[This decision has been published in Ohio Official Reports at
97 Ohio St.3d 367.]
THE STATE OF OHIO, APPELLEE, v. SMITH, APPELLANT.
[Cite as State v. Smith, 2002-Ohio-6659.]
Criminal law—Aggravated murder—Death penalty upheld, when.
(No. 1999-0905—Submitted July 24, 2002—Decided December 13, 2002.)
APPEAL from the Court of Common Pleas of Richland County, No.
98CR601D.
__________________
FRANCIS E. SWEENEY, SR., J.
{¶1} In April 1998, defendant-appellant, Steven Smith, met and started
dating Keysha Frye. A short time later, Smith moved in with Frye and her two
young daughters, Ashley, age two, and Autumn, six months. In the middle of
September 1998, Frye asked Smith to move out due to his heavy drinking.
However, Smith moved back in after he promised Frye that he would stop drinking.
Around this same time, Smith was fired from his job and began watching Frye’s
children while she was at work.
{¶2} On September 28, 1998, Frye arrived home from work at 2:30 p.m.
According to Frye’s account of what occurred that afternoon and evening, she and
Smith left the apartment with her two children. They ran some errands, ate dinner
at Burger King, and visited one of Smith’s friends, Brett Samples. While visiting
Samples, Smith drank three beers and played pool. They left Samples’s home at
7:30 p.m. On the way home, Smith purchased a twelve-pack of Busch Ice at a gas
station and drank one of the beers in the car.
{¶3} Upon arriving home around 8:00 p.m., Frye locked the apartment’s
two outer doors. Smith changed Autumn’s diaper, fed her, and dressed her in a
pink sleeper. At around 10:15 p.m., Smith took Autumn upstairs and put her to
sleep in her crib. Frye put Ashley to bed at 10:30 p.m. Frye went back downstairs
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and watched television with Smith, who drank more beer. Shortly thereafter, she
and Smith went upstairs. Smith removed his cutoff shorts and red underwear, and
they had sexual intercourse. Smith did not ejaculate, but Frye stated that he did not
seem upset.
{¶4} Frye and Smith then went back downstairs, watched more television,
and Smith consumed more beer. Frye went upstairs to sleep at 11:00 p.m., while
Smith remained downstairs watching television. Frye checked in on her children
and brought Ashley into her bed to sleep with her. Frye left Autumn in her crib.
At around 3:22 a.m. on September 29, 1998, Frye was awakened by Smith, who
was standing next to her bed, naked. Smith placed Autumn, who was also naked,
down beside Frye in bed. Frye went to pick Autumn up and noticed that Autumn’s
head fell over her arm. She then placed her hand on Autumn’s stomach and realized
that the baby was not breathing. Frye told Smith that he had killed her baby. In
response, Smith threw the alarm clock and said that the baby was not dead.
{¶5} Frye quickly left the apartment with Autumn and Ashley and went to
the apartment of neighbors Mya Brooks and Jeff Pierce. Brooks testified that when
she opened the door, Frye screamed, “[H]e killed my baby, he killed my baby, Mya,
help me.” Frye entered the apartment with her children, and Brooks called 911.
Before the ambulance arrived, Smith came to Brooks’s door, asked what Frye was
doing, and exclaimed that “he didn’t do anything” and “why was she fucking
lying.” Brooks shut the door on Smith.
{¶6} Emergency medical personnel arrived and discovered Autumn’s nude,
lifeless body lying on a blanket. They observed injuries on her head and bruising
around her eyes. They began CPR, and Autumn was transported to the hospital.
The emergency room doctor testified that upon her arrival, Autumn had no pulse
and had suffered a retinal hemorrhage. In addition to her visible bruising, the
physician also stated that Autumn had bruising around her rectum and that the
opening of her vagina was ten times the normal size for a baby her age—injuries
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that are consistent with sexual abuse. After trying to resuscitate Autumn for close
to an hour, medical personnel pronounced her dead.
{¶7} In the meantime, shortly after EMS arrived at the scene, Pierce
observed Smith throw a trash bag in a dumpster. He heard Smith say that he did
not do anything and that he was leaving. Pierce told Smith to stay with him, which
he agreed to do.
{¶8} Soon thereafter, the police arrived at the crime scene. Officers entered
Frye’s apartment and saw no signs of forcible entry. They found that the television
had been left on and was extremely loud. Police also discovered the victim’s pink
baby sleeper under the coffee table and Smith’s cutoffs and jeans near the couch.
They also found whitish-colored material, later determined to be pieces of shredded
diaper, scattered on the floor in the same area near the baby swing and sofa. Small
piles of the victim’s hair were found on the coffee table. The police also retrieved
a garbage bag from the outside trash dumpster that contained a torn baby diaper,
Smith’s tee shirt, and ten empty cans of Busch Ice.
{¶9} Officer Joseph Dean Petrecky approached Smith, who was standing
outside the apartment. Before asking him any questions, Smith told the officer, “I
didn’t do it, I didn’t do it.” Smith smelled of alcohol, was disheveled, and swayed
back and forth while speaking with the officer. The officer arrested Smith for
public intoxication. Later that morning, at 11:00 a.m., Smith’s blood-alcohol level
was tested and found to be .123.
{¶10} At the police station, Detective Robert Burks interviewed Smith. He
told the detective that he had drunk four beers during the entire day and night. He
stated that he and Frye had gone to bed at midnight and that he was awakened by
Frye, who was accusing him of killing her daughter. On October 27, 1998, Smith
gave police a second statement. In that statement, he changed his version of what
had occurred. He told police that he had consumed three beers at Samples’s house
and six additional beers when he returned to the apartment. Smith said that later
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that evening, after they had returned home, they put Autumn to sleep in the baby
swing and Ashley to sleep on the downstairs love seat. Smith also said they had
had sexual intercourse on the living room couch while the two children were asleep
in the same room. According to Smith, he woke up at 3:25 a.m. and, believing that
something was wrong with Autumn, carried her upstairs while he yelled for Frye.
At that point, Frye grabbed Autumn and accused him of killing her.
{¶11} On November 3, 1998, Smith signed and verified the October 27
statement. In answer to followup questions, Smith denied putting trash in the
dumpster the morning of the crime and said that the cotton materials found on the
living room floor were baby wipes put there by Ashley.
{¶12} The grand jury indicted Smith on two counts of aggravated murder,
with two death penalty specifications, under R.C. 2929.04(A)(7) (murder during
rape or attempted rape) and R.C. 2929.04(A)(9) (purposely causing the death of
someone under the age of 13). Each count also contained a sexual motivation
specification and a sexually violent predator specification.
{¶13} At trial, in addition to the foregoing evidence, Dr. Marvin S. Platt,
the coroner who performed the autopsy, displayed autopsy photographs and slides
and testified that the victim died from compression asphyxia and blunt trauma to
the head. Dr. Platt found that the injuries to the victim’s head and the abrasions on
her forehead, cheek, and chin indicated that the victim was lying on her abdomen
and that her face had been forced into a pillow. Contusions to her buttocks indicated
that they were subject to pressure from the weight of another person. Dr. Platt
further testified that the victim suffered subarachnoid and retinal hemorrhages
consistent with shaken baby syndrome, indicating that an attempt had been made
to restrain the baby. Other bruising and abrasions revealed that the baby had
resisted the attack. The victim was also missing hair from the back of her head,
evidence consistent with someone grasping the back of her head. Furthermore, as
attested by the emergency room physician, Dr. Platt found that the victim’s clitoris
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was red, her vagina was enlarged, and there was a hemorrhage in her anus, all
indicative of attempted penetration.
{¶14} Forensic evidence revealed human blood on two seat cushions and
on Autumn’s pink sleeper. DNA tests excluded appellant as the source of the blood.
However, DNA from the two couch cushions and the pink sleeper matched the
victim’s DNA. No semen was found.
{¶15} In his defense, Smith offered the testimony of Robert Forney Jr., a
board-certified forensic toxicologist, to support his theory that he was intoxicated
when he committed the assault. Forney testified that Smith’s blood-alcohol level
would have been at least .36 and possibly as high as .60 at 11:30 p.m. on September
28. According to Forney, even an alcoholic with a .28 blood-alcohol level would
be intoxicated.
{¶16} Smith called other witnesses on his behalf who testified that he was
a heavy drinker who had blacked out in the past. In addition, his former girlfriend,
with whom he had a child, and his sister testified that when he watched their
children, he took good care of them.
{¶17} The jury found Smith guilty as charged. After a penalty hearing, the
jury recommended death on each aggravated murder charge. The state then
dismissed the violent sexual predator specification. The trial court sentenced
appellant to death on each aggravated murder count, finding that the two
aggravating circumstances were not outweighed by any mitigating factors.
{¶18} Smith now appeals to this court as a matter of right.
{¶19} There are 19 propositions of law before us.1 We have repeatedly held
that we need not discuss, in opinion form, every proposition of law raised in a death
penalty appeal. We have fully considered each argument advanced and have
reviewed the record in its entirety. We have also reviewed the penalty of death for
1. Smith originally presented 20 propositions of law for our consideration. However proposition
of law 20 has been withdrawn.
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appropriateness and proportionality. Upon review, and for the reasons that follow,
we uphold Smith’s convictions and sentence of death.
I
Jury Instructions
A. Guilt Phase
{¶20} In proposition of law one, Smith contends that the trial court erred by
refusing to instruct the jury on the lesser included offense of involuntary
manslaughter and on voluntary intoxication. Smith maintains that although he had
the intent to commit a sexual assault, he lacked the intent necessary to support a
finding of having a purpose to kill and that his intoxication prevented his realizing
the severity of the injuries he was inflicting on Autumn.
{¶21} An instruction on a lesser included offense is “required only where
the evidence presented at trial would reasonably support both an acquittal on the
crime charged and a conviction upon the lesser included offense.” State v. Thomas
(1988), 40 Ohio St.3d 213,
533 N.E.2d 286, paragraph two of the syllabus. We
find no evidence to suggest that Smith lacked the purpose to kill the victim in this
case.
{¶22} Contrary to Smith’s contention, he presented no evidence at trial
indicating that he intended to sexually assault, rather than kill, Autumn. Instead,
the evidence reveals that Smith purposely killed Autumn while raping or attempting
to rape her. Medical testimony found that the weight and pressure of Smith’s body
on top of the sixteen-pound baby was one of the direct causes of her death. The
violence of the attack, which was estimated by the coroner to have lasted between
ten and thirty minutes, resulted in hemorrhages to her brain and retina and caused
her to sustain brain contusions and other contusions on her body. Witnesses
testified that these injuries showed intent to kill. Consequently, we reject Smith’s
argument that evidence of purpose was lacking. Accordingly, we find that the court
did not err in denying Smith’s request for an involuntary manslaughter instruction.
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See State v. Raglin (1998), 83 Ohio St.3d 253, 257-258,
699 N.E.2d 482; State v.
Smith (2000),
89 Ohio St.3d 323, 331,
731 N.E.2d 645.
{¶23} We also find that the trial court acted properly in refusing to instruct
the jury on voluntary intoxication. It is within the trial court’s discretion “to
determine whether the evidence presented at trial is sufficient to require a jury
instruction on intoxication where the accused claims that his inebriated condition
negated the mental state required as an element of the crime charged.” State v.
Wolons (1989), 44 Ohio St.3d 64,
541 N.E.2d 443, paragraph two of the syllabus;
State v. Nields (2001),
93 Ohio St.3d 6, 22-23,
752 N.E.2d 859.
{¶24} Given the evidence presented, the court did not abuse its discretion.
Smith’s strongest evidence of intoxication was his expert’s testimony, placing his
blood-alcohol level between .26 and .6 at the time of the offense. However, a high
blood-alcohol level does not compel an intoxication instruction (State v. Mitts
[1998], 81 Ohio St.3d 223, 229,
690 N.E.2d 522), since even severe intoxication
can co-exist with purpose. State v. Hicks (1989),
43 Ohio St.3d 72, 74,
538 N.E.2d
1030. The evidence reveals that Smith understood what was occurring after the
offenses were committed. He understood that Frye accused him of killing her child
and consciously made the decision to throw evidence into a dumpster. Additional
testimony from Smith’s friends and relatives showed that although Smith was a
heavy drunker, he was able to handle his alcohol well. This evidence supports the
conclusion that Smith had the intent to murder Autumn. Accordingly, no
instruction on voluntary intoxication was required.
{¶25} As for the remaining arguments regarding jury instructions, since
Smith did not raise an objection, we apply a plain-error analysis. Crim.R. 30(A).
{¶26} Smith challenges the court’s instruction on an accused’s right not to
take the witness stand. In particular, Smith objects to that part of the instruction
that said that a defendant has the constitutional right not to testify and “is not called
on to advance a theory that may explain something even if it will otherwise remain
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a mystery.” (Emphasis added.) Smith contends that the italicized language
suggests that he could have explained the mystery surrounding the murder, which
implied that he was guilty of the crimes charged. We disagree. The instruction
taken as a whole emphasized appellant’s right to remain silent. The court further
charged the jurors that they “must not be influenced by the Defendant’s failure to
testify.” Although the language Smith complains of was unnecessary, it does not,
when viewed in the context of the overall charge, violate his Fifth Amendment
rights. We overrule proposition of law one.
{¶27} We summarily reject propositions of law 13 and 19, which address
the court’s failure to define “principal offender” and the court’s use of the statutory
definition of “reasonable doubt” as contained in R.C. 2901.05(D). We have
repeatedly held that the failure to define “principal offender” does not constitute
plain error. See State v. Chinn (1999), 85 Ohio St.3d 548, 559,
709 N.E.2d 1166.
We have also upheld the statutory definition of “reasonable doubt.” See, e.g., State
v. Jenkins (1984),
15 Ohio St.3d 164, 15 OBR 311,
473 N.E.2d 264, paragraph
eight of the syllabus; State v. Moore (1998),
81 Ohio St.3d 22, 37-38,
689 N.E.2d
1.
B. Penalty Phase
{¶28} In proposition of law five, Smith challenges the trial court’s
instruction regarding life imprisonment on the ground that it failed to comply with
State v. Brooks (1996), 75 Ohio St.3d 148, 162,
661 N.E.2d 1030. In Brooks, we
found that the court erred in instructing jurors that they must unanimously
determine that the death penalty is inappropriate before they consider a life
sentence. The instruction at hand differs from that of Brooks in that the trial court
here never advised the jury that it had to unanimously reject the death penalty
before considering a life sentence. Instead, the jury was told that it must impose a
life sentence if not all twelve jurors agreed to recommend death. The jurors were
implicitly told that a single juror could prevent the death penalty. The instructions
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were consistent with R.C. 2929.03(D)(2). See State v. Stallings (2000), 89 Ohio
St.3d 280, 293,
731 N.E.2d 159. Although it is advisable for courts to explicitly
instruct the jury that a single juror “may prevent a death penalty recommendation
by finding that the aggravating circumstances … do not outweigh the mitigating
factors” (State v. Madrigal [2000],
87 Ohio St.3d 378, 393,
721 N.E.2d 52), the
charge as given did not create prejudicial error. We overrule proposition of law
five.
{¶29} We summarily reject proposition of law 16 regarding the court’s
refusal to instruct on residual doubt as a mitigating factor, on authority of State v.
McGuire (1997), 80 Ohio St.3d 390,
686 N.E.2d 1112, syllabus.
II
Voir Dire
{¶30} In proposition of law 12, Smith contends that the trial court erred in
denying his challenge for cause against juror Paula Bryant based on Bryant’s strong
views in favor of the death penalty.
{¶31} The standard for determining whether a prospective juror may be
excluded for cause based upon his or her views on the death penalty is whether
those views would “ ‘prevent or substantially impair the performance of his duties
as a juror in accordance with his instructions and his oath.’ “ (Emphasis omitted.)
Wainwright v. Witt (1985), 469 U.S. 412, 420,
105 S.Ct. 844,
83 L.Ed.2d 841,
quoting Adams v. Texas (1980),
448 U.S. 38, 45,
100 S.Ct. 2521,
65 L.Ed.2d 581.
In this case, juror Bryant indicated that she favored the death penalty. However,
she later stated that she would listen to all of the evidence and that she would not
be predisposed to recommending the death penalty. Instead, she would make the
state prove that the aggravating circumstances outweighed the mitigating factors.
Since the juror agreed to follow the law, we find that the trial court did not abuse
its discretion in denying Smith’s challenge for cause. We overrule appellant’s
proposition of law 12.
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III.
Trial Issues
A. Gruesome Photographs
{¶32} In his second proposition of law, Smith argues that his due process
rights were violated when the trial court erroneously admitted, over defense
objection, 18 gruesome and cumulative photographs and slides of the victim during
the guilt and penalty phase of trial. Smith contends that the photographs were
irrelevant and highly prejudicial.
{¶33} The admission of photographs is left to the sound discretion of the
trial court. Evid.R. 403, 611(A). We have previously held that “[p]roperly
authenticated photographs, even if gruesome, are admissible in a capital
prosecution if relevant and of probative value in assisting the trier of fact to
determine the issues or are illustrative of testimony and other evidence, as long as
the danger of material prejudice to a defendant is outweighed by their probative
value and the photographs are not repetitive or cumulative in number.” State v.
Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379,
473 N.E.2d 768, paragraph seven
of the syllabus; See, also, State v. Morales (1987),
32 Ohio St.3d 252, 257-258,
513
N.E.2d 267; State v. Twyford (2002),
94 Ohio St.3d 340, 357-358,
763 N.E.2d 122.
{¶34} The photographs in question reveal marks and abrasions on the
victim’s face, torso, and buttocks as well as injuries to her lips, ears, scalp, chin,
vagina, and rectum. The autopsy slides depict injuries to the victim’s internal
organs. Although the trial judge was at first reluctant to admit the autopsy slides,
he was persuaded that their admission was appropriate because they could be used
to assist the coroner in his testimony.
{¶35} Upon review, we find no reversible error in the admission of the
photographs and slides at either phase of trial. To begin with, although many
photographs and slides were admitted, we note that number alone does not require
reversal. As we have previously stated, “the mere fact that there are numerous
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photos will not be considered reversible error unless the defendant is prejudiced
thereby. Absent gruesomeness or shock value, it is difficult to imagine how the
sheer number of photographs admitted can result in prejudice requiring reversal.”
State v. DePew (1988), 38 Ohio St.3d 275, 281,
528 N.E.2d 542.
{¶36} Although arguably gruesome, these photographs and slides were
relevant in that they depicted the wounds inflicted on the victim, supported the
coroner’s testimony on cause of death, and helped prove appellant’s intent. With
respect to the autopsy slides, the trial court reduced the possibility of undue
prejudice by refusing to allow the slides to be taken into the deliberation room.
{¶37} Moreover, even if some of the photographs or slides were improperly
admitted, we note that any prejudice was harmless considering the overwhelming
evidence of Smith’s guilt. In addition, any prejudicial impact is minimized by our
independent review. See State v. Davie (1997), 80 Ohio St.3d 311, 318,
686 N.E.2d
245.
{¶38} For the foregoing reasons, we overrule proposition of law two.
B. Improper Expert and Lay Testimony
{¶39} In proposition of law six, Smith contends that Dr. Platt, the coroner,
and Dr. Battels, the emergency room physician, offered opinions outside their area
of expertise. In particular, he objects to the fact that the two physicians were asked
to give their opinions about the grid-like patterns on Autumn’s face and whether a
cushion taken from Frye’s sofa could have caused the abrasions. Smith also objects
to the physicians’ testimony regarding Smith’s intent and to the coroner’s testimony
that Autumn was crying during the attack. We find no merit in Smith’s assertions.
{¶40} The doctors’ comments on weave-pattern comparisons were not
elicited as expert testimony but were instead made in their capacity as lay witnesses.
Their testimony was therefore admissible under Evid.R. 701, since it was based
upon their visual comparison of the cushion and the marks on Autumn’s face. See,
e.g., State v. Jells (1990), 53 Ohio St.3d 22, 28-29,
559 N.E.2d 464 (police officer’s
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testimony on footprint comparisons admissible as lay opinion). Furthermore, the
doctors’ testimony that the victim was resisting and crying and that she was
intentionally killed was admissible under Evid.R. 702 and 704. Such testimony
was relevant to describing the circumstances of the victim’s death and was proper
expert testimony on the nature of the death—i.e., that it was not accidental.
Proposition of law six is overruled.
C. Irrelevant and Repetitive Testimony
{¶41} In proposition of law four, Smith argues that he was denied a fair trial
because the jury was exposed to repetitive and inflammatory descriptions of the
victim’s injuries. Thirteen witnesses, including the victim’s mother, neighbors at
the crime scene, police officers, attending medical personnel, and the coroner,
testified about some aspect of the victim’s injuries. The non-medical witnesses’
testimony was relevant since it helped to explain their actions at the scene and to
substantiate that Autumn was severely beaten. The testimony by medical witnesses
was likewise relevant in that it was used to establish the cause of death. However,
even if the testimony had been repetitive, Smith failed to object at trial, and the
admission of such testimony did not result in plain error. Therefore, we overrule
proposition of law four.
{¶42} In proposition of law nine, Smith contends that the state introduced
irrelevant evidence, including testimony about the victim’s height and weight,
Frye’s work history, and Smith’s failure to pay child support and to visit his
daughter. No objection was made to such testimony. Upon review of the record,
we find that the testimony complained of, even if improper, was not plain error.
Consequently, we overrule proposition of law nine.
D. Hearsay
{¶43} In proposition of law eight, Smith contends that Frye’s statements
asserting that “he killed my baby” were inadmissible hearsay. Smith maintains that
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these statements did not fall within the excited utterance exception to the hearsay
rule or to any other hearsay exception.
{¶44} Evid.R. 803(2), the excited utterance exception to the hearsay rule,
provides: “Excited utterance. A statement relating to a startling event or condition
made while the declarant was under the stress of excitement caused by the event or
condition.” One of the requisites necessary to invoke the excited utterance
exception is the declarant’s “opportunity to observe personally the matters asserted
in his statement or declaration.” Potter v. Baker (1955), 162 Ohio St. 488,
55 O.O.
389,
124 N.E.2d 140, paragraph two of the syllabus. Since Frye did not personally
observe appellant kill her daughter, her statements do not satisfy this requirement.
However, even if erroneous, we find that this constitutes harmless error.
IV. Prosecutorial Misconduct
{¶45} In proposition of law three, Smith alleges several instances of
prosecutorial misconduct. The test for prosecutorial misconduct is whether the
remarks made were improper and, if so, whether the rights of the accused were
materially prejudiced. State v. Smith (1984), 14 Ohio St.3d 13, 14, 14 OBR 317,
470 N.E.2d 883. Unless otherwise noted, the defense did not object to the purported
acts of prosecutorial misconduct and thus waived all but plain error. State v. Slagle
(1992),
65 Ohio St.3d 597, 604,
605 N.E.2d 916.
{¶46} First, Smith argues that the prosecutor made improper comments in
his opening statement concerning the victim’s physical appearance at birth (her
height, weight, and hair and eye color) as well as information concerning Frye’s
life history. According to Smith, these comments constitute inappropriate victim-impact evidence. However, since the testimony merely elicited background
information and was “not overly emotional or directed to the penalty to be imposed”
(State v. Reynolds [1998], 80 Ohio St.3d 670, 679,
687 N.E.2d 1358), the remarks
do not constitute plain error. See, also, State v. Goodwin (1999),
84 Ohio St.3d
331, 339,
703 N.E.2d 1251.
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{¶47} Second, Smith claims error in the prosecutor’s reference to him in
opening statement as a “baby murderer” and a “baby molester.” We have upheld
similar remarks as “fair comment.” See, e.g., Nields, 93 Ohio St.3d at 37,
752
N.E.2d 859, where the prosecutor referred to the defendant as a “mean-spirited
derelict.” Thus, since the evidence supports such characterization, we find no
reversible error stemming from such remarks.
{¶48} Third, Smith argues that the prosecution asked leading questions of
numerous witnesses and vouched for Frye’s testimony by telling her she was doing
a good job. Although there were in fact some leading questions, none of these
questions resulted in prejudice to Smith. With respect to the prosecutor’s comment
to Frye, when read in context, it is clear that the prosecutor was simply reassuring
Frye in the midst of her difficult testimony. Neither of these circumstances
constitutes prosecutorial misconduct.
{¶49} Smith next argues that the prosecutor improperly impeached the
credibility of defense witness Kathy Foster during another defense witness’s
testimony. The prosecutor was merely pointing out inconsistencies in her
testimony, which was proper cross-examination under Evid.R. 611(B). Smith also
contends that it was wrong for the prosecutor to cross-examine defense witness
Theresa Sauders about irrelevant issues such as whether Smith paid child support
or visited his daughter and to cross-examine his sister, Karen Samples, about why
she allowed Smith to watch her child, knowing that he consumed large amounts of
alcohol. Defense counsel introduced these topics when Sauders testified on direct
examination that Smith was a good father who took care of his daughter and when
the witnesses testified that Smith babysat their children.
{¶50} Smith next argues that prosecutorial misconduct occurred when the
head and leg of a CPR doll came off as the coroner demonstrated the way in which
the young victim was injured. No objection was made at the time of the incident,
but defense counsel later moved for a mistrial, which the court denied. The record
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reflects that the incident was accidental and that the prosecutor in no way tried to
inflame the passions of the jury. Cf. State v. Keenan (1993), 66 Ohio St.3d 402,
408,
613 N.E.2d 203 (stabbing knife into counsel’s table). As the trial court noted,
“the jury could clearly see the witness was embarrassed when the things fell off the
baby, the mechanical dummy, and it is true that several of them were laughing
audibly, so again, I don’t think it inflamed them in any way. So it is sort of a klutztype move.”
{¶51} Smith also claims several instances of misconduct in the prosecutor’s
closing argument. We have reviewed each alleged instance and find that even
where the comments were improper, they do not result in plain error. For instance,
Smith claims misconduct when the prosecutor stated that the victim is “actually
speaking to you through the evidence in the case. … Autumn Carter, she’s
crying out to you.” These comments, although emotional, were used to tie together
the forensic evidence presented during trial that pertained to the victim, such as the
clumps of her hair found on the coffee table, bloodstains discovered on the sofa,
and diaper fabric found on the floor. Moreover, these comments fall within the
wide latitude allowed by a prosecutor in closing argument. See State v. Bies (1996),
74 Ohio St.3d 320, 326,
658 N.E.2d 754.
{¶52} Furthermore, although the prosecutor’s comment that Smith “gets joy
or gets happiness out of molesting, raping a six-month old baby” is harsh, it was a
comment addressing the sexual-motivation specification. Even if this comment is
deemed improper, it does not represent plain error.
{¶53} Smith also objects to the prosecutor’s characterization of the crime
as being a ten-to-thirty-minute beating. However, this characterization was not
improper given the fact that Dr. Platt testified that the attack lasted this long. Smith
also believes the prosecutor’s statement that “Steven Smith, seated right over there
next to his counsel” was prejudicial because it was used to denigrate him and his
trial counsel. Likewise, Smith objects to the prosecutor’s question, which asked,
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“Did he claim accident, that he didn’t do this on purpose?” Smith believes the
prosecutor was commenting on his failure to testify. Smith takes these remarks out
of context. The prosecutor was merely pointing out the defendant to the jury as a
means of emphasizing that it was he who committed these heinous crimes.
Moreover, the prosecutor was not commenting on Smith’s failure to testify but was
instead showing how the evidence supports the fact that he purposely committed
the crimes in question.
{¶54} Smith next asserts that the prosecutor impermissibly argued “prior
calculation and design” because they were not elements of the offenses charged.
However, the jury was not misled by these remarks, since the prosecutor informed
them that “prior calculation and design” were not issues in the case. Smith also
objects to the prosecutor’s suggestion that he was motivated by revenge when he
committed the crimes in question. Although a prosecutor is “entitled to latitude as
to what the evidence has shown and what inferences can reasonably be drawn from
the evidence” (State v. Smith [1997], 80 Ohio St.3d 89, 111,
684 N.E.2d 668), the
prosecutor’s revenge theory is a stretch, particularly given the fact that Frye herself
testified that Smith was not upset when he did not ejaculate during sex.
Nevertheless, even if these remarks were improper, they did not affect the fairness
of the trial and are not plain error.
{¶55} Smith also claims prosecutorial misconduct occurred when the
prosecutor told the jury there would be no instruction on intoxication. However,
we find it was permissible for the prosecutor to point out to the jury that the
evidence did not warrant such an instruction.
{¶56} Smith also claims several instances of prosecutorial misconduct
during the penalty phase. Upon review of the record, we find that no prosecutorial
misconduct occurred that would have affected the fairness of the trial.
{¶57} First, Smith contends that the prosecutor’s opening statement
improperly shifted the burden of proof by stating “that there can be no mitigating
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January Term, 2002
facts which outweigh the aggravating circumstances.” Second, Smith argues that
the prosecutor treated the nature and circumstances of the offense as an aggravating
circumstance. While these statements were improper, the court’s instructions as to
the proper weighing process and its charge as to the precise aggravating
circumstances cure any error. See State v. Stojetz (1999), 84 Ohio St.3d 452, 465,
705 N.E.2d 329; State v. Hill (1996),
75 Ohio St.3d 195, 202,
661 N.E.2d 1068.
Third, Smith contends that the prosecutor committed misconduct by comparing him
to others who have below-average intelligence and are alcoholics but who do not
commit crimes of this magnitude. Such comment is fair rebuttal to defense claims
that the jury should consider Smith’s intellectual impairment and alcoholism as
significant mitigating factors. See State v. LaMar,
95 Ohio St.3d 181, 2002-Ohio-
2128,
767 N.E.2d 166, at ¶178. Finally, Smith argues that the prosecutor offered
his personal opinion by stating that the imposition of the death penalty is “the right
decision” to make. While this does convey the prosecutor’s personal opinion, the
remark was an isolated comment that does not reach the level of plain error.
Donnelly v. DeChristoforo (1974),
416 U.S. 637, 646-647,
94 S.Ct. 1868,
40
L.Ed.2d 431.
{¶58} We overrule proposition of law three.
V. Ineffective Assistance of Counsel
{¶59} In proposition of law ten, Smith claims that he received ineffective
assistance of counsel. In order to prevail on this claim, a defendant must show that
counsel’s performance fell below an objective standard of reasonableness and that
the deficient performance prejudiced the defense so that defendant was deprived of
a fair trial. Strickland v. Washington (1984), 466 U.S. 668, 687,
104 S.Ct. 2052,
80 L.Ed.2d 674; State v. Bradley (1989),
42 Ohio St.3d 136,
538 N.E.2d 373,
paragraphs two and three of the syllabus.
{¶60} Smith first complains that trial counsel was deficient by failing to
properly request a penalty-phase jury instruction that complies with Brooks, 75
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SUPREME COURT OF OHIO
Ohio St.3d 148, 661 N.E.2d 1030. In proposition of law five, we found that no
plain error arose from the instruction given. Thus, this argument lacks merit.
{¶61} Smith next argues that counsel was ineffective by agreeing to readmit
all trial evidence during the penalty phase. In particular, Smith contends that certain
evidence was irrelevant, such as the photographs and autopsy slides of the victim,
certain testimony of emergency personnel, and medical testimony concerning the
cause of death. Under Evid.R. 401, this evidence was relevant since it pertains to
the nature and circumstances of the aggravating circumstances. State v. Jackson
(2001), 92 Ohio St.3d 436, 447,
751 N.E.2d 946. Moreover, our independent
sentence reassessment can cure any prejudice stemming from the readmission of
this evidence.
{¶62} Smith also contends that his trial counsel’s reference to certain
irrelevant mitigating factors (victim inducement, victim provocation) during his
opening statement in the penalty phase constituted ineffective assistance of counsel.
Upon review of the record, it is clear that while counsel initially recited all of the
statutory mitigating factors, he later focused in on those relevant factors in his
closing. This does not render counsel ineffective. See State v. Durr (1991), 58
Ohio St.3d 86, 97,
568 N.E.2d 674.
{¶63} Smith further claims ineffective assistance by pointing to several
instances where trial counsel failed to object to prejudicial evidence, improper jury
instructions, judicial misconduct, and prosecutorial misconduct. Upon review, we
find that none of these allegations, even if deficient, resulted in prejudicial error
depriving Smith of a fair trial. Accordingly, we overrule proposition of law ten.
VI. Sentencing Issues
A. Victim-Impact Evidence
{¶64} In proposition of law 15, Smith contends that the trial court
committed reversible error by considering victim-impact evidence during
sentencing. Prior to sentencing but after receiving the jury’s recommendation, the
18
January Term, 2002
trial court stated that it had received and considered a letter from the victim’s father.
In addition, the trial court allowed Frye to make a statement where she expressed
her hatred toward Smith and her hope that he would be tortured and killed just as
her daughter was killed. Because no objections were made to this victim-impact
evidence, it must be examined under the plain-error standard. Reynolds (1998), 80
Ohio St.3d at 679,
687 N.E.2d 1358.
{¶65} Victim-impact evidence is permitted where it elicits the effect that
the victim’s death has had on family members. State v. Fautenberry (1995), 72
Ohio St.3d 435, 439,
650 N.E.2d 878. However, victim-impact evidence that
expresses an opinion as to the appropriate sentence to be imposed is inappropriate.
Id. Frye’s opinion that Smith should receive the death penalty was improper
victim-impact evidence. Nonetheless, the admission of these statements did not
constitute outcome-determinative plain error. Nor does the sentencing opinion
show that the trial court considered these statements when sentencing Smith. We
overrule proposition of law 15.
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B. Sentencing Opinion
{¶66} In proposition of law 17, Smith argues that the trial court in its
sentencing opinion failed to give sufficient weight to his long history of alcohol
abuse. The weight, if any, to be given a mitigating factor is within the trial court’s
discretion. State v. Fox (1994), 69 Ohio St.3d 183, 193,
631 N.E.2d 124. The
statute does not require that significant weight be afforded a defendant’s alcohol
abuse. Reynolds,
80 Ohio St.3d at 685,
687 N.E.2d 1358. The trial court did not
abuse its discretion by failing to give substantial weight to this factor. Moreover,
any error in the trial court’s sentencing opinion may be cured by this court’s
independent review of Smith’s death sentence. State v. Lott (1990),
51 Ohio St.3d
160, 171-172,
555 N.E.2d 293. We overrule proposition of law 17.
VII. Independent Sentence Review
{¶67} Having considered Smith’s propositions of law, we must now
independently review the death sentence for appropriateness and proportionality.
A. Evidence at Penalty Hearing
{¶68} In mitigation, five witnesses testified. Jane Mosier, Smith’s mother,
testified that Smith was the second of four children. Mosier said that Smith’s
biological father, William Haught, had no contact with him while he was growing
up. Mosier later married an abusive man who drank, used drugs, and threatened to
burn their house down. Mosier then married Kale Mosier, a “decent guy” whom
Smith called dad. He died in 1998. Mosier described Smith as a “good boy” who
“loved school,” “loved to work,” and got along with everybody. She said that Smith
left home at seventeen to live and work on a farm. She was first aware that Smith
had a drinking problem after he had obtained his driver’s license and was convicted
of drunk driving. Mosier has had little contact with Smith and for the last couple
of years has seen him only once or twice a year.
{¶69} Smith’s first cousin, Judy Ann Rigsby, grew up with Smith. Rigsby
testified that Mosier’s first husband physically beat Smith by whipping him with a
20
January Term, 2002
belt. She also stated that Kale Mosier was a “very nice man” who took care of
Smith. Rigsby further stated that Smith’s grandmother was his primary caregiver
and that she had always been there for him. She described Smith as an average
student. She never observed Smith using alcohol but heard about it from other
people.
{¶70} Karen Sue Samples, Smith’s sister, testified that Smith received little
attention while growing up and that he started drinking alcohol at age nine or ten.
She described Smith as a “good boy” who would not hurt anyone. She said the
only problem he had was drinking. Samples asked the jury to spare her brother’s
life.
{¶71} Sergeant Helen Johnson, a corrections officer, testified that Smith
committed two minor violations of inmate rules since being incarcerated.
Otherwise, she stated that he was respectful towards correction officers.
{¶72} Dr. Janice Ort, a clinical psychologist, interviewed and conducted
psychological testing on Smith. Ort found that as a youth, both of his parents were
absent from his life. Although his grandmother and aunt helped care for him, they
were not a significant, continuous presence. Ort described Smith as an average
student in high school who ranked 149 out of 162 students. Ort further noted that
Smith’s judgment was impaired by alcohol and that he was alcohol-dependent,
probably in the middle to late stages of alcoholism. With respect to the crimes
charged, Smith told Ort that he had no memory of what transpired other than that
he had fallen asleep on the couch, had found Autumn asleep in the swing, and had
wondered when he awoke how and why she was there.
{¶73} The test results placed Smith’s IQ of 80 in the low-average range of
intelligence. In addition, Smith scored low on the information and vocabulary
subjects of the Wechsler Adult Intelligence Scale Revised but did fine on basic
arithmetic. He also scored low on tests measuring his social skills. The results of
the Minnesota Multiphasic Personality Inventory 2 (“MMPI 2”) test were within
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SUPREME COURT OF OHIO
normal limits, although results indicated possible problems with depression,
alcohol abuse, and sensitivity to others. The Rorschach inkblot test indicated that
Smith contains his emotions, has difficulty understanding and processing
information, and has possible trouble with impulse control. Ort diagnosed Smith
with a dysthymic disorder and substance abuse.
B. Sentence Evaluation
{¶74} After independent assessment, the evidence proves beyond a
reasonable doubt the aggravating circumstances charged against Smith. The jury
found and the evidence demonstrates that Smith purposely killed Autumn Carter, a
child under 13 years of age (R.C. 2929.04[A][9]), while committing or attempting
to commit rape (R.C. 2929.04[A][7]).
{¶75} We find nothing in the nature and circumstances of the offense to be
mitigating. For ten to thirty minutes, Smith brutally raped and murdered Autumn
Carter while her mother was asleep in the apartment. The violent nature of the
attack was demonstrated by the fact that Autumn’s hair was ripped out, her vagina
and anus were seriously damaged, she was suffocated by the weight of Smith on
her small body, and she suffered subarachnoid and retinal hemorrhages. This crime
is nothing less than a horrific, senseless murder committed against a small,
defenseless, six-month-old baby.
{¶76} Smith’s history and background provide only modest mitigating
value. He was raised by a mother who paid little attention to his well-being, and
he had little contact with his biological father. In addition, his mother’s first
husband was abusive. However, his stepfather, Kale Mosier, and his grandmother
were positive influences in his life.
{¶77} Smith’s use of alcohol provides little, if any, mitigation. The
evidence showed that Smith was aware of what he was being accused of and that
while emergency personnel were tending to the victim, Smith was coherent enough
to hide physical evidence (including beer cans, a torn baby diaper, and a shirt) in a
22
January Term, 2002
trash dumpster outside the building. Thus, we find that the use of alcohol by Smith
should have little impact on the weighing process. See State v. Slagle (1992), 65
Ohio St.3d 597, 614,
605 N.E.2d 916.
{¶78} Of the statutory mitigating factors, only R.C. 2929.04(B)(5) and
(B)(7) are slightly applicable. The R.C. 2929.04(B)(5) mitigating factor, lack of a
significant criminal record, is entitled to some weight, since Smith’s criminal record
consists of two DUI convictions and arrests for minor offenses. Under R.C.
2929.04(B)(7), other relevant factors, Dr. Ort testified that Smith suffers from a
dysthymic disorder, a personality disorder, and alcoholism. She also said that
alcohol had permanently impaired his judgment.
{¶79} Nevertheless, upon independent weighing, we find that the
aggravating circumstances outweigh the mitigating factors beyond a reasonable
doubt. The death penalty in this case is appropriate when compared to other rape
cases, both of which involved victims over the age of 13. See State v. Mason
(1998), 82 Ohio St.3d 144,
694 N.E.2d 932; State v. McGuire (1997),
80 Ohio St.3d
390,
686 N.E.2d 1112.
{¶80} Accordingly, we affirm Smith’s convictions and sentence of death.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, PFEIFER and COOK, JJ., concur.
LUNDBERG STRATTON, J., concurs and concurs separately.
__________________
LUNDBERG STRATTON, J., concurring.
{¶81} While I agree with the majority’s judgment affirming the convictions
and sentence of death in this case, I disagree with the majority’s resolution of the
Evid.R. 803 issue.
{¶82} Generally, out-of-court statements offered to prove the truth of the
matter asserted are inadmissible hearsay. Evid.R. 801(C) and 802. However,
Evid.R. 803 provides numerous exceptions to the hearsay rule:
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SUPREME COURT OF OHIO
{¶83} “The following are not excluded by the hearsay rule, even though the
declarant is available as a witness.
{¶84} “…
{¶85} “(2) Excited utterance
{¶86} “A statement relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or condition.”
{¶87} Such a statement is admissible despite its hearsay nature if the
following four conditions are satisfied:
{¶88} “ ‘(a) that there was some occurrence startling enough to produce a
nervous excitement in the declarant, which was sufficient to still his reflective
faculties and thereby make his statements and declarations the unreflective and
sincere expression of his actual impressions and beliefs, and thus render his
statement or declaration spontaneous and unreflective,
{¶89} “ ‘(b) that the statement or declaration, even if not strictly
contemporaneous with its exciting cause, was made before there had been time for
such nervous excitement to lose a domination over his reflective faculties, so that
such domination continued to remain sufficient to make his statements and
declarations the unreflective and sincere expression of his actual impressions and
beliefs,
{¶90} “ ‘(c) that the statement or declaration related to such startling
occurrence or the circumstances of such startling occurrence, and
{¶91} “ ‘(d) that the declarant had an opportunity to observe personally the
matters asserted in his statement or declaration.’ ” (Emphasis added in part.) State
v. Wallace (1988), 37 Ohio St.3d 87, 89,
524 N.E.2d 466, quoting Potter v. Baker
(1955),
162 Ohio St. 488,
55 O.O. 389,
124 N.E.2d 140, paragraph two of the
syllabus.
24
January Term, 2002
{¶92} The majority concludes that since Frye did not personally observe
Smith kill Autumn, Frye’s statement does not satisfy this last requirement. I
respectfully disagree.
{¶93} When Frye went to bed that evening around 11:00 p.m., her daughter
Autumn, the victim in this case, was asleep in her crib in her own bedroom, wearing
pajamas. Smith was downstairs, drinking beer and watching TV when Frye went
to bed. At 3:22 a.m., Smith woke Frye by saying, “I’m laying the baby down beside
you.” Frye picked up Autumn, and Autumn’s head fell over Frye’s arm. Frye then
put her hand on Autumn’s stomach and found that Autumn was not breathing. Frye
said to Smith, “[You] killed my baby.” Smith replied, “No, I didn’t,” and threw an
alarm clock into the closet. Smith then picked up Autumn, and said that Autumn
was breathing and not dead. Frye also noticed that both Smith and Autumn were
totally naked.
{¶94} Although Frye did not actually see Smith rape and kill her child,
when Frye went to bed, Smith was the only one in the house with the baby who
could have inflicted the injuries sustained. When Frye awoke, Smith was the one
standing next to the bed with the lifeless baby. In addition, while the two were fully
clothed at the time that Frye had gone to bed, both Smith and the baby were naked
when Frye awoke to this nightmare. I would therefore find that Frye’s statement,
“[You] killed my baby,” falls under the excited utterance exception to the hearsay
rule.
{¶95} Frye’s waking to find her child dead was an occurrence startling
enough to produce a nervous excitement in Frye. The statement was made
contemporaneous with the event and related to the startling occurrence. Frye
personally had observed Autumn sleeping in her crib in her pajamas at 11:00 p.m.
and awoke at 3:22 a.m. to find the naked Smith standing beside the bed on which
Autumn’s limp, naked body lay. I would find that under these facts, Frye personally
observed the matters asserted in her statement as required by Evid.R. 803(2).
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SUPREME COURT OF OHIO
{¶96} Although the majority finds error in the admission of Frye’s
statement, the majority concludes, nonetheless, that the error was harmless.
Therefore, while I disagree with the majority’s rationale regarding the excited
utterance, because I agree with the majority’s ultimate resolution of this issue and
because I would otherwise affirm the convictions and sentence of death, I concur.
__________________
APPENDIX
{¶97} “Proposition of Law No. I: When a trial court refuses to instruct on
relevant issues and makes improper suggestions in instructions given, a capital
defendant is deprived of his rights to due process, a fair trial, and reliable
determination of his guilt. Moreover, the refusal to instruct also deprives the
defendant of his right to present a meaningful defense. U.S. Const. Amends. V, VI,
XIV; Ohio Const. Art. I §§ 5, 16.
{¶98} “Proposition of Law No. II: The admission of shocking and graphic
photographs and slides into evidence at both phases of a capital trial violates the
defendant’s right to due process when the probative value of the slides and
photographs is outweighed by the danger of prejudice to the defendant, and the
slides and photographs are cumulative of other evidence and repetitive of other
photographs. U.S. Const. Amend. XIV; Ohio Const. Art. I, § 16.
{¶99} “Proposition of Law No. III: A capital defendant is denied his
substantive and procedural due process rights to a fair trial when a prosecutor
commits acts of misconduct during the trial and the sentencing phases of his capital
trial. He is also denied his right to reliable sentencing. U.S. Const. Amends. VIII,
XIV; Ohio Const. Art. I §§ 9, 16.
{¶100} “Proposition of Law No. IV: Where inflammatory, repetitive
evidence is admitted into evidence a capital defendant is denied his rights to a fair
trial, due process and a reliable determination of his guilt and sentence. U.S. Const.
Amends. VIII, XIV; Ohio Const. Art. I §§ 10, 16.
26
January Term, 2002
{¶101} “Proposition of Law No. V: Instruction that a jury verdict must be
unanimous as to a life sentence is contrary to O.R.C. § 2929.03(D)(2). Instruction
that a jury verdict must be unanimous as to a life sentence misleads the jury as to
its fundamental role in Ohio’s capital sentencing scheme in violation of the Cruel
and Unusual Punishment Clause and the Due Process Clause. U.S. Const. Amends
VIII, XIV; Ohio Const. Art. I, §§ 9, 16.
{¶102} “Proposition of Law No. VI: A capital appellant’s right to due
process is violated when the trial court admits improper expert testimony. U.S.
Const. Amend. XIV; Ohio Const. Art. I, § 16.
{¶103} “Proposition of Law No. VII: A capital appellant’s right to due
process is violated when the trial court admits improper lay opinion.
{¶104} “Proposition of Law No. VIII: The accused’s rights to
confrontation and due process are violated when the state offers hearsay testimony
on the ultimate issue of fact in a capital murder case and the out of court declarant
did not personally observe the matter to which the witness testified. U.S. Const.
Amends. XI, XIV; Ohio Const. Art. I, §§ 10, 16.
{¶105} “Proposition of Law No. IX: Admission of irrelevant evidence
during a capital defendant’s trial deprives him of a fair trial and due process. U.S.
Const. Amend. XIV; Ohio Const. Art. I, § 16.
{¶106} “Proposition of Law No. X: The accused’s right to effective
assistance of counsel is violated when counsel’s performance is deficient and the
accused is thereby prejudiced. U.S. Const. Amends. VI, XIV; Ohio Const. Art I, §
10.
{¶107} “Proposition of Law No. XI: Steven Smith’s sentence of death is
inappropriate. His difficult childhood, history of alcoholism, intoxication at the
time of the offense, as well as depression and limited intellectual capacity all favor
a life sentence.
27
SUPREME COURT OF OHIO
{¶108} “Proposition of Law No. XII: The service of a juror at the penalty
phase who is biased in favor of the death penalty violates a capital defendant’s right
to due process. U.S. Const. Amend. XIV; Ohio Const. Art. I § 16.
{¶109} “Proposition of Law No. XIII: Where the trial court fails to instruct
on an essential element of two aggravating circumstances that make the accused
death eligible, a capital defendant is deprived of his rights to a jury trial, to due
process, and to a reliable capital sentencing hearing. U.S. Const. Amends. VI, VIII,
XIV; Ohio Const. Art. I §§. 5, 9, 16.
{¶110} “Proposition of Law No. XIV: A capital defendant’s right against
cruel and unusual punishment and the defendant’s right to due process are violated
when the trial court implies that mitigating evidence deserves no weight. U.S.
Const. Amends VIII and XIV; Ohio Const. Art. I §§ 9, 16.
{¶111} “Proposition of Law No. XV: It is constitutional error for the trial
court to consider victim impact evidence in capital sentencing in the form of an
opinion by a victim’s family member about the proper punishment for the
defendant. U.S. Const. Amends. VIII and XIV.
{¶112} “Proposition of Law No. XVI: A capital defendant’s right against
cruel and unusual punishment under the Eighth and Fourteenth Amendments is
denied when the sentencer is precluded from considering residual doubt of guilt as
a mitigating factor. The preclusion of residual doubt from a capital sentencing
proceeding also violates the defendant’s due process right to rebuttal under the
Fourteenth Amendment. The preclusion of residual doubt may also infringe a
capital defendant’s right to effective assistance of counsel as guaranteed by the
Sixth and Fourteenth Amendments. U.S. Const. Amends. VI, VIII, XIV; Ohio
Const. Art. I §§ 9, 10, 16.
{¶113} “Proposition of Law No. XVII: A capital defendant’s rights against
cruel and unusual punishment and to due process are violated when the sentencing
court discounts relevant mitigation because it does not create an excuse for the
28
January Term, 2002
substantive offense of aggravated murder. U.S. Const. Amends. VIII, XIV; Ohio
Const. Art. I, §§ 9, 16.
{¶114} “Proposition of Law No. XVIII: Ohio’s death penalty law is
unconstitutional. Ohio Rev.Code Ann. §§ 2903.01, 2929.02, 2929.021, 2929.022,
2929.023, 2929.03, 2929.04, and 2929.05 (Anderson 1996), do not meet the
prescribed constitutional requirements and are unconstitutional on their face and as
applied to Steven Smith. U.S. Const. Amends. V, VI, VIII, XIV; Ohio Const. Art.
I, §§ 2, 9, 10, 16. Further, Ohio’s death penalty statute violates the United States’
obligations under international law.
{¶115} “Proposition of Law No. XIX: A capital defendant’s right to due
process is violated when the state is permitted to convict upon a standard of proof
below proof beyond a reasonable doubt. U.S. Const. Amend. XIV.
{¶116} “Proposition of Law No. XX: When the trial court ignores the
express language of Ohio Rev.Code Ann. § 2929.03(D)(1) (Anderson 1993) and
sua sponte orders a pre-sentence investigation report which contains prejudicial
content, a capital defendant’s rights to a reliable death sentence and due process of
law are violated. U.S. Const. Amends. V, VI, VIII, XIV; Ohio Const. Art. I §§ 1,
2, 5, 9, 10, 16, 20.”
__________________
James J. Mayer Jr., Richland County Prosecuting Attorney, and John R.
Spon, Assistant Prosecuting Attorney, for appellee.
David H. Bodiker, Ohio Public Defender, Joseph E. Wilhelm, Appellate
Supervisor, and Kelly Culshaw, Assistant Public Defender, for appellant.
__________________
29
