¶1concurring.
¶2{¶ 81} While I agree with the majority’s judgment affirming the convictions and sentence of death in this case, I disagree with the majority’s resolution of the Evid.R. 803 issue.
¶3{¶ 82} Generally, out-of-court statements offered to prove the truth of the matter asserted are inadmissible hearsay. Evid.R. 801(C) and 802. However, Evid.R. 803 provides numerous exceptions to the hearsay rule:
¶4{¶ 83} “The following are not excluded by the hearsay rule, even though the declarant is available as a witness.
¶5{¶ 84} “…
¶6{¶ 85} “(2) Excited utterance
¶7{¶ 86} “A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”
¶8{¶ 87} Such a statement is admissible despite its hearsay nature if the following four conditions are satisfied:
¶9{¶ 88} “ ‘(a) that there was some occurrence startling enough to produce a nervous excitement in the declarant, which was sufficient to still his reflective faculties and thereby make his statements and declarations the unreflective and sincere expression of his actual impressions and beliefs, and thus render his statement or declaration spontaneous and unreflective,
¶10{¶ 89} “ ‘(b) that the statement or declaration, even if not strictly contemporaneous with its exciting cause, was made before there had been time for such nervous excitement to lose a domination over his reflective faculties, so that such domination continued to remain sufficient to make his statements and declarations the unreflective and sincere expression of his actual impressions and beliefs,
¶11{¶ 90} “ ‘(c) that the statement or declaration related to such startling occurrence or the circumstances of such startling occurrence, and
¶12*384{¶ 91} “ ‘(d) that the declarant had an opportunity to observe personally the matters asserted in his statement or declaration.’ ” (Emphasis added in part.) State v. Wallace (1988), 37 Ohio St.3d 87, 89, 524 N.E.2d 466, quoting Potter v. Baker (1955), 162 Ohio St. 488, 55 O.O. 389, 124 N.E.2d 140, paragraph two of the syllabus.
¶13{¶ 92} The majority concludes that since Frye did not personally observe Smith kill Autumn, Frye’s statement does not satisfy this last requirement. I respectfully disagree.
¶14{¶ 93} When Frye went to bed that evening around 11:00 p.m., her daughter Autumn, the victim in this case, was asleep in her crib in her own bedroom, wearing pajamas. Smith was downstairs, drinking beer and watching TV when Frye went to bed. At 3:22 a.m., Smith woke Frye by saying, “I’m laying the baby down beside you.” Frye picked up Autumn, and Autumn’s head fell over Frye’s arm. Frye then put her hand on Autumn’s stomach and found that Autumn was not breathing. Frye said to Smith, “[You] killed my baby.” Smith replied, “No, I didn’t,” and threw an alarm clock into the closet. Smith then picked up Autumn, and said that Autumn was breathing and not dead. Frye also noticed that both Smith and Autumn were totally naked.
¶15{¶ 94} Although Frye did not actually see Smith rape and kill her child, when Frye went to bed, Smith was the only one in the house with the baby who could have inflicted the injuries sustained. When Frye awoke, Smith was the one standing next to the bed with the lifeless baby. In addition, while the two were fully clothed at the time that Frye had gone to bed, both Smith and the baby were naked when Frye awoke to this nightmare. I would therefore find that Frye’s statement, “[You] killed my baby,” falls under the excited utterance exception to the hearsay rule.
¶16{¶ 95} Frye’s waking to find her child dead was an occurrence startling enough to produce a nervous excitement in Frye. The statement was made contemporaneous with the event and related to the.startling occurrence. Frye personally had observed Autumn sleeping in her crib in her pajamas at 11:00 p.m. and awoke at 3:22 a.m. to find the naked Smith standing beside the bed on which Autumn’s limp, naked body lay. I would find that under these facts, Frye personally observed the matters asserted in her statement as required by Evid.R. 803(2).
¶17{¶ 96} Although the majority finds error in the admission of Frye’s statement, the majority concludes, nonetheless, that the error was harmless. Therefore, while I disagree with the majority’s rationale regarding the excited utterance, because I agree with the majority’s ultimate resolution of this issue and because I would otherwise affirm the convictions and sentence of death, I concur.
¶19{¶ 97} “Proposition of Law No. I: When a trial court refuses to instruct on relevant issues and makes improper suggestions in instructions given, a capital defendant is deprived of his rights to due process, a fair trial, and rehable determination of his guilt. Moreover, the refusal to instruct also deprives the defendant of his right to present a meaningful defense. U.S. Const. Amends. V, VI, XIV; Ohio Const. Art. I §§ 5,16.
¶20{¶ 98} “Proposition of Law No. II: The admission of shocking and graphic photographs and slides into evidence at both phases of a capital trial violates the defendant’s right to due process when the probative value of the slides and photographs is outweighed by the danger of prejudice to the defendant, and the slides and photographs are cumulative of other evidence and repetitive of other photographs. U.S. Const. Amend. XIV; Ohio Const. Art. I, § 16.
¶21{¶ 99} “Proposition of Law No. Ill: A capital defendant is denied his substantive and procedural due process rights to a fair trial when a prosecutor commits acts of misconduct during the trial and the sentencing phases of his capital trial. He is also denied his right to reliable sentencing. U.S. Const. Amends. VIH, XIV; Ohio Const. Art. I §§ 9,16.
¶22{¶ 100} “Proposition of Law No. IV: Where inflammatory, repetitive evidence is admitted into evidence a capital defendant is denied his rights to a fair trial, due process and a reliable determination of his guilt and sentence. U.S. Const. Amends. VIII, XIV; Ohio Const. Art. I §§ 10,16.
¶23{¶ 101} “Proposition of Law No. V: Instruction that a jury verdict must be unanimous as to a life sentence is contrary to O.R.C. § 2929.03(D)(2). Instruction that a jury verdict must be unanimous as to a life sentence misleads the jury as to its fundamental role in Ohio’s capital sentencing scheme in violation of the Cruel and Unusual Punishment Clause and the Due Process Clause. U.S. Const. Amends VIII, XIV; Ohio Const. Art. I, §§ 9,16.
¶24{¶ 102} “Proposition of Law No. VI: A capital appellant’s right to due process is violated when the trial court admits improper expert testimony. U.S. Const. Amend. XIV; Ohio Const. Art. I, § 16.
¶25{¶ 103} “Proposition of Law No. VII: A capital appellant’s right to due process is violated when the trial court admits improper lay opinion.
¶26{¶ 104} “Proposition of Law No. VIII: The accused’s rights to confrontation and due process are violated when the state offers hearsay testimony on the ultimate issue of fact in a capital murder case and the out of court declarant did not personally observe the matter to which the witness testified. U.S. Const. Amends. XI, XIV; Ohio Const. Art. I, §§ 10,16.
¶27*386{¶ 105} “Proposition of Law No. IX: Admission of irrelevant evidence during a capital defendant’s trial deprives him of a fair trial and due process. U.S. Const. Amend. XIV; Ohio Const. Art. I, § 16.
¶28{¶ 106} “Proposition of Law No. X: The accused’s right to effective assistance of counsel is violated when counsel’s performance is deficient and the accused is thereby prejudiced. U.S. Const. Amends. VI, XIV; Ohio Const. Art I, § 10.
¶29{¶ 107} “Proposition of Law No. XI: Steven Smith’s sentence of death is inappropriate. His difficult childhood, history of alcoholism, intoxication at the time of the offense, as well as depression and limited intellectual capacity all favor a life sentence.
¶30{¶ 108} “Proposition of Law No. XII: The service of a juror at the penalty phase who is biased in favor of the death penalty violates a capital defendant’s right to due process. U.S. Const. Amend. XIV; Ohio Const. Art. I § 16.
¶31(¶ 109} “Proposition of Law No. XIII: Where the trial court fails to instruct on an essential element of two aggravating circumstances that make the accused death eligible, a capital defendant is deprived of his rights to a jury trial, to due process, and to a reliable capital sentencing hearing. U.S. Const. Amends. VI, VIII, XIV; Ohio Const. Art. I §§ 5, 9,16.
¶32{¶ 110} “Proposition of Law No. XIV: A capital defendant’s right against cruel and unusual punishment and the defendant’s right to due process are violated when the trial court implies that mitigating evidence deserves no weight. U.S. Const. Amends VIII and XIV; Ohio Const. Art. I §§ 9,16.
¶33{¶ 111} “Proposition of Law No. XV: It is constitutional error for the trial court to consider victim impact evidence in capital sentencing in the form of an opinion by a victim’s family member about the proper punishment for the defendant. U.S. Const. Amends. VIII and XIV.
¶34{¶ 112} “Proposition of Law No. XVI: A capital defendant’s right against cruel and unusual punishment under the Eighth and Fourteenth Amendments is denied when the sentencer is precluded from considering residual doubt of guilt as a mitigating factor. The preclusion of residual doubt from a capital sentencing proceeding also violates the defendant’s due process right to rebuttal under the Fourteenth Amendment. The preclusion of residual doubt may also infringe a capital defendant’s right to effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments. U.S. Const. Amends. VI, VIII, XIV; Ohio Const. Art. I §§ 9,10,16.
¶35{¶ 113} “Proposition of Law No. XVII: A capital defendant’s rights against cruel and unusual punishment and to due process are violated when the sentencing court discounts relevant mitigation because it does not create an excuse for *387the substantive offense of aggravated murder. U.S. Const. Amends. VIII, XIV; Ohio Const. Art. I, §§ 9,16.
¶36{¶ 114} “Proposition of Law No. XVIII: Ohio’s death penalty law is unconstitutional. Ohio Rev.Code Ann. §§ 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04, and 2929.05 (Anderson 1996), do not meet the prescribed constitutional requirements and are unconstitutional on their face and as applied to Steven Smith. U.S. Const. Amends. V, VI, VIII, XIV; Ohio Const. Art. I, §§ 2, 9, 10, 16. Further, Ohio’s death penalty statute violates the United States’ obligations under international law.
¶37{¶ 115} “Proposition of Law No. XIX: A capital defendant’s right to due process is violated when the state is permitted to convict upon a standard of proof below proof beyond a reasonable doubt. U.S. Const. Amend. XIV.
¶38{¶ 116} “Proposition of Law No. XX: When the trial court ignores the express language of Ohio Rev.Code Ann. § 2929.03(D)(1) (Anderson 1993) and sua sponte orders a pre-sentence investigation report which contains prejudicial content, a capital defendant’s rights to a reliable death sentence and due process of law are violated. U.S. Const. Amends. V, VI, VIII, XIV; Ohio Const. Art. I §§ 1, 2, 5, 9,10, 16, 20.”