant stole a television set from Newbirt’s bedroom, fled, and attempted
to sell the television to an acquaintance later that morning. The defendant was
convicted of aggravated murder, aggravated burglary, and aggravated robbery, and
sentenced to death.
        {¶3} To establish defendant’s guilt, the state introduced defendant’s hat,
found at the crime scene; defendant’s shoe, containing a shard of glass from
Newbirt’s basement window; forensic testimony that a bloody shoeprint on
Newbirt’s bedroom pillowcase was of defendant’s shoe; testimony that the murder
                            SUPREME COURT OF OHIO




weapon (i.e., the hammer) came from defendant’s home; and testimony that
defendant attempted to sell Newbirt’s television to James Lightner on the morning
of November 23.
                                  State’s Case
       {¶4} On the evening of November 22, 1994, defendant attended a birthday
party for his niece at his home at 239 Hanover Street in Toledo. Defendant lived
at this address with his sister and Wesley Thomas, his nephew.
       {¶5} During the party, defendant asked four or five people for money, but
no one loaned him any. Defendant owed Wesley $10 and told Wesley he could not
pay him. They argued but then resumed drinking. Defendant had a black baseball
cap, which portrayed an Uzi machine gun and a number 187 logo, in his hand at the
party. Wesley had previously owned the hat, and the defendant sometimes wore it.
The number 187 represented the California Penal Code number for homicide.
       {¶6} As the evening progressed, defendant was in a “pretty bad mood,”
“mad” and “drunk,” according to Wesley. Defendant left the party around midnight
and did not return.
       {¶7} Newbirt lived a few houses away at 223 Hanover Street. Sandra
Connolly lived behind Newbirt’s residence. Between 3:00 a.m. and 4:00 a.m. on
November 23, Connolly and her daughter, Deborah Connolly, were leaving for
work when they noticed that Newbirt’s back door was open and her back door lights
were not on. They suspected that something was wrong, and after arriving at work,
Deborah notified the police by calling 911.
       {¶8} Toledo police officers responding to the 911 call entered Newbirt’s
home and found her battered body lying under a mattress in the bedroom. Newbirt
was still alive and was rushed to the hospital. Police secured the crime scene and
began collecting evidence from Newbirt’s home.
       {¶9} The police found a smashed basement window and glass on the
basement floor, indicating that the culprit had entered Newbirt’s home through the




                                        2
                                January Term, 2002




basement. Defendant’s ball cap (with the Uzi machine gun and the number 187
logo) was found on the steps by the broken window. Footprints on the lower
portion of the basement door and a broken doorjamb suggested that the assailant
had entered the main part of the house through the forced basement door.
       {¶10} Police found a clump of the victim’s white hair lying near a phone
receiver that had been ripped from the wall, which indicated a struggle in the
kitchen and dining-room area. However, blood spatters on the bedroom walls and
closet doors suggested that Newbirt was murdered in her bedroom.
       {¶11} The murder weapon was a claw hammer found on the bedroom floor
near the victim’s body. The police also collected a pillowcase from under the
bedroom desk that appeared to have a partial footprint on it. An expert concluded
that defendant’s Nike tennis shoe made the bloody footprint on Newbirt’s
pillowcase. Experts also established that DNA from blood on the hammer matched
DNA from blood removed from the pillowcase.
       {¶12} The police concluded that Newbirt had been robbed, since the
contents of her purse had been dumped. Police also determined that a television set
had been stolen from her bedroom on the basis of an empty table top where dust
silhouetted a clean rectangular shape, a nearby A/B switch and a TV cable, and a
TV owner’s manual in the bedroom.
       {¶13} The assailant appeared to have fled from Newbirt’s residence through
the back door. The back door was open, and police collected a women’s purple
coat lying on the ground between the rear door and the back fence.
       {¶14} At approximately 2:30 a.m. that night, before the crime was
discovered, defendant went to Lightner’s residence and knocked loudly on his door.
Lightner lived at 1654 Campbell Street, which was several blocks from the victim’s
residence. After Lightner let the defendant in, Lightner noticed that the lower parts
of defendant’s pants were covered with blood. Defendant said “he had gotten into
a fight with a guy.” However, Lightner did not notice any marks on defendant’s




                                         3
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hands or face indicating that he had actually been in a fight. Defendant then offered
to sell Lightner a television set. Defendant said that “him and some guy stole it and
they got to fighting over it.” Lightner refused to buy the television, and the
defendant left. Shortly thereafter, defendant returned to Lightner’s home, asked for
a ride to another location, and Lightner agreed.
       {¶15} Defendant took the television set with him in Lightner’s car. Upon
arriving at Junction and Buckingham, defendant and an unidentified man took the
television set out of Lightner’s car, put it into the trunk of another car, and drove
off. At trial, Lightner agreed that that television looked like the one pictured on the
owner’s manual found in Newbirt’s bedroom.
       {¶16} At the hospital, Newbirt’s family told police about a neighborhood
man who performed odd jobs for the victim and attempted to borrow money from
her. Further investigation led police to defendant’s home, where they talked to
Wesley. He told police that defendant had attended a party there the night before
and had left the house around midnight. Wesley identified distinctive markings on
the hammer, noting that it came from a drawer in their house. Wesley described
the clothes defendant had been wearing, including the baseball cap with the Uzi
machine gun and the number 187 logo. He also identified the hat when police
showed it to him.
       {¶17} Officer Thomas Ross interviewed defendant following his arrest two
days later on November 25, 1994. According to the defendant, he stayed at the
Cherry Street Mission, a local homeless shelter, the day of the crime. Defendant
told police that he had turned in his “old and soiled” clothes, and “the people at the
mission gave him new clothes.” Ross seized defendant’s Nike tennis shoes after
noticing blood on one of them. A piece of glass was also found embedded inside
the shoe. At trial, an expert concluded that there was a “very strong probability”
that the glass fragment came from Newbirt’s basement window based on its
refractive index.




                                          4
                                January Term, 2002




       {¶18} When asked how blood got on his shoes, defendant said, “[M]y mind
went blank, I don’t remember.” Defendant told Ross that he knew the victim
because “she lived a few doors down from him, and that he on occasion had raked
some leaves for her.” When asked if he broke into her home and attacked her,
defendant said, “[I]f I did something like that, I don’t remember. I’m just sick from
some bad drugs I got that night.”
       {¶19} Defendant remembered drinking beer at the party on November 22,
but “everything went blank after that.” Defendant next remembered “waking up in
a vacant house near Junction and Nebraska and walking down to the Cherry Street
Mission and being admitted there.” Defendant said that he did not recall carrying
a television set that night or trying to sell a television set to Lightner. When asked
again about attacking Newbirt, defendant said, “This isn’t me William. Doesn’t
seem I’d do anything like that.”
       {¶20} Newbirt remained hospitalized from the attack for a month, until she
died on December 23, 1994. Newbirt had suffered approximately 15 to 20 injuries
to her head and face. Several circular depressed skull fractures showed that a
hammer or a similar object caused Newbirt’s injuries.           The deputy coroner
concluded that Newbirt died as a “result of respiratory complications … due to
craniocerebral injuries that she sustained in a beating.”
       {¶21} At trial, the defense elected not to present any evidence.
                                    Trial Result
       {¶22} The three-judge panel convicted defendant as charged. Count I,
charging defendant with aggravated murder, included a capital specification for
murder during an aggravated burglary and a second capital specification for murder
during an aggravated robbery. Counts II and III separately charged defendant with
aggravated burglary and aggravated robbery.




                                          5
                                SUPREME COURT OF OHIO




        {¶23} The three-judge panel sentenced defendant to death on Count I.
Defendant was also sentenced to 10 to 25 years in prison on Count II and 10 to 25
years in prison on Count III.
        {¶24} The court of appeals affirmed the convictions and death sentence.
                                    Pretrial Issues
        {¶25} Jury waiver. In proposition of law III, defendant claims that his
waiver of a jury trial was insufficient because the record does not affirmatively
establish that he was fully aware of all the effects of his waiver. Defendant cites
State v. Post (1987), 

, 

, which reaffirmed “
‘the usual presumption that in a bench trial in a criminal case the court considered
only the relevant, material, and competent evidence in arriving at its judgment
unless it affirmatively appears to the contrary.’ ” 

 quoting State v. White (1968),

, 

, 

. Defendant argues that the
trial court was required by the Constitution to ensure that he understood that this
presumption would be applied on appellate review if he waived a jury trial.
        {¶26} In State v. Jells (1990), 

, 

, paragraph
one of the syllabus, we held, “There is no requirement for a trial court to interrogate
a defendant in order to determine whether he or she is fully apprised of the right to
a jury trial.” “The Criminal Rules and the Revised Code are satisfied by a written
waiver, signed by the defendant, filed with the court, and made in open court, after
arraignment and opportunity to consult with counsel. While it may be better
practice for the trial judge to enumerate all the possible implications of a waiver of
a jury, there is no error in failing to do so.” (Citation omitted.) 

, 

; see, also, State v. Filiaggi (1999), 

, 

;
State v. Baston (1999), 

, 

.
        {¶27} Defendant signed two jury waivers in open court, and both waivers
conformed to the dictates of R.C. 2945.05. Jells holds that the statute and rules
require no inquiry, and we now hold that nor does the Constitution. Therefore, the




                                           6
                                January Term, 2002




trial court’s failure to advise defendant about the legal consequences of his jury
waiver was not error. Thus, we reject proposition III.
       {¶28} Validity of the jury waiver. In proposition of law IV, defendant
argues that the three-judge panel lacked jurisdiction to try his case. First, defendant
contends that the panel lacked jurisdiction because one of the jury waivers was not
journalized.
       {¶29} R.C. 2945.05 requires that a waiver of a jury trial must be written,
signed by the defendant, and filed and made a part of the record. In the absence of
strict compliance with R.C. 2945.05, a trial court lacks jurisdiction to try the
defendant without a jury. State v. Pless (1996), 

, 

,
paragraph one of the syllabus. The requirement that a jury waiver form be “ ‘filed
in said cause and made a part of the record thereof’ means that the form must be
time-stamped and included in the record.” State v. Gipson (1998), 

, 

; but, see, State v. Otte (2002), 

,

 (jurisdiction to hold a bench trial where jury waiver was physically
located in the case file but had not been file-stamped).
       {¶30} The jury waivers contained identical language. The waiver dated
October 12, 1995, was date-stamped and properly journalized. Defendant’s second
jury waiver, dated October 30, 1995, was date-stamped but not journalized. The
October 12 jury waiver met the strict statutory requirements of R.C. 2945.05. Thus,
the second jury waiver was superfluous.
       {¶31} In his second contention, defendant argues that the order establishing
the three-judge panel was not properly executed. Defendant claims that the order
was invalid because the signing judge was not a general division judge of the Lucas
County Court of Common Pleas.
       {¶32} R.C. 2945.06 provides, “If the accused is charged with an offense
punishable with death, he shall be tried by a court to be composed of three judges,
consisting of the judge presiding at the time in the trial of criminal cases and two




                                          7
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other judges to be designated by the presiding judge or chief justice of that court,
and in case there is neither a presiding judge nor a chief justice, by the chief justice
of the supreme court.”
       {¶33} Here, the judgment entry establishing the three-judge panel was
signed by a judge on the domestic relations bench of the Lucas County Court of
Common Pleas. However, there is no authority in R.C. 2945.06 or elsewhere to
support defendant’s contention that the order designating a three-judge panel must
be signed by a general division common pleas judge.
       {¶34} Moreover, defendant did not object at trial to the presiding judge’s
authority. Thus, this issue was waived and there was no plain error. Cf. State v.
Bays (1999), 

, 

 (waiver by failing to object at
trial to probate judge’s assignment to the three-judge panel). Accordingly, we
reject proposition IV.
                                     Trial Issues
       {¶35} Competency. In proposition of law I, defendant argues that the trial
court erred by failing to sua sponte find that he was incompetent to stand trial.
According to the defendant, the “record reveals … upon the representations to
the court by his attorneys” that he was unable to assist them in his own defense.
Defendant claims that the record is replete with instances where he was acting
against his own interests. Moreover, defendant argues that his behavior raised
substantial questions about his ability to understand the consequences of his trial or
assist in his own defense.
       {¶36} “It has long been recognized that ‘a person [who] lacks the capacity
to understand the nature and object of the proceedings against him, to consult with
counsel, and to assist in preparing his defense may not be subjected to a trial.’ ”
State v. Smith (2000), 

, 

, quoting Drope v.
Missouri (1975), 

, 

, 

. Fundamental
principles of due process require that a criminal defendant who is legally




                                           8
                                     January Term, 2002




incompetent may not be tried. State v. Berry (1995), 

, 

.
        {¶37} R.C. 2945.37(B) requires a competency hearing if a request is made
before trial. State v. Were (2002), 

, 

, paragraph
one of the syllabus. But R.C. 2945.37(B) provides that “[i]f the issue is raised after
the trial has commenced, the court shall hold a hearing on the issue only for good
cause shown or on the court’s own motion.”1 Thus, the decision whether to hold a
competency hearing once trial has begun is in the court’s discretion. State v.
Rahman (1986), 

, 23 OBR 315, 

. The right
to a hearing rises to the level of a constitutional guarantee when the record contains
sufficient “indicia of incompetency” to necessitate inquiry to ensure the defendant’s
right to a fair trial. State v. Were, 

, 

, paragraph
two of the syllabus; State v. Berry, 

, 

. Objective
indications such as medical reports, specific references by defense counsel to
irrational behavior, or the defendant’s demeanor during trial are all relevant in
determining whether good cause was shown after the trial had begun. State v.
Chapin (1981), 

, 

, 

, paragraph one
of the syllabus.
        {¶38} Here, the record fails to indicate that defendant had difficulty
understanding the proceedings or that he was incapable of assisting his counsel in
his defense.       During the trial, the trial court questioned defendant about
appointment of a lawyer, jury waiver, counsel’s temporary absence from the
courtroom, counsel’s possible conflict of interest, and defendant’s right to make a
sworn or unsworn statement during mitigation.                   Defendant showed that he
understood the proceedings by meaningfully responding to each of the trial court’s




1. The last phrase was added in 1996, after the trial. 146 Ohio Laws, Part VI, 11186.




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                             SUPREME COURT OF OHIO




questions. Moreover, the defense counsel affirmatively indicated throughout the
trial that defendant understood the proceedings.
         {¶39} In addition, the defense counsel never suggested that defendant was
incompetent.     Counsel had ample time to become familiar with defendant’s
competency, since they represented him from their appointments in December 1994
or January 1995 through completion of the December 1995 sentencing proceedings.
If counsel had some reason to question defendant’s competency, they surely would
have done so. Cf. State v. Hessler (2000), 

, 

. Finally, no expert or lay opinion indicated that defendant was actually
incompetent. During the mitigation hearing, Dr. Jeffrey Smalldon and Dr. Janice
Ort, clinical psychologists, testified that defendant’s significant intellectual
deficiencies placed him in the low borderline range of mental functioning.
However, neither witness expressed any reservations about defendant’s
competency to stand trial. The trial court did not err by failing to find sua sponte
that defendant was incompetent to stand trial, and we find that proposition I lacks
merit.
         {¶40} In proposition of law II, defendant argues that his counsel were
ineffective by failing to ask the trial court to hold a hearing or order a psychiatric
examination to determine his competency to stand trial. Reversal of convictions on
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), 

, 

.
         {¶41} Here, defendant did not display sufficient indicia of incompetency to
warrant a competency hearing. See State v. Smith, 

, 

. Thus, his counsel’s failure to request the trial court to order a competency
hearing did not constitute deficient performance, and we reject proposition II.




                                         10
                                 January Term, 2002




        {¶42} Advice on testifying. In proposition of law V, defendant argues that
the trial court violated his constitutional rights by failing to inquire sua sponte
whether defendant knew he had an “absolute right to testify in his own behalf,” and
whether defendant “knowingly, intelligently, and personally waives that right.”
However, “ ‘a trial court is not required to conduct an inquiry with the defendant
concerning the decision whether to testify in his defense.’ (Emphasis sic.)” State
v. Green (2000), 

, 

, quoting State v. Bey
(1999), 

, 

.
        {¶43} Nothing in the record suggests that defendant wanted to testify and
was denied the opportunity to do so. Nothing suggests that defendant was unaware
of his right to testify or that defendant’s counsel failed to advise him of his right.
Indeed, his counsel informed the trial court that “[a]fter having discussed with Mr.
Thomas his right to testify in this matter, the fact that he would be subjected to cross
examination, the fact that if he declines to testify that the Court will draw no
inference from that failure to testify and the fact the prosecution will not comment
upon it in their closing argument, it would be the defendant’s desire at this time to
not testify ….” Thus, we find that proposition V lacks merit.
        {¶44} Expert qualifications. In proposition of law VI, defendant argues that
the trial court erred by allowing Detective Chad Culpert to testify about blood-spatter evidence without determining that he was qualified to testify as an expert.
Defendant claims that Culpert’s testimony provided “physical and scientific
support” to Wesley Thomas’s testimony (i.e., that the hammer found in the victim’s
bedroom came from defendant’s home) and led to findings that the hammer was
the murder weapon.
        {¶45} However, defendant never objected to Culpert’s opinions or
challenged his qualifications to testify. Thus, defendant waived all but plain error.
Crim.R. 52(B); State v. Hartman (2001), 

, 

.




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       {¶46} Evid.R. 702(B) provides that a witness may qualify as an expert by
reason of his or her “specialized knowledge, skill, experience, training, or education
regarding the subject matter of the testimony.” Neither special education nor
certification is necessary to confer expert status upon a witness. “The individual
offered as an expert need not have complete knowledge of the field in question, as
long as the knowledge he or she possesses will aid the trier of fact in performing its
fact-finding function.” State v. Hartman, 

, 

;
State v. Baston, 

, 

. Pursuant to Evid.R.
104(A), the trial court determines whether a witness qualifies as an expert, and that
determination will be overturned only for an abuse of discretion. State v. Hartman,

, 

; State v. Williams (1983), 

, 4 OBR 144, 

.
       {¶47} Culpert testified about blood spatters found on the walls and closet
door of the victim’s bedroom. He stated that the concentration of blood spatters
indicated that two blows were delivered at or near the bedroom wall.
       {¶48} Culpert, a Toledo police detective assigned to the scientific
investigation unit, was never questioned during direct examination about his
professional qualifications and experience. However, Culpert’s responsibilities
were to “handle, collect, and process the [crime] scene for any physical evidence *
… that may be pertinent to the investigation.” Thus, we find no plain error and
reject proposition VI.
       {¶49} In proposition of law VII, defendant argues his counsel’s
ineffectiveness by failing to object to Culpert’s blood-spatter testimony because he
was not qualified as an expert witness. As previously discussed, reversal of a
conviction for ineffective assistance of counsel requires that 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, 

, 

, 

.




                                         12
                               January Term, 2002




       {¶50} Defendant does not directly attack Culpert’s qualifications to present
expert testimony on blood-spatter evidence.       In any event, Culpert’s expert
qualifications cannot be evaluated since his professional background and
qualifications were not presented or questioned at trial. Moreover, defendant
cannot add to the record, since “[a] reviewing court cannot add matter to the record
before it … and then decide the appeal on the basis of the new matter.” State v.
Ishmail (1978), 

, 

, 

, paragraph one
of the syllabus.
       {¶51} By not challenging Culpert’s qualifications, defense counsel avoided
inviting the prosecutor to ask questions that might bolster Culpert’s qualifications
in the eyes of the court. Given the strong presumption that counsel’s performance
constituted reasonable assistance, we find that counsel’s failure to object may have
been a tactical decision and reject this claim of ineffectiveness. See State v.
Bradley, 

, 

; cf. State v. Hartman, 

, 

. Therefore, we find that proposition VII lacks merit.
       {¶52} Reasonable doubt. In proposition of law XII, defendant challenges
the trial court’s use of the definition of “reasonable doubt” in R.C. 2901.05(D)
during both phases of the trial.     However, we have repeatedly affirmed the
constitutionality of R.C. 2901.05. E.g., State v. Jones (2001), 

, 

; State v. Hessler, 

, 

.
Thus, we reject proposition XII.




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                             Visiting Judge’s Ruling
       {¶53} During the penalty phase, defendant’s counsel objected that the two
victim-impact statements “go well beyond what [R.C.] 2930.14 has provided for in
terms of an [sic] victim impact statement.” The three-judge panel requested a
visiting judge, not assigned to the case, to rule on the admissibility of the victim-impact statements “because obviously it would taint any members of the Panel or
the entire Panel if we heard the statements and then made a ruling on what we can’t
hear.” In this regard, the panel stated that “after discussions with the Panel by all
of counsel, it has been agreed upon that the statements may be read as redacted by
the Honorable Sumner Walters, a visiting judge, and his rulings will be made as
regards the redacted statements.”
       {¶54} Judge Walters considered defense objections to the content of the
victim-impact statements outside the presence of the three-judge panel. Judge
Walters ruled that the two particular statements should be eliminated from the
victim-impact statements. He admitted the remainder of the statements.
       {¶55} The defense renewed objections to the redacted statements before the
three-judge panel, and those objections were overruled.        Thereafter, the two
statements were presented for the panel’s consideration.
       {¶56} The three-judge panel was designated in accordance with the
requirements of R.C. 2945.06. R.C. 2945.06 sets forth no procedures authorizing
the panel to request a visiting judge to rule on the admissibility of victim-impact
evidence. Berger v. Berger (1981), 

, 3 OBR 141, 

; Rosenberg v. Gattarello (1976), 

, 

, 

; see, also, State ex rel. Chavis v. Griffin (2001), 

, 

. The Ohio Rules of Superintendence provide that the judge
assigned to a case under the individual assignment system “becomes primarily
responsible for the determination of every issue and proceeding in the case until its
termination.” Sup.R. 36(B)(1).




                                         14
                                January Term, 2002




       {¶57} Here, the three-judge panel did not need to shield itself from
improper consideration of victim-impact testimony. R.C. 2945.06 provides that the
judges or a majority of them on a three-judge panel “may decide all questions of
fact and law arising upon the trial.” In contrast to juries, judges are presumed to
know the law and expected to consider only relevant, material, and competent
evidence during their deliberations. See State v. Post, 

, 

; cf. State v. Gillard (1988), 

, 

.
       {¶58} However, the improper referral of an evidentiary matter to another
judge did not go to the jurisdiction of the court or render the judgment void. See
Berger v. Berger, 

, 3 OBR 141, 

; cf.
State v. Filiaggi, 

, 

. The decision to employ
a different judge to rule on a victim-impact statement was a cautious decision to
avoid any possible taint.      Moreover, the defense agreed to Judge Walter’s
appointment to rule on the content of the victim-impact statements. Thus, this issue
was waived, and we find no plain error.
                             Prosecutorial Misconduct
       {¶59} In proposition of law VIII, defendant argues that the prosecutor
committed three acts of misconduct during closing arguments in the penalty phase.
The test for prejudice in closing arguments is “ ‘whether the remarks were improper
and, if so, whether they prejudicially affected substantial rights of the defendant.’ ”
State v. Hessler, 

, 125, 

, quoting State v. Smith
(1984), 

, 14 OBR 317, 

.
       {¶60} First, defendant argues that the prosecutor treated the nature and
circumstances of the offense as an aggravating circumstance. Defendant points to
the following segment of the prosecutor’s argument: “As a part of the nature and
circumstances of this horrendous crime, I’m not going to reiterate the details, the
medical evidence that you have before you, the photographic evidence, the physical
evidence that you heard from Dr. Barnett, but this murder, Your Honors, this




                                          15
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murder is the essence of depraved and evil behavior, and that’s what makes the
death penalty necessary.” However, the defense failed to object to the prosecutor’s
argument, and waived all but plain error. State v. Wade (1978), 

,

, 

, paragraph one of the syllabus.
        {¶61} The state may “present arguments concerning the nature and
circumstances of the offense.” State v. Wogenstahl (1996), 

,

. However, “[i]t is improper for prosecutors in the penalty phase of
a capital trial to make any comment … that the nature and circumstances of the
offense are ‘aggravating circumstances.’ ” 

 at paragraph two of the syllabus.
        {¶62} The prosecutor correctly identified the two statutory aggravating
circumstances the court could properly consider (i.e., aggravated burglary and
aggravated robbery under R.C. 2929.04[A][7]) at the beginning of her argument.
        {¶63} Perusal of the panel’s opinion demonstrates that the trial court
correctly identified the aggravating circumstances as aggravated murder that
occurred during an aggravated burglary and an aggravated murder that occurred
during an aggravated robbery. When a trial court correctly identifies the statutory
aggravating circumstances, it will be inferred that the trial court “ ‘understood the
difference between statutory aggravating circumstances and facts describing the
nature and circumstances of the offense.’ ” State v. Green (1993), 

, 

, quoting State v. Sowell (1988), 

,

. Therefore, we find no plain error resulting from the prosecutor’s
comments.
        {¶64} Second, defendant argues that the prosecutor’s final argument
impugned the defense counsel’s integrity. Here, defendant points to the following
segment of the prosecutor’s argument: “None of us envy your jobs, or a jury in a
situation like this, but you have that job, as all of us here in this system of justice;
Mr. Sniderman and I to prosecute honestly, ethically and to the best of our abilities
with the evidence we have through the investigators; Mr. Cimerman and Mr.




                                          16
                                January Term, 2002




Helmick to zealously advocate and defend their client; and the three of you to be
objective, to use the evidence before you, and combine it with your unique
understanding of the law. And we know that you will do that.” However, the
defense failed to object to the prosecutor’s argument and waived all but plain error.
State v. Wade, 

, 

, 

, paragraph one
of the syllabus.
       {¶65} The test for prejudice regarding prosecutorial misconduct in closing
arguments is “ ‘whether the remarks were improper and, if so, whether they
prejudicially affected the substantial rights of the defendants.’ ” State v. Hessler,

, 

, quoting State v. Smith, 

, 14 OBR 317, 

. Here, the prosecutor’s argument summed up
the professional responsibilities of the defense, prosecution, and the three-judge
panel. The prosecutor did not say anything negative about defense counsel or
otherwise impugn defense counsel’s integrity. Moreover, the prosecutor’s remarks
did not improperly contrast defense counsel’s zeal with the state’s honest and
ethical conduct of the case. Therefore, the prosecutor’s remarks were proper. We
find no plain or other error, and reject this argument.
       {¶66} Finally, defendant claims that the prosecutor improperly argued that
the three-judge panel should defer to decisions of this court when weighing
mitigating factors against the aggravating circumstances.
       {¶67} The prosecutor argued that the panel should consider the weight
given to mitigating evidence in several capital decisions of the Supreme Court of
Ohio when weighing mitigation in defendant’s case. However, the defense never
objected to that argument and waived all but plain error. State v. Wade, 

, 

, 

, paragraph one of the syllabus.
       {¶68} R.C. 2929.03(D)(1) neither requires nor forbids the court to consider
evidence determined to be mitigating in similar cases. However, the sentencing
procedures in R.C. 2929.03(D)(1) were designed to promote the objective




                                         17
                              SUPREME COURT OF OHIO




consideration of the circumstances of the individual offense and individual
offender. Asking the three-judge panel to make comparisons with other cases did
not constitute prejudicial error, since it is presumed that the panel “considered only
the relevant, material, and competent evidence in arriving at its judgment.” State
v. White (1968), 

, 

, 

.
        {¶69} Moreover, the sentencing opinion shows that the trial court properly
assessed defendant’s mitigating factors in accordance with R.C. 2929.04(B). Thus,
we find no plain error, and this argument is without merit.
        {¶70} In summary, we find no prosecutorial misconduct justifying reversal,
and we reject proposition VIII.
                         Ineffective Assistance of Counsel
        {¶71} In proposition of law X, defendant claims that he received ineffective
assistance of counsel when his trial counsel failed to preserve error by making
timely objections. However, defendant fails to mention any specific example of
counsel’s ineffectiveness at trial.
        {¶72} Earlier in our discussion, we found the specific allegations of
ineffective assistance of counsel in propositions II and VII to have no merit.
Moreover, our review of the remaining portions of the record discloses no evidence
of ineffective assistance of counsel affecting the ultimate outcome of the trial.
Therefore, we reject proposition X.
                                Sentencing Opinion
        {¶73} In proposition of law IX, defendant contends that the trial court
improperly weighed the aggravating circumstances against the mitigating factors.
        {¶74} First, defendant claims that the panel erred by weighing the
aggravating circumstances against the mitigating factors individually rather than
collectively. Since the panel found only one mitigating factor, defendant’s limited
intellect, to weigh against the aggravating circumstances, there was no error.




                                         18
                                January Term, 2002




       {¶75} Second, defendant argues that the panel treated the nature and
circumstances of the offense as an aggravating circumstance. However, the panel’s
sentencing opinion showed that it understood the difference between the statutory
aggravating circumstances and facts describing the nature and circumstances of the
offense. See, also, State v. Clemons (1998), 

, 

. Thus, we find that this argument is also without merit.
       {¶76} Defendant also argues that the trial court improperly weighed
defendant’s “history, character, and background” against “the invalid aggravating
circumstance of the nature and circumstances of the offense.” Here, defendant
points to the following segment of the sentencing opinion:
       {¶77} “While Mr. Thomas’ life and his experiences have been unlucky,
wretched, unfortunate, unhappy, counteractive and, perhaps, even disastrous, they
are not unusual, exceptional, rare or even uncommon. Many other persons who
have endured similar experiences in their lives have not resorted to such violent and
savage behavior.
       {¶78} “The panel, therefore, finds nothing in the defendant’s character,
background, and history to mitigate the barbarous, inhumane and pitiless massacre
of this unfortunate, hapless eighty-seven year old lady.”
       {¶79} R.C. 2929.04(B) required the three-judge panel to weigh the
aggravating circumstances against the “nature and circumstances of the offense, the
history, character, and background of the offender,” and other mitigating factors set
forth in R.C. 2929.04(B)(1) through (7). A careful reading of the panel’s opinion
demonstrates that it found that defendant’s history, character, and background were
entitled to no weight in mitigation. This was a proper conclusion. See State v.
Stumpf (1987), 

, 

; State v. Steffen (1987), 

, 31 OBR 273, 

, paragraph two of the syllabus.
       {¶80} The panel’s remark that it found “nothing in the defendant’s
character, background, and history to mitigate the barbarous, inhuman and pitiless




                                         19
                              SUPREME COURT OF OHIO




massacre” was an unnecessary reference to the nature of the offense. However, this
reference and other misstatements in the sentencing opinion are harmless error. The
panel properly weighed the aggravating circumstances against the only mitigating
factor that it found, defendant’s limited intellectual abilities.
        {¶81} Finally, defendant claims that the panel improperly discounted
mitigating evidence of his “disastrous” life and experiences, and ignored the
mitigating fact that giving defendant “the maximum consecutive sentences would
have rendered him first eligible for parole at age 82.” (Emphasis sic.) There is “no
requirement” that the trial court explain “how it decides how much weight to give
to any one factor.” Moreover, “[t]he weight, if any, given to a mitigating factor is
a matter for the discretion of the individual decisionmaker.” State v. Filiaggi, 

, 

. Thus, the panel could reasonably assign
whatever weight, if any, thought to be appropriate for that mitigating evidence.
        {¶82} Furthermore, our independent reassessment of the sentence will
eliminate the effect of any deficiencies found in a trial court’s sentencing decision.
State v. Fox (1994), 

, 

. For these
reasons, we reject proposition IX.
       Weighing of Aggravating Circumstances and Mitigating Factors
        {¶83} In proposition of law XIV, defendant argues that his death penalty
must be vacated because the aggravating circumstances do not outweigh the
mitigating factors. We will address defendant’s argument when we independently
review defendant’s death sentence.
                                   Proportionality
        {¶84} In proposition of law XIII, defendant argues that the proportionality
review of his sentence should not be limited to those cases where the death sentence
has actually been imposed. We summarily reject this claim. See State v. Steffen,

, 31 OBR 273, 

, paragraph one of the syllabus.




                                           20
                                   January Term, 2002




       {¶85} In proposition of law XV, defendant argues that his death sentence is
disproportionate to death sentences in other cases.           We will address the
proportionality of defendant’s death sentence during our sentence evaluation.
                               Constitutional Issues
       {¶86} In proposition of law XI, defendant disputes the constitutionality of
Ohio’s death-penalty statutes. We reject these claims. See State v. Carter (2000),

, 

; State v. Clemons, 

,

; State v. Jenkins (1984), 

, 15 OBR 311,

.
                        Independent Sentence Evaluation
       {¶87} Aggravating circumstances. The evidence established that defendant
was properly convicted of two death-penalty specifications under R.C.
2929.04(A)(7), namely committing murder during an aggravated burglary, and
committing murder during an aggravated robbery.
       {¶88} Mitigation evidence. Defendant called two mitigation witnesses,
provided his own unsworn statement, and introduced documentary evidence. His
counsel also argued mitigating factors for the panel’s consideration during final
argument.
       {¶89} Dr. Jeffrey Smalldon, a clinical psychologist, stated that defendant
had a long history of learning problems, an extensive history of alcohol and drug
abuse, and a history of family alcoholism.
       {¶90} Defendant attended school in rural Tennessee when the schools were
first being integrated. Defendant repeated the first, second, and seventh grades and
then dropped out of school. According to Smalldon, defendant’s educational
testing results at the ages of 10 and 12 suggested an “overall intellectual functioning
somewhere in either the mildly retarded or what’s called the borderline range of
intellectual … functioning.”




                                           21
                             SUPREME COURT OF OHIO




       {¶91} Defendant was hit in the head with a baseball bat in 1981. Medical
records from the injury showed that defendant suffered “anterograde amnesia,” and
a variety of symptoms associated with postconcussion syndrome. Defendant did
not suffer a skull fracture, although he remained hospitalized for three or four days.
       {¶92} Testing in 1982 showed that defendant had an IQ of 72.              The
psychologist administering the IQ test strongly suspected that defendant suffered
some degree of “organic or structural brain impairment.”        However, defendant
never received followup neurological testing to complete the diagnosis.
       {¶93} Testing conducted when defendant applied for Social Security
disability benefits in 1993 showed that defendant had an IQ of 52. However,
Smalldon questioned the validity of these test results, since defendant may have
been motivated to perform poorly on the test to qualify for disability benefits.
Smalldon’s “best estimate of his IQ, if he was doing his best,” was “probably at the
low end of the borderline range,” in the low 70s.
       {¶94} Tests administered by Smalldon before trial showed that defendant’s
word recognition and spelling were at the first-grade level, and his arithmetic skills
were at the third-grade level. According to Smalldon, “there’s no question …
[that] Mr. Thomas has very significant intellectual deficits, deficits that place him
in the cusp of the mildly retarded and low borderly [borderline] ranges of
intellectual functioning.”
       {¶95} Other testing showed defendant’s tendency toward very concrete and
overly simplistic thinking and “very poor logical and sequential reasoning
abilities.” Further testing showed that defendant suffered from a “deficit, the sort
that’s most frequently associated with the right cerebral hemisphere and …
spatial orientation,” which Smalldon implied could be related to the injury from the
baseball bat in 1981.
       {¶96} Smalldon stated that defendant was “capable of planning [the crime]
on some level.” However, “[i]f it was … an attempt to undertake complex




                                         22
                                January Term, 2002




planning it would be without a full appreciation for the long term implications of
what he is doing. It would be a here and now kind of focus. So he would be able
to plan, but in a very limited way in my opinion.” Smalldon also stated, “I have no
reason to believe … that Mr. Thomas was unable to distinguish between right
from wrong at the time this offense occurred.” Moreover, defendant’s intoxication
at the time of the offense would have had the effect of further eroding his behavioral
controls.
        {¶97} During cross-examination, Smalldon confirmed that he had
information on defendant’s criminal record that predated the 1981 baseball bat
injury. These offenses included receiving stolen property in 1978, criminal trespass
in March 1980, breaking and entering in April 1980, disorderly conduct in June
1980, criminal damaging in August 1980, menacing in March 1981, breaking and
entering in April 1981, shoplifting in May 1981, and disorderly conduct in June
1981.
        {¶98} Dr. Janice Ort, a clinical psychologist, conducted psychological
testing on defendant.     Defendant “scored in the mentally retarded range of
intellectual functioning” on the Wechsler Adult Intelligence Scale—Revised
(“WAIS-R”) test. Defendant’s score fell “somewhere within about the range of 65
to 69.” However, Ort felt that after “observing his behavior and his level of
engagement in this test, it was very likely that that was somewhat of an
underestimation of his actual level of intellectual functioning.” Ort stated that
defendant “would feign sleeping during some of the administrations and had to be
aroused to participate and to answer.”
        {¶99} Defendant scored even lower on the Stanford-Binet test, with a
composite score of 58. Defendant’s scores showed that his “vocabulary was at the
age equivalent of 7 years old, while his comprehension abilities were at an age
equivalent level of an 8 year old.”




                                         23
                              SUPREME COURT OF OHIO




        {¶100} According to Ort, defendant reported auditory hallucinations and
“often heard the devil speaking to him.” Defendant described the devil as “a brother
of his who had been killed by his father.” In response to a number of questions,
defendant stated that it was “his brother who seemed to be the voice of the devil,
who seemed to be responsible for the troubles in his life.” Defendant also described
memory losses that were related to substance abuse, a relatively high number of
somatic complaints, bizarre sensory experiences, strong feelings of persecution,
and strong feelings of alienation.
        {¶101} Defendant’s responses to the Rorschach inkblot test indicated that
“his thinking is seriously disturbed, that it’s characterized by very flawed judgment,
flawed conceptualizations and often includes disorganized and inconsistent
decision making patterns.” Testing indicated that defendant is “not bothered by a
lot of the internal states and feelings that tend to motivate most people.”
        {¶102} Defendant attended segregated schools in Tennessee until the fourth
grade. Defendant did not receive any kind of special education for his learning
disabilities because such programs were not available when he was in school.
Defendant’s school record shows that he received mostly C’s and F’s until he
dropped out of school the year after his second year in the seventh grade. After
reviewing all of his previous IQ test scores, Ort stated that “it’s likely … that his
full scale IQ falls somewhere within the high 60’s to very low 70’s.”
        {¶103} Defendant was one of nine children. Defendant’s father was an
alcoholic, and the family was impoverished. Everyone in the family would often
cut cotton to help supplement the family’s income. One of defendant’s brothers
threatened other family members throughout their lives. He eventually threatened
their father, who killed him in self-defense. Another brother was reported to have
been institutionalized in Chicago. Defendant’s mother was a very religious woman,
and he described her as “sanctified.”




                                           24
                               January Term, 2002




       {¶104} Defendant described his substance abuse as primarily alcohol,
although in his thirties he used marijuana and crack. In Ort’s opinion, defendant
“has an alcohol dependence problem, a cannabis problem, cocaine dependence.”
       {¶105} Ort also found that defendant has “a personality disorder” that does
not meet any of the “specific diagnostic criteria, so he’s diagnosed with a
personality disorder not otherwise specified.”       Ort stated that defendant’s
“functioning falls probably more in the borderline range of functioning towards the
lower end.” Moreover, Ort thought it was “likely that his verbally based skills, …
* in terms of comprehension, social judgments, … tip more into the range of
mental retardation.” However, Ort also stated, “I think he’s capable of knowing
right from wrong.”
       {¶106} During cross-examination, Ort agreed that defendant’s criminal
record included disorderly conduct, resisting or interfering with arrest,
unauthorized use of property, a drug paraphernalia charge in September 1989,
attempted breaking and entering in December 1989, and gross sexual imposition in
February 1990. Defendant also committed various behavioral infractions (i.e., not
completing work assignments and possession of contraband) while imprisoned at
the Mansfield and Lebanon Correctional Facilities.
       {¶107} Defendant was placed into the Volunteers of America halfway
house program after being released from prison. Reports indicated that he abstained
from alcohol, completed job training, and committed no violations. However,
defendant had difficulty maintaining sobriety and staying employed after leaving
that structured environment.
       {¶108} In his unsworn statement, defendant said, “I’m sorry if I have hurt
anyone, hurt that lady, their peoples. But like I said before, I don’t remember none
of this, and that’s the only thing I can say. I’m sorry for what I did. I don’t
remember none of this.”




                                        25
                              SUPREME COURT OF OHIO




        {¶109} During the final argument in the penalty phase, defendant’s counsel
argued that if defendant were given a life sentence, his first hope of parole eligibility
would occur when he was 82 years old. Counsel also pointed out that six states
absolutely prohibit the execution of the mentally retarded.
        {¶110} Victim-impact evidence. Following defense mitigation, Rosalyn
Nagel and Carolyn Cook, the victim’s daughters, presented a joint statement. They
described their mother as a “kind and gentle lady who treated everyone she met
with compassion and understanding.” Newbirt treated defendant with kindness by
giving him “a few dollars to perform small jobs in her yard, that she really did not
require.” Nagel stated that Newbirt “suffered each of those 30 days in the hospital.
And her family, children, grandchildren, and great-grandchildren watched her
dying and suffered with her each day.” In a separate statement, Cook repeated
many of the same sentiments about her mother. She stated that Newbirt was a “dear
sweet lady who was where she wanted to be, where she should have been, loving
her life and loving her family.”
        {¶111} Both statements expressed the daughters’ feelings about the nature
of the crime, and defendant’s character.         Nagel described the offense as a
“despicable violent crime that was an ultimate act of a bully.” She stated, “Each
member of our family hopes that he will suffer the same terror as our mother
suffered when he entered her bedroom and struck her again and again as she begged
for her life.” Cook stated that defendant committed an “unthinkable, unspeakable
crime.” About the defendant, she said, “If given the same set of circumstances, he
will commit another unthinkable, unspeakable crime.”
                                Sentence Evaluation
        {¶112} We find nothing in the nature and circumstances of this offense to
be mitigating. Defendant broke into Newbirt’s home in the middle of the night,
entered her bedroom, brutally attacked Newbirt by hitting her in the head with a
hammer, and stole her television. After fleeing, defendant attempted to sell the




                                           26
                               January Term, 2002




television. Thus, the facts establish a senseless murder that lacks any mitigating
features.
       {¶113} Defendant’s history and background provide modest mitigating
features. Defendant grew up as one of nine children born to a rural, impoverished
family in Tennessee. Defendant did poorly in school and dropped out of school
completely after the seventh grade. His father was reportedly an alcoholic. One of
defendant’s brothers was killed by his father in self-defense. Defendant has a long
history of drug and alcohol abuse.
       {¶114} The statutory mitigating factors are generally inapplicable,
including R.C. 2929.04(B)(1) (inducement by the victim); (B)(2) (duress, coercion,
or strong provocation), (B)(4) (youth of the offender)—defendant was 38 at the
time of the offense, (B)(5) (lack of a criminal record)—defendant had a lengthy
criminal record including breaking and entering, receiving stolen property and
gross sexual imposition, and (B)(6) (accomplice only).
       {¶115} Defendant’s intellectual deficiencies and possible brain dysfunction
do not qualify as a mental disease or defect under R.C. 2929.04(B)(3). See State v.
Gumm (1995), 

, 

. However, defendant’s
limited intellect is entitled to significant weight in mitigation under R.C.
2929.04(B)(7). Here, we wish to emphasize that the consideration of a defendant’s
intellectual deficiencies under the (B)(7) (catchall) rather than (B)(3) (mental
disease) does not lessen the importance attributed to the evidence during the
weighing process. State v. Otte (1996), 

, 

(in weighing the mitigation potential of addiction under [B][7], it did “not matter
under which statutory category it was considered”).
       {¶116} On June 20, 2002, the United States Supreme Court ruled that
execution of mentally retarded persons convicted of capital crimes is
unconstitutional. Atkins v. Virginia (2002), 

, 

, 

. Of the states that currently prohibit execution of the mentally




                                        27
                                  SUPREME COURT OF OHIO




retarded, the majority define “mental retardation” in terms of an IQ of 70 or below.
See, e.g., Neb.Rev.Stat. 28-105.01(2), N.M. Stat. 31-20A-2.1, N.C.Stat. 15A-2005,
S.D. Codified Laws 23A-27A-26.1, Tenn.Code 39-13-203(b), Wash.Rev.Code
10.95.030(2).
         {¶117} Clinical definitions of mental retardation require subaverage
intellectual functioning, and significant limitations in adaptive skills such as
communication, self-care, and self-direction that become manifest before age
eighteen. We note that there was little evidence in the record regarding defendant’s
adaptive skills.
         {¶118} “Mild mental retardation” is typically used to describe people with
an IQ level of 50 or 55 to approximately 70.2 According to Dr. Smalldon,
defendant’s IQ was in the very low 70s, placing him on the cusp of the mildly
retarded and low borderline ranges of intellectual functioning. Dr. Ort provided
similar testimony and estimated that his IQ was in the “high 60’s to very low 70’s.”
However, evidence of defendant’s mental deficiencies might be traced to his 1981
injury, when Thomas was in his mid-20s, and would therefore not meet the
definition of “mental retardation” of most states that prohibit execution of the
mentally retarded. Although the trial court found that defendant’s 1981 baseball
bat injury had no lasting effect, the trial court found that defendant is not retarded.
         {¶119} We also note that experts administering other tests believed at times
that defendant was feigning mental retardation. For example, testing conducted
when defendant applied for Social Security disability benefits in 1993 showed that
defendant had an IQ of 52, but Smalldon questioned the validity of these tests since
defendant may have been motivated to perform poorly on the test to qualify for
disability benefits. On the Wechsler Adult Intelligence Scale-Revised test, Ort
testified that defendant’s score fell “somewhere within about the range of 65 to 69.”

2. 

 at footnote 3, citing definitions of “mental retardation” adopted by the American
Association of Mental Retardation and the American Psychiatric Association.




                                                28
                                January Term, 2002




However, Ort believed that after “observing his behavior and his level of
engagement in this test, that that was somewhat of an underestimation of his actual
level of intellectual functioning,” since defendant “would feign sleeping during
some of the administrations and had to be aroused to participate and answer.”
       {¶120} Accordingly, we conclude that the expert testimony did not
establish that defendant was mentally retarded.         However, if defendant has
additional information to present under the new test set forth by the United States
Supreme Court in Atkins v. Virginia, he is free to file for post-conviction relief
under the standards set forth by this court in State v. Lott, 

, 2002-
Ohio-6625, 

, decided today.
       {¶121} Further, despite his low IQ and head injuries, defendant was able to
distinguish right from wrong as noted by Smalldon and Ort, who examined him.
Cf. State v. Gumm, 

, 

; State v. Hill (1992),

, 

. Ort agreed that despite his mental
deficiencies, defendant was capable of functioning in the community. Evidence
also indicates that defendant was intoxicated or on drugs when he murdered
Newbirt, and thus his drug and alcohol abuse significantly contributed to his
behavior on the night of the crime.
       {¶122} Defendant’s unsworn statement provides only slight mitigation. In
his unsworn statement, defendant stated that he did not remember what he did on
the night of the crime, so he expressed sorrow “if I have hurt anyone.” The evidence
does not suggest any other mitigating factors under R.C. 2929.04(B)(7).
       {¶123} In summary, we find that the aggravating circumstances, i.e., the
murder was committed during a burglary and a robbery, outweigh the mitigating
factors beyond a reasonable doubt.            Undoubtedly, defendant’s intellectual
deficiencies and difficult childhood are entitled to significant weight in mitigation.
Moreover, defendant’s alcohol and substance abuse affected his judgment and
played a role in the murder. However, the facts surrounding the aggravating




                                         29
                              SUPREME COURT OF OHIO




circumstances show a brazen, callous robbery and            burglary committed in
connection with the brutal murder of a helpless, 87-year-old lady. Therefore, we
find that the death sentence in this case is appropriate.
          {¶124} Finally, we find that the death penalty imposed for the aggravated
murder of Newbirt is appropriate when compared with other burglary-murder and
robbery-murder cases. See State v. Jones (2000), 

, 

; State v. Stallings (2000), 

, 

; State v. Spivey
(1998), 

, 

; State v. Murphy (1992), 

, 

; State v. Slagle (1992), 

, 

;
State v. Lott, 

, 

; and State v. Barnes (1986), 

, 25 OBR 266, 

.
          {¶125} Accordingly, we affirm the defendant’s convictions and sentence of
death.
                                                                 Judgment affirmed.
         MOYER, C.J., DOUGLAS, J.J. SWEENEY, F.E. SWEENEY and PFEIFER, JJ.,
concur.
         COOK, J., concurs in judgment only.
         JAMES J. SWEENEY, J., of the Eighth Appellate District, sitting for RESNICK,
J.
                                __________________
                                    APPENDIX
          {¶126} First Proposition of Law: A trial court commits error by failing to
find that a defendant is not competent to stand trial where he is unable to assist in
his own defense.
          {¶127} Second Proposition of Law: A defendant who is unable to assist in
his own defense receives ineffective assistance of counsel when his trial attorneys
do not ask the trial court to hold a hearing or order a psychiatric examination to
determine whether the defendant is competent to stand trial.




                                          30
                                 January Term, 2002




       {¶128} Third Proposition of Law: A capital defendant’s waiver of trial by
jury will not be considered knowing, intelligent, and voluntary unless the record
affirmatively demonstrates that he understood the effects of his waiver including,
in particular, that virtually any error which might be committed by a three-judge
panel will be considered waived for appellate purposes.
       {¶129} Fourth Proposition of Law: A trial court does not have jurisdiction
to try a defendant without a jury where the jury waiver is neither journalized [n]or
accompanied by a properly executed judgment entry authorizing trial by a three
judge panel.
       {¶130} Fifth Proposition of Law: A trial court commits erred [sic] by
failing to ask a criminal defendant whether he (1) is aware that he has an absolute
right to testify in his own behalf, and (2) whether he knowingly, intelligently, and
personally waives that right.
       {¶131} Sixth Proposition of Law: A trial court commits error to the
prejudice of a criminal defendant where it permits a witness to render an expert
opinion when that witness has not been qualified as an expert as required by Evid.R.
702.
       {¶132} Seventh Proposition of Law: A criminal defendant is denied his
right to effective assistance of counsel when trial counsel fails to object to the
testimony of a witness who renders an expert opinion without being qualified as
required by Evid.R. 702.
       {¶133} Eighth Proposition of Law: A capital defendant is deprived of a fair
sentencing determination when the prosecutor during closing argument at the
mitigation phase of the trial:
       {¶134} 1.      Treats the nature and circumstances of the offense as an
aggravating factor;
       {¶135} 2. Characterizes the functions of the parties in the courtroom in
such a way as to indicate that defense counsel are unethical; and




                                         31
                             SUPREME COURT OF OHIO




       {¶136} 3. Urges the court not to conduct its own weighing of aggravating
and mitigating factors but to defer to the decisions of this court.
       {¶137} Ninth Proposition of Law: A three-judge panel violates its duty and
also the constitutions of the United States and of the state of Ohio by imposing a
sentence of death upon weighing the aggravating circumstances collectively against
the mitigating factors individually and by weighing the nature and circumstances
of the offense against the mitigating factors.
       {¶138} Tenth Proposition of Law: A defendant in a capital case receives
ineffective assistance of counsel when his trial counsel fails properly to preserve
error by making timely objection.
       {¶139} Eleventh Proposition of Law: Constitutional defects in Ohio’s
death penalty statutes require that a trial court should dismiss death penalty
specifications.
       {¶140} Twelfth Proposition of Law: An accused’s right to due process
under the Fourteenth Amendment to the United States Constitution is violated when
the state is permitted to convict upon a standard of proof below proof beyond a
reasonable doubt.
       {¶141} Thirteenth Proposition of Law: Mandated proportionality review of
death sentences should not include in the sample to be reviewed only those case[s]
where the punishment of death was imposed.
       {¶142} Fourteenth Proposition of Law: A trial court errs when it wrongly
concludes that the aggravating circumstance outweighs the mitigating factors
beyond a reasonable doubt.
       {¶143} Fifteenth Proposition of Law: A death sentence must be appropriate
and proportional.
                               __________________
       Jeffrey M. Gamso and Spiros P. Cocoves, for appellant.
                               __________________




                                          32