State v. Taylor

[Cite as State v. Taylor, 

, 

.]




             THE STATE OF OHIO, APPELLEE, v. TAYLOR, APPELLANT.
           [Cite as State v. Taylor, 

, 

.]
Criminal law — Aggravated murder — Death penalty upheld, when — Waiver of
        counsel upheld — No right to hybrid representation.
(No. 1999-0972 — Submitted October 15, 2002 — Decided December 20, 2002.)
   APPEAL from the Court of Common Pleas of Greene County, No. 98-CR-54.
                                  __________________

        ALICE ROBIE RESNICK, J.
        {¶1}     Appellant, James R. Taylor, was indicted by a grand jury on two
counts of aggravated murder in the deaths of Ronald and Carolyn Rihm, one
count of attempted aggravated murder relating to Pat Taylor, and one count of
attempted murder relating to James Tipton. At trial, appellant was found guilty
by a jury on all four counts and sentenced to death. Appellant directly appeals as
a matter of right to this court, challenging his convictions and death sentence.
        {¶2}     Appellant has raised 14 propositions of law. We have reviewed
each and have determined that none justifies reversal of appellant’s convictions.
We have also independently weighed the aggravating circumstances against the
mitigating factors as delineated in R.C. 2929.04 and have reviewed the death
penalty for appropriateness and proportionality. For the reasons that follow, we
affirm appellant’s convictions and death sentence.
        {¶3}     On the evening of February 14, 1998, appellant waited for his
estranged wife, Pat Taylor, to appear at the Fraternal Order of Eagles Lodge in
Fairborn, Ohio. Pat arrived at the Eagles and sat at a table with Ronald and
Carolyn Rihm, with whom she had been living since separating from appellant the
previous month.       When Pat refused to let appellant sit with her, appellant
                             SUPREME COURT OF OHIO




produced a gun and fired shots toward Pat and both of the Rihms. While the shot
towards Pat missed, Carolyn and Ronald Rihm were each shot in the head and
died instantly. James Tipton, who was also seated at the table, was shot in the
arm while attempting to subdue appellant.
                             I. Facts and Case History
       {¶4}    At the time of the crimes, appellant and Pat Taylor had been
married for approximately 46 years. Pat left appellant on January 19, 1998, and
moved in with friends Ron and Carolyn Rihm in their trailer home in Riverside.
According to Pat, appellant resented her socializing with the Rihms and had
argued with her about going out with them.
       {¶5}    On January 21, 1998, appellant hired a private investigation
company owned by Robert Beckett to locate Pat. Beckett found that Pat was
living with the Rihms; appellant continued employing Beckett’s investigation
company through February 14.
       {¶6}    Ron Rihm’s mother, Lenore, saw appellant at church during
January 1998. In an unsolicited comment, appellant told her, “It’s Ronny’s fault.
Ronny’s fault. It’s all Ronny’s fault.”
       {¶7}    Appellant leased rental cars through Enterprise Rent-A-Car on
eight separate occasions from early January to mid-February 1998. Appellant told
a friend, James Kovacs, that he was renting cars to locate his wife. He asked
Kovacs to help him hide the rental car numbers with tape so that the cars would
not be recognized.
       {¶8}    Kovacs knew appellant through their mutual association with the
Eagles in Fairborn. Kovacs had drinks with appellant several times at the Glass
Crutch bar in the weeks leading up to the murders. Appellant told Kovacs in late
January that he and his wife were splitting up, and appellant was “[v]ery upset”
about it. Appellant talked about committing suicide “off and on.” Taylor told
Kovacs “quite a few times” that “if he caught [Pat] with anybody else, he’d kill




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                               January Term, 2002




them both.” Appellant also told Kovacs that he did not care for the fact that some
people were taking care of his wife. “They were interfering with his wife and his
marriage,” Kovacs testified.
       {¶9}    On February 14, 1998, appellant phoned Beckett “half a dozen or
more” times. Appellant wanted to send Pat flowers and wanted Beckett to phone
her to see whether she would accept them; Beckett refused. During one of the
calls, appellant told Beckett to follow Pat to see whether she was going to the
Valentine’s Day dance at the Eagles lodge that night. Beckett instructed one of
his investigators, Ed Probst, to conduct surveillance on Pat. Late that afternoon,
Probst began watching for Pat outside the Rihms’ trailer.
       {¶10} Meanwhile, appellant was meeting Kovacs at the Glass Crutch bar.
Appellant clandestinely handed Kovacs, a Vietnam veteran familiar with firearms,
two bullets and asked him what the differences were between them. Kovacs told
appellant that the regular bullet would shoot straight into a body but that the
hollow-point bullet “mushrooms, like explodes.” When appellant asked whether
it would “tear something up,” Kovacs indicated that it would. Appellant also
asked Kovacs whether he would phone the place where his wife was staying, but
Kovacs declined to do so. The two chatted a little more, then appellant left the
bar.
       {¶11} Just after 7:00 p.m., Probst saw five people leave the Rihms’ trailer
in a van. He followed the van to the Eagles lodge. After the van had arrived at
the Eagles, at approximately 7:40 p.m., Probst phoned Beckett, who advised him
to wait outside the Eagles lodge “and see what happens.” After talking with
Probst, Beckett got a call from appellant, who asked him whether he had heard
anything. Beckett told appellant that Pat had arrived at the Eagles, to which
appellant replied, “I know that. I’m here.” The phone then went dead.
       {¶12} Bob West and his date, Sandy Spangler, rode with the Rihms and
Pat to the Valentine’s Day dance at the Eagles. James Tipton and his date




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                            SUPREME COURT OF OHIO




followed the group in a different car. Upon arriving at the social hall, the group
gathered at a table in the corner of the hall where the Rihms usually sat. Joan
Brest, a member of the Eagles, was at the lodge with her husband. She noticed
appellant there and thought he “looked like he was mad at the world.”
       {¶13} Tipton, his date, and Pat sat on one side at the Rihms’ table, Ron
sat opposite Tipton, and Carolyn, West, and Spangler sat next to Ron. Appellant
was sitting at a nearby table and requested that Ron ask Pat whether he could sit
down with her. Pat replied, “Tell him not to start.”
       {¶14} Appellant stood up, went to the end of the Rihms’ table, pulled a
gun out of his pocket, and with his arm extended, fired the gun towards Pat. The
shot missed Pat and hit a mirror on the wall. Appellant then turned to his right
and shot Carolyn in the head. He then turned further to his right and shot Ron in
the head. At no point during these three shots did anyone touch appellant.
       {¶15} After the third shot, Tipton grabbed appellant’s gun, and the two
men struggled. As appellant tried to point the gun at Tipton’s body, he fired a
fourth shot. The shot broke bones in Tipton’s upper arm. Several others in the
hall joined in the struggle to subdue appellant, who at one point was struck on the
head with a pool cue. Those subduing appellant finally got the gun away from
him. Shortly thereafter, the Fairborn police arrived and handcuffed Taylor. Terry
McVay, who had struck appellant with the pool cue, heard him say, “Go ahead
and kill me. My life is over with anyway.” Paula Mercer, who was helping
Tipton, heard appellant ask “where his (expletive) gun was.”
       {¶16} Paramedics dispatched to the Eagles determined that both Ron and
Carolyn Rihm were dead at the scene. Both died as a result of penetrating
gunshot wounds to the head.
       {¶17} The bullets recovered from the Rihms and from the wall in the
Eagles lodge were hollow-point bullets. The gun recovered at the scene was a
Davis Model P380, .380 caliber semi-automatic pistol, jammed by a cartridge




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                                  January Term, 2002




casing. Tests conducted on the gun indicated that the recovered bullets were fired
from appellant’s gun.
       {¶18} After apprehending appellant, police took him to a hospital and
advised him of his Miranda rights, which he acknowledged he understood. At the
hospital, appellant made several unsolicited, spontaneous statements to a police
officer: “This was all her fault. Why did she do this to me. Six hours at a
Christmas dance was too long. She did me wrong.” Appellant also said several
times, unsolicited: “I just wish my wife would have just talked to me. I love that
woman.” While appellant was at the hospital, an atomic absorption test on his
hands indicated the presence of gunshot residue.
       {¶19} On February 20, 1998, a grand jury indicted appellant on two
counts of aggravated murder alleging prior calculation and design. These counts
had a death penalty specification, finding that the murder was committed as a
course of conduct involving killing or attempting to kill two or more persons. See
R.C. 2929.04(A)(5). Appellant was further charged with one count of attempted
aggravated murder and one count of attempted murder. All four counts also
carried firearm specifications.
       {¶20} At several pretrial hearings, appellant indicated that he wanted his
trial “started” and “over with.” In addition, appellant declared that he wished to
represent himself, because, otherwise, the court would not allow him to ask
questions of witnesses during trial. After a competency hearing, the trial court
found appellant competent to stand trial. Hearings were then held to determine
whether appellant should be allowed to represent himself.
       {¶21} The trial court refused to allow hybrid representation by appellant
and counsel. Although defense counsel and the court advised appellant that it was
not in his best interest to proceed pro se, appellant insisted that he had to question
witnesses himself.      Appellant signed a waiver of counsel in open court.




                                          5
                             SUPREME COURT OF OHIO




Thereafter, appellant entered a plea of not guilty by reason of insanity. The court
appointed defense counsel, who served as backup counsel.
       {¶22} At trial, a number of eyewitnesses to the murder were called by the
state to testify, including appellant’s estranged wife, Pat. Also testifying on
behalf of the state was Michael Sexton, who was a fellow inmate of appellant’s at
the county jail. During several conversations with Sexton, appellant made a
number of incriminating statements. Sexton testified that appellant had “wanted
her shot in the vagina, stomach and breasts and in the head. And then he wanted
the ring finger removed, shot off or cut off.”        Sexton further testified that
appellant had wanted Sexton to recruit someone to kill his wife and had given him
precise directions as to where his wife could be found. Instead, Sexton told one
of the deputies in the jail what appellant had asked him to do.
       {¶23} Appellant also told Sexton that “he hated” the Rihms and that “he
felt that the couple” had caused the breakup of his marriage and had ruined his
life. Sexton further testified that appellant had admitted using a .380 gun and
hollow-point bullets and had stated: “It would get the job done.” With regard to
the murder victims, appellant told Sexton that he hopes “they burn in hell.”
       {¶24} During the state’s case-in-chief, but away from the jury, the trial
judge suggested to appellant that he allow counsel to represent him. Appellant,
however, emphatically refused, stating, “There is a reason and you’ll find out
before the trial is over with where I’m going.” Later in chambers, the state
indicated it would be willing to enter into a plea agreement before Pat Taylor
testified. Backup counsel advised appellant to accept the plea, but he refused.
Appellant countered the state’s offer by asserting that he would plead only to a
charge of involuntary manslaughter. As a result, the parties were unable to reach
an agreement.
       {¶25} Appellant called a number of witnesses, including himself, and he
subjected himself to cross-examination. In his testimony, appellant claimed that




                                         6
                                January Term, 2002




he had gone to the Eagles dance in order to commit suicide in front of his wife.
He went on to claim that the Rihms were best friends of his and that Ron Rihm
had grabbed the gun and wrestled with him before he fired any shots. Appellant
testified that he had panicked and did not remember the Rihms’ getting shot. He
also asserted that Tipton had lied on the stand about what had happened that
evening. Appellant stated that before that night, he had received threatening
phone calls, after which a black van had begun following him, and that is why he
carried around a gun with hollow-point bullets. Nevertheless, he did concede that
every time the private investigator had arrived to find the black van, it was not
there.
         {¶26} The jury found appellant guilty as charged.
         {¶27} At the mitigation hearing, counsel represented the appellant, and
both parties stipulated to the fact that appellant had no significant criminal
history.    Appellant gave an unsworn statement in which he chronicled his
numerous complaints about his wife during their marriage. He also asked the jury
to recommend death, “which is what I want. … I have nothing to look forward
to in life but death itself.”
         {¶28} Dr. Jeffrey Smalldon, a forensic psychologist, testified at the
mitigation hearing on appellant’s behalf. He opined that appellant suffers from a
paranoid personality disorder and that appellant is extremely fixated on
unresolved problems stemming from his 46-year marriage.
         {¶29} The jury recommended death, and the court imposed the death
sentence.    At the sentencing hearing, James Tipton gave a victim impact
statement. During allocution, appellant claimed that Ron Rihm was a “hero” for
saving his life by preventing him from committing suicide.
                                 II. Pretrial Issues
                                 A. Speedy Trial




                                         7
                             SUPREME COURT OF OHIO




       {¶30} In his second proposition of law, appellant contends that the trial
court denied his statutory and constitutional rights to a speedy trial. Appellant
claims that he continually asserted his right to a speedy trial and that counsel
lacked the ability to waive it for him since he had effectively discharged counsel
and had elected to represent himself several months before the trial began.
       {¶31} Under R.C. 2945.71(C)(2), the state is required to bring a
defendant to trial on felony charges within 270 days of arrest. Each day that the
defendant is held in jail in lieu of bail counts as three days in computing this time.
R.C. 2945.71(E). The time may be tolled by certain events delineated in R.C.
2945.72(E) and (H), including continuances granted as a result of defense motions
and any reasonable continuance granted other than upon the request of the
accused.
       {¶32} In addition, an accused is guaranteed the constitutional right to a
speedy trial pursuant to the Sixth and Fourteenth Amendments to the United
States Constitution and Section 10, Article I of the Ohio Constitution.
       {¶33} Appellant acknowledges that a defendant is bound by his counsel’s
waiver of speedy trial rights, even though the waiver might have been executed
without his consent. State v. McBreen (1978), 

, 

,

, syllabus; however, appellant asserts that McBreen is
distinguishable because he objected to the waiver filed by counsel and demanded
that counsel be discharged. Appellant’s arguments are not well taken.
       {¶34} On February 24, 1998, ten days after his arrest for aggravated and
attempted murder, appellant’s trial was scheduled for April 20, 1998.            In a
judgment entry dated March 30, 1998, appellant signed a request to continue the
trial to May 18. Then, in early May, defense counsel filed motions to suppress
certain statements made by appellant as well as evidence obtained pursuant to a
search warrant. Indicating that it would set a new trial date, the court scheduled
the suppression hearing for August. At that point, appellant objected, stating that




                                          8
                                January Term, 2002




he wanted his trial started and over with, and moved that his “lawyers be relieved
from” representing him. When the court explained to appellant that such motions
filed by his counsel are usual and expected, he maintained, “I don’t need another
counsel. I want to be my own counsel …. I’m asking you that the trial start
May 18th.” The trial court then rejected appellant’s motion to dismiss counsel. In
an order dated May 21, 1998, that analyzed the constitutional requirements
regarding speedy trials, the court set the trial date for September 8. Then, on May
26, counsel wrote the trial court expressing concerns over appellant’s competency
to stand trial.
        {¶35} On June 22 and July 2, 1998, the trial court held hearings on
appellant’s competency and motion to waive counsel. At a July 6 hearing, the
trial court found appellant competent to stand trial. Then, at an August 17, 1998
hearing on waiver of counsel, appellant stated that he would agree to keep counsel
if he could ask questions of witnesses along with counsel. After the trial court
refused to allow hybrid representation, appellant executed a waiver of counsel and
proceeded to represent himself.        Subsequently, appellant either agreed to or
moved for continuances extending the commencement of his trial to February
1999, when the trial actually began.
        {¶36} Contrary to appellant’s arguments, McBreen, 

, 

, 

, is not distinguishable from the instant case. Under
the McBreen syllabus, counsel could validly waive defendant’s right to a speedy
trial without his consent.    Counsel continued to represent appellant until he
waived his right to counsel at the August 17 hearing. Neither appellant nor
defense counsel moved to dismiss charges against him on speedy trial grounds
pursuant to R.C. 2945.73(B). Thus, the delay resulting from his counsel’s request
to continue the trial in order to consider motions filed on appellant’s behalf should
not be charged against the state for speedy trial purposes.        Even assuming,
arguendo, the legitimacy of appellant’s argument that he was acting as his own




                                           9
                             SUPREME COURT OF OHIO




counsel beginning in May 1998, his motions to waive counsel and represent
himself would have also tolled the running of the speedy trial statutes under R.C.
2945.72(E).
       {¶37} Moreover, appellant’s failure to file a motion to dismiss on speedy
trial grounds prior to trial and pursuant to R.C. 2945.73(B) prevents him from
raising the issue on appeal. See State v. Thompson (1994), 

, 

.
       {¶38} Furthermore, appellant’s assertion of a violation of his
constitutional rights to a speedy trial under both the United States and Ohio
Constitutions is also without merit. In Barker v. Wingo (1972), 

, 

, 

, the Supreme Court set forth a balancing test
that considers the following factors to determine whether trial delays are
reasonable under the Sixth and Fourteenth Amendments to the United States
Constitution: “Length of delay, the reason for the delay, the defendant’s assertion
of his right, and prejudice to the defendant.”
       {¶39} The fact that appellant was brought to trial within a year of the
murders can hardly allow the delay to be characterized as “presumptively
prejudicial,” a label that ordinarily triggers a constitutional speedy trial analysis
and inquiry into the remaining Barker factors. Doggett v. United States (1992),

, 

, 

. Furthermore, in reviewing the
four Barker factors, we conclude that appellant was not denied his constitutional
right to a speedy trial. Though appellant had verbally asserted his right to a
speedy trial early in the process, he never filed a motion to dismiss his case on
speedy trial grounds and in fact successfully moved for a continuance later on.
Nor does it appear that appellant was prejudiced by having his trial approximately
one year after the murders. Therefore, we reject appellant’s second proposition.
                     B. Failure to Appoint Substitute Counsel




                                         10
                                  January Term, 2002




       {¶40} In his third proposition of law, appellant asserts that the trial court
abused its discretion in failing to grant his request for substitute counsel. At the
May 13 pretrial conference, appellant told the court, “I want to make a motion
that my lawyers be relieved from me.” Then, at the June 22 motion hearing,
appellant reiterated, “I still want them dismissed, Your Honor. I still want them
dismissed.”
       {¶41} However, appellant never requested substitute counsel, either by
motion or orally. Rather, he asserted that he wanted counsel dismissed because
he wanted to act pro se. Shortly after requesting that counsel “be relieved from”
him, appellant told the trial court, “I don’t need another counsel. I want to be my
own counsel, Your Honor.” At that point, appellant wanted to dismiss counsel
because they had sought to continue the case to obtain hearings on motions;
appellant wanted his trial “over with” and asserted, “I feel that I have the right to
represent myself if I want to.”
       {¶42} Thereafter, the trial court held hearings on appellant’s competence
to stand trial and his motion for waiver of counsel. At the fourth hearing on his
motion for waiver of counsel on August 17, 1998, appellant said that he did need
legal help and that he would allow counsel to continue representing him, so long
as they agreed to allow him to ask questions of witnesses.           Appellant then
declared, “[I]f I’m not allowed to examine those [witnesses], then I have to give
up my right as far as counsel is concerned.”
       {¶43} Since appellant never requested substitute counsel, the trial court
did not abuse its discretion in failing to appoint new counsel. The transcript
clearly indicates that appellant wanted to act pro se. When he suggested that he
might retain counsel, it was under the express condition that he would be allowed
to ask questions of witnesses. Consequently, the trial court acted properly in
refusing to allow hybrid representation, whereby appellant would have acted as
“cocounsel” along with counsel.        Neither the federal nor state Constitution




                                          11
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mandates a right to such representation. See State v. Thompson (1987), 

, 

, citing McKaskle v. Wiggins (1984), 

, 

, 

. See, also, State v. Landrum (1990), 

, 

; State v. Keenan (1998), 

, 

. Accordingly, we reject appellant’s third proposition.
                        C. Appellant’s Self-Representation
       {¶44} In appellant’s sixth proposition of law, he argues that the trial court
erred by allowing him to represent himself at trial, since there is a real question as
to whether he proceeded intelligently.          Appellant asserts that his self-representation actually aided the state in making its case against him and that his
statements to the press and jury suggest that he engaged in a “state-supported
suicide.”   Appellant relies on State v. Shank (La.1982), 

, in
asserting that a death sentence is improper when a defendant represents himself in
order to gain a sentence of death.
       {¶45} The Sixth and Fourteenth Amendments to the United States
Constitution guarantee a state criminal defendant the constitutional right of self-representation when the defendant voluntarily, knowingly, and intelligently so
elects. State v. Gibson (1976), 

, 

, 

, paragraph one of the syllabus, citing Faretta v. California (1975), 

, 

, 

. To establish an effective waiver of counsel,
the trial court must determine whether the defendant fully understands and
intelligently relinquishes his right to counsel.    Gibson, paragraph two of the
syllabus.
       {¶46} As previously discussed, appellant first declared his desire to act as
his own attorney at the May 13, 1998 hearing. At that time, appellant was upset
that defense counsel had filed several motions and had requested a continuance;
appellant wanted his trial to be “over with.” The trial court then held no fewer
than four hearings involving the issue of appellant’s right to waive counsel and




                                         12
                                January Term, 2002




represent himself pro se. During these hearings, appellant was repeatedly advised
by defense counsel and the trial court that self-representation was not a wise
decision, nor in his best interest.    Even after the trial had begun, the court
suggested to appellant that he allow counsel to represent him; however, appellant
emphatically refused.
       {¶47} Appellant asserts that his decision to represent himself was not “a
good idea.” We agree. The issue, however, is not whether appellant made a wise
decision; rather, it is whether he “fully understands and intelligently relinquishes”
his right to counsel. Gibson, 

, 

, 

,
paragraph two of the syllabus.        Appellant was warned several times that
representing himself was a dangerous course to pursue, yet he persisted in self-representation.
       {¶48} The trial court held a competency hearing to determine appellant’s
competence to stand trial. At that hearing, Dr. Jeffrey Smalldon opined that
appellant was not capable of assisting counsel in his own defense. However,
another psychologist, Dr. Susan Perry Dyer, testified that appellant was
competent to stand trial, even though he was “likely personality disordered.”
Moreover, Dr. Dyer opined that appellant “is capable to work with defense
counsel to mount a defense.”
       {¶49} At the July 22, 1998 hearing, the court discussed the law on self-representation and then interrogated appellant about his background, motivations,
and desire to proceed without counsel. Appellant insisted that he wanted to cross-examine witnesses and testify, contrary to the advice of defense counsel. He
paraphrased language from the Revised Code that the defendant has the right to
cross-examine any witness, and claimed that he was being denied this right. He
further told the court that he had once represented himself in a hearing at the
Eagles lodge.




                                         13
                            SUPREME COURT OF OHIO




       {¶50} Then, at the August 17, 1998 hearing, the trial court again
questioned appellant about his desire to waive counsel and to represent himself.
While appellant conceded the need for counsel, he said that he would agree to let
counsel stay on only if counsel would allow him to ask questions of witnesses
along with them. The court refused to allow hybrid representation. As noted in
our discussion of appellant’s third proposition, the United States and Ohio
Constitutions do not provide for such an arrangement. See, e.g., Thompson, 

, 

. The trial court did not err in refusing to allow
hybrid representation.   On the other hand, the right to self-representation is
constitutionally mandated under Faretta, 

, 

, 

.
       {¶51} In any event, appellant insisted at the August 17 hearing that “there
are some witnesses that I need to question myself.”              Appellant even
acknowledged, “I’m probably making a bad decision doing this, but it’s the only
decision that I can make. … I’m being forced to do it because this is the only
chance that I have got to try to prove things in here that has happened. … I’m
giving up my life, if I don’t do it, Your Honor.” In this last declaration by
appellant, it is clear that he is not giving up counsel in order to ensure that he
would get the death penalty. The record reveals that appellant’s situation and
motivation for wanting to act pro se are distinguishable from those of the
defendant in Shank.
       {¶52} After the trial court reviewed each aspect of the waiver of counsel
with appellant, he signed and dated the written waiver at the August 17 hearing.
We find that the record amply demonstrates that appellant fully understood and
voluntarily and knowingly relinquished his right to counsel. Gibson, 

, 

, 

, paragraph two of the syllabus. Thus,
his waiver of counsel was valid.




                                       14
                                January Term, 2002




       {¶53} Ruling as appellant requests would undermine the constitutional
guarantee to self-representation identified in Faretta that we followed in Gibson.
The fact that appellant’s decision to waive counsel and represent himself at trial
was “not a good idea” is not the standard by which courts adjudicate this issue.
Self-representation by a defendant is seldom “a good idea.” Both the state and
federal Constitutions, however, guarantee such a right to defendants with a valid
waiver of counsel, regardless of the wisdom of such a decision.          For these
reasons, we reject appellant’s sixth proposition.
                       D. Appellant’s Hearing Impairment
       {¶54} In his fourth proposition of law, appellant contends that the trial
court abused its discretion in failing to accommodate his hearing impairment.
Appellant asserts that he was a 68-year-old man suffering from a hearing loss and
that he had complained throughout the trial that he was unable to hear questions
or statements by the court, the prosecutors, and witnesses. Based on the trial
court’s failure to accommodate his hearing impairment, appellant asserts that he
was denied his right to confront witnesses under State v. Schaim (1992), 

, 

.
       {¶55} In spite of appellant’s assertion, the record indicates that at no
point did he either request an interpreter or any other accommodation for his
impaired hearing, nor did appellant request a new trial or proffer expert testimony
on his hearing impairment as the defendant did in Schaim.
       {¶56} Moreover, the trial court went to great lengths to accommodate
appellant’s hearing impairment both before and throughout trial. At the July 6,
1998 hearing, appellant told the court that he was hard of hearing. The trial judge
instructed appellant to raise his hand any time that he did not hear the
proceedings.
       {¶57} When trial began, the court addressed appellant, noting, “Mr.
Taylor, if you at any point in time have a problem hearing anything that anyone




                                         15
                             SUPREME COURT OF OHIO




says, … please make yourself apparent to the Court. Raise your hand, indicate
that you’re not hearing things.” Shortly thereafter, the court reminded appellant,
“Let me know if you’re unable to hear.” Later, the court observed, “Mr. Taylor,
from your questioning, it would appear that you’re hearing everything that is
going on.” Appellant responded, “So far okay.”
       {¶58} On the second day of trial, after appellant had remarked, “I didn’t
hear,” the court addressed appellant, stating, “Mr. Taylor, if you at all at any point
in time have trouble hearing, let me know.”
       {¶59} Throughout the entire trial, appellant told the court at various times
that he did not hear a question or answer. Whenever this occurred, the question or
answer would be repeated.
       {¶60} We believe that the trial court’s approach in dealing with Taylor’s
hearing impairment was not unreasonable, arbitrary, or unconscionable and thus
did not amount to an abuse of discretion. See State v. Adams (1980), 

, 

, 

. Appellant did not request an
evidentiary hearing or proffer expert testimony on his hearing impairment, as was
the case in Schaim, and thus waived his right to complain about this issue now.
See State v. Slagle (1992), 

, 

. Furthermore, the
record amply indicates that the trial court was cognizant of appellant’s hearing
impairment and was vigilant in ensuring that appellant heard everything that
occurred during his trial. Therefore, we reject appellant’s fourth proposition.
                                E. Voir Dire Issues
       {¶61} In his twelfth proposition of law, appellant argues that the trial
court erred in the manner that it permitted selection of a death-qualified jury.
Specifically, appellant claims that the trial court erroneously applied the broad
standard set forth in Wainwright v. Witt (1985), 

, 

,

, rather than a stricter standard required by Ohio law.
Consequently, appellant asserts that the death qualification procedure produced a




                                         16
                                  January Term, 2002




jury that was exceptionally partial to the death penalty. Appellant does not point
to any specific instances occurring during voir dire to buttress his assertions;
rather, he concedes that the issue is raised for the possibility of federal habeas
review.
          {¶62} We have rejected this same proposition with regard to the standard
set forth in Wainwright v. Witt many times. See, e.g., State v. Wilson (1996), 

, 

. Moreover, our review of the voir dire
transcript indicates that the trial judge did not abuse his discretion in finding that
the death penalty views of those excused “would prevent or substantially impair
the performance of” their duties as jurors. State v. Rogers (1985), 

, 17 OBR 414, 

, paragraph three of the syllabus. We find
proposition twelve not well taken.
                                    III. Trial Issues
                         A. Expert Witnesses on Insanity Plea
          {¶63} In appellant’s first proposition of law, he argues that the trial court
erred in excluding expert testimony that he proffered to support his plea of not
guilty by reason of insanity.
          {¶64} The defense of not guilty by reason of insanity is an affirmative
defense that must be proved by the accused. R.C. 2901.05(A); see, also, R.C.
2901.01(A)(14). At trial, appellant subpoenaed three expert witnesses who had
evaluated his sanity: Dr. Kim Stookey, Dr. Gordon Harris, and Dr. Thomas
Martin. The trial court, in its discretion, conducted a voir dire of all three experts
away from the jury. Dr. Stookey saw appellant twice for approximately six hours,
and she opined, “I did not feel that he was insane. He was sane at the time of the
offense.”
          {¶65} Dr. Harris evaluated appellant and “concluded that [appellant] did
not fit the criteria for a plea of not guilty by reason of insanity under the Ohio
Revised Code.”




                                           17
                               SUPREME COURT OF OHIO




       {¶66} Dr. Martin also evaluated appellant and stated, “[O]n the date [of
the] alleged offense Mr. Taylor was not legally insane. … Mr. Taylor did not
have a mental disease or defect.”
       {¶67} At the conclusion of the voir dire of these witnesses, the trial court
cited State v. Mitts (1998), 

, 

, and invoked
Evid.R. 403(A). The court held that Evid.R. 403(A) “mandates this Court to
exclude evidence, when the probative value is substantially outweighed by danger
of the confusion of issues or misleads the jury.”
       {¶68} None of the experts proffered by appellant supported his plea of
not guilty by reason of insanity.     In fact, appellant wanted to call them as
witnesses in order to impeach their conclusions that he was sane at the time of the
murders. He stated at the outset that he wanted to call these experts because “they
never reviewed everything that was involved in this case, they left things out of
their reports.” Yet, all three experts stated during voir dire examination that they
had considered the matters that appellant claimed they had supposedly left out of
their reports, and none of the other matters raised by appellant altered their
opinions on Taylor’s sanity.
       {¶69} This court has uniformly upheld trial courts that have excluded this
type of testimony in the trial phase of criminal trials, including capital cases.
Except in the mitigation phase, “a defendant may not offer expert psychiatric
testimony, unrelated to the insanity defense, to show that, due to mental illness,
intoxication, or any other reason, he lacked the mental capacity to form the
specific mental state required for a particular crime or degree of crime.” State v.
Cooey (1989), 

, 

; accord Mitts, 

, 

; State v. Wilcox (1982), 

, 

, 

.
       {¶70} In our view, the expert testimony appellant offered did not support
his insanity defense, since all three experts concluded that he was not insane at the




                                         18
                                 January Term, 2002




time of the murders. The evidence that appellant sought to introduce in the guilt
phase had no probative value, and appellant’s use of it would have had a strong
tendency to confuse the issues. Moreover, since the evidence did not support
appellant’s defense, we find that excluding it did not prejudice appellant.
Therefore, the trial court did not abuse its discretion in excluding this testimony.
Adams, 

, 

, 

. Accordingly, we
reject appellant’s first proposition.
                                 B. Jury Instructions
        {¶71} In appellant’s fifth proposition of law, he alleges error in the trial
court’s jury instructions. Specifically, appellant argues that the state’s burden of
proof regarding mens rea was shifted to the accused by an instruction that created
a mandatory rebuttable presumption of the mens rea element. Yet appellant cites
no specific language from any of the trial court’s instructions to support his
allegation.
        {¶72} We have rejected similar arguments many times. Here, the trial
court’s instruction on purpose was similar to the instructions we upheld in State v.
Getsy (1998), 

, 

; State v. Loza (1994), 

, 

; and State v. Montgomery (1991), 

, 

.           In the instant case, the trial court’s
instructions included the following:
        {¶73} “If a wound is inflicted upon a person with a deadly weapon in a
manner to destroy life or inflict great bodily harm, the purpose to cause the death
may be inferred from the use of the weapon. Whether such inference is made
rests entirely with you.
        {¶74} “It must be established in this case that at the time in question there
was present in the mind of the Defendant a specific intention to cause the death *
….”




                                         19
                              SUPREME COURT OF OHIO




       {¶75} As we have often stated, “A single instruction … may not be
judged in artificial isolation but must be viewed in the context of the overall
charge.” State v. Price (1979), 

, 

, 

, paragraph four of the syllabus. Here, no burden of proof was shifted to the
accused. Moreover, the overall charge clearly indicated that the burden was on
the state to prove specific intent to kill and that the jury was required to find
specific intent to kill before it could convict appellant of aggravated murder.
Accordingly, we reject appellant’s fifth proposition.
                              C. Gruesome Photographs
       {¶76} In appellant’s eighth proposition of law, he alleges that the trial
court denied him a fair trial by admitting numerous photographs of the two
deceased victims.
       {¶77} Under Evid.R. 403 and 611(A), the admission of photographs is
left to a trial court’s sound discretion. Landrum, 

, 

; State v. Maurer (1984), 

, 15 OBR 379, 

. Nonrepetitive photographs in a capital case, even if gruesome, are
admissible if the probative value of each photograph outweighs the danger of
material prejudice to the accused. 

 paragraph seven of the syllabus; State v.
Morales (1987), 

, 

.
       {¶78} In particular, appellant complains about the admission of state’s
Exhibit 18, which contained several photographs of the murder victims.
Appellant asserts that the state had already presented an overwhelming amount of
evidence that both victims were dead and alleges that the photos were cumulative
and not of probative value.
       {¶79} We find, however, that the trial court did not abuse its discretion in
admitting these photographs.       All of these photos illustrated the coroner’s
testimony describing the injuries sustained by Ron and Carolyn Rihm and helped
to prove the killer’s intent and the lack of accident or mistake. Since appellant




                                        20
                                January Term, 2002




maintained that the victims were shot accidentally during a struggle for the gun
with Ron Rihm, the photos helped rebut that assertion. Moreover, the photos also
gave the jury an “appreciation of the nature and circumstances of the crimes.”
State v. Evans (1992), 

, 

. We therefore
reject appellant’s eighth proposition.
                             IV. Effective Assistance
         {¶80} In his seventh proposition of law, appellant claims that his
performance as his own attorney was clearly deficient and that he was prejudiced
by it.
         {¶81} The right to effective assistance of counsel is rooted in the Sixth
and Fourteenth Amendments. Strickland v. Washington (1984), 

,

, 

; State v. Bradley (1989), 

, 

. However, appellant waived his right to counsel and, as a result,
waived any right he had to challenge the effectiveness of counsel. Appellant
insisted on his right to self-representation, although he was given several
opportunities during the trial to utilize appointed counsel, who served as backup
counsel during the trial phase. When the court advised appellant that it would be
a good idea to end his self-representation and bring back counsel, appellant
replied: “I do not want that to happen.”
         {¶82} There is no doubt that appellant’s performance as his own counsel
was counterproductive. Nevertheless, the right to effective assistance of counsel
necessarily presumes that the defendant has counsel.       The law pertaining to
effective assistance of counsel does not apply when the defendant exercises his
right to self-representation. To rule otherwise would undermine the constitutional
right of self-representation identified in 

 The Faretta court noted
that a criminal defendant who decides to represent himself cannot later complain
that he was denied the effective assistance of counsel. 

, 

, 

. See, also, United States v. Flewitt (C.A.9,




                                           21
                              SUPREME COURT OF OHIO




1989), 

; United States v. Smith (C.A.6, 1990), 

;
Gall v. Parker (C.A.6, 2000), 

.
        {¶83} The constitutional right to represent oneself would become a
hollow right and its assertion would most likely be rejected with regularity if pro
se defendants were permitted to assign as error their own ineffectiveness.
        {¶84} In addition, appellant was not prejudiced by his decision to waive
counsel, given the overwhelming evidence of his guilt.            Thus, we reject
appellant’s seventh proposition.
                                 V. Constitutionality
        {¶85} In his ninth, tenth, eleventh, thirteenth, and fourteenth propositions
of law, appellant challenges Ohio’s death penalty statutes on numerous
constitutional grounds. However, these arguments can be summarily rejected.
See, e.g., State v. McNeill (1998), 

, 

; State
v. Jenkins (1984), 

, 15 OBR 311, 

; Maurer, 

, 15 OBR 379, 

; State v. Gumm (1995), 

, 

; State v. Poindexter (1988), 

, 

, syllabus.
                    VI. Independent Review and Proportionality
        {¶86} At the mitigation hearing, appellant gave an unsworn statement
wherein he chronicled his various complaints about his estranged wife. He also
complained that several witnesses had lied on the stand during trial. Appellant
then asked the jury to recommend a death sentence since he had “nothing to look
forward to in life but death itself.”
        {¶87} Dr. Jeffrey Smalldon, who had met with appellant six times,
encompassing 15 to 20 hours of face-to-face examination, testified on his behalf.
Dr. Smalldon testified that appellant was the youngest of five children and that he
had dropped out of school at age 15 to assist his family financially. Appellant
married Pat when he was 21 years old and worked as an electrician at Delphi




                                         22
                               January Term, 2002




Chassis for approximately 35 years. Dr. Smalldon described appellant’s marriage
as “46 years of pure violence, [with] … a few prolonged periods of calm.” He
observed that there was a great deal of turmoil and turbulence during most of the
marriage.
       {¶88} According to Dr. Smalldon, appellant is of average intelligence but
suffers from a paranoid personality disorder, and his personality has narcissistic
and passive-aggressive components. Appellant also has a depressive disorder and
a history of alcohol abuse. Appellant suffers lower back problems that have
caused him a lot of pain and discomfort since the early 1990s. He suffered a heart
attack in 1990 and has blood-sugar problems.
       {¶89} Appellant’s personality disorder causes him to focus on small,
inconsequential matters rather than on matters that are of considerable
significance to his welfare.    Appellant also sees people as mocking him or
conspiring behind his back. As a byproduct of his personality disorder, appellant
showed extreme preoccupation with and fixation on unresolved problems in his
46-year relationship with his wife.
       {¶90} Nonetheless, Dr. Smalldon found that appellant did not suffer from
a mental disease as that term is used in the legal sense. Appellant was not insane
and understood right from wrong.
       {¶91} Appellant’s daughter-in-law, Rebecca Taylor, also testified at the
mitigation hearing.    Her marriage to appellant’s son, Ron, produced two
grandchildren for appellant. Rebecca stated that she has had a very good and
open relationship with appellant since his incarceration. She testified that he now
reads the Bible but feels that God has abandoned him since the guilty verdict.
Rebecca pleaded with the jury not to impose the death penalty.
       {¶92} The evidence proves beyond a reasonable doubt that appellant
murdered Ron and Carolyn Rihm and attempted to kill his wife and James Tipton
in the course of this conduct, pursuant to R.C. 2929.04(A)(5). Appellant’s claim




                                        23
                             SUPREME COURT OF OHIO




that he was trying to commit suicide and that Ron Rihm struggled with him when
the gun was accidentally fired lacks serious credibility and is contradicted by
every eyewitness to the shootings, save appellant himself.
       {¶93} The nature and circumstances of the offense offer nothing in
mitigation.   After appellant’s wife left the marital home, he hired a private
investigator to locate his estranged wife and then monitored her in the weeks
leading up to the murders. Appellant’s obsession with his wife was coupled with
his expressed feeling that the Rihms were interfering with his marriage. He asked
a friend about the effect of hollow-point bullets when fired from a gun. On the
day of the murders, he unsuccessfully tried to win back his wife’s attention by
having flowers sent to her and by wanting to sit with her and talk. When she
rebuffed appellant the final time and that rebuff was relayed to him by Ron Rihm,
appellant fired shots at Pat and the Rihms.
       {¶94} Appellant’s history, character, and background provide some
features in mitigation. He had been a productive citizen in that he held the same
job for approximately 35 years.
       {¶95} With regard to the mitigating factors of R.C. 2929.04(B)(5), the
parties stipulated that appellant lacks a significant history of prior criminal
convictions and juvenile adjudications. Appellant’s personality disorder and his
obsession with unresolved problems arising out of his turbulent marriage fall
within R.C. 2929.04(B)(7) and deserve some weight in mitigation. However, as
Dr. Smalldon conceded, appellant’s disorder is a mental illness but does not
qualify as a mental disease or defect as a matter of law.
       {¶96} We find that the aggravating circumstance outweighs the
mitigating factors beyond a reasonable doubt. Appellant stalked his estranged
wife and the couple who sheltered her in the weeks leading up to the murders.
When appellant tried to talk with her at the Valentine’s Day dance, he shot at her
after she refused to talk with him. He next turned his gun on the two people he




                                         24
                               January Term, 2002




believed to be interfering with his marriage and had fatally shot both in the head.
He then fired a shot at James Tipton, who tried to wrest the gun away from him.
Appellant’s actions merit the capital penalty to which he was sentenced.
       {¶97} The death penalty is both appropriate and proportionate when
compared with capital cases involving a course of conduct involving the
purposeful killing or attempted killing of two or more persons. See, e.g., State v.
Davie (1997), 

, 

; State v. Lundgren (1995), 

, 

; and State v. Sowell (1988), 

,

.
       {¶98} For the foregoing reasons, we affirm appellant’s convictions and
death sentence.
                                                               Judgment affirmed.
       MOYER, C.J., DOUGLAS, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG
STRATTON, JJ., concur.
                                 __________________
       William F. Schenck, Greene County Prosecuting Attorney, and Robert K.
Hendrix, Assistant Prosecuting Attorney, for appellee.
       Suzanne M. Lough Wynn and Donald E. Oda II, for appellant.
                                 __________________




                                        25