State v. Hill

[This opinion has been published in Ohio Official Reports at 

73 Ohio St.3d 433

.]




               THE STATE OF OHIO, APPELLEE v. HILL, APPELLANT.
                        [Cite as State v. Hill, 

1995-Ohio-287

.]
Criminal law—Aggravated murder—Death penalty upheld, when.
        (No. 94-355—Submitted May 9, 1995—Decided August 30, 1995.)
     APPEAL from the Court of Appeals for Hamilton County, No. C-920497.
                                  __________________
        {¶ 1} In March 1991, defendant-appellant, Jeffrey Hill (“Hill”), stabbed to
death his mother, Emma Hill, in her Cincinnati apartment. Then, he ransacked her
apartment and took money to buy cocaine. Three days later, Hill confessed to
killing his mother. A jury convicted Hill of his mother’s aggravated murder, and
he was sentenced to death.
        {¶ 2} According to his confession, Hill went to visit his mother around 6:30
a.m., Saturday, March 23, 1991, because she had promised to help find him an
apartment. When he arrived, he had been smoking cocaine. She gave him $20, and
he left for thirty to sixty minutes. After he came back, she complained he did not
visit her often enough, and they argued. She “was talkin’ to me” and “[t]he next
thing I know she’s layin’ on the floor.” Hill “stabbed” her “more than once” with
a kitchen knife.
        {¶ 3} As Emma lay on her bed, she looked up at him and said, “Why? Why
did you do this?” Hill did not bother to reply, but instead he kept “goin’ through
‘er stuff” looking for “money to get some more crack.” He found $20 and left,
locking the apartment door behind him. Then he drove around in her Oldsmobile
Cutlass Ciera, threw away the knife, smoked more cocaine, and met a new friend,
Charlotte Jones.
        {¶ 4} Around 6:30 or 7:00 p.m. that evening, Hill, along with Jones,
returned to the area near Emma’s apartment. Hill told Jones he was going to get
                             SUPREME COURT OF OHIO




some money from his mother, and Jones waited in the car. Hill later said he went
back “to see if she [his mother] was all right.” He used a jack handle to force the
apartment door open because he had forgotten to take her apartment key. When
detectives asked if his mother was alive then, Hill replied, “she didn’ say nothin’.
So I went in ‘er closet an’ got the rest of the money.” Hill admitted taking $80 and
putting $40 in the car trunk so Jones would not get it.
       {¶ 5} Later that evening, police officer Paul Fangman noticed a 1985
Oldsmobile being driven without lights.         After following the car, Fangman
observed the driver make “quick definite movements” as if he was “trying to hide
something.” In the car, Fangman found a crack cocaine pipe next to the driver’s
seat. Hill, the driver, had no license, and was wanted on an unrelated outstanding
warrant, so Fangman took him into custody. Fangman verified that the Oldsmobile
was registered to Emma Hill and left it, secured, at a nearby parking lot. Fangman
established Jones’ identity and released her.
       {¶ 6} On March 25, while in custody, Hill called and asked a friend to check
on his mother. The friend checked Emma’s apartment, but got no response. That
evening, police entered the ransacked apartment and found Emma’s body next to
her bed. On a living room stool, police found a blood-soaked brown cloth purse.
On a bathroom faucet, police found Hill’s fingerprints, suggesting he may have last
used that faucet.
       {¶ 7} The coroner testified that Emma had been dead for at least thirty-six
hours at the time of the March 26 autopsy. Emma died as a result of ten stab wounds
to her chest and back. Some were inflicted with “considerable force.” One knife
wound perforated the heart and nicked a lung; two others punctured a lung and
broke ribs. Another wound perforated the scapula or “wing bone.” No defensive
type wounds were evident. Emma, sixty-one years old, had been partly paralyzed
from a stroke she had suffered several years before.




                                          2
                                 January Term, 1995




        {¶ 8} On March 26, homicide detectives interviewed Hill and advised him
of his Miranda rights. Hill signed a written waiver of those rights. Hill told
detectives that around March 23 he had been driving in his mother’s car, using
cocaine, but he denied knowing about his mother’s death. Detectives talked with
Jones and Vernon Hill, Hill’s brother. Police further learned Emma never let either
son drive her car without her being present.
        {¶ 9} Then, detectives readvised Hill of his rights and confronted him about
inconsistencies in his statement. After ten or fifteen minutes, Hill “admitted that
he stabbed his mother to death.” Then police readvised Hill of his rights and tape
recorded his confession. After that, Hill asked to see Vernon and told his brother,
“he killed mama but he didn’t mean to.”
        {¶ 10} That evening, at a location pointed out by Hill, police found a
bloodstained knife. Hill identified that as the murder weapon. The coroner
confirmed this knife could have caused Emma’s wounds.
        {¶ 11} Pursuant to a warrant, police searched Emma’s Oldsmobile and
found a tire tool, two $20 bills, and two $1 bills in the trunk. One $1 bill was stained
with type A blood, which was Emma’s blood type. Forensic examination of the
tire tool revealed microscopic brass flakes matching the composition of a brass door
protector on Emma’s apartment door. That brass protector appeared to have “fresh
jimmy marks,” and black paint on that protector matched the painted tire tool.
        {¶ 12} A grand jury indicted Hill on four counts.            Count I charged
aggravated murder during an aggravated robbery, R.C. 2903.01. The single felony-
murder death-penalty specification charged murder during aggravated robbery,
R.C. 2929.04(A)(7). Count II charged aggravated robbery, R.C. 2911.01; Count
III charged aggravated burglary, R.C. 2911.11; and Count IV, theft of a motor
vehicle, R.C. 2913.02. Following competency evaluations by experts, the court
found Hill mentally competent to stand trial. After further evaluations, experts




                                           3
                              SUPREME COURT OF OHIO




found Hill mentally responsible for his acts. At trial, Hill did not pursue his insanity
pleas. Despite not guilty pleas, the jury convicted Hill as charged.
        {¶ 13} At the sentencing hearing, Hill testified, under oath, consistent with
his earlier confession. When he went to see his mother at 6:30 a.m., he “had been
up all night smoking [$400 worth of] crack.” After she gave him $20 to buy
cigarettes, he took her car and bought more cocaine. After he came back, he
recalled talking with her and then seeing her “laying on the floor.” When asked if
he remembered stabbing her, Hill replied “[n]ot really.” After he went “through
everything,” he left to buy more crack. He loved his mother “[m]ore than anything”
and stated it “[a]in’t like I meant to” stab her.
        {¶ 14} Hill, who was twenty-seven just after the murder, testified that he
left high school at age seventeen to take care of his mother for a year after her
stroke. After he left school, Hill worked for several years at various jobs including
helping handicapped children. At the time of the murder, he worked for a dry
cleaning plant. Over the past five years, Hill claimed he had received some thirty-
thousand dollars from settling four accident claims. His mother evidently kept
some of this money for him, but he did not know how much she still had. For a
time, Hill lived with Shawanna Head, who bore him a daughter, for whom he cared.
Hill’s father never lived with his family, but after his father died in 1990, Hill felt
“lost” and “hurt” and began using crack cocaine.
        {¶ 15} Dr. Myron Fridman, a psychologist working with addictions,
described crack cocaine as producing “a very, very intense addiction” causing a
“compulsive behavioral need” to continue use. After a cocaine “binge,” a user can
develop a “mental state” known as “cocaine psychosis.” That may be characterized
by “mental confusion, irrational behavior, *** like a paranoid state *** [or even]
like schizophrenia with hallucinations.” As a cocaine addict, Hill’s behavior could
have been directed “by his overwhelming intense need” for more cocaine. Fridman
believed Hill could be rehabilitated.




                                           4
                               January Term, 1995




       {¶ 16} Hill also introduced into evidence competency and mental
evaluations of Hill performed by four psychologists. After evaluations in July and
September 1991, Dr. Nancy Schmidtgoessling concluded Hill was uncooperative,
malingering, and mentally competent. After a February 1992 evaluation, she found
“no history of any symptoms of any severe mental disease or defect” and concluded
Hill was mentally responsible. Dr. Bill Fuess agreed that Hill was malingering,
competent, and mentally responsible. Dr. Fuess further stated that Hill did suffer
from “borderline personality” and “substance abuse” disorders, and that Hill was
“a seriously depressed individual grieving the death of his mother.”
       {¶ 17} In August 1991, Dr. Massimo DeMarchis evaluated Hill as an
inpatient and found him competent to stand trial. During the evaluation, Hill made
“an extremely poor and naive attempt *** at faking mental illness.” DeMarchis
found Hill’s “refusal to fully cooperate *** nothing more than a conscious,
calculated attempt to delay *** court proceedings.” Hill displayed no “signs of a
major mental disorder.”
       {¶ 18} In contrast, Dr. Roger Fisher found Hill incompetent to stand trial,
but later concluded Hill did not lack mental responsibility when he killed his
mother. Fisher was “not persuaded of the validity” of Hill’s claims of “hearing
‘voices’ and seeing ‘demons.’” Although Fisher thought Hill was “extremely
intoxicated” at the time of the offenses, Fisher had “no reason to believe he was
mentally ill.”
       {¶ 19} Shawanna Head, Hill’s girlfriend, lived with him for five or six years
and they had a daughter whom Hill supported. Robin Hill, Hill’s cousin, lost
contact with him shortly after Hill’s father died. Robin never knew Hill to use
cocaine, and she described him as a decent person, who helped his mother.
       {¶ 20} The jury recommended the death penalty. The trial court sentenced
Hill to death for aggravated murder and terms of imprisonment for the remaining
charges. The court of appeals affirmed.




                                          5
                              SUPREME COURT OF OHIO




                                ____________________
         Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R.
Cummings, Assistant Prosecuting Attorney, for appellee.
         H. Fred Hoefle and D. Shannon Smith, for appellant.
                                ____________________
         ALICE ROBIE RESNICK, J.
         {¶ 21} In this appeal, Hill advances fifteen propositions of law. Finding
none meritorious, we affirm his convictions. We have also independently weighed
the aggravating circumstance against mitigating factors, and compared the sentence
to those imposed in similar cases, as R.C. 2929.05(A) requires. As a result, we
affirm the sentence of death.
                    Inaccurate Jury Sentencing Standard ( I-IV)
         {¶ 22} In propositions of law Nos. I through IV, Hill raises issues centered
around his claim that the jury was fundamentally misled concerning the sentencing
standard by which aggravating circumstances are weighed against mitigating
factors. Yet, Hill did not object at trial to the faulty verdict form or the instructions,
and thus waived all but plain error. “The failure to object to a jury instruction
constitutes a waiver of any claim of error relative thereto, unless, but for the error,
the outcome of the trial clearly would have been otherwise.” State v. Underwood
(1983), 

3 Ohio St.3d 12

, 3 OBR 360, 

444 N.E.2d 1332

, syllabus. Overall, we find
the instructions adequate under the facts of this case and reject Hill’s claims of plain
error.
         {¶ 23} As Hill correctly points out, the jury must find beyond a reasonable
doubt that the “aggravating circumstances” are “sufficient to outweigh” those
“mitigating factors present in the case” before recommending the death penalty.
R.C. 2929.03(D)(2). Unfortunately, at least one life sentence verdict form used in
this case, and possibly both, misstated this standard. Neither life verdict form is in
the record. However, the trial judge told the jury that the life sentence verdict form




                                            6
                                January Term, 1995




involved the jury’s finding that the “mitigating factors are sufficient” to outweigh
the aggravating circumstance. Thus, in referring to that form, the trial judge
asserted, “The second [form] is we, the jury, do find beyond a reasonable doubt that
the mitigating factors are sufficient to outweigh the aggravating circumstances
present in this case.” Additionally, the court and parties frequently and erroneously
referred to “aggravating circumstances” although only one aggravating
circumstance was alleged or proved.
       {¶ 24} In proposition of law No. II, Hill points out that the prosecutor in
argument misstated applicable law by asserting that “mitigating factors do not
outweigh the aggravating circumstances.”        The prosecutor also misspoke by
referring to “any mitigating factor” in the singular, and by referring to the jury
recommending “death in the electric chair.”
       {¶ 25} Notwithstanding the prosecutor’s misstatements and the inaccurate
life sentence verdict form, we deem it unnecessary to reverse this sentencing
determination under the circumstances of this case. First, Hill failed to raise these
issues before the court of appeals. We “will not ordinarily consider a claim of error
that was not raised in any way in the Court of Appeals and was not considered or
decided by that court.” State v. Williams (1977), 

51 Ohio St.2d 112

, 

5 O.O.3d 98

,

364 N.E.2d 1364

, paragraph two of the syllabus.
       {¶ 26} Second, Hill failed to object at trial. As noted before, failure to
object to an instruction waives “any claim of error *** unless, but for the error, the
outcome of the trial clearly would have been otherwise.” State v. Underwood,
syllabus. This principle applies equally to the faulty life sentence verdict form.
“Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution,
under exceptional circumstances and only to prevent a manifest miscarriage of
justice.” State v. Long (1978), 

53 Ohio St.2d 91

, 

7 O.O.3d 178

, 

372 N.E.2d 804

,
paragraph three of the syllabus.




                                          7
                              SUPREME COURT OF OHIO




        {¶ 27} No plain error exists in this case. In fact, the record demonstrates
the parties, including the judge in the instructions, generally did refer to a correct
standard in the sentence proceedings. Thus, the jury understood the applicable
sentencing standard and its sentencing responsibility. The trial court clearly and
correctly instructed the jury more than four separate times in final penalty
instructions that the aggravating circumstances had to outweigh mitigating factors
before the jury could recommend the death penalty. The court defined the term
“reasonable doubt,” and specifically told the jury “the defendant has no burden of
proof.” The court specifically referred once to the state’s burden of proof beyond
a reasonable doubt that the aggravating circumstances outweighed the factors in
mitigation. The court repeated the state’s burden of proof beyond a reasonable
doubt when reading the death penalty verdict form. The court further told the jury
that only if “you are firmly convinced” that aggravating circumstances outweigh
mitigating factors has the state proven its right to a death penalty verdict. If the
jury was not “firmly convinced” that aggravation outweighed mitigation, then the
state was not entitled to a death penalty recommendation.
        {¶ 28} In voir dire, the prosecutor repeatedly referred to the correct
standard. Also, the jury never asked any questions. Moreover, the jury form that
the jury agreed to and signed reflected the correct standard: “We, the Jury, in the
issue joined, do find beyond a reasonable doubt that the aggravating circumstances
[sic] present in this case are sufficient to outweigh the mitigating factors and we
therefore recommend that the sentence of Death be imposed on the defendant,
Jeffrey D. Hill.”
        {¶ 29} When the jury instructions including the verdict forms are viewed in
their entirety, the trial judge adequately informed the jury of its responsibility under
R.C. 2929.03(D)(2). State v. Lorraine (1993), 

66 Ohio St.3d 414, 425

, 

613 N.E.2d 212, 221

. Accord State v. Landrum (1990), 

53 Ohio St.3d 107, 122

, 

559 N.E.2d 710, 727

.




                                           8
                                 January Term, 1995




        {¶ 30} Moreover, we find nothing suggesting the aggravating circumstance
and mitigating factors are in equipoise in this case. In fact, the aggravating
circumstance strongly outweighs the scant mitigating factors beyond a reasonable
doubt, as discussed later. In essence, Hill asked the jury and this court to spare his
life because he is a cocaine addict and confessed to police.            Under those
circumstances, the faulty form or instructions could not have affected the jury’s
decision so that “but for” the faulty form, the “outcome of the trial clearly would
have been otherwise.” State v. Underwood, syllabus.
        {¶ 31} Further, Hill’s failure to object to the prosecutor’s argument also
waived all but plain error. State v. Mills (1992), 

62 Ohio St.3d 357, 373

, 

582 N.E.2d 972, 986

. No plain error resulted because the prosecutor did not deny Hill a fair
trial or cause a miscarriage of justice. State v. Combs (1991), 

62 Ohio St.3d 278, 282

, 

581 N.E.2d 1071

,. 1076; State v. 

Landrum, supra, at 110

, 

559 N.E.2d at 717

.
        {¶ 32} The prosecutor’s reference to the electric chair was accurate, since
the General Assembly had not yet authorized death by lethal injection. See R.C.
2949.22, Sub.H.B. No. 11, effective October 1, 1993. The prosecutor’s brief
misstatements as to “any mitigating factor” and the weighing process were
inconsequential. At times, the prosecutor correctly noted that the aggravating
circumstance must outweigh mitigating factors to justify the death penalty.
Moreover, the court told the jury it was the court’s job to instruct the jury on the
law, and the jury’s duty to follow those instructions. As discussed, the court
adequately instructed the jury as to its responsibilities.
        {¶ 33} Additionally, our independent reassessment of the sentence could
eliminate the effect of these errors. See State v. 

Combs, supra, at 286

, 

581 N.E.2d at 1079

; State v. 

Landrum, supra, at 124

, 

559 N.E.2d at 729

. Thus, we reject Hill’s
plain error assertions in propositions Nos. I and II.
        {¶ 34} In propositions of law Nos. III and IV, Hill asserts he was denied the
effective assistance of counsel at trial and before the court of appeals.          In




                                           9
                              SUPREME COURT OF OHIO




proposition No. III, Hill complains because his counsel did not object at trial to the
verdict form or the prosecutorial misstatements, as discussed in propositions Nos.
I and II. In proposition No. IV, Hill complains his appellate counsel failed to raise
these issues at the court of appeals.
        {¶ 35} Reversal of a conviction or sentence based on ineffective assistance
requires meeting the two-prong standard of Strickland v. Washington (1984), 

466 U.S. 668

, 

104 S.Ct. 2052

, 

80 L.Ed.2d 674

. Strickland requires: (a) deficient
performance, “errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment”; and (b) prejudice, “errors ***
so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”

Strickland at 687

, 

104 S.Ct. at 2064

, 

80 L.Ed.2d at 693

. Accord State v. Bradley
(1989), 

42 Ohio St.3d 136

, 

538 N.E.2d 373

.
        {¶ 36} However, Hill fails to demonstrate either deficient performance or
prejudice. Hill’s counsel reasonably decided not to object to the prosecutor’s brief,
inaccurate comments. Objections “‘tend to disrupt the flow of a trial [and] are
considered technical and bothersome[.]’” State v. Campbell (1994), 

69 Ohio St.3d 38, 53

, 

630 N.E.2d 339, 352

. A decision not to interrupt because of such imprecise
statements reflected “an objective standard of reasonable representation.” See State
v. Bradley, at paragraph two of the syllabus. Also, counsel could have believed the
trial court’s more than four correct references to the aggravating circumstances
outweighing the mitigation factors negated these misstatements.
        {¶ 37} As to the incorrect life verdict form or forms, all parties to the trial,
including the two defense counsel, apparently overlooked that deficiency. Such an
oversight is “not the kind of egregious and unprofessional conduct condemned by
Strickland.” State v. Seiber (1990), 

56 Ohio St.3d 4, 11

, 

564 N.E.2d 408

,. 417.
Accord State v. Scudder (1994), 

71 Ohio St.3d 263, 273

, 

643 N.E.2d 524, 533

.
Overall, counsel’s conduct fell within the wide range of reasonably professional




                                           10
                                January Term, 1995




conduct, and his counsel continued to function as the counsel guaranteed by the
Sixth Amendment.
       {¶ 38} Additionally, Hill has not established prejudice, “a reasonable
probability that, were it not for counsel’s errors, the result of the trial would have
been different.” State v. Bradley, at paragraph three of the syllabus. In fact, the
aggravating circumstance strongly outweighs the scant mitigating factors beyond a
reasonable doubt, as discussed later. Thus, even if counsel had objected and
thereby secured a correct verdict form or eliminated the prosecutor’s
misstatements, no reasonable probability exists as to a different result.
       {¶ 39} Appellate counsel’s tactical decision not to raise in the court of
appeals the claims in propositions Nos. I and II, or the ineffective assistance claim
in proposition No. III, reflected reasonable professional judgment. The first two
issues had been waived at trial and were unlikely to succeed. “This process of
‘winnowing out weaker arguments on appeal and focusing’ on those more likely to
prevail *** is the hallmark of effective appellate advocacy.” Smith v. Murray
(1986), 

477 U.S. 527, 536

, 

106 S.Ct. 2661, 2667

, 

91 L.Ed.2d 434, 445

.
Additionally, Hill has not demonstrated prejudice. Propositions Nos. I through III
create no “reasonable probability” of a different result on appeal were it not for
counsel’s errors. State v. Bradley, at paragraph three of the syllabus. Hence, we
also reject propositions Nos. III and IV.
            Defective Trial and Appellate Sentencing Opinions (V, VI)
       {¶ 40} In propositions of law Nos. V and VI, Hill argues the trial court, in
its sentencing opinion, and the court of appeals, in its reassessment of the sentence,
considered nonstatutory aggravating circumstances and ignored valid mitigation.
We find no merit in either claim.
       {¶ 41} Neither the trial court nor the court of appeals relied upon
nonstatutory aggravating circumstances. Both courts accurately identified the
single aggravating circumstance. When a court does so correctly, that court is




                                            11
                               SUPREME COURT OF OHIO




presumed to rely only on that circumstance, and not on nonstatutory aggravating
circumstances. State v. Rojas (1992), 

64 Ohio St.3d 131, 142

, 

592 N.E.2d 1376, 1386

; State v. Wiles (1991), 

59 Ohio St.3d 71, 90

, 

571 N.E.2d 97, 120

. Neither the
court of appeals’ description of Hill’s crime as “heinous,” nor the trial court’s
alleged     “disgust”   for   Hill’s   offense,   created   nonstatutory   aggravating
circumstances. The facts of the robbery form part of the aggravating circumstance.
State v. Lott (1990), 

51 Ohio St.3d 160, 171

, 

555 N.E.2d 293, 305

. Moreover, a
court “may rely upon and cite the nature and circumstances of the offense as reasons
supporting its finding that the aggravating circumstances were sufficient to
outweigh the mitigating factors.” State v. Stumpf (1987), 

32 Ohio St.3d 95

, 

512 N.E.2d 598

, paragraph one of the syllabus.
          {¶ 42} As to mitigation, “the assessment and weight to be given mitigating
evidence are matters for the trial court’s determination.” State v. 

Lott, supra, at 171

, 

555 N.E.2d at 305

. The fact mitigation evidence is admissible “does not
automatically mean it must be given any weight.” State v. Steffen (1987), 

31 Ohio St.3d 111

, 31 OBR 273, 

509 N.E.2d 383

, paragraph two of the syllabus. See, also,
State v. 

Stumpf, supra,

 at paragraph two of the syllabus. The trial court could
reasonably assign whatever weight, if any, thought to be appropriate for Hill’s drug
dependency or cooperation with police.
          {¶ 43} In discussing and evaluating the evidence, both the trial court and
the court of appeals adequately explained why the aggravating circumstance
outweighed any relevant mitigating factors. Even inadequate explanations do not
require reversal. State v. Fox (1994), 

69 Ohio St.3d 183, 191

, 

631 N.E.2d 124, 131

;
State v. Lewis (1993), 

67 Ohio St.3d 200, 204

, 

616 N.E.2d 921, 925

. Moreover,
our independent reassessment can cure this asserted sentencing deficiency. State
v. Fox, at 191, 

631 N.E.2d at 131

; State v. Combs, 

62 Ohio St.3d at 286

, 

581 N.E. 2d at 1079

; State v. Maurer (1984), 

15 Ohio St.3d 239, 247

, 15 OBR 379, 386, 

473 N.E.2d 768, 778

.




                                           12
                                January Term, 1995




               Comment on Nonapplicable Mitigating Factors (VII)
       {¶ 44} In proposition No. VII, Hill argues that the trial court’s sentencing
opinion justified the death sentence by noting the absence and irrelevance of certain
statutory mitigating factors. We find no prejudicial error.
       {¶ 45} Admittedly, State v. DePew (1988), 

38 Ohio St.3d 275, 289

, 

528 N.E.2d 542, 557-558

, recognizes that “where the defendant does not raise a
particular mitigating factor, that factor need not be considered in the opinions of
the trial court and the appellate court or in the process of weighing[.]” However,
here, the trial court, in an effort to be conscientious and thorough, simply explained
why certain statutory mitigating factors did not apply. We find no fault. By so
commenting, the court did not convert inapplicable mitigating factors into
nonstatutory aggravating circumstances. See State v. Cooey (1989), 

46 Ohio St.3d 20, 39

, 

544 N.E.2d 895, 917

; State v. 

Combs, supra, at 287

, 

581 N.E.2d at 1079

.
                                 Settled Issues (IX)
       {¶ 46} Hill’s proposition of law No. IX, challenging Ohio’s death penalty
statutes, is summarily rejected. See State v. Bedford (1988), 

39 Ohio St.3d 122, 132

, 

529 N.E.2d 913, 923

; State v. Beuke (1988), 

38 Ohio St.3d 29, 38-39

, 

526 N.E.2d 274, 285

; State v. Poindexter (1988), 

36 Ohio St.3d 1

, 

520 N.E.2d 568

,
syllabus.
                        Instructions on Intoxication (X, XI)
       {¶ 47} In proposition of law No. X, Hill argues plain error because the trial
court did not, sua sponte, instruct the jury to consider Hill’s cocaine intoxication in
deciding either his guilt or the recommended penalty. In proposition No. XI, Hill
argues he was denied the effective assistance of counsel because defense counsel
failed to ask for such jury instructions. We reject both propositions.
       {¶ 48} First, Hill failed to request any instruction as to the effect of
intoxication. Thus, Hill waived all but plain error. State v. 

Underwood, supra,

 at
syllabus; Crim.R. 30(A), 52(B). The evidence of Hill’s guilt, as well as the




                                          13
                             SUPREME COURT OF OHIO




evidence supporting the death penalty, negates any claim that “but for the error,”
the trial result “clearly would have been otherwise.” State v. Underwood, syllabus.
        {¶ 49} Second, we have traditionally recognized a trial judge’s discretion
as to whether to instruct a jury on intoxication as a defense. See State v. Fox (1981),

68 Ohio St.2d 53

, 

22 O.O.3d 259

, 

428 N.E.2d 410

; Nichols v. State (1858), 

8 Ohio St. 435

, paragraph two of the syllabus. As Nichols stated at 439, we will not impose
a requirement for a trial judge to so instruct a jury, since “[i]ntoxication is easily
simulated” and “often voluntarily induced for the sole purpose of nerving a wicked
heart[.]”
        {¶ 50} Moreover, the evidence does not reasonably raise the intoxication
issue. “[I]ntoxication is not raised as a defense to the element of purpose in a
criminal prosecution merely because the evidence suggests reduced inhibitions,
impaired judgment or blurred appreciation by the defendant of the consequences of
his conduct.” State v. Hicks (1989), 

43 Ohio St.3d 72

, 

538 N.E.2d 1030

, syllabus.
        {¶ 51} In this case, Hill drove away from his mother’s house, obtained
cocaine, and drove back. Then he stabbed her ten times, searched for and found
money, and drove away again. When he left after killing his mother, he locked her
door behind him. Then, he took the precaution of discarding the murder weapon.
Three days later, he recalled and described the events of the murder to police. His
careful, calculated steps refute any claim that cocaine use interfered with his
capacity to entertain the purposeful intent to kill. See State v. Slagle (1992), 

65 Ohio St.3d 597, 603

, 

605 N.E.2d 916, 924

; State v. 

Hicks, supra, at 74

, 

538 N.E.2d 1034

.
        {¶ 52} As to the penalty phase, the trial court fully instructed the jury on
sentence deliberations and to consider all of the evidence and arguments presented.
The trial court need not instruct the jury to give particular weight to any specific
evidence, such as Hill’s cocaine use. “The fact that an item of evidence is
admissible *** does not automatically mean that it must be given any weight.”




                                          14
                                January Term, 1995




State v. 

Steffen, supra,

 at paragraph two of the syllabus. Also, Hill did not establish
that his cocaine addiction qualified as a mental disease or defect under R.C.
2929.04(B)(3). See State v. Cooey, 

46 Ohio St.3d at 41

, 

544 N.E.2d at 919

; State
v. Van Hook (1988), 

39 Ohio St.3d 256, 262-263

, 

530 N.E.2d 883, 889-890

.
       {¶ 53} We also reject Hill’s proposition of law No. XI, claiming ineffective
assistance of counsel. Defense counsel need not make fruitless requests for jury
instructions, such as those on intoxication. Thus, counsel’s decision not to request
such instructions reflected professional judgment not falling “below an objective
standard of reasonable representation.” State v. 

Bradley, supra,

 at paragraph two
of the syllabus.    Hill also failed to demonstrate prejudice.       No “reasonable
probability” exists that the result of the trial would have been different if counsel
had requested such instructions. State v. Bradley, at paragraph three of the syllabus.
            Defendant’s Absence During Jury-View Instructions (XII)
       {¶ 54} In proposition No. XII, Hill argues his conviction must be reversed
because he was absent when the trial judge instructed the jury immediately prior to
a jury visit to the crime scene. Admittedly, Hill has a fundamental right to be
present at all critical stages of his criminal trial. Section 10, Article I, Ohio
Constitution; Crim.R. 43(A).
       {¶ 55} However, both Hill and his counsel knew about the jury view and
the court’s intention to briefly instruct the jury before the view. Neither Hill nor
his counsel expressed any desire to be there, and Hill specifically waived his
presence at the jury view. “A party will not be permitted to take advantage of an
error which he himself invited or induced.” Hal Artz Lincoln-Mercury, Inc. v. Ford
Motor Co. (1986), 

28 Ohio St.3d 20

, 28 OBR 83, 

502 N.E.2d 590

, paragraph one
of the syllabus; State v. Seiber, 

56 Ohio St.3d at 17

, 

564 N.E.2d at 422

.
       {¶ 56} Moreover, a trial court’s ex parte communication with the jury is not
necessarily prejudicial error. State v. Williams (1983), 

6 Ohio St.3d 281, 286

, 6
OBR 345, 349, 

452 N.E.2d 1323, 1330

. To establish prejudice from such ex parte




                                          15
                             SUPREME COURT OF OHIO




communications, “the complaining party must first produce some evidence that a
private contact, without full knowledge of the parties, occurred between the judge
and jurors which involved substantive matters.” State v. Jenkins (1984), 

15 Ohio St.3d 164

, 15 OBR 311, 

473 N.E.2d 264

, at paragraph thirteen of the syllabus.
        {¶ 57} Hill fails to meet the tests. The parties had prior “full knowledge”
and agreed to the contact.     Moreover, the trial court’s innocuous comments
involved procedures during the view, not substantive matters. Any irregularity was
harmless. State v. Williams, 

6 Ohio St.3d at 286

, 6 OBR at 349, 

452 N.E.2d at 1330

.
             Batson Claims on State’s Peremptory Challenges (XIII)
        {¶ 58} In proposition of law No. XIII, Hill argues the prosecutor exercised
two peremptory challenges in a racially discriminatory manner. Batson v. Kentucky
(1986), 

476 U.S. 79

, 

106 S.Ct. 1712

, 

90 L.Ed.2d 69

, held that the United States
Constitution’s Equal Protection Clause precludes “purposeful discrimination by the
state in the exercise of peremptory challenges so as to exclude members of minority
groups from service on petit juries.” State v. Hernandez (1992), 

63 Ohio St.3d 577, 581

, 

589 N.E.2d 1310, 1313

.
        {¶ 59} To make a prima facie case of such purposeful discrimination, an
accused must demonstrate: (a) that members of a recognized racial group were
peremptorily challenged; and (b) that the “‘facts and any other relevant
circumstances raise an inference that the prosecutor’” used the peremptory
challenges to exclude jurors “‘on account of their race.’” State v. 

Hernandez, supra, at 582

, 

589 N.E.2d at 1313

, citing Batson. If the defendant makes a prima facie
case of discrimination, the state must then come forward with a neutral explanation.

Id.

 A trial court’s finding of no discriminatory intent “will not be reversed on
appeal absent a determination that it was clearly erroneous.” 

Id. at 583

, 

589 N.E.2d at 1314

, following Hernandez v. New York (1991), 

500 U.S. 352

, 

111 S.Ct. 1859

,

114 L.E.2d 395

.




                                         16
                               January Term, 1995




       {¶ 60} In this case, Hill established no prima facie case at trial. The facts
and circumstances raise no inference that the state improperly used peremptory
challenges to exclude potential jurors based on race. The prosecutor properly
challenged one African-American for cause, and did not challenge another who
served on the jury.
       {¶ 61} However, Hill complains about the prosecutor’s peremptory
challenges against two other African-Americans, Robert McDaniel and Gerald
Hutcherson.    Yet, McDaniel, a seventy-year-old veteran, emphatically and
repeatedly asserted he did not want to serve on this jury. McDaniel explained he
could not handle “too much pressure.” He had fought in combat for two and one-
half years during World War II in China and Burma and “caught lead four different
times.” Because of this, McDaniel feared “flashbacks” and was “shell shocked”
and “jumpy.” In fact, the prosecutor challenged him for cause, but the court
rejected that challenge. Then, the prosecutor excused McDaniel with a peremptory,
and Hill raised no Batson claim. Later, Hutcherson was examined and declared he
could not think of any instance where the death penalty was warranted. Hutcherson
also planned to continue working second shift, until 11:00 p.m., even while serving
on the jury.   Hill raised the Batson issue only after the prosecutor excused
Hutcherson.
       {¶ 62} Additionally, the prosecution voluntarily explained, in race-neutral
terms, specific reasons for its peremptory challenges even in the absence of a prima
facie showing. Thus, the trial court need not have interfered with the prosecution’s
peremptory challenges. Hernandez v. New 

York, supra.

 We find no merit in Hill’s
proposition No. XIII.
               Admission of Defendant’s Pretrial Statements(XIV)
       {¶ 63} In proposition of law No. XIV, Hill urges that his pretrial statements
were secured in violation of his Fifth and Sixth Amendment rights. Hill argues that
the principle of Edwards v. Arizona (1981), 

451 U.S. 477

, 

101 S.Ct. 1880

, 68




                                        17
                             SUPREME COURT OF OHIO




L.Ed.2d 378, should be extended. Edwards established a bright-line rule that once
an accused, in custody, asks for a lawyer, questioning must cease until his lawyer
is present. Hill wants to extend Edwards, so that a person in custody for one offense
cannot waive counsel as to another offense.
       {¶ 64} However, Hill’s claims that his Fifth or Sixth Amendment rights
were violated lack merit. As to his Fifth Amendment rights, neither Edwards nor
the further holding in Arizona v. Roberson (1988), 

486 U.S. 675

, 

108 S.Ct. 2093

,

100 L.Ed.2d 704

, is relevant. Hill never invoked his Fifth Amendment right to
counsel. When police questioned Hill on March 26 about his mother’s death, he
had been in custody for three days on unrelated matters, i.e., an outstanding warrant,
traffic violations and possession of the crack cocaine pipe. Police did not question
him about those matters. In fact, no evidence of record exists that Hill asked to
consult with counsel on those matters. Nor does the record establish that Hill had
court-appointed or any other counsel to represent him as to the March 23 charges.
       {¶ 65} Instead, Hill asks us to assume that counsel had been appointed to
represent him for the March 23 charges. Yet, even such an assumption would not
have prevented police questioning on the unrelated issue of his mother’s death.
McNeil v. Wisconsin (1991), 

501 U.S. 171

, 

111 S.Ct. 2204

, 

115 L.Ed.2d 158

, held
that an accused’s Sixth Amendment right is offense specific. Thus, under McNeil,
appointment of counsel with respect to one offense does not bar police questioning
as to a second uncharged offense.
       {¶ 66} In this case, police fully advised Hill of his Miranda rights and
secured a waiver of those rights, prior to questioning Hill about his mother’s death.
In fact, police separately advised Hill of his rights three times before obtaining his
taped confession, and Hill was not then charged with any offense relating to his
mother. Hill testified he asked for a lawyer, and the police told him he did not need
one. However, the police testified Hill specifically told them he did not have and
did not want an attorney.




                                         18
                                January Term, 1995




       {¶ 67} The evidence supports the trial court’s decision to admit Hill’s
confession as lawfully, freely and voluntarily made. Further, the trial court has the
responsibility to weigh the evidence and determine the credibility of witnesses even
during suppression hearings. State v. Fanning (1982), 

1 Ohio St.3d 19, 20

, 1 OBR
57, 58, 

437 N.E.2d 583, 584

; State v. DePew, 

38 Ohio St.3d at 277

, 

528 N.E.2d at 547

.
                      Appointment of Sanity Examiners (XV)
       {¶ 68} In proposition of law No. XV, Hill argues he was denied his right to
an impartial mental-condition examination under R.C. 2945.39 because the same
examiners had already evaluated his mental competency to stand trial. Hill argues
those examiners, because of their prior opinions, could be prejudiced when
evaluating his mental responsibility.
       {¶ 69} In fact, the four examiners did not all agree on their evaluations of
competency. Dr. Fisher found Hill not competent, but agreed malingering was
possible.   Dr. Fuess found Hill was malingering and was competent.              Dr.
Schmidtgoessling recommended further evaluation. After Hill was an inpatient at
a mental health facility, Dr. DeMarchis found Hill made an “extremely poor and
naive attempt *** at faking mental illness,” and found him competent. Hill even
threw a temper tantrum, overturning tables and chairs, after he was told he was
malingering. After interviewing Hill again, Dr. Schmidtgoessling decided Hill was
competent and malingering.
       {¶ 70} In view of the circumstances, we find the trial court did not err in
appointing the same examiners who had evaluated competency to evaluate
separately mental responsibility.       R.C. 2945.371(E) specifically authorizes
appointing the same examiner to evaluate competency for trial and mental condition
at the time of an offense. Separate reports must be prepared, but that was done
here. Moreover, the examiners’ reports are professional and thorough. Appointing
the same examiners makes sense in view of the complexity of myriad details




                                         19
                             SUPREME COURT OF OHIO




involved in mental evaluations. Hill’s attempts to fake mental illness had already
delayed the case, and appointing new examiners would necessitate further delay.
In essence, Hill wants two sets of examiners so he can get “two bites of the apple”
to evade responsibility. We find no abuse of discretion in reappointing the same
examiners.
       {¶ 71} Further, the trial court need not have specifically asked Hill to
recommend an examiner. Hill had no constitutional right to an examiner of his own
choosing. See State v. Esparza (1988), 

39 Ohio St.3d 8, 10

, 

529 N.E.2d 192, 195

.
Also, Hill invoked no rights at trial to recommend an examiner under R.C.
2945.39(A)(3) or secure an independent expert examination under R.C. 2945.
39(C). See State v. Hix (1988), 

38 Ohio St.3d 129

, 

527 N.E.2d 784

, syllabus. We
reject proposition No. XV.
                   INDEPENDENT SENTENCE ASSESSMENT
       {¶ 72} In proposition of law No. VIII, Hill argues the death sentence is
unwarranted because the aggravating circumstance does not outweigh mitigating
factors. R.C. 2929.05(A) requires us to review Hill’s sentence independently.
       {¶ 73} After independent assessment, we find the evidence clearly proves
beyond a reasonable doubt the aggravating circumstance for which Hill was
convicted, i.e., murder during the course of an aggravated robbery. As to mitigating
factors, Hill’s apparent cocaine addiction is a mitigating factor as it relates to the
offense. Aside from that addiction, we find nothing else mitigating in the nature
and circumstances of the offense.
       {¶ 74} We find Hill’s history, character, and background provides nothing
of significant mitigating value. Evidence as to Hill’s steady work record was
sparse. Dr. Fuess did verify that Hill suffered from “personality disorders.” Yet,
we choose to give these disorders little weight, even including his “substance
abuse” disorder. See State v. Slagle, 

65 Ohio St.3d at 614

, 

605 N.E.2d at 931

; State
v. Cooey, 

46 Ohio St.3d at 41

, 

544 N.E.2d at 919

. Hill also said he loved his mother




                                         20
                                January Term, 1995




and cared for his child, and the psychological evaluations confirm Hill was deeply
depressed for killing her. We find nothing else about his history or background to
be mitigating. Nothing in his character appears mitigating.
       {¶ 75} No evidence at trial supports applying any of the statutory mitigating
factors in R.C. 2929.04(B)(1) through (6). Despite Dr. Fridman’s testimony, Hill
did not establish that his personality or conduct disorders were a “mental disease or
defect” under (B)(3). Cf. State v. Seiber, 

56 Ohio St.3d at 8

, 

564 N.E.2d at 415

.
As to “other factors” in R.C. 2929.04(B)(7), Hill’s cooperation with police is a
relevant mitigating factor entitled to slight weight. After initial denials, Hill
admitted responsibility when faced with strong proof of his involvement. We find
no expressions of remorse in Hill’s statement worthy of any mitigating weight.
       {¶ 76} The aggravating circumstance strongly outweighs the slight
mitigation present in this case beyond a reasonable doubt. Aside from Hill’s
cocaine addiction and cooperation with police, no mitigating factors of any
consequence exist. At best, those two factors are entitled to only very little weight.
In contrast, the facts of the aggravating circumstance are horrendous. When
weighed against that circumstance, the mitigating factors and evidence pale into
insignificance. Hill brutally robbed and murdered his own mother, an elderly,
partially paralyzed woman, in her own bedroom, and then left her to die alone. She
had done nothing to provoke or contribute to this vicious assault. No merit is found
in proposition No. VIII.
       {¶ 77} The death penalty in this case is both appropriate and proportionate
when compared with the penalty imposed in similar cases of felony murder. See
State v. Woodard (1993), 

68 Ohio St.3d 70

, 

623 N.E.2d 75

; State v. Lewis, 

67 Ohio St.3d 200

, 

616 N.E.2d 921

; State v. Green (1993), 

66 Ohio St.3d 141

, 

609 N.E.2d 1253

; State v. Mills (1992), 

62 Ohio St.3d 357

, 

582 N.E.2d 972

, including cases
cited at 62 Ohio St.3d at 377, 

582 N.E.2d at 989

.
       {¶ 78} The judgment of the court of appeals is affirmed.




                                         21
                             SUPREME COURT OF OHIO




                                                               Judgment affirmed.
        MOYER, C.J., DOUGLAS, F.E. SWEENEY and COOK, JJ., concur.
        WRIGHT and PFEIFER, JJ., dissent.
                               __________________
        WRIGHT, J., dissenting.
        {¶ 79} I respectfully dissent from the opinion of the majority because I
believe that the sentence of death is inappropriate, given the particular facts of this
case.   Although this court has upheld death sentences based upon a similar
aggravating circumstance, I feel that this case has an entirely different character.
        {¶ 80} Hill did not commit murder with prior calculation and design. The
record reflects that Hill simply snapped due to his drug-induced state prior to the
offense. He had been up all night smoking crack cocaine. He smoked crack cocaine
in his mother’s basement immediately before speaking with her the morning of the
murder. After receiving twenty dollars from his mother, he bought and smoked
more crack cocaine. Hill testified under oath that when he returned to his mother’s
house, he remembers speaking with her and the next thing he knew, she was on the
floor. Hill testified that he did not remember stabbing his mother and told his
brother that he did not mean to kill her. The state does not dispute this as part of
Hill’s confession.
        {¶ 81} Dr. Fridman, a licensed clinical psychologist, spoke on Hill’s behalf
during the mitigation phase. Dr. Fridman testified concerning a condition known
as “cocaine psychosis” that develops during heavy use of cocaine. Dr. Fridman
stated that this condition is characterized by mental confusion, irrational behavior,
a paranoid state, irritability, rapid changes in perception, release of inhibition, and
panic reactions. Dr. Fridman also testified that when cocaine is no longer available,
the addict goes through a period known as “abstinence syndrome.” Dr. Fridman
stated that during this period, the addict is “often capable of behaving and doing




                                          22
                                January Term, 1995




anything to get their drug, behaving in very irrational ways. They can certainly be
violent, aggressive.”
       {¶ 82} With regard to Hill’s use of crack cocaine, Dr. Fridman opined that
Hill’s addiction would be classified as “chronic, long-term cocaine addiction,” and
that Hill “was an addict [and] had been an addict for some time.” When asked
whether Hill’s actions on the night of the murder had any connection with the
murder, Dr. Fridman testified that “a crack addict who has just binged on a lot of
crack, has an abstinence syndrome and his behavior at that time can be directed by
his need, his overwhelming intense need for more of the drug, for more crack.”
       {¶ 83} It is undisputed that the offense occurred in large part as a result of
Hill’s drug use and dependency. In light of the foregoing, I question whether Hill
was able to form the purposeful intent to kill and believe that his chronic addiction
should be viewed as a significant factor in determining punishment in the case
before us.
       {¶ 84} By stating that Hill’s drug use played a significant role in the murder
of his mother, I am not advocating the proposition that drug use, standing alone,
should be viewed as a substantial mitigating factor. I simply believe that under the
particular circumstances of this case, Hill’s drug use is “relevant to the issue of
whether the offender should be sentenced to death.” R.C. 2929.04(B)(7).
       {¶ 85} Hill cannot and should not be excused from punishment for his
crime. The law of this state demands that a heavy penalty be imposed for the taking
of a life. However, I cannot join in the decision of the majority to sentence Hill to
death. For the foregoing reasons, I would uphold Hill’s convictions, vacate his
death sentence, and remand the case to the trial court for resentencing pursuant to
R.C. 2929.06.
       PFEIFER, J., concurs in the foregoing dissenting opinion.
                              __________________




                                         23