Opinion · Ohio Supreme Court
State v. Clemons
82 Ohio St. 3d 438
- Type
- Opinion
- Court
- Ohio Supreme Court
- Jurisdiction
- Ohio
- Date
- 1998-07-29
- Topic
- general
stating that improper prosecutorial comments are not reversible if they are not outcome determinative due to the existence of abundant incriminating evidence | applying presumption where sentencing opinion noted defendant’s “ ‘calculated, cruel, willful, and cold- blooded disregard for human life’ ” | finding improper denigration when the prosecutor commented, “You remember the evidence you heard and I suspect I will be continually interrupted throughout this closing argument. It’s kind of a tactic defense attorneys are taught,” but concluding it was harmless | state could produce expert testimony that Prozac generally reduces aggressive behavior when defendant claimed the drug caused him to black out and commit murder | the state can comment that a defendant could have called an expert to establish that he blacked out | state could produce expert testimony that Prozac generally reduces aggressive behavior when defendant claimed the drug caused him to black out and commit murder | truck driver went to office of employer and murdered three co- workers | truck driver went to office of employer and murdered three co-workers
Citator
- Cited by
- 87 opinions
[This opinion has been published in Ohio Official Reports at82 Ohio St.3d 438
.]
THE STATE OF OHIO, APPELLEE, v. CLEMONS, APPELLANT.
[Cite as State v. Clemons, 1998-Ohio-406
.]
Criminal law—Aggravated murder—Death penalty upheld, when.
(No. 96-2790—Submitted April 21, 1998—Decided July 29, 1998.)
APPEAL from the Common Pleas Court of Hamilton County, No. B-9511119.
__________________
{¶ 1} On the morning of December 15, 1995, defendant-appellant, Gerald
L. Clemons, went to the main office of his employer, Trans-Continental Systems,
Inc., in Evendale, and fatally shot three co-workers. Defendant was subsequently
convicted of three counts of aggravated murder and sentenced to death.
{¶ 2} Defendant had worked at various jobs in both Florida and the
Cincinnati area. After moving back to Cincinnati in 1988, defendant became an
over-the-road truck driver and worked for several trucking companies. By
November 1995, defendant had become a company driver for Trans-Continental.
On the evening of December 13, 1995, a dispatcher for Trans-Continental phoned
defendant at home and asked him to pick up a load in Ironton, which is a regular
run for Trans-Continental. Defendant declined to make the pickup and John
Stirsman, chief dispatcher, told defendant that he was putting the company “in a
bad spot.” The company apparently then made other arrangements for the Ironton
run.
{¶ 3} The next day, December 14, defendant phoned Stirsman several times
hoping to secure a new run. During one conversation, defendant asked Stirsman
why another dispatcher, Dave Kreamelmeyer, was “screwing him around.”
Stirsman replied that Kreamelmeyer was not doing that to him. Stirsman told
defendant that he was saving the Ironton run for the defendant again that evening.
While defendant thanked Stirsman for assigning him the Ironton run again,
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defendant never showed up to make the run. Defendant later testified that he did
not make the Ironton run because “it wasn’t a good run for the mere fact that there
is no good roads going that way and all secondary roads instead of interstate
highways and it burns up a lot of time.”
{¶ 4} At 7:45 a.m. on the morning of December 15, 1995, defendant called
Trans-Continental, according to an entry made by Kreamelmeyer on the company’s
telephone log sheet. Evelyn Dinkgrave, who works in accounts payable for Trans-
Continental, testified that she overheard Kreamelmeyer have a loud conversation
with a driver at 7:45 a.m. that morning, and she observed that Kreamelmeyer “was
kind of angry.” After Kreamelmeyer hung up the phone, Dinkgrave testified that
“he got more vocal about how mad he was that this guy had not been on time to
pick up a load” the night before. At trial, defendant testified that during their phone
conversation, Kreamelmeyer appeared to be angry and informed defendant that he
was not going to give defendant a load to deliver that day.
{¶ 5} At approximately 8:15 a.m. that morning, defendant entered the
Trans-Continental garage and asked mechanic Elmer Begley whether defendant’s
truck was ready for work. Both Begley and driver Timothy Stone testified that
defendant had a cream-colored bag attached to his waist at that time and he
appeared to be in a “normal mood.”
{¶ 6} Secretary Dana Wilson Jones observed defendant in the
administrative offices of Trans-Continental that morning. Defendant waved and
smiled at her, then walked away. Moments later, Jones heard Kreamelmeyer say,
“I’m going to have this man arrested for felonious assault.” Then, Jones heard
gunshots and heard Kreamelmeyer say, “What did I do, I didn’t do anything.” Jones
testified that she heard more gunshots and heard someone say, “Oh, my God.”
{¶ 7} Tonya Hinkle shared an office with Christine Teetzel in the Trans-
Continental administrative offices, and both worked on payroll. Hinkle testified
that she heard Kreamelmeyer arguing with someone around 8:15 that morning and
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January Term, 1998
heard “a punch, like a bang.” Both she and Teetzel stood up and heard
Kreamelmeyer say, “Assault, call 911.” As Hinkle and Teetzel tried to phone for
help, they heard shots and both women hid under their desks. Teetzel pulled her
chair underneath her desk in an attempt to hide herself. Hinkle testified that as they
hid under their desks, she saw defendant walk up to Teetzel’s desk, move her chair
out of the way, look under the desk, and shoot her. As defendant turned around,
Hinkle thought she was next, but defendant proceeded upstairs.
{¶ 8} Laurie McGuire works in accounts receivable for Trans-Continental
on the second floor of the administrative office building. On the morning of
December 15, she heard some commotion on the first floor around 8:15 a.m. and
began walking downstairs. Before she made it to the first floor, she saw defendant
shoot Kreamelmeyer in the back. She ran back upstairs, panic-stricken, and could
hear defendant climbing the staircase. McGuire then fled into an office and stood
up against a concrete wall. Defendant walked up to McGuire and told her that he
was not going to hurt her, and that “he was only after the ones who screwed him
over.” Defendant left the room. McGuire was going downstairs when she heard
dispatcher Bob Kinney scream for help from his office. McGuire found Kinney in
the dispatcher’s office, shot twice, holding his chest, and asking for help. McGuire
saw Kreamelmeyer lying on the floor, too, so she ran back upstairs to call 911.
{¶ 9} Sandra K. Sears, a Glendale police officer, was working off-duty near
the Trans-Continental office at the time of the shootings. Upon hearing a radio
dispatch, she responded to the scene and followed an Evendale police officer into
the Trans-Continental parking lot. Sears found Teetzel lying wounded on the front
lawn of the premises. She heard Teetzel name Gerald Clemons as her assailant. As
Sears approached the office building with the Evendale officer, she noticed
defendant smiling and walking steadily towards her. At that point, Sears heard
Teetzel exclaim again, “That’s the bastard that shot me.” Sears testified that
defendant told her, “I’m the guy you are looking for. I just shot the people,” and
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he motioned his head toward the office building. Sears handcuffed Clemons and
turned him over to Evendale police officers.
{¶ 10} All three shooting victims, Kreamelmeyer, Kinney, and Teetzel,
died of gunshot wounds. Bullets recovered during the autopsies and casings found
at the crime scene were determined to have been fired from defendant’s gun, which
was found lying on top of his car trunk in the Trans-Continental parking lot that
morning.
{¶ 11} The grand jury indicted defendant on three counts of aggravated
murder, with prior calculation and design. Each count included a firearms
specification, and a death penalty specification that murder was committed as a
course of conduct involving the killing of two or more persons. (R.C.
2929.04[A][5].)
{¶ 12} Defense counsel conceded at the outset of trial that defendant killed
the three murder victims, but disputed that they were murdered with prior
calculation and design. Defendant testified on his own behalf, and acknowledged
having a discussion with Kreamelmeyer on the morning in question, in which
defendant was told he was not getting a load to deliver. Defendant claimed that
Kreamelmeyer started “charging at me like a rhino,” but defendant testified that he
then went “into a fog,” and did not recall shooting anyone or his gun going off.
Defendant testified that he believed that his taking of Prozac caused him to black
out. The next thing defendant claims to remember was walking out to his car and
seeing a crowd and police gather outside the building. Defendant testified that he
“went to that woman cop because I didn’t think she would slam me [to the ground].”
Defendant also expressed regret and remorse for his actions.
{¶ 13} After deliberation, the jury found defendant guilty as charged.
{¶ 14} At the mitigation hearing, defendant’s physician testified that he
treated defendant’s depression by prescribing Prozac. Defendant’s mother, Alice
4
January Term, 1998
McMichen, also testified and recounted his life story. She described defendant as
a caring and helpful son, and asked the jury to spare his life.
{¶ 15} Defendant gave an unsworn statement expressing his sorrow and
shame for what he had done.
{¶ 16} On rebuttal, the prosecution called a professor of psychiatry who
testified that studies of Prozac indicate that it decreases aggressive or violent
behavior in both humans and animals. The expert opined that Prozac reduces
suicidal thoughts in those who take the drug.
{¶ 17} The jury recommended death on all three counts, and the trial court
imposed the death sentence on defendant. The court also imposed consecutive
prison sentences on the three firearms specifications.
{¶ 18} The cause is now before this court upon a direct appeal as of right.
__________________
Joseph T. Deters, Hamilton County Prosecuting Attorney, and William E.
Breyer, Assistant Prosecuting Attorney, for appellee.
A. Norman Aubin and Herbert E. Freeman, for appellant.
__________________
Lundberg Stratton, J.
{¶ 19} In this appeal, defendant raises seventeen propositions of law for
review. Upon review of each proposition of law, we find that none warrants
reversal of defendant’s convictions or death sentence. Pursuant to R.C.
2929.05(A), we have independently weighed the aggravating circumstance of each
murder against the mitigating factors, and compared the sentences to those imposed
in similar cases. Accordingly, we affirm defendant’s convictions and uphold the
sentence of death.
PRETRIAL ISSUES
Pretrial Publicity/Venue
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{¶ 20} In proposition I, defendant argues that the trial court erred by failing
to change venue due to adverse pretrial publicity. In support, defendant points to
newspaper articles appended to his motion for a new trial, as well as his claims of
extensive television media coverage.
{¶ 21} This court has long-held that voir dire examination provides the best
test as to whether prejudice exists in the community against a defendant in
determining whether to grant a change of venue. State v. Swiger (1966), 5 Ohio St.2d 151
,34 O.O.2d 270
,214 N.E.2d 417
, paragraph one of the syllabus; State v. Montgomery (1991),61 Ohio St.3d 410, 413
,575 N.E.2d 167, 170-171
. A review
of the voir dire transcript indicates that the court and counsel questioned the
members of the venire extensively to detect bias or anything that would prevent
them from acting as fair and impartial jurors. At the outset, the prosecution quizzed
prospective jurors as to whether they had heard or seen news reports of this case.
After several prospective jurors indicated they had seen such reports, these same
jurors were adequately interrogated about their ability to be fair to the defendant.
{¶ 22} Defendant cites Brecheen v. Reynolds (C.A.10, 1994), 41 F.3d 1343, 1351
, for the proposition that a presumption of prejudice should arise where the totality of circumstances indicates that a defendant’s trial was not fundamentally fair. However, as we noted in State v. Lundgren (1995),73 Ohio St.3d 474, 479
,653 N.E.2d 304, 313
, cases where extensive pretrial publicity gives rise to presumed prejudice “ ‘are relatively rare. * * * [P]retrial publicity—even pervasive, adverse publicity—does not inevitably lead to an unfair trial.’ Nebraska Press Assn. v. Stuart (1976),427 U.S. 539, 554
,96 S.Ct. 2791, 2800
,49 L.Ed.2d 683, 694-695
.”
{¶ 23} A review of the news articles appended to the defendant’s motion
for a new trial indicates that the pretrial publicity here was no more pervasive than
that found in Lundgren, and there we found no abuse of discretion in the denial of
a motion for a change of venue. Id.,
73 Ohio St.3d at 479-480
,653 N.E.2d at 313
-
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January Term, 1998
314. A careful review of the voir dire transcript here reveals no abuse of discretion
by the trial court in denying the motion for a change of venue. Therefore, we reject
proposition I.
Lack of Funds for Experts
{¶ 24} In proposition II, defendant contends that he was prejudiced by a
lack of funds necessary to conduct an adequate defense. Specifically, defendant
asserts that a lack of funds prevented him from hiring private independent expert
witnesses to provide him with the basic tools of an adequate defense. Defendant
argues that the trial court should have provided funds to enable him to hire a private
independent investigator, an expert on Prozac, and an independent firearms or
ballistics expert.
{¶ 25} R.C. 2929.024 authorizes trial judges to grant funds in aggravated
murder cases for investigative services and experts when “reasonably necessary for
the proper representation” of indigent defendants. Such decisions are vested “in
the sound discretion of the [trial] court” based upon “(1) the value of the expert
assistance to the defendant’s proper representation * * * and (2) the availability of
alternative devices * * * [to] fulfill the same functions[.]” State v. Jenkins (1984),
15 Ohio St.3d 164
, 15 OBR 311,473 N.E.2d 264
, paragraph four of the syllabus. This court has recently held that “[d]ue process, as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Section 16, Article I of the Ohio Constitution, requires that an indigent criminal defendant be provided funds to obtain expert assistance at state expense only where the trial court finds, in the exercise of sound discretion, that the defendant has made a particularized showing (1) of a reasonable probability that the requested expert would aid in his defense, and (2) that denial of the requested expert assistance would result in an unfair trial. (State v. Broom [1988],40 Ohio St.3d 277
,533 N.E.2d 682
, approved and followed.)” State v. Mason (1998),82 Ohio St.3d 144
,694 N.E.2d 932
,
syllabus.
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{¶ 26} In addition, the United States Supreme Court has held that due
process requires that an indigent defendant have access to psychiatric assistance
“necessary to prepare an effective defense based on his mental condition, when his
sanity at the time * * * [was] seriously in question.” Ake v. Oklahoma (1985), 470 U.S. 68, 70
,105 S.Ct. 1087, 1090
,84 L.Ed.2d 53, 58
.
{¶ 27} First, defendant never requested an independent, private
investigator. Second, the trial court indicated on several occasions prior to trial that
it was willing to consider appointing an expert witness on Prozac. However, the
defense never made such a request. When the court appointed clinical psychologist
Dr. Nancy Schmidtgoessling of the Community Diagnostic and Treatment Center
as the defense mitigation specialist, the defense raised no objection. As a
psychologist, Dr. Schmidtgoessling would have been able to testify as to issues
involving Prozac. Third, the defense did not request an independent firearms expert
when it had an opportunity to do so. Further, such expert testimony would have
been irrelevant because the shootings were not in dispute.
{¶ 28} Thus, the defendant never preserved the issue. See State v. Williams
(1977), 51 Ohio St.2d 112
,5 O.O.3d 98
,364 N.E.2d 1364
, paragraph one of the syllabus, vacated on other grounds (1978),438 U.S. 911
,98 S.Ct. 3137
,57 L.Ed.2d 1156
; State v. Awan (1986),22 Ohio St.3d 120, 122
, 22 OBR 199, 201,489 N.E.2d 277, 279
. Further, the defendant failed to make the particularized showings
required by State v. Mason. Accordingly, we reject this proposition.
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January Term, 1998
Peremptory Challenges
{¶ 29} In proposition VI, defendant argues that the trial court erred in
overruling his motion for twelve peremptory challenges. We have ruled on this
issue in the past and therefore summarily reject this proposition of law. See Crim.
R. 24(C); State v. Greer (1988), 39 Ohio St.3d 236
,530 N.E.2d 382
, paragraph two of the syllabus; State v. Carter (1995),72 Ohio St.3d 545, 555-556
,651 N.E.2d 965, 975
.
Verdict as Recommendation
{¶ 30} Defendant complains in proposition XVII that the court and
prosecutors erred during voir dire examination by advising jurors that a death
verdict will be treated as a “recommendation” to the court. While no error is
committed by the mere use of the word “recommendation,” we prefer that courts
trying capital cases include in jury instructions a statement similar to that
commended in State v. Mills (1992), 62 Ohio St.3d 357, 375
,582 N.E.2d 972, 988
, that, “ ‘[s]imply put, you should recommend the appropriate sentence as though your recommendation will, in fact, be carried out.’ ” Carter,72 Ohio St.3d at 559
,651 N.E.2d at 978
. However, defendant failed to object to this; therefore, any error is waived, save plain error. State v. Slagle (1992),65 Ohio St.3d 597, 604
,605 N.E.2d 916, 925
. We find no plain error. Accordingly, we reject proposition XVII.
TRIAL ISSUES
Manifest Weight/Sufficiency of Evidence
{¶ 31} In proposition XVI, defendant asserts that the evidence is
insufficient to sustain his convictions and, further, that his convictions are against
the manifest weight of the evidence. Defendant fails to articulate anything to
support his assertions beyond the legal standards applicable to such analysis.
{¶ 32} As we noted in State v. Smith (1997), 80 Ohio St.3d 89, 113
,684 N.E.2d 668
, 691, “[S]ufficiency of the evidence is the legal standard applied to
determine whether the case may go to the jury or whether the evidence is legally
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sufficient as a matter of law to support the jury verdict, State v. Thompkins (1997),
78 Ohio St.3d 380, 387
,678 N.E.2d 541, 546
.” The “[w]eight of the evidence concerns ‘the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other.’ ” (Emphasis sic.) Thompkins,78 Ohio St.3d at 387
,678 N.E.2d at 546
.
{¶ 33} When reviewing a claim of insufficient evidence, the relevant
inquiry is whether any rational factfinder, after viewing the evidence in a light most
favorable to the state, could have found the essential elements of the crime proven
beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 319
,99 S.Ct. 2781, 2789
,61 L.Ed.2d 560, 573
; State v. Jenks (1991),61 Ohio St.3d 259
,574 N.E.2d 492
, paragraph two of the syllabus. The verdict will not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier of fact.Jenks, supra,
61 Ohio St.3d at 273
,574 N.E.2d at 503
.
{¶ 34} The evidence supporting defendant’s murder convictions was
overwhelming, and defense counsel conceded during opening statement that
defendant killed all three victims. The only disputed issue was whether prior
calculation and design was proven. We find that it was.
{¶ 35} As to Kreamelmeyer, one Trans-Continental office worker testified
that Kreamelmeyer had a heated conversation on the phone at the time defendant
called Trans-Continental on December 15, and defendant acknowledged that
Kreamelmeyer was angry with him and was not going to give him any work that
day. The night before, defendant asked the chief dispatcher why Kreamelmeyer
was “screwing him around.” Prior to his confrontation with Kreamelmeyer,
defendant went into the garage area and was told that his truck was ready, thus
eliminating the lack of an available truck as a possible reason why Kreamelmeyer
told him on the phone he was not going to give him a run that day. Defendant’s
claim that Kreamelmeyer “charged him” is not supported by any witness. In fact,
10
January Term, 1998
before the shooting began, several witnesses heard Kreamelmeyer yell for help,
claiming he was being assaulted.
{¶ 36} After shooting Kreamelmeyer, the defendant sought out Kinney,
another dispatcher at Trans-Continental who the defendant apparently believed had
wronged him. Defendant shot Kinney twice in the chest and left him in the
dispatcher’s office to die.
{¶ 37} After firing two shots at both Kreamelmeyer and Kinney, defendant
sought out Teetzel. Teetzel had pulled her chair in to make it appear she was not
there as she hid under her desk. Looking under the desk and finding Teetzel, he
moved her desk chair out of the way and fired a shot at her. He then left that part
of the office, even though he saw Teetzel’s office mate hiding under her own desk.
{¶ 38} Defendant admitted that he was upset over Trans-Continental’s
policy of delaying his pay if his paperwork was late. Moreover, defendant knew
that Teetzel was the one who determined whether his paperwork was late, although
he had never talked to her about it. Defendant asserts that there were no paychecks
ready for him that morning, and that Kreamelmeyer told him to take the matter up
with the office manager. Several witnesses stated that there were two checks ready
for the defendant that morning, but there was no evidence that the defendant was
aware of that fact.
{¶ 39} In addition, before going to the office that morning, defendant drank
a beer and two shots of tequila and left for the office with a loaded gun in his pouch.
While defendant asserted he had a gun with him that morning because he always
carried one on him as “[a] lot of truck drivers do,” rebuttal witness Lt. Jerome
Gadzala of the Evendale police testified that defendant told him shortly after the
murder that it was “highly, highly unusual for him to carry a gun to work.”
{¶ 40} Defendant’s murderous intent with prior calculation and design is
reinforced by his encounter with Laurie McGuire on the second floor of the Trans-
Continental office building. McGuire was literally running around in circles as
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defendant climbed the stairs, fearing she would be the next victim. However, when
she came face to face with defendant, he told her, “I am not going to hurt you, [I
am] only after the ones who screwed [me] over.” This is clear evidence that
defendant was selectively choosing his victims and had the presence of mind to
distinguish those who had not offended him.
{¶ 41} While there is no “bright-line test” emphatically distinguishing the
presence or absence of prior calculation and design, State v. Taylor (1997), 78 Ohio St.3d 15, 20
,676 N.E.2d 82, 89
, construing the evidence in a light most favorable to the prosecution, all three jury verdicts must stand. The night before the murders, defendant asserted that Kreamelmeyer was “screwing him around.” While evidence of prior calculation and design in the murder of Kinney is not as readily apparent as it is with the Kreamelmeyer and Teetzel murders, several facts support this verdict as well. Kinney worked as a dispatcher with Kreamelmeyer. In addition, defendant displayed selectivity in shooting Teetzel, but not her office mate, Tonya Hinkle, nor Dana Jones and Evelyn Dinkgrave, who were close by. As defendant told McGuire, who feared herself as the next victim, he wanted to shoot only those people who “screwed him over.” Therefore, the jury could reasonably find that defendant committed all three aggravated murders with prior calculation and design.Jenks, supra.
{¶ 42} Defendant’s claims of a Prozac-induced blackout or “fog” that
prevented him from recalling the murders is simply not believable in light of all the
evidence. Defendant claimed to have blacked out when Kreamelmeyer allegedly
charged him and claims not to have come out of his blackout until he was outside
the building with the gun in his hand. However, his cognitive ability to separate
those who he believed had wronged him from those who he believed had not defies
his claim.
{¶ 43} After reviewing the entire record, weighing the evidence and all
reasonable inferences, we find that the manifest weight of the evidence also
12
January Term, 1998
supports defendant’s convictions. Further, the quantum of evidence supporting his
convictions is overwhelming. Accordingly, we reject proposition XVI.
SENTENCING ISSUES
Sentencing Opinion
{¶ 44} Under proposition V, defendant cites several errors in the trial
court’s sentencing opinion, which, he asserts, compel a reversal of his death
sentence. First, defendant argues that the trial judge considered the nature and
circumstances of the offense as an aggravating circumstance. Defendant contends
that the court did not merely cite the nature and circumstances of the offense as
reasons why the aggravating circumstance outweighed the mitigating factors, as
permitted under State v. Stumpf (1987), 32 Ohio St.3d 95
,512 N.E.2d 598
.
Defendant claims that the court actually weighed the nature and circumstances of
the offense against the mitigating factors.
{¶ 45} In State v. Wogenstahl (1996), 75 Ohio St.3d 344, 356
,662 N.E.2d 311, 322
, we reiterated that when it comes to the actual weighing of the aggravating
circumstances against the mitigating factors, the nature and circumstances of the
offense may enter into the statutory weighing process only on the side of mitigation.
See R.C. 2929.04(B). A review of the court’s sentencing opinion reveals that it
correctly identified the “course of conduct” specification to each murder count as
the “aggravating circumstance.” The trial court then listed all of the statutory
mitigating factors set forth in R.C. 2929.04(B), including the nature and
circumstances of the offense. The court summarized the nature and circumstances
of the offense and concluded that “the proven facts of Aggravating Circumstances
[sic] reveal a calculated, cruel, willful, and cold-blooded disregard for human life
and values.” The court then reviewed the mitigating evidence presented at trial,
and concluded that the aggravating circumstance outweighed the factors in
mitigation, and imposed the death sentence.
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{¶ 46} Defendant argues that the foregoing language from the court’s
sentencing opinion indicates that the court converted the nature and circumstances
of the offense into aggravating circumstances. We disagree. The court’s opinion
clearly indicates that the trial court understood the difference between statutory
aggravating circumstances and facts describing the nature and circumstances of the
offense. See State v. Sowell (1988), 39 Ohio St.3d 322, 328
,530 N.E.2d 1294, 1302
; State v. Wiles (1991),59 Ohio St.3d 71, 90
,571 N.E.2d 97, 120
; State v. Rojas (1992),64 Ohio St.3d 131, 142
,592 N.E.2d 1376, 1386
.
{¶ 47} When a court correctly identifies the aggravating circumstances in
its sentencing opinion, we will presume that the court relied only on those
circumstances and not on nonstatutory aggravating circumstances. See State v. Hill
(1995), 73 Ohio St.3d 433, 441
,653 N.E.2d 271, 279
. Since the trial court correctly
identified the course of conduct specification to each murder as “the aggravating
circumstances [sic],” it is clear that the court in this case understood this distinction.
{¶ 48} Defendant next argues that the trial court’s opinion considered the
heinousness of the crimes as an “aggravating factor.” However, we find no basis
for such a conclusion. Moreover, even assuming that the defendant’s argument has
any legitimacy, our independent review will readily cure any such alleged error.
State v. Lott (1990), 51 Ohio St.3d 160, 170
,555 N.E.2d 293, 304
. Therefore, we
overrule proposition V.
Reasonable Doubt Standard
{¶ 49} In proposition VIII, defendant submits that the statutory reasonable
doubt standard of R.C. 2901.05 is inadequate and unreliable in capital cases.
Defendant proposes that we adopt a standard requiring proof “beyond all doubt”
as to whether death is an appropriate punishment. However, we have repeatedly
rejected this same argument. See, e.g., Jenkins, 15 Ohio St.3d at 210-211
, 15 OBR at 351,473 N.E.2d at 304-305
, and paragraph eight of the syllabus; State v. Loza (1994),71 Ohio St.3d 61, 81
,641 N.E.2d 1082, 1104
.
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January Term, 1998
Victim Impact Testimony
{¶ 50} In proposition XIV, defendant asserts that the trial court considered
and weighed victim impact testimony at the sentencing hearing as an improper
aggravating circumstance. Defendant contends that such testimony contributed to
a “lynch mob mentality in the Courtroom.”
{¶ 51} The testimony defendant complains of took place at the sentencing
hearing, after the jury was discharged, but before the trial court rendered its
sentence. The prosecutor asked the court whether two of the victims’ family
members could address the court, and stated, “I understand it can’t be part of your
verdict or findings, but I think it would be helpful to them.” The court then
permitted the brothers of both Kinney and Kreamelmeyer to testify. The testimony
of Kinney’s brother presented nothing out of the ordinary, but Kreamelmeyer’s
brother passionately urged the court to sentence defendant to death, going so far as
to say that “[Clemons] should be tried and executed within four weeks of this
murder and rampage.” At the end of this testimony, the trial court stated that “the
law does not permit the Court in making this particular finding to consider the
statements made by families of the victims.”
{¶ 52} Given the trial judge’s affirmative declaration that he would not
consider this testimony, we are guided by the presumption that the trial judge
considered only relevant, material, and competent evidence in arriving at his
judgment to impose the death sentence on defendant. State v. Dennis (1997), 79 Ohio St.3d 421, 433
,683 N.E.2d 1096, 1107
. As in Dennis, a careful review of
both the transcript and sentencing opinion reveals no inference or suggestion that
the trial judge considered victim impact testimony. Accordingly, we overrule
proposition XIV.
Rebuttal Testimony
{¶ 53} In proposition XV, defendant claims error in permitting the state to
present expert rebuttal evidence on the effects of Prozac. Defendant asserts that he
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was prejudiced, since the defense neither raised an insanity defense nor alleged that
Prozac caused the murders.
{¶ 54} During his trial phase testimony, defendant stated his belief that his
taking of Prozac caused him to black out before the murders. At the mitigation
hearing, defendant’s mother testified that there was a difference in defendant’s
behavior after he started taking Prozac: “He laughed at things that I didn’t even
think was funny, but he laughed at them.” Defendant’s physician testified that he
had treated defendant’s depression with Prozac.
{¶ 55} Prior to having defendant read his unsworn statement at the
mitigation hearing, the defense moved to readmit all of the defense testimony from
the trial phase. In State v. Gumm (1995), 73 Ohio St.3d 413
,653 N.E.2d 253
, syllabus, we held that “counsel for the state at the penalty stage of a capital trial may introduce * * * (1) any evidence raised at trial that is relevant to the aggravating circumstances specified in the indictment of which the defendant was found guilty, (2) any other testimony or evidence relevant to the nature and circumstances of the aggravating circumstances specified in the indictment of which the defendant was found guilty, (3) evidence rebutting the existence of any statutorily defined or other mitigating factors first asserted by the defendant * * *.” See, also, State v. DePew (1988),38 Ohio St.3d 275
,528 N.E.2d 542
,
paragraph one of the syllabus.
{¶ 56} The expert rebuttal testimony offered by the prosecution on the
effects of Prozac was introduced to rebut defendant’s trial testimony that he
believed that the drug made him black out at the time of the murders. The expert
testified in rebuttal that Prozac is an antidepressant that reduces aggressive behavior
and suicidal thoughts in people. The defense strategy apparently was to introduce
the Prozac issue frequently to keep it in the jury’s consciousness. The rebuttal
testimony was relevant to rebut this inference. Accordingly, we reject proposition
XV.
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January Term, 1998
INEFFECTIVE ASSISTANCE OF COUNSEL
{¶ 57} Defendant asserts in proposition III that trial counsel were
ineffective in permitting him to be examined by the court psychiatric center. He
alleges that counsel also erred in allowing a report of the center’s findings to be
submitted to the trial court. While defendant concedes that the defense’s mitigation
expert never testified, he contends that the trial judge heard a summary of such
“incredibly damning evidence” pursuant to the judge’s ruling on a discovery
motion. Defendant suggests that this report contributed to the trial judge’s decision
to sentence him to death.
{¶ 58} Reversal of a conviction on the grounds of ineffective assistance
requires “[f]irst, the defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial * * *.” Strickland v. Washington (1984), 466 U.S. 668, 687
,104 S.Ct. 2052, 2064
,80 L.Ed.2d 674, 693
. However, defense counsel’s performance was not deficient. Moreover, defendant has not demonstrated prejudice, “a reasonable probability that, were it not for counsel’s errors, the result of the trial would have been different.” State v. Bradley (1989),42 Ohio St.3d 136
,538 N.E.2d 373
, paragraph three of the syllabus.
{¶ 59} After his indictment, defendant entered a plea of not guilty by reason
of insanity. Dr. Nancy Schmidtgoessling of the Community Diagnostic and
Treatment Center was appointed as defendant’s mitigation specialist.
Subsequently, upon assessing the doctor’s report, defense counsel determined that
the insanity plea was not viable in this case, although counsel indicated that they
were still actively pursuing a “Prozac defense.” Due to the unfavorable findings
Dr. Schmidtgoessling made in her report, defense counsel chose not to submit her
17
SUPREME COURT OF OHIO
report to the jury. Although the prosecution considered calling Dr.
Schmidtgoessling as a rebuttal witness at the mitigation hearing, it did not do so.
{¶ 60} In our view, defendant’s assertions under this proposition of law are
nothing more than a second guess. Counsel could not reasonably foresee that the
mitigation report would produce information so damaging to defendant that they
would have little choice but to forgo presenting the mitigation expert’s report to the
jury. In deciding not to use the report, defense counsel were able to keep the
damaging information away from the jury. Counsel’s actions in this regard did not
fall below an objective standard of reasonable representation, nor did prejudice
arise. Bradley, at paragraph two of the syllabus.
{¶ 61} Defendant’s argument that it was ineffective assistance because the
trial judge heard the damaging evidence is also meritless. A trial judge is presumed
to have considered only relevant, material, and competent evidence in arriving at a
judgment, unless the record affirmatively indicates otherwise. See State v. Post
(1987), 32 Ohio St.3d 380, 384
,513 N.E.2d 754, 759
; State v. Davis (1992),63 Ohio St.3d 44, 48
,584 N.E.2d 1192, 1196
. Nothing in the record or in the trial court’s sentencing opinion indicates that the trial judge relied on matters not in evidence so as to support a claim of ineffective assistance of counsel. See State v. Allard (1996),75 Ohio St.3d 482, 489-491
,663 N.E.2d 1277, 1285-1287
.
{¶ 62} Last, defendant contends that counsel were ineffective in failing to
remove the cause to another venue. The record does not support this claim.
Initially, counsel moved for a change in venue, but the motion was properly held in
abeyance pending completion of voir dire of the jury. At the close of voir dire,
defense counsel again asserted the venue motion, and the motion was then denied
by the trial court. Contrary to defendant’s intimations, trial counsel did attempt to
get venue changed. It cannot be ineffective assistance merely because the trial
judge did not grant the motion. We have already found that pretrial publicity in
this case did not warrant a change of venue. Therefore, we overrule proposition III.
18
January Term, 1998
PROSECUTORIAL MISCONDUCT
{¶ 63} In proposition IV, defendant claims that he was denied a fair trial
due to prosecutorial misconduct during the opening and closing arguments at the
guilt phase, and closing argument at the penalty phase. The test for prosecutorial
misconduct is whether remarks were improper and, if so, whether they prejudicially
affected substantial rights of the accused. State v. Smith (1984), 14 Ohio St.3d 13, 14-15
, 14 OBR 317, 319,470 N.E.2d 883, 885
.
{¶ 64} The first group of comments defendant cites occurred during
opening statement: (1) that defendant came to work “prepared for a slaughter”; (2)
that defendant looked at Kinney, who was at his desk “defenseless, helpless and
just sitting there”; (3) that defendant shot Kreamelmeyer “in such a cowardly
fashion” in the back while he lay there dying, and “Could you even imagine the
abject terror of those women who have just witnessed it and heard these
gunshots[?]”; (4) that defendant had done his “errand for the day”; and (5) that
defendant “in an incredible act of cowardness [sic] purposely killed three innocent
helpless people * * * [a]nd he would have killed more. He would have killed others
if he could find out the ones who screwed him over.”
{¶ 65} Comments two and three were objected to, but the remaining three
are waived. Slagle, 65 Ohio St.3d at 604
,605 N.E.2d at 924-925
. The terms “cowardly” or “cowardness” are no worse than characterizations we have found permissible in other cases. See, e.g., State v. Brown (1988),38 Ohio St.3d 305, 316-317
,528 N.E.2d 523, 538
(“monster”); State v. Wickline (1990),50 Ohio St.3d 114, 121
,552 N.E.2d 913, 921
(“Nazi”). Moreover, shooting someone in the back, as defendant did Kreamelmeyer, is an almost universally recognized act of cowardice. We find that comments two and three were within the bounds of opening statement and were a fair commentary on the facts. Further, none of the remaining comments constitutes outcome-determinative plain error. State v. Long (1978),53 Ohio St.2d 91
,7 O.O.3d 178
,372 N.E.2d 804
.
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SUPREME COURT OF OHIO
{¶ 66} In closing argument at the guilt phase, defendant complains of four
improper comments: (1) “[T]his twisted, cowardly act of vengeance”; (2) “[The
defendant] had to testify. Do you know why he had to testify? He had to testify
because otherwise there would have been absolutely no evidence that he went in
there that day for work. None. Not a speck of evidence. The defendant has to
testify.”; (3) “But even though he testified with this ridiculous thought he had to
work that day, he was proven a liar yesterday and proven a liar today.”; (4) “I know
the defense attorneys are just doing their job, but if there is any hope at all that they
could produce any type of expert to say this defendant blacked out and could not
form the requisite intent of purposely killing these people, you would have heard
it.”
{¶ 67} The first three comments are waived for lack of an objection. Slagle.
Plain error is also absent. Long. Terms such as “coward” and “liar” may be harsh,
but fall short of being “purely abusive.” Brown, 38 Ohio St.3d at 317
,528 N.E.2d at 538
. Referring to defendant as a “liar” was improper, in that it conveyed to the jury the prosecutor’s personal belief. State v. Watson (1991),61 Ohio St.3d 1, 10
,572 N.E.2d 97, 106
. However, here, the prosecutor’s characterization was marginally permissible, since the opinion was based on the evidence presented at trial. State v. Tyler (1990),50 Ohio St.3d 24, 40-41
,553 N.E.2d 576, 595-596
.
Since the state was trying to prove that defendant went to work with the intent to
kill, the prosecutor’s comment underscores the state’s theory of the case that
defendant’s version of what happened was contradicted by the evidence.
{¶ 68} Although it is error for a prosecutor to comment on a defendant’s
failure to testify, see State v. Thompson (1987), 33 Ohio St.3d 1, 4
,514 N.E.2d 407, 411
, the comment that defendant had to testify appears to be fair comment based on the evidence and within the latitude accorded the prosecution during closing argument. State v. Liberatore (1982),69 Ohio St.2d 583, 589
,23 O.O.3d 489
, 493,433 N.E.2d 561, 566
. The comment that the defense did not call an expert to testify
20
January Term, 1998
that defendant “blacked out” during proceedings is not error. The comment that a
witness other than the accused did not testify is not improper, State v. D’Ambrosio
(1993), 67 Ohio St.3d 185, 193
,616 N.E.2d 909, 916
, since the prosecution may comment upon the failure of the defense to offer evidence in support of its case. State v. Williams (1986),23 Ohio St.3d 16, 19-20
, 23 OBR 13, 16-17,490 N.E.2d 906, 910-911
; State v. Bies (1996),74 Ohio St.3d 320, 326
,658 N.E.2d 754, 760
.
{¶ 69} Nevertheless, the prosecutor’s prefacing statement that “I know the
defense attorneys are just doing their job” was improper, since it imputed
insincerity to defense counsel by suggesting that they believed that defendant was
guilty. Keenan, supra, 66 Ohio St.3d at 405-406, 613 N.E.2d at 206-207. While
defense counsel conceded at the outset of trial that their client was guilty, they still
maintained that prior calculation and design, necessary to support a capital offense
conviction, was not proven. Thus, the prosecutor’s prefacing comment was
improper. See Berger v. United States (1935), 295 U.S. 78, 88
,55 S.Ct. 629, 633
,79 L.Ed. 1314, 1321
. However, given the abundant evidence of defendant’s guilt
of aggravated murder with prior calculation and design, this error was harmless in
that it was not outcome-determinative.
{¶ 70} Defendant next contends that he was prejudiced by the prosecutor’s
comments during closing argument at the penalty phase. First, defendant cites the
prosecutor’s “challenge” to defense counsel to look at each juror in the face and
convince them that the mitigating factors the defense presented “come close to
outweigh or be more important than the lives of those three people.” While this
comment was highly theatrical and, when viewed in isolation, improper, it did not
materially prejudice defendant. See State v. Campbell (1994), 69 Ohio St.3d 38, 41
,630 N.E.2d 339, 345
. Prosecutors can urge the merits of their cause and legitimately argue that defense mitigation evidence is worthy of little or no weight. State v. Wilson (1996),74 Ohio St.3d 381, 399
,659 N.E.2d 292, 309
. In any event,
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SUPREME COURT OF OHIO
defense counsel specifically and effectively answered the prosecutor’s challenge
by stating that he was accepting it, and asking the jury to spare defendant’s life.
{¶ 71} Next, defendant essentially complains that the prosecutor denigrated
defense counsel by arguing that the basic message of the defense to the jury is “to
ignore your orders, don’t follow the law, do what you want to do.” This overly
embellished comment borders on impropriety, but was neither outcome-
determinative nor unduly prejudicial. The fact that defense counsel told the jury
that they could “make up your own minds” on the death sentence, even if the
aggravating circumstance outweighed the mitigation beyond a reasonable doubt,
suggests that the prosecutor’s comment was truthful.
{¶ 72} The third penalty phase closing argument comment cited by
defendant was that the prosecutor told the jury, “[Y]ou have been subjected to a
whole variety of issues that were simply presented to you for sympathy purposes.”
This comment, which could be regarded as an expression of personal belief by the
prosecutor, or even a slight denigration of defense counsel, was permissible, since
it was based on the evidence presented during the penalty phase. See State v. Durr
(1991), 58 Ohio St.3d 86, 96
,568 N.E.2d 674, 684
. Further, it was proper to point out to the jurors that their sympathy is irrelevant to their duty as jurors. State v. Lorraine (1993),66 Ohio St.3d 414, 418
,613 N.E.2d 212, 217
.
{¶ 73} Defendant next cites two comments that the prosecutor made
concerning the defense’s failing to call certain witnesses to testify. One involved
the failure to call an expert to testify that defendant suffered from depression. The
other was a rhetorical question, asking why defendant never called any of his
former bosses to testify on his behalf at the mitigation hearing. As mentioned
earlier, comments that a witness other than the accused did not testify are not
improper.
{¶ 74} Defendant also claims error where the prosecutor commented, “You
remember the evidence you heard and I suspect I will be continually interrupted
22
January Term, 1998
throughout this closing argument. It’s kind of a tactic defense attorneys are taught.”
This comment improperly denigrated defense counsel and has no place in a trial.
In our view, such prosecutorial comments potentially infringe on the defendant’s
right to counsel and penalize him for attempting to enforce procedural rights.
Keenan, 66 Ohio St.3d at 406
,613 N.E.2d at 207
. However, the improper comment
appears to be harmless in light of all the evidence, and did not prevent defendant
from obtaining a fair sentencing, as it was not outcome-determinative.
{¶ 75} In sum, defense counsel objected to most of the comments defendant
complains of, but the trial court issued curative instructions that the arguments of
counsel do not constitute the law or evidence in the case. While many of these
prosecutorial comments were embellished, and some were improper, they fall short
of the excessiveness we found prevalent in Keenan, and were not outcome-
determinative. Nevertheless, prosecutors should be on notice to avoid the
comments highlighted here. Cf. Keenan, 66 Ohio St.3d at 410-411
,613 N.E.2d at 210
. Proposition IV is overruled.
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SUPREME COURT OF OHIO
CONSTITUTIONALITY
{¶ 76} In proposition IX, defendant asserts that the Ohio death penalty
review process is unconstitutional in removing courts of appeals from the appeal
process. However, we rejected these arguments in Smith, 80 Ohio St.3d 89
,684 N.E.2d 668
, syllabus.
{¶ 77} In propositions VII, X, XI, XII, and XIII, defendant raises other
constitutional challenges to the death penalty statutes. But we have rejected these
same arguments in numerous cases. See, e.g., Jenkins, 15 Ohio St.3d at 168
, 15 OBR at 314-315,473 N.E.2d at 273
; State v. Zuern (1987),32 Ohio St.3d 56
,512 N.E.2d 585
; State v. Henderson (1988),39 Ohio St.3d 24
,528 N.E.2d 1237
, syllabus; State v. Coleman (1989),45 Ohio St.3d 298, 308
,544 N.E.2d 622
, 633- 634; State v. Mills (1992),62 Ohio St.3d 357
,582 N.E.2d 972
; State v. Buell (1986),22 Ohio St.3d 124, 138
, 22 OBR 203, 215,489 N.E.2d 795, 808
; State v. Evans (1992),63 Ohio St.3d 231, 253-254
,586 N.E.2d 1042, 1059
. See, also, Blystone v. Pennsylvania (1990),494 U.S. 299
,110 S.Ct. 1078
,108 L.Ed.2d 255
.
Accordingly, all of defendant’s constitutional challenges are overruled.
INDEPENDENT SENTENCE EVALUATION
{¶ 78} After independent assessment, we find that the evidence supports
beyond a reasonable doubt the aggravating circumstance that defendant murdered
Kreamelmeyer, Kinney, and Teetzel as part of a course of conduct involving the
purposeful killing of two or more persons. R.C. 2929.04(A)(5).
{¶ 79} The nature and circumstances of the offense provide nothing in
mitigation. On the morning of December 15, 1995, defendant phoned his employer
and got into a heated conversation with dispatcher Kreamelmeyer. Shortly
thereafter, defendant armed himself with several firearms, drank a beer and two
shots of tequila, and went to the offices of Trans-Continental in Evendale.
{¶ 80} Upon encountering Kreamelmeyer, defendant punched him, took out
a gun, and fired two shots at both him and another dispatcher, Kinney. Defendant
24
January Term, 1998
then sought out Teetzel, whom he found hiding under her desk. He pulled out her
desk chair and shot her once but did not shoot her co-worker. Defendant then
proceeded to the second floor offices, apparently looking for the office manager.
When he encountered an office worker who feared that she would be the next
shooting victim, defendant told her he would not harm her. He declared that he
“was only after the ones who screwed him over.” In addition, defendant testified
that when the shootings were over, he walked out to the front of the building. He
testified that he chose the female officer to surrender to in order to avoid getting
slammed to the ground.
{¶ 81} Defendant’s version of the events that he came in for work that day
looking to get a load to deliver and pick up his paycheck, and then went into a “fog”
after Kreamelmeyer supposedly charged at him, totally lacks credibility, given all
the other evidence and testimony adduced at trial.
{¶ 82} Defendant’s history, character, and background provide some
mitigating features. Defendant, fifty-four years old at the time of trial, was the
second child of his parents, but had limited contact with his father, at first, because
of World War II, and then because his parents were divorced around 1948. After
his mother remarried, defendant was never really on speaking terms with his
stepfather, who instructed defendant not to call him “daddy.” Defendant played the
saxophone in his school marching band and married his high school sweetheart
after graduation. Soon after high school, he voluntarily joined the Army, served
overseas, and was later honorably discharged. A few years after moving the family
to Florida, defendant divorced his wife, and she apparently obtained custody of
their two daughters.
{¶ 83} Defendant’s work history was varied. He managed a Frisch’s
restaurant and moved the family to Florida to help save a Frisch’s franchise that
was on the verge of bankruptcy. Defendant worked in various jobs and ran a few
businesses in the succeeding years. He moved back to Cincinnati at the time his
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SUPREME COURT OF OHIO
mother underwent heart bypass surgery and had been very helpful to her in the years
prior to the murders. While back in Cincinnati, defendant sold carpeting for several
years, then enrolled in a training course to learn how to drive a semi-trailer.
{¶ 84} Defendant suffers from depression, and has been taking Prozac for
his condition since March 1994. He also had a history of drug abuse and cocaine
abuse, which he stopped approximately five years before the murders. Defendant
has a scar on his neck from a failed suicide attempt in the past.
{¶ 85} Dr. James Day testified on defendant’s behalf as his personal
physician. Dr. Day prescribed Prozac to defendant to combat his depression, but
did not suggest he undergo group therapy. Dr. Day also treated several other
medical conditions for defendant, including high blood pressure.
{¶ 86} Defendant’s mother, Alice McMichen, also testified on his behalf.
Her testimony basically chronicled defendant’s life history. She testified that
defendant had been a good son to her and was always kind to her. McMichen
believes that defendant should be punished for his crimes, but asked the jury to
spare his life, since she believed that defendant is not “that bad a person.”
{¶ 87} Defendant gave an unsworn statement in which he apologized for
the murders, but acknowledged that an apology is “not enough.” Defendant stated
that “[t]he horrible, ugly person that I became last December 15th is not Gerry
Clemons. It is not me.” Defendant mentioned that he had endured many
nightmares of horror about what he did, and reiterated his sorrow for the crimes he
committed. While affirming that he “must be punished,” defendant pleaded to the
jury, “Please, don’t think I don’t care and I am not truly sorry for my loss of control
or that I could give my own life to change the hurt. Now I can only say that the
sorrow, the shame and remorse that I have and I have put on my family will be with
me forever.”
{¶ 88} With regard to the statutory mitigating factors of R.C. 2929.04(B),
defendant’s lack of a criminal record is entitled to significant mitigating weight.
26
January Term, 1998
See State v. Brewer (1990), 48 Ohio St.3d 50, 64
,549 N.E.2d 491, 504
. Other factors entitled to weight in mitigation include defendant’s depression for which he was being treated with Prozac. His service in the Army, from which he was honorably discharged, is also mitigating.Lundgren, supra,
73 Ohio St.3d at 495
,653 N.E.2d at 324
. In addition, defendant’s expressions of remorse and sorrow are entitled to mitigating weight. State v. Rojas (1992),64 Ohio St.3d 131, 143
,592 N.E.2d 1376, 1387
. Defendant’s cooperation with police after his arrest is only marginally mitigating, as his cooperation is suspect for the reasons stated above. State v. Dunlap (1995),73 Ohio St.3d 308, 319
,652 N.E.2d 988, 998
.
{¶ 89} Nevertheless, after independent weighing in each of the three
murders, we conclude that the aggravating circumstance in each murder outweighs
the mitigating factors beyond a reasonable doubt. Defendant deliberately sought
out and murdered each victim without provocation. Defendant’s course of
murderous conduct merits the capital penalty to which he was sentenced.
{¶ 90} The death sentences imposed in this case are neither excessive nor
disproportionate when compared with similar cases of murder as a course of
conduct involving the purposeful killing of two or more persons. State v. Davie
(1997), 80 Ohio St.3d 311
,686 N.E.2d 245
, involved a former employee killing two former co-workers and a failed attempt to kill a third. It also presented arguably more mitigating factors than the instant case (nineteen-year-old offender; lack of a significant criminal history; conduct disorder), and the death sentence was upheld. Lundgren,73 Ohio St.3d 474
,653 N.E.2d 304
, also arguably contained more
factors in mitigation (difficult childhood, honorable discharge, personality disorder,
lack of a significant criminal record), yet the death penalty was affirmed in that case
as well. Imposing the death sentence in this case is both appropriate and
proportionate.
{¶ 91} Therefore, we affirm defendant-appellant’s convictions and
sentences, including the death sentence.
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SUPREME COURT OF OHIO
Judgment accordingly.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ.,
concur.
__________________
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