State v. Hill

[This opinion has been published in Ohio Official Reports at 

75 Ohio St.3d 195

.]




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

1996-Ohio-222

.]
Criminal law—Aggravated murder—Death penalty upheld, when.
      (No. 95-202—Submitted December 6, 1995—Decided March 5, 1996.)
 APPEAL from the Court of Appeals for Hamilton County, Nos. C-910916 and C-
                                          940487.
                                  __________________
        {¶ 1} On May 31, 1991, defendant-appellant, Genesis Hill, crept into his
girlfriend’s apartment in Cincinnati and surreptitiously removed their six-month
old daughter, Domika Dudley. On June 2, police found Domika’s body, wrapped
in trash bags, in a vacant lot behind Hill’s house.
        {¶ 2} Hill, age nineteen, and Teresa Dudley, age eighteen, lived near each
other and had an on-going relationship. Their daughter, Domika Dudley, was born
in November 1990. Around May 29, 1991, Barbara Janson, a neighbor, heard
Teresa “making silly little comments” to Hill that she was going to take him to court
for child support. Hill replied that “he’d kill that little bitch before he paid
anything.” Teresa recalled Hill saying, “I bet I don’t pay,” when she asked him
about child support.
        {¶ 3} On May 31, in the late afternoon, Hill and Teresa were together in
Hill’s yard. Teresa became upset, they argued, and Teresa went home. That
evening, Teresa went to sleep in her mother’s second-floor apartment in the same
room as Domika. Between 11:00 p.m. and midnight, Janson and another neighbor
saw Hill enter the front yard of Teresa’s apartment building, but they did not see
Hill leave. That front entrance was the only entry way to her apartment except for
the back yard which was enclosed by a high wall. Ten to fifteen minutes after the
neighbors saw Hill, Teresa came out and said Domika was missing.
                             SUPREME COURT OF OHIO




       {¶ 4} Teresa went to Hill’s home, but was told that Hill was not there and
did not have the baby. Hill lived in the same building as did his uncle and two
aunts. Just then, Hill appeared, but he denied knowing where his daughter was. A
neighborhood search for Domika by police proved unsuccessful. Hill appeared
unconcerned, did not participate in the search, and was “snickering” and “grinning”
as Teresa talked to police about their missing baby.
       {¶ 5} Around 5:45 a.m., June 1, Teresa and one of Hill’s aunts found a
distinctive blue and pink barrette on the floor of Hill’s garage. That barrette was
identical to one used in Domika’s hair before she went to sleep.
       {¶ 6} On the afternoon of June 2, police found a suspicious SMA® baby
formula carton in an overgrown vacant lot behind Hill’s garage. That box was not
there on the day before when police searched the lot. Domika’s body was inside
the carton.   A plastic shopping bag and three plastic trash bags had been
successively wrapped around her body. Black electrical tape was wrapped around
the outer trash bag.
       {¶ 7} A man’s blue shirt, with white and red stripes, was tied around
Domika’s head. Teresa and Janson identified this shirt as one that “looks like” a
shirt Hill owned.
       {¶ 8} Domika died as a result of three skull fractures, and she had been dead
for more than twelve hours. Either a strong, blunt force had struck her head, or her
head had been crushed. She might have been injured in a fall, but it seems only if
another force had hit her during or after the fall. She was wearing only a diaper
and two barrettes.
       {¶ 9} The baby formula box, in which Domika was found, was similar to
one that Hill’s aunt had placed in the trash pile next to Hill’s garage. The box was
in the trash on June 1, but not on June 2. Batch numbers on a SMA® can from the
aunt’s pantry matched batch numbers on the box in which Domika was found.
Hill’s uncle was unable to find the black electrical tape that he kept in a tool box.




                                          2
       {¶ 10} A forensic expert testified that the last trash bag wrapped around
Domika had once been directly attached to a trash bag found in Hill’s kitchen.
Microscopic grain, crease, and other distinctive marks made in the manufacturing
process matched exactly on the two trash bags.
       {¶ 11} At Teresa’s apartment, police found Hill’s right thumb print on a
hallway light bulb near where Teresa and Domika had slept. When Teresa went to
sleep that night, the hallway door had been partly open and the light had been on.
When she awoke and discovered Domika missing, the light bulb was unscrewed.
       {¶ 12} On the evening of June 2, the day Domika’s body was found, a
Cincinnati bus driver overheard a conversation on his bus. One young man, crying
and upset, told another, “he could not believe what he had done to a little baby.”
The man further said, “he thought he might get the chair for it.” After the bus driver
heard the news about a dead baby, police were called. The bus driver picked Hill
out of a photo array as the young man crying on the bus.
       {¶ 13} A grand jury indicted Hill on two felony-murder counts in violation
of R.C. 2903.01: murder during an aggravated burglary (Count I) and during a
kidnapping (Count II). Each aggravated murder count contained two death-penalty
specifications under R.C. 2929.04(A)(7)(murder during an aggravated burglary and
murder during a kidnapping). Count III charged aggravated burglary in violation
of R.C. 2911.11, and Count IV charged kidnapping in violation of R.C. 2905.01.
Hill pled not guilty.
       {¶ 14} At trial, numerous friends and relatives testified for Hill and
described his activities on the evening of May 31. Defense witnesses suggested
that only two trash bags had been in the kitchen; that Teresa was not a good mother;
that she had been aggressive towards Hill on May 31; that she had access to the
trash bags in Hill’s kitchen; and that she may have “planted” the barrette on the
garage floor.




                                          3
                             SUPREME COURT OF OHIO




       {¶ 15} Hill testified as to his activities on May 31. He admitted he had been
in the hallway, outside Teresa’s door, around 11:00 p.m., and had unscrewed the
light bulb. He claimed he only “whistled” to Teresa. When she did not answer, he
left and went out the front, the same way he came in. He said he then “[w]ent on
about [his] business” (drinking with friends). In his narrative testimony, Hill
implicitly denied taking Domika, but he did not explicitly do so.             Cross-
examination revealed discrepancies between his testimony and his statements to
police and two mental health professionals.
       {¶ 16} The jury found Hill guilty as charged.
                             Penalty Phase Evidence
       {¶ 17} Numerous relatives testified regarding Hill’s character. One aunt
described him as “kind,” “sweet,” and “gentle.” Another aunt said he was a
“loving, caring” person who was always helpful. Others described him as a “good
person,” a “very nice person,” “very outgoing,” and one who “treats people very
well.” His grandparents and other relatives described the difficult environment in
which Hill was raised and expressed their love and understanding for him. His
juvenile case worker described him as “likable” and “respectable,” although easily
“intimidated.”
       {¶ 18} According to the record, Hill was born on June 7, 1971, and his
mother suffered from serious depression and chronic emotional problems. Hill
grew up in an extremely poor and drug-infested neighborhood, with a lot of
“negative influences” and “temptations.” His family was very poor. Hill’s father,
an ex-convict, had only a distant relationship with him and contributed little to his
support or upbringing. Hill left school after the eighth grade.
       {¶ 19} In his opening statement, trial counsel conceded Hill had a juvenile
record for arson, burglary, resisting arrest, and tampering with a coin machine.
Family members also disclosed that Hill had become involved with drugs and gangs




                                         4
as a youngster, and had “sold drugs to have things *** to survive” and to support
himself.
        {¶ 20} Dr. Nancy Schmidtgoessling found Hill to be of average intelligence
with the capacity to develop job skills and educate himself. However, Hill had
always struggled academically. At fourteen, Hill started using drugs and alcohol.
At sixteen, Hill had “problems with serious depression, and wrote suicide notes.”
At seventeen, a psychiatric evaluation found that he suffered from “major
depression with psychotic features” and he reportedly experienced auditory
hallucinations. But, in June 1991, Schmidtgoessling found that Hill was rational
and intelligent, had no mental disease or defect, and was not suffering from major
depression.
        {¶ 21} In an unsworn statement, Hill said, “I feel hurt. Growing up was
hard. A lot of things wasn’t right for me,” and he “struggled to survive.” He was
“sorry that you all have to be here,” “sorry that the baby [was] gone,” and “sorry
for the family.” He neither admitted nor denied killing Domika. After hearing the
evidence, the jury recommended the death penalty.
        {¶ 22} After the jury recommended death, Hill appeared before the judge
for sentencing. At that hearing, Hill told the court that he was “sorry you have to
judge me. *** [I] just hope and pray that you can spare my life.” His probation
officer asserted that Hill told him that he “did not brutally nor intentionally kill that
baby. He told me it was an accident.” After explaining its reasons, the trial court
then imposed the death penalty.
        {¶ 23} Upon appeal, the court of appeals affirmed the convictions and
sentence of death. The case is now before us on an appeal as of right.
                                __________________
        Joseph T. Deters, Hamilton County Prosecuting Attorney, and Christian J.
Schaefer, Assistant Prosecuting Attorney, for appellee.
        H. Fred Hoefle and Chuck R. Stidham, for appellant.




                                           5
                             SUPREME COURT OF OHIO




                               __________________
       MOYER, C.J.
       {¶ 24} Appellant has raised twenty-six propositions of law. We have
reviewed each and, for the reasons stated, we find that none justifies reversal of
appellant’s convictions for the crimes of aggravated murder, aggravated burglary,
and kidnapping. We have also independently reviewed the record, weighed the
aggravating circumstances against the mitigating factors, and examined the
appropriateness and proportionality of the death sentence in this case. Upon review
of the record, we affirm appellant’s convictions and death sentence.
                                          I
                     Prosecutorial Misconduct-Penalty Phase
       {¶ 25} In his first and second propositions of law Hill contends that, at the
close of the penalty phase of the trial, the prosecutor engaged in misconduct in the
presentation of his closing argument. Hill claims that the prosecutor improperly
attempted to focus the jury's attention upon nonstatutory aggravating circumstances
in the form of evidence of the nature and circumstances of the crime, e.g., that the
crime was brutal, and that the victim was defenseless.        Hill complains of the
prosecutor’s comment on the victim’s age, status, helplessness and injuries, as well
as the fact that Domika was kidnapped while her mother slept.
       {¶ 26} Hill's argument that the prosecutor engaged in misconduct by arguing
nature-and-circumstances evidence is foreclosed by the syllabus in State v. Gumm
(1995), 

73 Ohio St.3d 413

, 

653 N.E.2d 253

, where we held, as a matter of statutory
interpretation of R.C. 2929.03(D), that a prosecutor at the penalty stage of a capital
trial may introduce and comment upon, inter alia, evidence that is relevant to the
aggravating circumstances specified in the indictment of which the defendant was
found guilty, and evidence rebutting the existence of any statutorily defined or other
mitigating factors first asserted by the defendant. While Hill acknowledges Gumm's
holding, he suggests that our interpretation of R.C. Chapter 2929 in Gumm invalidates




                                          6
Ohio's entire death penalty statutory framework as unconstitutional. He infers that
this court is constitutionally required to impose severe restrictions upon the scope of
a prosecutor's argument to the jury in the penalty phase of a capital trial, and that to
do otherwise allows the imposition of an unreliable death sentence.
        {¶ 27} We reject Hill's arguments, which, in large part, are repetitious of those
made in Gumm. As we there recognized, the United States Supreme Court has
consistently relied upon the premise that both the criminal and his crime are properly
considered in determining the propriety of imposing a death sentence. Similarly,
while recognizing that a sentence of death may not be made under sentencing
procedures that create a substantial risk of being inflicted in an arbitrary and capricious
manner, that court nevertheless has approved of the presentation of a "wide scope of
evidence and argument *** at presentence hearings." Gregg v. Georgia (1976), 

428 U.S. 153, 203-204

, 

96 S.Ct. 2909, 2939

, 

49 L.Ed.2d 859, 891-892

. See, e.g.,
California v. Ramos (1983), 

463 U.S. 992, 1008

, 

1035 S.Ct. 3446

, 3457, 

77 L.Ed.2d 1171, 1185

; Gumm at syllabus. The court has expressly refused to "fashion general
evidentiary rules, under the guise of interpreting the Eighth Amendment, which would
govern the admissibility of evidence at capital sentencing proceedings." Romano v.
Oklahoma (1994), 

512 U.S. ____

, 

114 S. Ct. 2004, 2011

, 

129 L. Ed. 2d 1, 12-13

.
        {¶ 28} In the penalty phase of a capital trial, an Ohio jury is statutorily required
to "consider" all of the evidentiary factors identified in the first paragraph of R.C.
2929.03(D)(1). Our syllabus in Gumm reflected that statutory provision. The second
paragraph of R.C. 2929.03(D)(1) provides, however, that the jury's ultimate
recommendation as between a life or death sentence is dependent upon the jury's
balancing of whether the “aggravating circumstances the defendant was found guilty
of committing” (i.e., the R.C. 2929.04 specifications identified in the indictment) "are
sufficient to outweigh the factors in mitigation of the imposition of the sentence of
death." In Gumm, we recognized it to be improper for a prosecutor to argue to a jury
that individual facts surrounding an aggravated murder “are the aggravating




                                             7
                              SUPREME COURT OF OHIO




circumstances” in a death penalty case. Such statements are improper, however, not
because they seek to focus the jury’s attention on the facts surrounding the crime, but
rather because they misstate Ohio law. Nature-and-circumstances facts are not
“aggravating circumstances” as the term is used in R.C. 2929.03 and 2929.04, or as
that term is properly incorporated into jury instructions given to guide a jury in coming
to its ultimate recommendation.       At the same time, however, pursuant to R.C.
2929.03(D) as interpreted in Gumm, a prosecutor may incorporate proven facts
surrounding a murder into the state’s closing argument even when those proven facts
could increase rather than decrease the likelihood that a sentence of death will
ultimately be recommended. Cf. Romano v. Oklahoma, 

512 U.S. at _____

, 

114 S.Ct. at 2009-2010

, 

129 L.Ed.2d at 10-11

.
        {¶ 29} Our holding in Gumm is necessary in order to harmonize the various
subsections of R.C. 2929.03(D). Acceptance of Hill’s argument would effectively
eliminate the first paragraph of R.C. 2929.03(D)(1), as well as the first phrase of R.C.
2929.03(D)(2), both of which require a jury to "consider" a wide range of evidence
during the penalty phase of the trial, as well as counsel’s arguments.
        {¶ 30} We will not interpret Ohio’s capital sentencing statute to require a jury
to make its recommendation between life and death in a factual vacuum. Nor will we
accept an interpretation of Ohio’s statutes which runs the risk of resulting in the same
kind of unbalanced presentation found unnecessarily unfair to the state in Payne v.
Tennessee (1991), 

501 U.S. 808

, 

111 S.Ct. 2597

, 

115 L.Ed.2d 720

, where "‘a parade
of witnesses may praise the background, character and good deeds of Defendant ***
without limitation as to relevance, but nothing may be said that bears upon the
character of, or the harm imposed, upon the victims.’" 

Id.,

501 U.S. at 826

, 

111 S.Ct. at 2609

, 

115 L.Ed.2d at 736

. We will not sanction a procedure by which counsel for
a criminal defendant is provided full opportunity to vigorously argue the full range of
mitigating evidence procured on behalf of his or her client, while his adversary, the
prosecutor, is precluded from vigorously arguing the entire scope of facts surrounding




                                           8
the act of murder of which the defendant has been convicted. We instead affirm the
view of Justice Cardozo, as did the majority of the United States Supreme Court in
Payne, that "‘[j]ustice, though due to the accused, is due to the accuser also.’" 

Id. at 827

, 

111 S.Ct. at 2609

, 

115 L.Ed.2d at 736

, citing Snyder v. Massachusetts (1934),

291 U.S. 97, 122

, 

54 S.Ct. 330, 338

, 

78 L.Ed. 674, 687

. In short, a capital defendant
in Ohio is not statutorily or constitutionally entitled to protection during the sentencing
process from the facts he himself created in committing his crime.
        {¶ 31} Our conclusions are reinforced by the recognition that there is no
constitutional requirement that aggravating circumstances be “weighed against”
mitigating factors, nor does the Constitution require that the sentencing process "be
transformed into a rigid and mechanical parsing of statutory aggravating factors."
Barclay v. Florida (1983), 

463 U.S. 939, 950

, 

103 S.Ct. 3418, 3425

, 

77 L.Ed.2d 1134, 1144

. Similarly, “[i]f the State chooses to permit the admission of victim impact
evidence and prosecutorial argument on that subject, the Eighth Amendment erects
no per se bar." Payne, at 827, 

111 S.Ct. at 2609

, 

115 L.Ed.2d at 736

. The Eighth
Amendment to the United States Constitution does require, however, that a defendant
be found guilty of at least one valid, limiting, statutory aggravating circumstance, and
that the defendant be provided full opportunity to present evidence in mitigation. Zant
v. Stephens (1983), 

462 U.S. 862

, 

103 S.Ct. 2733

, 

77 L.Ed.2d 235

. Our interpretation
of Ohio's death penalty statutes preserves these constitutional requisites, and guards
against arbitrary imposition of a death sentence by limiting the class of death-eligible
murderers to those who are found guilty of at least one of the statutorily-defined
aggravating circumstances enumerated in R.C. 2929.04(A).
        {¶ 32} Hill concedes that defense counsel made no objection whatsoever to
any portion of the prosecutor's argument. Because Hill failed to object at trial, his
challenges to the prosecutor's argument must be analyzed according to plain-error
standards, and his death sentence should be reversed only if error is found and that
error is deemed to have denied him a fair trial. State v. Wade (1978), 

53 Ohio St.2d 9

                            SUPREME COURT OF OHIO




182, 

7 O.O.3d 362

, 

373 N.E.2d 1244

; State v. Campbell (1994), 

69 Ohio St.3d 38, 41

,

630 N.E.2d 339, 345

. The United States Constitution does not require us to hold that
the traditional prosecutorial role of vigorously presenting and arguing admissible
evidence must or should be restrained in a capital case beyond the limits
constitutionally required in other criminal cases. A death sentence need not be
reversed on constitutional grounds even when prosecutorial comment is "‘undesirable
or even universally condemned,’" unless the prosecutor's comments "‘so infected the
trial with unfairness as to make the resulting conviction a denial of due process.’"
Darden v. Wainwright (1986), 

477 U.S. 168, 181

, 

106 S.Ct. 2464, 2471

, 

91 L.Ed.2d 144, 157

.
       {¶ 33} While the prosecutor did improperly characterize the facts
surrounding the crime as “the aggravating circumstances,” misstatements of that
nature do not mandate reversal of Hill’s sentence, where, as here, the trial court
correctly instructed the jury as to the precise aggravating circumstances, thereby
negating any confusion arising from the prosecutor’s imprecision. See 

Gumm at 422

, 

653 N.E.2d at 263

. See, also, Romano v. Oklahoma, 

512 U.S. at ___

, 

114 S.Ct. at 2012

, 

129 L.Ed.2d at 13-14

.
       {¶ 34} The prosecutor commented on Hill’s prior criminal record
(including delinquency adjudications for burglary, arson, breaking into a coin box,
resisting arrest), his history as a drug dealer, and his mental condition. Hill,
however, offered extensive character evidence, and Hill’s own witnesses and
opening statement during the sentencing proceeding discussed the topics he now
complains about.    The prosecutor could fairly comment on facts properly in
evidence and argue the relative value of mitigation offered. State v. Greer (1988),

39 Ohio St.3d 236, 253

, 

530 N.E.2d 382, 402

; State v. Clark (1988), 

38 Ohio St.3d 252, 254-255

, 

527 N.E.2d 844, 848-849

. Thus, the prosecutor properly argued the
relative mitigating weight that should be given to accused’s age. See Gumm, at
syllabus.




                                        10
        {¶ 35} Hill also complains the prosecutor asked the jury to perform “a
necessary function to maintain the civilized order in society” and commented that
“the ultimate punishment must be inflicted to maintain a civilized law and order[ed]
society.” Yet this brief comment, responding to a defense argument referring to the
Bible, in the context of Hill’s entire trial, did not rise to the level of a denial of due
process. See State v. Murphy (1992), 

65 Ohio St.3d 554, 571

, 

605 N.E.2d 884, 899

;
State v. Beuke (1988), 

38 Ohio St.3d 29, 33

, 

526 N.E.2d 274, 280

.
        {¶ 36} Error arising from the prosecutor’s excessive comment on the
unsworn nature of Hill’s statement and the fact that Hill could not be cross-
examined, if any, was harmless. See State v. Lorraine, 66 Ohio St.3d at 419, 613
N.E.2d at 218; State v. DePew (1988), 

38 Ohio St.3d 275, 284

; 

528 N.E.2d 542, 553

. Hill’s second proposition of law asserting error in the overruling of a motion
in limine to limit the prosecution’s argument lacks merit since the denial of a motion
in limine does not preserve a claimed error for review in the absence of a
contemporaneous objection at trial. State v. Brown (1988), 

38 Ohio St.3d 305

, 

528 N.E.2d 523

, paragraph three of the syllabus.
        {¶ 37} In proposition twelve, Hill argues the prosecutor improperly cross-
examined a defense psychologist as to whether Hill suffered from a mental disease
or defect or understood right from wrong. However, Hill introduced evidence as to
his past mental problems and his psychological and mental condition in an effort to
prove a mitigating “other factor.” See R.C. 2929.04(B)(7). The prosecutor’s cross-
examination helped define the parameters of the defense claims, and was not
improper. See Evid.R. 611(B); State v. Evans (1992), 

63 Ohio St.3d 231, 244

, 

586 N.E.2d 1042, 1054

.
                                           II
                       Prosecutorial Misconduct-Guilt Phase
        {¶ 38} In his third proposition of law, Hill argues the prosecutor’s guilt-
phase argument was improper. In final argument, the prosecutor “tossed” a shirt




                                           11
                             SUPREME COURT OF OHIO




on defense counsel’s table, and the shirt “slid on the slick surface and came to rest
on the table in front of” Hill and “may have” contacted Hill’s hands.            Hill
responded, “Don’t throw that at me,” and Hill’s counsel objected. The trial court
did not observe any “contact” between Hill and the shirt.
         {¶ 39} “[T]he touchstone of due-process analysis in cases of alleged
prosecutorial misconduct is the fairness of the trial, not the culpability of the
prosecutor.” Smith v. Phillips (1982), 

455 U.S. 209, 219

, 

102 S.Ct. 940, 947

, 

71 L.Ed.2d 78, 87

; see State v. DePew, 

38 Ohio St.3d at 284

, 

528 N.E.2d at 553

. The
prosecutor may well have improperly handled the exhibit by tossing it on the
defense table. Yet, assuming arguendo that the toss of the shirt was improper, we
find no prejudice to Hill in light of the overwhelming evidence of his guilt.
Compare State v. Webb (1994), 

70 Ohio St.3d 325, 328

, 

638 N.E.2d 1023, 1028

;
State v. Landrum (1990), 

53 Ohio St.3d 107, 110

, 

559 N.E.2d 710, 717

.
         {¶ 40} Hill also complains the prosecutor suggested that Hill lacked
remorse, that he lied in testimony, and that his counsel tried to confuse the jury.
However, Hill failed to object to these remarks and thus waived all but plain error.
State v. Slagle (1992), 

65 Ohio St.3d 597, 604

, 

605 N.E.2d 916, 924-925

; Crim.R.
52(B).
         {¶ 41} We find neither plain nor prejudicial error.         Counsel could
legitimately point out that Hill did not react when scenes of his dead child were
shown. An accused’s face and body are physical evidence, and a prosecutor can
comment on them. State v. Lawson (1992), 

64 Ohio St.3d 336, 347

, 

595 N.E.2d 902, 911

; State v. Brown, 

38 Ohio St.3d 305, 317

, 

528 N.E.2d 523, 538

. The
prosecutor also referred to defense counsel making “an effort really to defend the
client, but also to confuse the jury, which I think goes hand in hand[.]”        The
comment, read in full context, represented an inartful attempt to convince the jury
that defense counsel’s interpretation of the evidence should be rejected. We do not
believe the comment deprived Hill of a fair trial.




                                         12
       {¶ 42} The prosecutor improperly interjected his personal opinion that Hill
lied. State v. Apanovitch (1987), 

33 Ohio St.3d 19, 24

, 

514 N.E.2d 394, 400

. Yet,
the prosecutor did not suggest that the jury should doubt Hill’s credibility based
simply on the fact that the prosecutor believed him to be a liar, but rather referred
to evidence of Hill’s inconsistent statements, which suggested falsity. Moreover,
Hill can scarcely complain since his counsel repeatedly used variations of personal
belief, “I think” or “I believe,” in the preceding argument. See, e.g., State v. Rogers
(1986), 

28 Ohio St.3d 427

, 28 OBR 480, 

504 N.E.2d 52

, paragraph two of the
syllabus.
       {¶ 43} Isolated comments by a prosecutor are not to be taken out of context
and given their most damaging meaning. Donnelly v. DeChristoforo (1974), 

416 U.S. 637, 647

, 

94 S.Ct. 1868

, 

40 L.Ed.2d 431

. A closing argument must be viewed
in its entirety to determine prejudice. State v. Byrd (1987), 

32 Ohio St.3d 79, 82

,

512 N.E.2d 611

. Viewed in its entirety, the prosecutor’s mistakes in argument
neither materially prejudiced Hill nor denied him a fair trial. See State v. Loza
(1994), 

71 Ohio St.3d 61, 78

, 

641 N.E.2d 1082, 1102

.
       {¶ 44} In proposition eighteen, Hill argues the prosecutor improperly
showed a photo of Domika’s body to witness Teresa Dudley, and asked her to
identify it. Teresa reacted emotionally, started sobbing, and left the stand. Hill’s
counsel moved for a mistrial and asserted she was still “screaming and yelling” in
the hall six to ten minutes later. However, Teresa resumed testifying without
further incident or reference to the photograph.
       {¶ 45} The impact of emotional outbursts at trial by witnesses or spectators
cannot be judged by an appellate court on a cold record. “Was the jury disturbed,
alarmed, shocked or deeply moved? *** These questions necessarily depend upon
facts which no record can reflect.” State v. Bradley (1965), 

3 Ohio St.2d 38, 40

, 

32 O.O.2d 21, 22

, 

209 N.E.2d 215, 216

. Normally, only the trial judge can make the
necessary factual determinations on these questions. “[H]is findings thereon will




                                          13
                               SUPREME COURT OF OHIO




not be disturbed on review in the absence of evidence on the face of the record
clearly and affirmatively showing that the jury was improperly affected ***.”

Bradley at 41

, 

32 O.O.2d at 22

, 

209 N.E.2d at 217

. Accord State v. Morales (1987),

32 Ohio St.3d 252, 255

, 

513 N.E.2d 267, 271

.
       {¶ 46} The prosecutor did not err by placing Teresa on the stand, nor by
showing her the child’s photo. She was an essential witness relating relevant,
crucial testimony. She testified about Hill’s refusal to support Domika and his
breaking their window, with a brick, causing her mother to banish Hill. Teresa
identified the shirt wrapped around Domika’s body as identical to one Hill owned.
Teresa placed three barrettes in Domika’s hair that night; she later found one on the
floor in Hill’s garage. Showing her the photo of Domika’s body was a natural part
of her testimony. Domika was taken from her presence. Only Teresa could readily
confirm Hill’s identity as the father or testify that he lacked her permission to enter
the apartment or take Domika.
       {¶ 47} In fact, Hill cross-examined Teresa extensively and elicited
favorable testimony. Teresa confirmed she had no custody order and that Hill
treated children kindly and had once taken Domika with permission. Teresa also
agreed she permitted Hill to visit her, and that she and Hill were involved in an
ongoing sexual relationship.
       {¶ 48} Nothing suggests that the prosecutor called Teresa to evoke
sympathy or an emotional outburst. Compare State v. Tyler (1990), 

50 Ohio St.3d 24, 35

, 

553 N.E.2d 576, 591

; State v. Williams (1988), 

38 Ohio St.3d 346, 354

, 

528 N.E.2d 910, 919

. The trial court instructed the jury not to be influenced by
sympathy or prejudice.      Under all the circumstances, no “clear, affirmative
evidence” exists that Teresa’s earlier outburst deprived Hill of a fair trial. State v.
Morales, 

32 Ohio St.3d at 255

, 

513 N.E.2d at 271

. Thus, we reject proposition
eighteen.
                                         III




                                          14
                               Sufficiency of Evidence
          {¶ 49} In propositions of law thirteen through sixteen, Hill argues the
evidence was insufficient to sustain his convictions. In a review for sufficiency
following a conviction, we must consider the evidence in a light most favorable to
the prosecution. Jackson v. Virginia (1979), 

443 U.S. 307

, 

99 S.Ct. 2781

, 

61 L.Ed.2d 560

; State v. Jenks (1991), 

61 Ohio St.3d 259

, 

574 N.E.2d 492

, paragraph
two of the syllabus. Moreover, the evaluation of the weight of the evidence and
credibility of witnesses are jury issues. State v. Waddy (1992), 

63 Ohio St.3d 424, 430

, 

588 N.E.2d 819, 825

; State v. DeHass (1967), 

10 Ohio St.2d 230

, 

39 O.O.2d 366

, 

227 N.E.2d 212

. We find the evidence adequately proved Hill’s guilt of
aggravated murder, kidnapping, and aggravated burglary.
          {¶ 50} The evidence supported the jury’s finding that Hill was Domika’s
killer. Two witnesses identified Hill as entering Teresa’s yard within fifteen
minutes of Domika’s disappearance. They did not see him leave. Hill admitted he
was there, and his thumbprint on the unlit hall light bulb confirmed this. Domika’s
body was found in a vacant lot behind his garage. Hill’s shirt and trash bags from
his apartment were wrapped around her body. She had been stuffed in a carton,
which had been earlier discarded near Hill’s garage. Her barrette was found on
Hill’s garage floor. Finally, a disinterested bus driver reported that, on the day
Domika was found dead, Hill said that he would “get the chair” for what he did to
a baby.
          {¶ 51} Hill argues that no proof exists that he purposefully killed Domika.
However, Domika died as a result of multiple blunt force or blunt impacts to her
head. Her three skull fractures could not have been caused by a simple fall. Violent
shaking, in addition to blunt trauma, may have contributed to her death, but the
coroner concluded Domika died as a result of homicide, not accident. Hill had
vowed never to pay child support and to “kill that little bitch” first. In view of




                                          15
                             SUPREME COURT OF OHIO




Domika’s injuries and Hill’s declared intentions, the jury could reasonably find that
Hill purposefully killed Domika.
       {¶ 52} In proposition of law fourteen, Hill argues that as Domika’s natural
father, he has equal rights to her custody under Ohio law and cannot be convicted
of kidnapping her. Admittedly, R.C. 3109.03 specifies that when a husband and
wife are divorced or living separate and apart, “they shall stand upon an equality as
to the parental rights and responsibilities ***.” Pasqualone v. Pasqualone (1980),

63 Ohio St.2d 96, 100

, 

17 O.O.3d 58, 61

, 

406 N.E.2d 1121, 1124

, recognized that
“[i]n the absence of an agreement or binding court order, parents have equal rights
to custody ***.” Accord In re Corey (1945), 

145 Ohio St. 413

, 

31 O.O. 35

, 

61 N.E.2d 892

. However, R.C. 3109.03 deals with a husband and wife, not the rights
of a putative father who has neither acknowledged paternity nor supported the child.
See, also, R.C. 3109.12; 3111.03.
       {¶ 53} Moreover, R.C. 2905.01(A), in defining the crime of kidnapping,
specifies that, “No person *** [if under thirteen, by any means] shall remove
another from the place where he is found or restrain him of his liberty, for any of
the following purposes: *** (3) To terrorize, or to inflict serious physical harm on
the victim *** .” No exception is made for either a father or mother. Other
deprivation-of-liberty crimes, with different elements, specifically exclude parents
by use of the term, “without privilege to do so.” See R.C. 2905.02; 2905.03;
2905.05. See, also, R.C. 2905.04(C). We find that the absence of any reference to
privilege in R.C. 2905.01 evinces a clear legislative intent to forbid kidnapping by
any person regardless of parental rights.
       {¶ 54} Hill took Domika from her mother’s presence, without waking the
mother, and therefore clearly did not kill her at the scene. Approximately thirty
minutes later, Hill reappeared without Domika. The jury could find that the injuries
inflicted closely followed the kidnapping in time, but they were distinct and
separate offenses. State v. Simko (1994), 

71 Ohio St.3d 483, 488

, 

644 N.E.2d 345

,




                                            16
351; see State v. Morales, 

32 Ohio St.3d at 255-256

, 

513 N.E.2d at 272

. The jury
could also reasonably find Hill intended to inflict serious harm at the time he took
Domika. Thus, the evidence supports the jury’s verdict of guilt of the crime of
kidnapping.
       {¶ 55} Hill further argues he had permission to enter the Dudley residence
at any time; hence, he could not be guilty of burglary.            At trial, Teresa
acknowledged that Hill was allowed to visit the hallway. He also regularly visited
her apartment and spent the night there.
       {¶ 56} However, Teresa denied Hill had permission “that night” to visit her
apartment. Also, Hill admitted to police and testified that he had broken a Dudley
apartment window some three months before. As a result, Teresa’s mother refused
to allow Hill to come back, and Teresa confirmed this. In sum, the jury could
reasonably find Hill lacked consent for entry. Moreover, his unauthorized taking
of Domika would have revoked any prior consent. See State v. Bonnell (1991), 

61 Ohio St.3d 179, 183

, 

573 N.E.2d 1082, 1086

; State v. Steffen (1987), 

31 Ohio St.3d 111, 115

, 31 OBR 273, 

509 N.E.2d 383, 388-389

.
       {¶ 57} Hill further argues that the jury’s consideration of two unproved
capital specifications skewed the weighing process. However, the evidence proved
Hill’s guilt, as the principal offender, of both the kidnapping and aggravated
burglary death-penalty specifications. Thus we reject propositions of law thirteen
through sixteen.
                                           IV
               Admission of accused’s statements / Search results
       {¶ 58} In proposition seventeen, Hill argues the trial court erred in
admitting rebuttal prosecution evidence as to pretrial statements he made during
court-ordered interviews about his mental condition. In his testimony, Hill denied
previously saying he had been at a family picnic all day. In rebuttal, a psychiatrist
and a mental health interviewer testified that Hill told them that he had spent all




                                           17
                             SUPREME COURT OF OHIO




day May 31 at a family picnic. Hill argues these statements were inadmissible
because these mental health professionals did not advise him of his Miranda rights
and his counsel was not present.
       {¶ 59} However, the prosecutor could properly impeach Hill with evidence
of these prior inconsistent statements. Evid.R. 613(B). Under Harris v. New York
(1971), 

401 U.S. 222

, 

91 S.Ct. 643

, 

28 L.Ed.2d 1

, the state can use an accused’s
voluntary, but un-Mirandized statement, to impeach trial testimony. “The shield
provided by Miranda [v. Arizona (1966), 

384 U.S. 436

, 

86 S.Ct. 1602

, 

16 L.Ed.2d 694

] cannot be perverted into a license to use perjury by way of a defense, free from
the risk of confrontation with prior inconsistent utterances.” Harris, 

401 U.S. at 226

, 

91 S.Ct. at 646

, 

28 L.Ed.2d at 5

. Accord State v. Maupin (1975), 

42 Ohio St.2d 473, 480-481

, 

71 O.O.2d 485

, 

330 N.E.2d 708, 714

. Michigan v. Harvey
(1990), 

494 U.S. 344

, 

110 S.Ct. 1176

, 

108 L.Ed.2d 293

, reaffirming Harris, held
that an accused’s voluntary statement could be used to impeach even when the
statement was taken in violation of the right to have counsel present.
       {¶ 60} Here, Hill voluntarily talked to trained listeners and had an
opportunity on the stand to explain his statements. Harris and Harvey permit such
rebuttal evidence. Estelle v. Smith (1981), 

451 U.S. 454

, 

101 S.Ct. 1866

, 

68 L.Ed.2d 359

, concerns direct, not rebuttal, use of evidence and is not on point. Also,
while Hill objected to being cross-examined as to his prior statements, he did not
object to the rebuttal testimony and waived the issue.
       {¶ 61} In proposition of law twenty-two, Hill argues his pretrial statements
to police were inadmissible. In his June 1 and June 4 statements, Hill denied
responsibility and described his activities on May 31 and June 1. As Hill points
out, these statements were inconsistent with each other and with his trial testimony.
At a suppression hearing, Hill testified police never advised him of his rights and
that he signed Miranda forms without reading them. Police officers testified that




                                         18
they informed Hill of his rights, that he read and signed the Miranda forms, and
that he talked freely and willingly.
       {¶ 62} “[T]he weight of the evidence and credibility of witnesses are
primarily for the trier of the facts. *** This principle is applicable to suppression
hearings as well as trials.” State v. Fanning (1982), 

1 Ohio St.3d 19, 20

, 1 OBR
57, 58, 

437 N.E.2d 583, 584

. The trial court chose not to believe Hill and rejected
his motion to suppress. The police testimony supports admissibility, and we find
no basis to reverse the trial court. State v. Mills (1992), 

62 Ohio St.3d 357, 366

,

582 N.E.2d 972, 982

; State v. Smith (1991), 

61 Ohio St.3d 284, 287-288

, 

574 N.E.2d 510, 514-515

.
       {¶ 63} In proposition twenty-three, Hill challenges the admission of
evidence, principally the trash bags, seized from his residence on June 2. Hill
testified that police never explained the search-consent form which he and his uncle
signed but did not read. But police officer Robert Steinher testified that he
thoroughly explained the consent form, and Hill and his uncle both signed it.
       {¶ 64} The trial court resolved the conflicting testimony and rejected Hill’s
motion to suppress. The totality of the circumstances supports the voluntariness of
Hill’s consent. Schneckloth v. Bustamonte (1973), 

412 U.S. 218

, 

93 S.Ct. 2041

, 

36 L.Ed.2d 854

; State v. Barnes (1986), 

25 Ohio St.3d 203, 208-209

, 25 OBR 266,
271, 

495 N.E.2d 922, 926

. We reject propositions seventeen, twenty-two and
twenty-three as lacking merit.
                                         V
                      Verdict Form/Correction of the Record
       {¶ 65} In his fourth and fifth propositions, Hill argues his rights were
infringed because the jury’s sentencing verdict originally showed a November 19,
1991, file stamped date although the trial’s penalty phase did not begin until
November 20 and ended November 22, 1991.




                                         19
                               SUPREME COURT OF OHIO




        {¶ 66} On December 28, 1993, the trial court held hearings on this issue. A
contemporaneous clerical note on the indictment shows the jury sentencing verdict
was rendered on November 22, as does the trial transcript. The prosecutor also
testified that the jury did not reach any verdict before the hearing and only one
death penalty verdict form existed. That form, given to the jury on November 22,
at the end of the penalty hearing, was blank and unsigned by jurors. After
arguments and evidence, the trial court corrected the record to change the journal
entry date on the jury’s verdict form to November 22.
        {¶ 67} In this case, Hill continues to argue an issue he lost in his prior
attempt to stop the trial court from correcting this record. In State ex rel. Hill v.
Niehaus (1994), 

68 Ohio St.3d 507, 508

, 

628 N.E.2d 1376, 1377

, we held “[t]he
trial court has authority to resolve disputes and correct factual errors in a trial
record, including disputes over when a verdict form was filed ***.” Accord App.R.
9(E); Crim.R. 36. Evidence at the hearing supports the trial court’s ruling, and we
find no basis to reverse that ruling or our decision in State ex rel. Hill v. 

Niehaus, supra.

 We reject Hill’s fourth and fifth propositions.
        {¶ 68} We note another oversight relating to verdict forms in this case. In
referring to the life verdict form, the trial court read it as, “We, the jury, in the issue
joined, find the mitigating factors outweigh the aggravating circumstances *** and
recommend *** [life without parole consideration for thirty or twenty full years]
[emphasis added].” However, Hill waived the issue by not objecting at trial or at
the court of appeals.
        {¶ 69} We find no plain error. The verdict form the jury signed and the
court’s instructions stated the correct standard that aggravating circumstances must
outweigh mitigating factors beyond a reasonable doubt. State v. [Jeffrey] Hill
(1995), 

73 Ohio St.3d 433, 437-438

, 

653 N.E.2d 271, 277

. Nonetheless, we urge
trial judges and counsel to use the utmost caution and precision in referring to the
absolute requirement that aggravating circumstances outweigh mitigating factors




                                            20
beyond a reasonable doubt before the death sentence can be imposed. R.C.
2929.03.
                                           VI
                         Defects in prior sentencing opinions
          {¶ 70} In his sixth through eighth propositions of law, Hill attacks the
sentencing opinions issued by the trial court and court of appeals. We reject any
claims of reversible error.
          {¶ 71} As Hill points out, the trial court erred in not filing its sentencing
opinion until April 1, 1993, although it imposed the death penalty on December 6,
1991. R.C. 2929.03(F) requires sentencing opinions to be filed within fifteen days
of the imposition of a death sentence. However, Hill was not prejudiced. At the
time he imposed the death sentence, the trial judge explained his reasons. Hill’s
appeal was not delayed, and Hill had full opportunity to argue to the court of appeals
(as well as this court) any asserted deficiency in the written opinion. See State v.
Martin (1985), 

19 Ohio St.3d 122, 132

, 19 OBR 330, 339, 

483 N.E.2d 1157

, 1166-
1167; see State v. Scott (1986), 

26 Ohio St.3d 92, 105

, 26 OBR 79, 90, 

497 N.E.2d 55, 66

.
          {¶ 72} Hill also argues the trial court failed to articulate reasons why the
aggravating circumstances outweighed mitigating factors. However, the trial judge
did evaluate the mitigating factors presented at the time he sentenced Hill.
Moreover, our “independent review of a sentence will cure any flaws in the trial
court’s opinion.” 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

; and State
v. Lott (1990), 

51 Ohio St.3d 160, 170

, 

555 N.E.2d 293, 304

, all held that a trial
court’s failure to explain why aggravating circumstances outweighed mitigating
factors may be corrected by our independent sentence assessment.
          {¶ 73} We reject Hill’s claim that the trial court erred in evaluating
mitigating evidence. “In fact, the assessment and weight to be given mitigating




                                           21
                             SUPREME COURT OF OHIO




evidence are matters for the trial court’s determination.” State v. 

Lott at 171

, 

555 N.E.2d at 305

; State v. 

Fox at 193

, 

631 N.E.2d at 132

. Even if there were errors,
our independent reassessment will cure them. 

Lott, supra.

       {¶ 74} Hill further argues for rejection of the death sentence because the
trial court found that Hill was innocent and “mercy should be granted.” Admittedly,
the trial court wrote imprecisely, “The Court finds that the mitigating circumstances
were that the defendant was young and innocent and that mercy should be granted
in imposing sentence.”
       {¶ 75} However, Hill’s claim that the trial judge thought Hill innocent of
the crimes and specifications set forth in the indictment is inaccurate. Earlier in the
opinion, the trial court specifically found that “[t]he defendant was guilty of
purposely taking the life of a child *** .” Further, “[t]he Court finds that as a
principal offender the defendant kidnapped a young child and purposely killed the
child during the course of the kidnapping and aggravated burglary.”
       {¶ 76} The court’s contemporaneous sentencing remarks also refute any
claim the judge thought Hill innocent: “You irresponsibly created a life, brought
into this world a child unwanted, unloved, and uncared for by you *** [.] Then, to
avoid responsibility for this action, you took that life coldly and calculatingly,
simply to avoid your responsibilities.” Again, any deficiency in the trial court’s
opinion is cured by our independent sentence reassessment. 

Lott, supra.

       {¶ 77} Hill also attacks the opinion of the court of appeals because it fails,
in Hill’s view, to state why the aggravating circumstances outweigh mitigating
factors. However, we find the court of appeals carefully evaluated the aggravating
circumstances and Hill’s mitigating evidence in its independent sentence
assessment. Within that assessment, the court of appeals explained why it found
the aggravating circumstances outweighed mitigating factors.
       {¶ 78} Moreover, only R.C. 2929.03(F), applicable to trial courts, imposes
a requirement for explaining “the reasons why the aggravating circumstances ***




                                          22
outweigh the mitigating factors.” No such requirement exists in R.C. 2929.05,
which governs appellate sentencing decisions. Finally, our independent sentence
assessment can cure any deficiency in the court of appeals’ opinion. State v. Simko,

71 Ohio St.3d at 493

, 644 N.E.2d at 354; State v. Green (1993), 

66 Ohio St.3d 141, 150

, 

609 N.E.2d 1253, 1261

.
                                        VII
                              Ineffective Assistance
       {¶ 79} In his ninth proposition, Hill claims his counsel was ineffective
during his trial. However, reversal of a conviction or sentence on ineffective
assistance requires that the defendant show, first, that “counsel’s performance was
deficient” and, second, that “the deficient performance prejudiced the defense ***
so as to deprive the defendant of a fair trial.” Strickland v. Washington (1984), 

466 U.S. 668, 687, 693

, 

104 S.Ct. 2052, 2064

, 

80 L.Ed.2d 674

; State v. Bradley (1989),

42 Ohio St.3d 136

, 

538 N.E.2d 373

.
       {¶ 80} Hill fails to establish his counsel’s performance fell “below an
objective standard of reasonable representation.” State v. Bradley, at paragraph two
of the syllabus. Counsel need not raise meritless issues such as those in several
propositions Counsel’s decision not to object to the prosecutor’s guilt or sentencing
arguments represented a reasonable tactical choice, as did not objecting to the form
of questions. The prosecutor did not improperly lead witnesses. Nor was the scope
of redirect beyond that of the cross-examination. Also, objections “‘tend to disrupt
the flow of a trial’” and “‘are considered technical and bothersome’” by a jury.
State v. Campbell, 

69 Ohio St.3d at 53

, 

630 N.E.2d at 352

. In sum, Hill has not
rebutted the applicable “strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” 

Strickland, supra, at 689

, 

104 S.Ct. at 2065

, 

80 L.Ed.2d at 694

.
       {¶ 81} Nor has Hill demonstrated prejudice -- “a reasonable probability
that, were it not for counsel’s errors, the result of the trial would have been




                                         23
                              SUPREME COURT OF OHIO




different.” State v. Bradley, 

42 Ohio St.3d 136

, 

538 N.E.2d 373

, at paragraph three
of the syllabus. The evidence of guilt was compelling; hence, his complaints about
issues like question format are inconsequential.
                                         VIII
                     Cumulative error/Trial judge intervention
        {¶ 82} In his tenth proposition, Hill argues the cumulative effect of errors,
especially prosecutorial misconduct, and his lack of effective counsel denied him a
fair trial and just result. But his claims of error lack merit.
        {¶ 83} “[T]here can be no such thing as an error-free, perfect trial, and ***
the Constitution does not guarantee such a trial.” United States v. Hasting (1983),

461 U.S. 499, 508-509

, 

103 S.Ct. 1974, 1980

, 

76 L.Ed.2d 96, 106

. Hill received a
fair trial, few errors were found, and any error found did not prejudice his
substantial rights. Such errors cannot become prejudicial by sheer weight of
numbers. State v. Davis (1991), 

62 Ohio St.3d 326, 348

, 

581 N.E.2d 1362, 1380

.
        {¶ 84} In his eleventh proposition, Hill generally complains about the plain-
error rule and argues that trial judges should intervene more often to protect an
accused from an ineffective counsel. However, we have recently reaffirmed the
plain-error rule. State v. Campbell, 

69 Ohio St.3d at 40-41

, 

630 N.E.2d at 344-345

.
Additionally, trial courts cannot interfere with counsel’s trial tactics or
representation of their clients. A trial court’s authority to declare a mistrial sua
sponte is limited. See State v. Glover (1988), 

35 Ohio St.3d 18

, 

517 N.E.2d 900

.
Thus, we reject both Hill’s tenth and eleventh propositions.




                                           24
                                         IX
                                   Settled Issues
       {¶ 85} Hill’s remaining propositions of law raise settled issues of law.
Prospective juror Marianne Lewis was properly excused for cause, and the trial
court used the correct constitutional standard to death-qualify the jury.        See
Wainwright v. Witt (1985), 

469 U.S. 412

, 

105 S.Ct. 844

, 

83 L.Ed.2d 841

; State v.
Tyler, 

50 Ohio St.3d at 30

, 

553 N.E.2d at 586

; State v. Rogers (1985), 

17 Ohio St.3d 174

, 17 OBR 414, 

478 N.E.2d 984

, paragraph three of the syllabus. Hill failed to
object at trial and preserve for review any issue relating to the jury verdict as a
recommendation. (e.g. 1776) State v. Underwood (1983), 

3 Ohio St.3d 12

, 3 OBR
360, 

444 N.E.2d 1332

, syllabus; Crim.R. 30(A). In fact, no error occurred. State v.
Woodard (1993), 

68 Ohio St.3d 70, 76-77

, 

623 N.E.2d 75, 80

; State v. Grant
(1993), 

67 Ohio St.3d 465, 472

, 

620 N.E.2d 50, 61

. Hill is entitled to only six not
twelve peremptory challenges. State v. Mills, 

62 Ohio St.3d 357, 365

, 

582 N.E.2d 972, 981

; State v. Greer, at paragraph two of the syllabus.          Our system of
proportionality review does not infringe the Constitution. State v. Jenkins (1984),

15 Ohio St.3d 164, 176-177

, 15 OBR 311, 322, 

473 N.E.2d 264, 279

; State v.
Sowell (1988), 

39 Ohio St.3d 322, 335

, 

530 N.E.2d 1294, 1308

. Finally, we reject
Hill’s constitutional attack on Ohio’s death penalty statue. State v. Mills, 

62 Ohio St.3d at 371

, 

582 N.E.2d at 985

; State v. 

Sowell at 336

, 530 N.E.2d at 1309.
                                         X
                 INDEPENDENT SENTENCE ASSESSMENT
       {¶ 86} In his twenty-fourth proposition, Hill argues the prosecution failed
to prove beyond a reasonable doubt that the aggravating circumstances outweighed
relevant mitigating factors; hence, he argues the death penalty is inappropriate. Our
independent sentence reassessment resolves that issue.
       {¶ 87} After independent assessment, we find the evidence clearly proves
the aggravating circumstances for which Hill was convicted, i.e., murder during a




                                         25
                             SUPREME COURT OF OHIO




kidnapping and aggravated burglary. As to possible mitigating factors, we find
nothing in the nature and circumstances of the offense to be mitigating. Hill
secretly kidnapped his daughter from her mother, while both slept. Then he brutally
killed her, denied knowing where she was while neighbors searched, and later
disposed of her body as though it were trash.
       {¶ 88} Hill’s history and background provide mitigating features.
Admittedly, Hill had a difficult life growing up in an urban slum. His mother was
depressed and poor, and he lacked a strong, supportive father. Relatives also
described him as sweet, kind and gentle, and several family members clearly loved
and cared for him. Yet, even his relatives, in effect, conceded that Hill never
outgrew nor overcame the difficult challenges present in his youth. No evidence
exists of a favorable work record; instead, Hill appears to have chosen to use and
sell drugs to support himself. Although of average intelligence, he quit school after
the eighth grade. He fathered a daughter, but evaded suggestions he support the
child. In sum, we accord his history and background only modest weight. We find
nothing in his character to be mitigating.
       {¶ 89} As to the statutory mitigating factors, R.C. 2929.04(B)(1) through
(6), only (B)(4), his youth, is applicable. Hill was born on June 7, 1971, and thus
was fully nineteen on May 31, 1991, the date of the offense. Yet, at trial, the
possibility was raised that he was born on June 7, 1972, making him not quite
nineteen on May 31, 1991. However, even if only eighteen, Hill, with average
intelligence, had been out of school for years, had been involved in gangs, and had
fathered a child. Thus, he was mature enough to be fully accountable for his acts.
Cf. State v. Lorraine, 

66 Ohio St.3d at 429

, 613 N.E.2d at 224; State v. Slagle, 

65 Ohio St.3d at 613

, 

605 N.E.2d at 931

.
       {¶ 90} As to “other factors” as contemplated by R.C. 2929.04(B)(7), none
appear to possess significant weight. Hill’s vague expressions of remorse are not
determinative. Rehabilitation does not appear likely. Cf. State v. Fox, 

69 Ohio St.3d 26

183, 194-195, 

631 N.E.2d 124, 133

. Dr. Schmidtgoessling’s testimony fails to
establish any significant mental state entitled to mitigating weight. Admittedly, Hill
underwent a psychiatric evaluation a few years previously and was then thought to
suffer from mental problems. However, no evidence established that he suffered
from any mental problems at the time of the offense. Similarly, in view of the
evidence, we accord no weight to residual doubt.
       {¶ 91} We find that the aggravating circumstances outweigh Hill’s youth
and the modest mitigating features of his history and background. Thus, we find
the death penalty is appropriate. His victim was young, innocent, and helpless. As
her father, he had a responsibility to nurture and protect her. Instead, by stealth and
burglary, he kidnapped her from her mother, purposefully murdered her, and then
callously disposed of her body. Although Hill came from a deprived background,
he has demonstrated neither the desire nor effort to rise above the unfortunate
circumstances of his birth despite family members who loved and assisted him.
       {¶ 92} Imposing the death penalty in this case is appropriate and not
excessive nor disproportionate when compared with the penalty in similar felony-
murder cases of kidnapping. State v. Joseph (1995), 

73 Ohio St.3d 450

, 

653 N.E.2d 285

; State v. 

Simko, supra;

 State v. Scudder (1994), 

71 Ohio St.3d 263

, 

643 N.E.2d 524

; State v. 

Fox, supra;

 State v. Jells (1990), 

53 Ohio St.3d 22

, 

559 N.E.2d 464

;
State v. Brewer (1990), 

48 Ohio St.3d 50

, 

549 N.E.2d 491

; and State v. 

Morales, supra.

 The death penalty is also proportionate and not excessive when compared
with felony-murder cases involving burglary. State v. 

Campbell, supra;

 State v.
Franklin (1991), 

62 Ohio St.3d 118

, 

580 N.E.2d 1

; State v. 

Bonnell, supra;

 and
State v. 

Landrum, supra.

       {¶ 93} Accordingly, we affirm the convictions and death penalty.
                                                                  Judgment affirmed.
       RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ., CONCUR.
       DOUGLAS and WRIGHT, JJ., concur in judgment only.




                                          27
SUPREME COURT OF OHIO




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         28