State v. Herring

[This decision has been published in Ohio Official Reports at 

.]




            THE STATE OF OHIO, APPELLEE, v. HERRING, APPELLANT.
                      [Cite as State v. Herring, 

.]
Criminal law—Aggravated murder—Death penalty upheld, when.
        (No. 98-904–Submitted July 17, 2001–Decided February 27, 2002.)
APPEAL from the Court of Common Pleas of Mahoning County, No. 96-CR-339.
                                  __________________
        PFEIFER, J.
        {¶ 1} Shortly after midnight on April 30, 1996, five masked gunmen intent
on robbery entered the Newport Inn, a bar in Youngstown. They shot five people,
robbed the till, and left. Three of the five victims died. One of the gunmen, Willie
S. “Stevie” Herring, is the appellant in this case. He was convicted of three counts
of aggravated murder and sentenced to death on each count.
        {¶ 2} Herring’s partners in crime were Adelbert Callahan, Antwan Jones,
Eugene Foose, Louis Allen, and Kitwan Dalton. On the night of April 29, 1996,
these five gathered at Herring’s house. At one point, Callahan and Jones left the
house for about fifteen minutes before returning with a stolen van.
        {¶ 3} Herring and the others got into the van, Callahan taking the wheel.
Callahan drove to a blue house on Laclede Avenue near Hillman Street and
Rosedale Avenue. Herring went inside the blue house and came back with four
guns. He gave a .38 special to Allen, a 9 mm pistol to Callahan, and a .357-caliber
pistol to Jones. He did not give a gun to Foose, who was already carrying a .45, or
to Dalton, who was to be the getaway driver. Herring kept a 9 mm Cobray
semiautomatic for himself.
        {¶ 4} Herring then said to the others, “If you all know like I know, then you
all want to get paid.” It turned out that all six needed money. They therefore
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decided to commit a robbery. Foose suggested the Newport Inn as a target.
Callahan drove the van there.
       {¶ 5} Everyone but Dalton got out of the van carrying a gun. They put on
disguises. Herring donned a white Halloween mask, which Dalton agreed was a
“store-bought” mask similar to one seen in “slasher” movies. No one else had such
a mask; the others hid their faces with bandanas or, in Allen’s case, a T-shirt.
Herring, Allen, and Foose went to the back door of the Newport Inn; Callahan and
Jones took the front door.
       {¶ 6} Ronald Marinelli, the Newport Inn’s owner, was tending bar that
night. He had six or eight customers, including Deborah Aziz, Herman Naze, Sr.,
Dennis Kotheimer, and Jimmie Lee Jones. Jones was sitting with a woman at a
table in the back.
       {¶ 7} Sometime between 1:45 and 2:15 a.m., the robbers burst in. Hearing
a sound like a gunshot, Marinelli looked and saw four armed black males in the bar.
The two at the front door were disguised in dark bandanas. One carried a revolver;
one had what looked to Marinelli like a 9 mm semiautomatic pistol. Marinelli saw
two more at the rear. One wore a bandana, the other a “white hockey-type mask.”
Herring, in the white mask, carried a “very distinctive” gun, which looked like an
Uzi or a MAC-10, squarish in shape, with a long clip. Allen, entering last through
the back door, saw Jimmie Lee Jones already lying on the floor. At a nearby table,
a woman was screaming. Allen told her to be quiet. Then he returned to the van.
       {¶ 8} One of the other gunmen ordered Herman Naze: “Give me your
fucking money.”      “I don’t have any money,” Naze replied.          The gunman
immediately shot him. Then Herring shot Deborah Aziz, who fell to the floor. She
managed to crawl away and hide between a cooler and a trash can. She later
described her assailant’s mask as “a hard plastic, like one of those Jason masks.”




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       {¶ 9} Now Herring walked around the end of the horseshoe bar toward
Marinelli and the cash register. As he approached, he shot Marinelli four times in
the stomach from about five feet away.
       {¶ 10} Somehow Marinelli managed to stay on his feet as Herring came
closer. Herring stopped about a foot away from him. Marinelli noticed his
assailant’s long reddish-orange hair. Despite the mask, Marinelli could also see
that his assailant had an “odd skin pigment,” large eyes “almost like a hazel” color,
and buckteeth.
       {¶ 11} Herring said, “Give me your fucking money.” Despite his wounds,
Marinelli obeyed, handing over the cash in the register. But the robber screamed
that Marinelli hadn’t given him everything. He had guessed right: in a nearby
drawer there was some cash belonging to a pool league.
       {¶ 12} As Herring threatened to “blow [Marinelli’s] brains out,” Marinelli
gave him the money from the drawer. Herring screamed for more. Marinelli urged
him to “[b]e cool” and told him there was no more. Herring responded by leveling
his gun at Marinelli’s head.
       {¶ 13} Marinelli reached into the drawer again. This time, he pulled out a
gun of his own. But by now, Marinelli was so weak that Herring easily took the
gun from him.       Marinelli collapsed.       Herring said, “You ain’t dead yet,
motherfucker,” and shot Marinelli in the legs as he lay on the floor.
       {¶ 14} After Herring shot Marinelli, Aziz heard Dennis Kotheimer say,
“You motherfucker.” Then she heard more shots. Marinelli saw Kotheimer get
shot but did not see who shot him. Nobody saw who shot Jimmie Lee Jones.
       {¶ 15} Someone reported the gunshots to the Youngstown police, and
officers were sent to the Newport Inn. When the officers saw the carnage inside,
they summoned emergency personnel.




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       {¶ 16} The five shooting victims were taken to a Youngstown hospital.
Herman Naze and Jimmie Lee Jones were both pronounced dead on the morning
of April 30. Dennis Kotheimer died on May 1.
       {¶ 17} Autopsies showed that each victim died of gunshot wounds to the
trunk. Jones had been shot twice; one 9 mm slug was recovered from his body.
Kotheimer and Naze had each been shot once, but no bullets were recovered from
either victim.
       {¶ 18} On May 7, 1996, Officer Daniel Mikus responded to a report of an
unruly juvenile at 641 West Laclede Avenue. There, Mikus confronted sixteenyear-old Obie Crockett, who was sitting on a couch with his hand concealed under
a pillow. Mikus looked under the pillow and found State’s Exhibit 5, a 9 mm
semiautomatic firearm. A forensic scientist at the Bureau of Criminal Identification
and Investigation later determined that State’s Exhibit 5 had fired the 9 mm slug
recovered from the body of Jimmie Lee Jones.
       {¶ 19} Herring was indicted on three counts of aggravated murder in
violation of R.C. 2903.01(B). Count One charged him with killing Jimmie Lee
Jones; Count Two, with killing Herman Naze; Count Three, with killing Dennis
Kotheimer. The instructions and verdict forms on Count One gave the jury the
option of convicting Herring of the aggravated murder of Jones either as the
principal offender or as an accomplice. The indictment also included two counts
of attempted aggravated murder in violation of R.C. 2923.02(A), and two counts of
aggravated robbery in violation of R.C. 2911.01(A)(1).
       {¶ 20} Each aggravated murder count originally had two death
specifications attached: multiple murder, R.C. 2929.04(A)(5), and felony-murder,
R.C. 2929.04(A)(7). Ultimately, the (A)(7) specifications for Counts Two and
Three were not submitted to the jury.
       {¶ 21} On Count One, the jury found Herring not guilty of committing
aggravated murder as a principal offender, but guilty of complicity in the




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aggravated murder of Jones. The jury also found Herring guilty of the (A)(5)
multiple-murder specification to Count One. The jury convicted Herring of all
other counts and specifications. After a penalty hearing, the jury recommended
death for all three aggravated murders, and the trial judge sentenced Herring to
death.
                                   I. Intent to Kill
         {¶ 22} In his first and second propositions of law, Herring contends that
faulty instructions on the issue of specific intent to kill invalidate his aggravated-murder convictions.
         {¶ 23} Purpose (i.e., intent) to kill is an essential element of aggravated
murder. R.C. 2903.01. See, e.g., State v. Garner (1995), 

, 

. Moreover, “[t]o support a conviction for complicity by aiding
and abetting pursuant to R.C. 2923.03(A)(2), the evidence must show … that the
defendant shared the criminal intent of the principal.” State v. Johnson (2001), 

, 

, syllabus.
         {¶ 24} With respect to Count One (aggravated murder of Jimmie Lee
Jones), the trial court gave a standard instruction on specific intent. However, the
court then instructed that if the state failed to prove that Herring was the principal
offender on Count One, the jury could consider whether he was guilty of
complicity. The court instructed: “You may not convict Willie S. Herring of
complicity to commit aggravated murder unless you find beyond a reasonable doubt
that he specifically intended to aid and abet another in causing the death of Jimmie
Lee Jones.” On Counts Two (aggravated murder of Herman Naze) and Three
(aggravated murder of Dennis Kotheimer), the court gave the same instruction,
precluding the jury from convicting Herring of complicity in aggravated murder
unless it found that he “specifically intended to aid and abet another in causing the
death of” each victim. The court also defined the terms “aid” and “abet” as follows:
“Aid means to help, assist or strengthen. Abet means to encourage, counsel, incite




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or assist.” See 4 Ohio Jury Instructions (2000) 573, Sections 523.03(8) and
523.03(9).
        {¶ 25} These instructions, Herring contends, did not sufficiently inform the
jury that it could not find him guilty on Counts One, Two, or Three without finding
that he specifically intended to kill.
        {¶ 26} Where an instruction is claimed to be “ambiguous and therefore
subject to an erroneous interpretation,” the court must inquire “whether there is a
reasonable likelihood that the jury has applied the challenged instruction”
incorrectly. See Boyde v. California (1990), 

, 

, 

.
        {¶ 27} Herring’s claim assumes that the jury could have found that he
“specifically intended to aid and abet another in causing the death” of another
without finding that he specifically intended to cause the death of another. We
disagree. It is hard to see how a person could, in the words of the instruction, intend
to “help, assist, or strengthen” or “encourage, counsel, incite, or assist” another
person in causing death, without also intending that the victim die. It is equally
hard to see any reasonable likelihood that the jury would understand the instruction
as allowing the conviction of a defendant who did not intend that the victim die.
Thus, the instructions the trial court gave are functionally equivalent to an
instruction requiring specific intent to cause death. Herring’s first proposition of
law is overruled.
        {¶ 28} In his second proposition of law, Herring contends that the jury never
actually found that he intended to kill Jones, Naze, and Kotheimer. Ordinarily, of
course, the guilty verdicts on the aggravated-murder counts would show that the
jury did so find. However, Herring contends that due to the allegedly faulty
instruction on intent, these verdicts do not reflect an actual jury finding of intent.
Rejecting the premise that the instructions were flawed, we reject this claim as well.




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       {¶ 29} Herring’s second proposition of law further contends that the trial
judge made an affirmative finding of a lack of intent to kill and that we should
accept that finding and reverse his aggravated-murder convictions. But this case
was tried to a jury, and it is the jury’s verdict that binds us. The jury found that
Herring did intend the deaths of Jones, Naze, and Kotheimer.
       {¶ 30} Moreover, the trial judge did not, in fact, find that Herring lacked
intent to kill. Herring quotes passages from the sentencing opinion stating that “the
degree of the defendant’s participation in the offense which led to the deaths of
Herman     Naze, Sr., Dennis Kotheimer and Jimmie Lee Jones could not be
determined and was therefore unclear.” But the sentencing opinion did not say that
Herring’s state of mind was unclear or indeterminate; it said that the “degree of his
participation in the offense” was.
       {¶ 31} The opinion goes on to state that “the defendant was the offender
(shooter) in the attempt to kill Marinelli and Aziz.” In other words, the judge was
distinguishing between the shootings in which the degree of Herring’s participation
was unclear and the shootings in which it was clear that Herring was the principal
offender. He was not making any sort of finding as to lack of mens rea.
       {¶ 32} Herring’s second proposition of law lacks merit and is overruled.
                                        II. Complicity
                                     A. Bill of Particulars
       {¶ 33} The state’s second amended bill of particulars alleged that Herring
“shot and killed” Jimmie Lee Jones. Thus, the bill specified that Herring was the
principal offender in the aggravated murder of Jones. However, at the state’s
request, and over defense objection, the trial court instructed the jury that it could
convict Herring of aggravated murder on Count One if it found that Herring was
either the principal offender or an aider and abettor. The jury was given two verdict
forms for Count One, reflecting the alternate theories. The jury found Herring not
guilty of being the principal offender in the aggravated murder of Jimmie Lee




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Jones, but found him guilty of complicity, i.e., of aiding and abetting the aggravated
murder of Jones.
       {¶ 34} In his fourth proposition of law, Herring claims that the jury
instruction violated his Sixth Amendment right “to be informed of the nature and
cause of the accusation.” He contends that, because the bill of particulars indicated
that he was the principal offender on Count One, he lacked notice that the trial court
would instruct on accomplice liability as to that count.
       {¶ 35} R.C. 2923.03(F) states: “A charge of complicity may be stated in
terms of this section, or in terms of the principal offense.” Thus, a defendant
charged with an offense may be convicted of that offense upon proof that he was
complicit in its commission, even though the indictment is “stated … in terms of
the principal offense” and does not mention complicity.            R.C. 2923.03(F)
adequately notifies defendants that the jury may be instructed on complicity, even
when the charge is drawn in terms of the principal offense. See State v. Keenan
(1998), 

, 

, citing Hill v. Perini (C.A.6,
1986), 

. We reject Herring’s Sixth Amendment claim.
       {¶ 36} Moreover, Crim.R. 33(E)(2) provides that a variance between the
allegations and the evidence at trial is not reversible error unless the defense is
prejudiced or misled thereby. On the record before us, we cannot conclude that the
state’s failure to allege complicity in the bill of particulars prejudiced or misled
Herring. Herring knew before trial that complicity was an issue with respect to the
other aggravated-murder counts. He does not indicate how he could have defended
himself differently, given notice that complicity would also be an issue as to Count
One. Since Herring does not show prejudice, we overrule his fourth proposition of
law.
            B. Accomplice Liability for Multiple-Murder Specification
       {¶ 37} Under R.C. 2929.04(A)(5), an aggravating circumstance exists if
“the offense at bar was part of a course of conduct involving the purposeful killing




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of or attempt to kill two or more persons by the offender.” (Emphasis added.) In
his third proposition of law, Herring argues that the term “offender” in the (A)(5)
multiple-murder specification means the principal offender—i.e., the actual killer.
He argues that since the jury did not find him to be the actual killer in any of the
three murders, he cannot be guilty of this specification.
       {¶ 38} We reject this contention. As he must, Herring concedes that R.C.
2929.04(A)(5) contains neither an express requirement of prior calculation and
design nor an express requirement that the offender be the actual killer. R.C.
2929.04(A)(5) uses the unadorned term “offender,” rather than “principal
offender.” Nor does the term “prior calculation and design” appear therein.
       {¶ 39} Nevertheless, Herring attempts to read a principal-offender
requirement into our precedents. He cites State v. Smith (1997), 

, 

, 693, and State v. Sneed (1992), 

, 

, as supporting his claim. These cases do not support
Herring’s argument. Smith holds that the Eighth Amendment permits a state to
sentence to death one who aids and abets a killing with prior calculation and design.
It does not hold, or even suggest, that prior calculation and design is necessary to
convict an aider and abettor of the (A)(5) specification. Sneed involved the felony-murder specification of R.C. 2929.04(A)(7), not the (A)(5) multiple-murder
specification. Unlike the (A)(5) specification, R.C. 2929.04(A)(7) specifically
requires that “either the offender was the principal offender in the commission of
the aggravated murder or, if not the principal offender, committed the aggravated
murder with prior calculation and design.”
       {¶ 40} Herring’s third proposition of law is overruled.




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                            III. Sufficiency of Evidence
       {¶ 41} In his eighth proposition of law, Herring contends that the evidence
was legally insufficient to convict him of the three aggravated murders. Chiefly,
Herring claims that the state failed to prove that he was the man in the white mask.
       {¶ 42} When a defendant challenges the legal sufficiency of the state’s
evidence, “the relevant question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” (Emphasis sic.)
Jackson v. Virginia (1979), 

, 

, 

.
       {¶ 43} Kitwan Dalton testified that he saw Herring put on a white mask
resembling one seen in a “slasher” movie. Allen testified that Herring’s mask was
the only “store-bought” one worn by any of the robbers. Dalton and Allen testified
that the gun Herring carried resembled State’s Exhibit 5, the 9 mm semiautomatic
with which Jimmie Lee Jones was killed. Dalton claimed that Foose’s gun also
resembled State’s Exhibit 5, but Allen disagreed with this opinion.
       {¶ 44} Herring argues that the testimony of Dalton and Allen was
uncorroborated and should be disbelieved. However, that argument misconceives
the nature of the sufficiency inquiry. On review for sufficiency, “[t]he weight and
credibility of the evidence are left to the trier of fact.” State v. Waddy (1992), 

, 

, citing State v. DeHass (1967), 

, 

, 

, paragraph one of the syllabus. “[T]his
inquiry does not require a court to ‘ask itself whether it believes that the evidence
at the trial established guilt beyond a reasonable doubt.’ ” Jackson v. Virginia, 

, 

, 

, quoting Woodby v.
Immigration & Naturalization Serv. (1966), 

, 

,

.




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                                 January Term, 2002




       {¶ 45} In any case, Herring’s claim that the accomplice testimony lacked
corroboration is incorrect. The testimony of Dalton and Allen was substantially
corroborated by the testimony of Marinelli and Aziz. Marinelli testified that a man
in a “white hockey-type mask” shot him and Deborah Aziz and robbed the till. He
further testified that the shooter was the only one of the robbers who wore a mask
instead of a bandana. Aziz testified that the assailant’s mask was white and “a hard
plastic, like one of those Jason masks.” Marinelli described the “very distinctive”
gun that the man in the white mask used, which he said looked exactly like State’s
Exhibit 5. Aziz could not be certain that State’s Exhibit 5 was the same gun that
the man in the white mask had used, but she did testify that his gun looked like
State’s Exhibit 5. Finally, Marinelli described the distinctive reddish-orange hair,
odd skin tone, and buckteeth of the man in the white mask. Herring has similar
features.
       {¶ 46} Thus, the state presented evidence sufficient, if believed, to show
that Herring was the man in the white mask who, on April 30, 1996, robbed the
Newport Inn, shot Marinelli and Aziz, and aided and abetted three aggravated
murders.
       {¶ 47} Part F of Herring’s eighth proposition of law deals with the issue of
purpose to kill. Herring does not argue that the state failed to prove that he intended
the deaths of the victims; instead, he reiterates his claim that the instructions
regarding purpose were inadequate. (See discussion of Herring’s first and second
propositions of law above.) We continue to reject this claim. Pursuant to R.C.
2929.05(A), we will consider the sufficiency of evidence of purpose to kill as part
of our independent review of the death sentence.
       {¶ 48} Herring’s eighth proposition of law is overruled.




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                               IV. Evidentiary Issues
       {¶ 49} Herring’s tenth proposition of law raises two evidentiary issues.
       {¶ 50} After Marinelli described the visible features of the man in the white
mask, including his hair, the prosecutor showed him a photo of Herring. The
prosecutor’s intention was to ask Marinelli if the gunman’s hair and mouth were
similar to Herring’s, as depicted in the photo. A photo was used because Herring
had changed his hairstyle since the crime.
       {¶ 51} But when the prosecutor asked Marinelli to look at the photo,
Marinelli spontaneously said: “I don’t have to look at it more than a second. I saw
it through my eyes and was shot five times by this guy, and it is him.”
       {¶ 52} The defense moved for a mistrial, arguing that the identification was
improper because the circumstances were “unnecessarily suggestive,” and because
the defense had no advance notice that Marinelli would make a positive
identification. See, generally, United States v. Hill (C.A.6, 1992), 

 (admissibility of suggestive in-court identification subject to totality-of-thecircumstances analysis of Neil v. Biggers [1972], 

, 

, 

). The judge denied this motion.
       {¶ 53} However, before the next witness was called, the judge instructed
the jury to disregard that portion of Marinelli’s testimony that identified Herring as
the man who shot him. The instruction left the jury free to consider “the other
comments that Mr. Marinelli made about other physical features of the individual
in the photograph, specifically the hair, the eyes, the mouth and pigment … for
whatever probative value you would give them.”
       {¶ 54} Herring contends that no instruction could cure the prejudice of
Marinelli’s identification. However, jurors are generally presumed to follow the
trial court’s instructions, including instructions to disregard testimony. See, e.g.,
Garner, 

, 

.




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         {¶ 55} Herring argues that eyewitness identification is unusually difficult to
disregard. That may be, but “[j]uries are not so susceptible that they cannot
measure intelligently the weight of identification testimony that has some
questionable feature.” Manson v. Brathwaite (1977), 

, 

, 

. Testimony like this—positively identifying a
criminal who was wearing a mask—is not necessarily persuasive, and its impact on
the jury is highly uncertain.      Moreover, the state did not elicit Marinelli’s
identification of Herring. Nor did the prosecutors refer to that identification during
trial or in argument. See State v. Zuern (1987), 

, 

.
         {¶ 56} As we said in State v. Franklin (1991), 

, 

, “[m]istrials need be declared only when … a fair trial is no longer
possible.”    We conclude that Marinelli’s remark did not render a fair trial
impossible. Therefore, no mistrial was necessary.
         {¶ 57} Herring also complains that the trial judge excluded a proffered
demonstrative exhibit. The defense recalled Deborah Aziz to the witness stand and
showed her Defense Exhibit 1, a toy hockey goalie’s mask. Aziz testified that the
mask “has some similarities” to the white mask worn by the man who shot her and
Marinelli. She also testified that Defense Exhibit 1 was wider than the gunman’s
mask, that the mouth was different, and that the other mask “didn’t have holes all
over.”
         {¶ 58} A trial court’s ruling on a demonstrative exhibit is reviewed under
the abuse-of-discretion standard. State v. Palmer (1997), 

,

, 705. “The term ‘abuse of discretion’ … implies that the court’s
attitude is unreasonable, arbitrary or unconscionable.” State v. Adams (1980), 

, 

, 

. “[W]hen applying
this standard, an appellate court is not free to substitute its judgment for that of the




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trial judge.” Berk v. Matthews (1990), 

, 

.
        {¶ 59} We hold that the trial court did not abuse its discretion in excluding
the mask. The differences between the two masks directly undermined the claimed
relevance of the exhibit. The defense wanted to use the mask to show that Marinelli
could not have seen as much of the shooter’s features as he claimed. But since the
exhibit was wider and had a different mouth, it is doubtful whether the exhibit could
give the jury an accurate idea of how much Marinelli could see. We therefore
cannot say that its exclusion was “unreasonable, arbitrary or unconscionable.”
Compare Palmer, 80 Ohio St.3d at 566, 687 N.E.2d at 705 (trial court did not abuse
discretion by admitting, for demonstrative purposes, a gun that belonged to the
defendant, was “a match” for missing murder weapon, and was similar to the actual
murder weapon with respect to specific feature being demonstrated).
        {¶ 60} Herring’s tenth proposition of law is overruled.
                                       V. Jury Issues
                                      A. Batson Issue
        {¶ 61} In his sixth proposition of law, Herring claims that the prosecutor
peremptorily challenged a black prospective juror because of her race, which if true
would violate the Equal Protection Clause. See Batson v. Kentucky (1986), 

, 

, 

. However, the trial court concluded that
the prosecutor had not engaged in racial discrimination.
        {¶ 62} A court decides a Batson claim in three steps. First, the opponent of
the peremptory strike must make a prima facie case of racial discrimination.
Second, if the trial court finds that the opponent has fulfilled this requirement, then
the proponent of the strike must come forward with a racially neutral explanation
for the strike. 

, 

, 

. The
“explanation need not rise to the level justifying exercise of a challenge for cause.”

, 

, 

.




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       {¶ 63} Third, if the proponent puts forward a racially neutral explanation,
the trial court must decide, on the basis of all the circumstances, whether the
opponent has proved purposeful racial discrimination. 

, 

,

; Purkett v. Elem (1995), 

, 

, 

; State v. White (1999), 

,

. The burden of persuasion is on the opponent of the strike.
Purkett, 

, 

, 

.
       {¶ 64} The original venire had included twenty-six black veniremembers,
but only three were left after challenges for cause.        The state peremptorily
challenged two of those three, using one-third of its six challenges on black
veniremembers, resulting in an all-white jury. The trial court overruled a defense
Batson objection to these strikes.
       {¶ 65} However, the original jury was later discharged for an unrelated
reason, and a new venire was called. In the second venire, after challenges for
cause, two of the thirty-two remaining veniremembers were black. This time, the
state used only three peremptories. One was used to remove a black veniremember.
The state also waived peremptories with one black left on the venire. As a result,
although the jury was all white, one of the alternate jurors was black.
       {¶ 66} The trial court found that the defense had made a prima facie case (a
ruling the state does not challenge) and required the prosecutor to explain why he
struck the black venireman.
       {¶ 67} The prosecutor gave several racially neutral reasons for striking the
juror. First, he regarded her as “not too bright,” inasmuch as “[h]er hobbies are
eating, doing hair and watching Oprah.” (The prosecutor’s statements about the
juror’s hobbies and background appear to be based on the jury questionnaire. The
questionnaire is not in the record, but the trial judge reviewed it in ruling on the
Batson objection.)      Second, he believed that the juror “flouts society’s
conventions.” He noted that “[s]he had her first child at 16. She’s had three




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children, no husbands.” He also believed that she was a transient because “[s]he
lives at one of the missions” and “[i]t took your [the court’s] office three days to
find” her. Third, the prosecutor considered the juror “soft on the death penalty”
based on her voir dire and her jury questionnaire, in which “she checked a block
where there are no crimes” that warrant the death penalty.
       {¶ 68} The trial court found that the defense had not proved that the
prosecutor had excused the veniremember because of her race. He accordingly
overruled the Batson objection and dismissed her. The finding of the trial court,
because it turns largely on the evaluation of credibility, is entitled to deference on
appeal and will not be reversed unless clearly erroneous. 

, 

, quoting Batson, 

, 

,

; State v. Hernandez (1992), 

, 

.
       {¶ 69} The prosecutor’s belief that the prospective juror was “soft on the
death penalty” has support in the record. The juror stated: “I don’t think I could”
vote to recommend death. She later said, “I have no reason not to” abide by the
judge’s instructions. Nevertheless, her initial response “certainly indicated some
degree of opposition to capital punishment,” and “it is highly likely that such an
attitude made her undesirable to the prosecution.” State v. Murphy (2001), 

, 

.
       {¶ 70} Herring contends that “there were a suspiciously low number of
minorities available on the panel.” Even if true, that contention throws no light on
whether the prosecutor committed purposeful discrimination.
       {¶ 71} Herring contends that the state’s waiver of four peremptories, with
one black remaining on the venire, supported an inference that the prosecutor was
trying to keep blacks off the jury. The argument, while not entirely clear, seems to
be that the black veniremember could have been on the jury only if the state had




                                         16
                                January Term, 2002




used all four of its remaining peremptories on other jurors. Even if the record
supported this claim, it provides no reason to infer purposeful discrimination.
       {¶ 72} The evidence Herring relies upon to support his discrimination claim
fails to demonstrate that the trial court’s finding, under the totality of the
circumstances, was clearly erroneous. Accordingly, Herring’s sixth proposition of
law is overruled.
                                 B. Fair Cross-Section
       {¶ 73} The judges of the Mahoning County Common Pleas Court have
authorized the jury commissioner of that court to grant citizens’ requests to be
excused from jury duty, applying the criteria set forth in R.C. 2313.16(A) through
(E). The jury commissioner granted a number of such requests in this case. He
kept a list of prospective jurors whom he excused, on which he recorded the excuse
given by each prospective juror. He did not record the race of any excused juror.
       {¶ 74} In his seventh proposition of law, Herring contends that the jury
commissioner violated the Constitution by failing to record the race of prospective
jurors excused from service. Herring contends that underrepresentation of blacks
on the venire violated his constitutional right to “a jury drawn from a fair cross[-
]section of the community.” Taylor v. Louisiana (1975), 

, 

, 

. To demonstrate the alleged violation, Herring
needed to show at trial that the jury selection process systematically excluded
members of a distinctive group. See Duren v. Missouri (1979), 

,

, 

; State v. Fulton (1991), 

,

, paragraph two of the syllabus. Herring contends that the jury
commissioner therefore had a constitutional obligation to record the race of those
he excused from jury duty.
       {¶ 75} Herring cites no authority requiring the jury commissioner to record
such information in order to facilitate a fair-cross-section challenge. Nor does he
explain why his counsel could not have learned the race of the excused jurors




                                         17
                             SUPREME COURT OF OHIO




through investigation. The record shows that they had access to the venire list—
which included the addresses of prospective jurors—and to the list of jurors
excused by the commissioner. Herring’s seventh proposition of law is overruled.
                             C. Outside Contact with Juror
        {¶ 76} In his ninth proposition of law, Herring maintains that he was denied
due process because a juror received harassing phone calls during the penalty phase.
Someone using the name “Antwan,” apparently calling from a correctional facility,
telephoned Juror No. 9 at home. (It was not established whether the caller was
Antwan Jones.) After the jury returned its sentencing recommendation and was
discharged, the juror received more calls, prompting her to report the incidents to
the trial court’s bailiff.
        {¶ 77} The trial court convened a Remmer hearing to determine whether the
calls had biased the juror. See Remmer v. United States (1954), 

, 229-
230, 

, 

; Smith v. Phillips (1982), 

, 

, 

; State v. Phillips (1995), 

, 

. At the hearing, Juror No. 9 testified that
when she got home after the February 12 court session, there was a message on her
answering machine about accepting the charges on a collect call.
        {¶ 78} Later she received a call from someone using the name “Antwan.”
“Antwan” refused to give his last name but told the juror “his whole life history”
and tried to get personal information from her. Then another person, identified as
“Mark,” got on the line and asked the juror whether she engaged in “kinky sex.” At
this point, the juror hung up. The caller did not mention the case.
        {¶ 79} Juror No. 9 mentioned the calls in two conversations with fellow
jurors. Accordingly, the trial judge questioned each juror regarding what the jurors
had been told about the calls and how the jurors had reacted to this information.
        {¶ 80} One of Juror No. 9’s conversations took place as she carpooled to the
courthouse with Juror No. 12. The second took place in the jury room during a




                                         18
                                  January Term, 2002




break in the trial, as Juror No. 9 chatted with three other jurors and an alternate.
Two other jurors overheard bits of the jury-room conversation.
        {¶ 81} Juror No. 9 told the others that the caller was named “Antwan” and
that he had called from a correctional facility. She also told them that she did not
think the calls were related to the case. It did occur to her and the other jurors that
“Antwan” might be Herring’s accomplice Jones, and one juror suggested that Juror
No. 9 report the incident. However, another juror testified: “I don’t think we thought
of it as a possibility, that it could actually be him.”
        {¶ 82} Juror No. 9 testified that she “didn’t really think it was a big deal.”
On the other hand, Juror No. 9 told other jurors that she was “a little worried.” One
juror described Juror No. 9 as “concerned” and “cautious”; another thought she
was “upset” and “very scared.”
        {¶ 83} Juror No. 9 testified that the incident did not affect her impartiality.
Likewise, the jurors who heard her mention the incident testified that their
impartiality was not affected. One juror admitted being concerned but also stated
that she “didn’t think about” the incident.
        {¶ 84} After the hearing, the defense moved for a mistrial. The trial court
denied the motion, basing his decision on his evaluation of the jurors’ credibility.
“In cases involving outside influences on jurors, trial courts are granted broad
discretion in … determining whether to declare a mistrial.” State v. Phillips, 

, 

. Accord State v. Keith (1997), 

, 

. The decision depends on “how the jury interprets
and expectably will react to the communication.”          United States v. Williams
(C.A.D.C.1987), 

. The complaining party must show actual
prejudice, see, generally, Crim.R. 33(A), i.e., he must show that the communication
biased one or more jurors. See Keith, 

, 

, citing
State v. Phillips, 

, 

. See, also, Smith v.




                                           19
                               SUPREME COURT OF OHIO




Phillips, 

, 

, 

; United
States v. Zelinka (C.A.6, 1988), 

.
        {¶ 85} Herring argues that we should reject the trial court’s finding that the
calls did not affect the jurors’ impartiality. However, the record supports the trial
court’s finding. Each juror testified that the incident did not affect his or her verdict.
A trial court may rely upon a juror’s testimony as a basis for finding that her
impartiality was not affected. Smith v. Phillips, supra, 

, 

, 

; Zelinka, 

.
        {¶ 86} Moreover, the objective facts support the jurors’ testimony that they
were not affected. The caller never mentioned the case, nor did he identify himself
as Antwan Jones. The jurors do not appear to have believed that Jones was in fact
the caller.   The calls themselves, as offensive as they were, were not “so
inflammatory that they foster an almost conclusive presumption of prejudice.”

.
        {¶ 87} Finding no abuse of discretion by the trial court, we overrule
Herring’s ninth proposition of law.
                        D. Judge’s Communication with Jury
        {¶ 88} During its guilt-phase deliberations, the jury submitted written
questions to the trial court. On two occasions, the judge entered the jury room, with
both counsel but without Herring, to respond. Two questions concerned the content
of trial testimony; the judge told the jury to rely on its own collective memory. Two
questions were requests for items that had not been admitted into evidence; the
judge refused to supply the items. (The judge’s only response to the fifth question
was to say, “[W]e’ll address those [issues] in the morning.” The next day, the judge
responded to that question in open court, with Herring present.)
        {¶ 89} In his thirteenth proposition of law, Herring contends that it was
prejudicial error for the trial judge to communicate with the jury in his absence.
Indeed, we have repeatedly held that a trial judge may not do so. See State v.




                                           20
                               January Term, 2002




Abrams (1974), 

, 

, 

; Bostic v. Connor
(1988), 

, 

, paragraph four of the syllabus.
       {¶ 90} However, we have also held that, if the communication is not
substantive, the error is harmless. See State v. Jenkins (1984), 

, 15 OBR 311, 373-374, 

; State v. Allen (1995), 

, 

. The trial court’s responses to the jury’s
questions were not substantive. Moreover, Herring’s counsel were present. See
State v. Taylor (1997), 

, 

. Thus, while
the judge erred by answering the questions during Herring’s absence, the error was
harmless. Herring’s thirteenth proposition of law is overruled.
                             VI. Prosecutorial Misconduct
       {¶ 91} In his eleventh proposition of law, Herring alleges three instances of
prosecutorial misconduct.
       {¶ 92} 1.   The prosecutor asked Officer Mikus on cross-examination
whether Obie Crockett “was in the gun rental business.” Upon objection, the trial
court ordered the jury to disregard the question and answer. In closing argument,
the prosecutor referred to Crockett’s house as “Guns R Us.” Herring argues that
this reference went beyond the evidence by implying that Crockett was a gun dealer
and that that was the reason he was found with the murder weapon, and not because
he was the one who had used it in the robbery. However, the evidence showed that
Herring obtained a variety of guns from a house on Laclede Avenue—inferably
Crockett’s, since that was where police found the murder gun. This provided
factual support for the “Guns R Us” comment.
       {¶ 93} 2. Herring accuses the prosecutor of improperly vouching for two
of his witnesses, Kitwan Dalton and Louis Allen. During closing arguments, the
prosecutor said that Dalton did not lie in a videotaped statement to police the day
after the murders and that Allen had lied to police but only about his own
involvement.




                                        21
                              SUPREME COURT OF OHIO




       {¶ 94} The prosecutor’s statements were based on the trial testimony, not
on his personal evaluation of credibility. Dalton testified that on the day after the
murders he gave the police a videotaped statement. Dalton testified that this
statement was truthful and voluntary, that he had no agreement with the state at that
time, and that the police had promised him nothing. Thus, when the prosecutor said
that Dalton did not lie in the videotaped statement, he was not vouching for Dalton’s
testimony; he was simply repeating it.
       {¶ 95} Similarly, the prosecutor explicitly based his reference to Allen upon
Allen’s testimony. The prosecutor said: “[A]s Louis Allen told you, the only thing
he lied about was himself. He told them he didn’t go into the bar, and he didn’t
have a gun. He didn’t lie about the rest of them. He didn’t lie about this guy. …
* And he said that.” This assertion did not ask the jury to rely on the prosecutor’s
opinion of Allen’s credibility.
       {¶ 96} 3. Finally, Herring argues that the prosecutor improperly vouched
for Dalton and Allen by stating, in response to defense arguments, that he “told
them if they don’t tell the truth they got no deal, they’ve got to go to prison.” But
Herring did not object, so the issue is waived. See State v. Williams (1997), 

, 

.
       {¶ 97} Herring’s eleventh proposition of law is overruled.




                                         22
                                 January Term, 2002




                          VII. Ineffective Assistance of Counsel
        {¶ 98} In his fifteenth proposition of law, Herring claims ineffective
assistance of counsel. To establish ineffective assistance, a defendant must show
that, in light of all the circumstances, counsel fell below an objective standard of
reasonable representation and that but for his unprofessional errors, there is a
reasonable probability that the result of the proceeding would have been different.
A reasonable probability is one sufficient to undermine confidence in the result.
Strickland v. Washington (1984), 

, 

, 

; see, also, State v. Bradley (1989), 

, 

, paragraphs two and three of the syllabus.
                                       A. Guilt Phase
        {¶ 99} Herring contends that his counsel should have objected to
instructions on purpose and reasonable doubt. However, these objections were
unsupported by existing law. See State v. Phillips, supra, 

,

; State v. Van Gundy (1992), 

, 

.
Declining to present rejected legal theories is not ineffective assistance. See State
v. McNeill (1998), 

, 

.
        {¶ 100} Herring further contends that counsel should have objected to the
instruction on foreseeability.     However, Herring was not prejudiced by his
counsel’s failure to object, since the instructions as a whole required the jury to find
purpose to kill in order to convict. (See discussion of Herring’s second proposition
of law above.)
        {¶ 101} Herring was also not prejudiced by counsel’s failure to insist on his
presence when the judge gave nonsubstantive responses to jury questions because
there is no reasonable likelihood that the result of the trial would have been different
had Herring been present.




                                          23
                             SUPREME COURT OF OHIO




       {¶ 102} Herring contends that counsel should have objected to more of the
prosecutorial misconduct alleged in his eleventh proposition of law, but there were
no grounds to object.
       {¶ 103} Herring contends that counsel should not have called Officer Mikus
to testify about finding the murder weapon in Obie Crockett’s possession. He
contends that this merely helped the state in “tying up loose ends” by corroborating
the testimony of Allen and Dalton that Herring got guns at a house on Laclede
Avenue. However, the record does not demonstrate that counsel committed an
unprofessional error by calling Mikus to the stand. Evidence that a murder weapon
was found in the possession of someone other than the defendant could reasonably
be considered favorable to the defense. Moreover, using that evidence gave counsel
an opening to attack the police investigation as inadequate because of failure to
investigate Crockett’s possible role in the crime. Calling Mikus to testify about
Crockett’s possession of the murder weapon appears to have been a reasonable
tactical choice that did not fall below an objective standard of reasonable
representation.
                                    B. Penalty Phase
       {¶ 104} Because Herring’s attorneys called only two witnesses in the
penalty phase, Herring speculates that they must have failed to conduct an adequate
investigation into mitigating factors. However, the record before us does not show
how extensive counsel’s investigation actually was, nor does it show that more
investigation would have developed anything useful.
       {¶ 105} Herring contends that counsel should have objected to “the trial
court’s instruction that required the jury to unanimously determine the
appropriateness of a death sentence before the jury was allowed to consider lifesentencing options.” However, the trial court never gave any such instruction.
       {¶ 106} Herring further contends that his attorneys should have made other
objections to the instructions. However, he fails to demonstrate a reasonable




                                        24
                                  January Term, 2002




likelihood that the penalty-phase outcome would have been otherwise had he made
the objections.
       {¶ 107} Finally, Herring contends that his counsel should have objected to
the victim-impact statements of Marinelli and Aziz. But these statements (see
discussion of sixteenth proposition of law below) were heard only by the judge, and
nothing in the record indicates that he considered them in sentencing Herring to
death. Consequently, counsel’s failure to object was not prejudicial within the
meaning of Strickland. See State v. Post (1987), 

, 

.
       {¶ 108} Herring’s fifteenth proposition of law is overruled.
                                     VIII. Sentencing
                   A. Sentencing Disparity Among Accomplices
       {¶ 109} In his twelfth proposition of law, Herring contends that the
noncapital sentences imposed on his accomplices were relevant in mitigation and
that the trial judge therefore violated the Eighth Amendment when he ruled that
evidence inadmissible.
       {¶ 110} Before the penalty phase, the defense informed the court of its
intention to introduce Defense Mitigation Exhibits 1 through 17, a series of
documents pertaining to the sentences given to his accomplices Callahan, Foose,
and Jones. The state objected to these exhibits on the ground that they were not
relevant to mitigation, and the trial court ruled them inadmissible. The defense
proffered them into the record.
       {¶ 111} Subsequently, the parties agreed on the admissibility of the
exhibits. The state withdrew its objection to introducing the sentences received by
Jones and Callahan. Furthermore, since the jury already knew about the plea
bargains that Dalton and Allen had entered into, the state agreed that the defense
closing argument could address the sentences received by Dalton and Allen.




                                          25
                             SUPREME COURT OF OHIO




       {¶ 112} The defense agreed not to offer evidence about Foose’s sentence
and to withdraw its proffered exhibits, except for Defense Mitigation Exhibits 3
(jury verdict finding Jones guilty), 4 (judgment entry showing Jones’s sentences),
and 9 (judgment entry showing Callahan’s guilty pleas and sentences). Finally,
Assistant Prosecutor Timothy Franken was permitted to testify and explain why
Herring’s accomplices had not received the death penalty.
       {¶ 113} Courts have divided over whether disparate treatment of
accomplices is relevant mitigation. See Downs v. Dugger (Fla.1987), 

 (lesser sentence for accomplice is mitigating). See, also, State v. White
(1999), 

, 

 (unexplained discrepancy between
defendant’s and accomplices’ sentences may be mitigating); State v. Ferguson
(Del.Super.1992), 

, citing Riley v. State (Del.1985), 

; State v. McIlvoy (Mo.1982), 

 (en banc).
Contra People v. Carrera (1989), 

, 

, 

 (punishment meted out to accomplices not relevant to whether
defendant should be sentenced to death); Brogdon v. Butler (C.A.5, 1987), 

; Coulter v. State (Ala.Crim.App.1982), 

; People
v. Page (1993), 

, 

, 

, 347-
348.
       {¶ 114} However, we need not address that issue today. Because of the
agreement, the trial court ultimately permitted the jury to learn what sentences
Jones and Callahan had received. Herring was thus able to ask the jury to weigh
those sentences in his favor as mitigating factors. Similarly, Herring was permitted
to argue that the state’s agreements with Dalton and Allen militated against the
death penalty for Herring.
       {¶ 115} It is true that not all the proffered defense exhibits were admitted.
However, the defense withdrew those exhibits pursuant to its agreement with the
prosecutor. Herring presents no reason why he should be allowed to go back on his




                                        26
                                January Term, 2002




bargain.   Having agreed to withdraw them, he waived any issue as to their
admissibility. Accordingly, Herring’s twelfth proposition of law is overruled.
                               B. Other sentencing issues
       {¶ 116} In his sixteenth proposition of law, Herring contends that victim-impact statements by Aziz and Marinelli violated the Eighth Amendment.
       {¶ 117} After the jury’s sentencing recommendation, the trial judge held a
sentencing hearing. Pursuant to R.C. 2930.14(A), Aziz and Marinelli made victim-impact statements pertaining to the sentences for the attempted aggravated murder
counts. However, both victims stated that Herring should be sentenced to death.
The trial court then sentenced Herring on all seven counts, including death
sentences on Counts One through Three.
       {¶ 118} In capital cases, the Eighth Amendment prohibits the admission or
consideration of expressions of opinion in favor of a death sentence. See State v.
Fautenberry (1995), 

, 

. However,
judges, unlike juries, are presumed to consider only relevant evidence. State v. Post
(1987), 

, 

; Fautenberry, 

, 

. The sentencing opinion does not indicate that the judge
considered the victim-impact statements when sentencing Herring on the capital
counts. See 

       {¶ 119} Herring seeks to overcome this presumption by pointing out that
R.C. 2930.14(B) required the judge to consider the statements in sentencing on the
noncapital counts. We presume that the judge did so here, but we have no reason
to suppose that he also considered them on the capital counts. In State v. Cooey
(1989), 

, 

, where the trial judge considered victim-impact statements in sentencing the defendant on both capital and noncapital
offenses, we found “no affirmative indication that the victim impact statements
were considered in sentencing [the defendant] to death.” 

, 

. We find none here either.




                                         27
                              SUPREME COURT OF OHIO




       {¶ 120} Herring further notes that the sentencing opinion discusses the
attempted murders of Aziz and Marinelli. That was proper, since the attempted
murders are part of the (A)(5) specification. But it hardly follows that he also
considered the victim-impact statements when he sentenced on the capital counts.
Herring’s sixteenth proposition of law is overruled.
       {¶ 121} In his eighteenth proposition of law, Herring contends that the trial
court’s sentencing opinion was erroneous in two respects.
       {¶ 122} First, he notes that the opinion erroneously speaks of the
“aggravating circumstances” even though he was convicted of only one
aggravating circumstance with respect to each aggravated murder count. From this,
Herring contends that the judge weighed the aggravating circumstances from all
three counts collectively against the mitigating factors, contrary to State v. Cooey,
supra, 

, 

, and paragraph three of the
syllabus. We disagree. Other than the easily explained extra “s,” there is no
indication in the record that the trial judge improperly aggregated the aggravating
circumstances. See State v. Goodwin (1999), 

, 

.
       {¶ 123} Second, Herring contends that the trial court failed to consider all
the mitigating factors he presented. However, the sentencing opinion need not
specifically mention all of the mitigating factors presented. State v. Phillips, supra,

, 

.
       {¶ 124} Herring’s eighteenth proposition of law is overruled.
       {¶ 125} In his twenty-first proposition of law, Herring contends that the
Ohio death-penalty statutes are unconstitutional. We summarily overrule this
proposition. See State v. Jenkins (1984), 

, 15 OBR 311, 

, paragraph one of the syllabus; State v. Maurer (1984), 

, 15 OBR 379, 

, paragraph one of the syllabus; State v.
Henderson (1988), 

, 

; State v. Phillips,




                                          28
                                 January Term, 2002




74 Ohio St.3d at 103-104, 656 N.E.2d at 670-671. See, also, Garza v. Lappin
(C.A.7, 2001), 

 (Organization of American States’ American
Convention on Human Rights is not binding on United States).
                                  IX. Instructions
       {¶ 126} In his fifth, fourteenth, seventeenth, and nineteenth propositions of
law, Herring contends that the trial court made various errors when instructing the
jury. However, at trial he did not object to any of the instructions challenged here.
He thereby waived these issues. See State v. Long (1978), 

, 

, 

, paragraph one of the syllabus. We find no plain error
with respect to any of these claims. Accordingly, we overrule Herring’s fifth,
fourteenth, seventeenth, and nineteenth propositions of law as waived.
                         X. Independent Sentence Review
       {¶ 127} Under R.C. 2929.05, we independently review the death sentence
on each of the aggravated murder counts. We must determine whether the evidence
supports the jury’s finding of an aggravating circumstance, whether the aggravating
circumstance outweighs the mitigating factors, and whether the death sentence is
proportionate to death sentences affirmed in similar cases.
       {¶ 128} The sole aggravating circumstance on each count is that the
aggravated murder was part of a course of conduct involving the purposeful killing
or attempted killing of two or more persons by Herring.
       {¶ 129} The evidence shows that all five killings and attempted killings
were part of a single course of conduct. Moreover, we find sufficient evidence that
Herring intended the deaths of Jones, Naze, Kotheimer, Aziz, and Marinelli. The
manner in which the robbery was committed strongly suggests that each of the
robbers, including Herring, intended to kill all of the victims.
       {¶ 130} The robbers clearly coordinated their actions in advance. They
discussed the robbery among themselves before going into the Newport Inn; they
divided into two groups to cover both doors; they started shooting almost




                                          29
                              SUPREME COURT OF OHIO




immediately. The coordination displayed here belies the notion that the killings
were merely impulsive acts by individual members of the gang. That coordination
supports the conclusion that the killings were integral to the robbery plan and that
each of the robbers intended to kill the victims as part of that plan.
        {¶ 131} And that inference is especially strong with regard to Herring,
because he was the evident ringleader. It was at his house that the robbers
assembled, and he initiated the discussion of the robbery. Herring was the only
robber prepared with a mask. He also obtained the guns (except Foose’s), and he
decided who would carry which gun.
        {¶ 132} There is sufficient evidence to support the jury’s finding of the
multiple-murder aggravating circumstance. “[I]ntent may be inferred from the
circumstances surrounding the crime.” State v. Johnson (2001), 

,

, syllabus.
        {¶ 133} Against this aggravating circumstance, we must weigh the
mitigating factors present in the record.
        {¶ 134} The youth of the offender is a statutory mitigating factor. R.C.
2929.04(B)(4). Herring, born on August 30, 1977, was eighteen years and eight
months old on April 30, 1996, when he took part in these murders. The (B)(4)
factor is an important one, since Herring is only eight months above the minimum
age for death eligibility.
        {¶ 135} Under R.C. 2929.04(B)(6), “[i]f the offender was a participant in
the offense but not the principal offender,” the court must consider “the degree of
the offender’s participation in the offense and the degree of the offender’s
participation in the acts that led to the death of the victim.” Herring was not proven
to be the principal offender. Therefore, this mitigating factor applies.
        {¶ 136} However, where the offender plays a “critical role” as a “leader,”
we have held that the (B)(6) factor will carry less weight. See State v. Robb (2000),




                                            30
                                 January Term, 2002

, 

, 1051. Here, the evidence shows that
Herring played such a role.
       {¶ 137} A related factor is the noncapital sentences received by Herring’s
accomplices Callahan, Dalton, Allen, and Jones. The state vigorously contends that
lesser sentences received by accomplices are not a proper mitigating factor in a
capital case. Yet the state agreed at trial that the accomplices’ sentences could be
considered in mitigation. As we said earlier of the defense, we see no reason why
the state should not be held to its bargain.        We will therefore consider the
accomplices’ sentences.
       {¶ 138} Antwan Jones was convicted of three counts of aggravated murder,
without capital specifications, and was sentenced to life with parole eligibility after
twenty years of imprisonment on each count. See R.C. 2929.03(A). He was also
convicted of two counts of attempted aggravated murder and two counts of
aggravated robbery, and received an indefinite term of ten to twenty-five years on
each count. He was convicted of a firearm specification and received an additional
three years’ actual incarceration. All sentences were ordered to run consecutively.
Adelbert Callahan was convicted of complicity in the same array of charges and
received identical sentences.
       {¶ 139} During the penalty phase, Assistant Prosecuting Attorney Timothy
Franken testified that he had voluntarily dismissed the aggravating-circumstance
specifications against Jones because he did not think he could prove them. As for
Callahan, he was a juvenile at the time of the offense and therefore not eligible for
the death penalty.
       {¶ 140} Kitwan Dalton testified that he was charged with fleeing a police
officer. See R.C. 2921.331(B) (operating motor vehicle so as to flee or elude
police) and 2921.331(C)(4) (violation of R.C. 2921.331[B] is fourth-degree felony
if offender was fleeing immediately after committing a felony). At the time of trial




                                          31
                              SUPREME COURT OF OHIO




he was awaiting sentencing and acknowledged that he faced imprisonment.
Pursuant to Dalton’s agreement to testify, all other charges were dropped.
       {¶ 141} Louis Allen was charged with perjury and entered an admission of
delinquency in juvenile court. He too was awaiting sentencing at the time of trial.
He had an agreement with the state that “if I was truthful at the trial, then I would
not get charged with anything but perjury.”
       {¶ 142} We give some weight to the lighter sentence given to Antwan
Jones. While Franken testified that he could not prove death specifications against
Jones, this explanation is not completely convincing. Jones’s five convictions for
aggravated murder and attempted aggravated murder all required proof of intent to
kill, so the (A)(5) multiple-murder specification should also have been provable.
       {¶ 143} On the other hand, since Herring was the leader, the state certainly
had a stronger case against him than against Jones on the issue of intent. Moreover,
the state had ballistics evidence pointing to Herring, not Jones, as the actual killer
on Count One (even though the jury acquitted Herring of being the actual killer on
that count). There was no such evidence against Jones, who was carrying a .357-
caliber firearm rather than a 9 mm. The state thus had a rational basis to seek the
death penalty for Herring and not for Jones.
       {¶ 144} However, the lesser sentences given to Foose, Callahan, Allen, and
Dalton deserve little (if any) weight in mitigation because of the differences
between their situations and Herring’s. Foose and Callahan were juveniles, exempt
from the death penalty. Allen did not shoot anyone; indeed, he ran away as soon
as the shooting started. Dalton neither entered the Newport Inn nor carried a
weapon.
       {¶ 145} Finally, we consider the testimony of Herring’s mother, Deborah
Herring, and his older sister, Nicole Herring. Herring’s mother testified that he
helped her with household chores as soon as “he could walk and pick up stuff.”
Herring had five younger siblings, with whom he had a “good and loving




                                         32
                                 January Term, 2002




relationship.” As part of their daily chores, Herring and Nicole used to bathe, feed,
and play with the younger children. Herring’s siblings remained close to him and
saw him when they could, even though he was in jail. Both Deborah and Nicole
Herring asked the jury to spare Herring’s life. Herring’s loving relationship with
his family is a mitigating factor, but we give it little weight.
        {¶ 146} While mitigating factors exist in this case, the single aggravating
circumstance—Herring’s intentional participation in three murders and his personal
attempt to commit two more—outweighs the mitigating factors beyond a
reasonable doubt.
        {¶ 147} We further find that the death sentence in this case is proportionate
to death sentences affirmed in other multiple-murder cases. See, e.g., State v.
Hessler (2000), 

, 

; State v. Williams, 

, 

; State v. Awkal (1996), 

, 

; State v. Kinley (1995), 

, 

; State v. Sowell
(1988), 

, 

 (one victim, an additional intended
victim).
        {¶ 148} The convictions and death sentences are therefore affirmed.
                                                                   Judgment affirmed.
        MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, HILDEBRANDT and
LUNDBERG STRATTON, JJ., concur.
        LEE H. HILDEBRANDT, JR., J., of the First Appellate District, sitting for
COOK, J.
                                __________________
        Paul J. Gains, Mahoning County Prosecuting Attorney, Janice T.
O’Halloran and Dawn M. Durkin, Assistant Prosecuting Attorneys, for appellee.
        David H. Bodiker, Ohio Public Defender, Pamela Prude-Smithers and
Angela Greene, Assistant State Public Defenders, for appellant.
                                __________________




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