State v. Lindsey

[This opinion has been published in Ohio Official Reports at 

87 Ohio St.3d 479

.]




            THE STATE OF OHIO, APPELLEE, v. LINDSEY, APPELLANT.
                      [Cite as State v. Lindsey, 

2000-Ohio-465

.]
Criminal law—Aggravated murder—Death penalty upheld, when.
   (No. 97-2003—Submitted September 14, 1999—Decided January 19, 2000.)
 APPEAL from the Court of Common Pleas of Brown County, Nos. 97-CR-2015
                                     and 97-CR-2064.
                                  __________________


        {¶ 1} In the early morning hours of February 10, 1997, appellant, Carl
Lindsey, was at Slammers Bar near Mt. Orab along with Kathy Kerr, Kenny
Swinford, A.J. Cox, and Joy Hoop, one of the bar owners. According to the
testimony at trial, Joy had wanted her husband, Donald Ray “Whitey” Hoop, dead,
and that night appellant told her “he would do him in.” Joy then handed a small
gun to appellant, and appellant left the bar. Kathy Kerr also decided to leave the
bar at that point, but heard a banging noise. As she left she saw Whitey lying on
the ground, covered with blood, and appellant standing by the door. According to
investigators, Whitey had been shot once in the face while seated inside his vehicle.
He apparently then left his vehicle and remained in the parking lot where he was
shot again in the forehead. Upon seeing Whitey on the ground, Kerr immediately
left for her home, which was only a few hundred feet away. Appellant followed
her in his pickup truck, and she allowed him into her trailer to take a shower.
        {¶ 2} At approximately the same time that these events were occurring,
Brown County Deputy Sheriff Buddy Moore was on patrol and passed Slammers
Bar. He noticed and was suspicious of a pickup truck in the parking lot and followed
it from the bar south to the Kerr residence. A couple minutes later, he received a
police dispatch that a shooting had been reported at Slammers and headed back
                             SUPREME COURT OF OHIO




toward the bar. On the way, Moore noticed a car pass him at a high speed going
south. When he arrived at Slammers, he found Whitey Hoop’s body lying in the
parking lot. When backup arrived, Moore instructed a state trooper to go to Kerr’s
trailer, look for the pickup, and make sure that no one left the premises. Moore also
left for Kerr’s trailer.
        {¶ 3} When Moore arrived at the Kerr residence, he found appellant in the
bathroom, soaking his clothes in a tub full of red-tinted water. He also found a box
of .22 caliber ammunition on the sink. At that point, Moore took appellant into
custody. Upon a search of the premises, police seized from the Kerr trailer
appellant’s wallet, the ammunition, the clothing in the tub, and a .22 caliber
Jennings semiautomatic pistol, which they discovered behind the bathroom door.
They also found and seized Whitey’s wallet, which was in a wastebasket in the
bathroom.       When discovered, Whitey’s wallet was empty, although an
acquaintance of Whitey’s testified that Whitey habitually carried about $1,000 with
him. Police also found $1,257 in appellant’s wallet, although he had been laid off
in late December 1996.
        {¶ 4} The crime laboratory tested the bloodstains on the items seized by
police and found the stains on appellant’s jacket, jeans, boot, truck console,
steering-wheel cover, driver’s seat, driver’s-side door, and door handle all to be
consistent with Whitey’s blood. One of the stains on the Jennings .22 pistol was
also consistent with Whitey’s blood.
        {¶ 5} Appellant was indicted on two counts of aggravated murder, one
under R.C. 2903.01(A) (prior calculation and design) and one under R.C.
2903.01(B) (felony-murder), each count carrying a death specification for felony-
murder (R.C. 2929.04[A][7]) and the first count also carrying a specification for
murder for hire (R.C. 2929.03[A][2]). He was also indicted on one theft count and
two aggravated robbery counts. At the close of the evidence, the trial court granted
appellant’s Crim.R. 29 motion for judgment of acquittal on the murder-for-hire


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                                 January Term, 2000




specification. A jury then found appellant guilty on all counts and all remaining
specifications and, after a penalty hearing, recommended death. The trial judge
merged the two aggravated murder counts and imposed the death sentence.
       {¶ 6} The cause is now before this court upon an appeal as of right.
                                __________________
       Thomas F. Grennan, Brown County Prosecuting Attorney, for appellee.
       H. Fred Hoefle and Cathy R. Cook, for appellant.
                                __________________
       COOK, J.
       {¶ 7} Appellant presents fifteen propositions of law for our consideration.
We have carefully reviewed these propositions and have fulfilled our responsibility
to independently review the record, weigh the aggravating circumstances against
the mitigating factors, and examine the proportionality of the sentence of death.
Because R.C. 2929.05 does not require us to address and discuss in opinion form
each proposition of law raised in a capital case, we summarily overrule those
propositions of law that have been previously resolved by this court and address
only those issues that warrant discussion. See, e.g., State v. Davis (1996), 

76 Ohio St.3d 107, 110

, 

666 N.E.2d 1099, 1104

. For the reasons set forth below, we affirm
the judgment of the court of appeals and uphold the sentence of death.
                                I. Guilt-Phase Issues
                                     A. Hearsay
       {¶ 8} In his thirteenth proposition of law, appellant contests the trial court’s
admission of certain witnesses’ testimony. He argues first that the trial court erred
by admitting the hearsay statements of Joy Hoop, appellant’s alleged co-
conspirator, without a proper foundation under the co-conspirator exception in
Evid.R. 801(D)(2)(e). Specifically, appellant challenges the testimony of witness
A.J. Cox that, after laying a knife on the bar, Joy said: “If that ain’t good enough,
this right here should take care of it, I got this.” The witness did not see what “this”




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was but heard a sound like a heavy, metallic object.
        {¶ 9} Evid.R. 801(D)(2)(e) provides: “A statement is not hearsay if * * *
[t]he statement is offered against a party and is * * * a statement by a co-conspirator
of a party during the course and in furtherance of the conspiracy upon independent
proof of the conspiracy.” Under this rule, the statement of a co-conspirator is not
admissible until “the proponent of the statement has made a prima facie showing
of the existence of the conspiracy by independent proof.” State v. Carter (1995),

72 Ohio St.3d 545, 550

, 

651 N.E.2d 965, 972

.
        {¶ 10} Appellant argues that the trial court improperly admitted the
testimony of Cox before a prima facie case of conspiracy had been made. At the
time Cox’s testimony was admitted, however, the state had presented the testimony
of Kathy Kerr, which was sufficient to set forth a prima facie showing of
conspiracy. The offense of conspiracy is defined in R.C. 2923.01 as the agreement
to accomplish a particular unlawful object, coupled with an overt act in furtherance
thereof, whether remuneration is offered or not. Kerr testified that appellant and
Joy were romantically involved, that while discussing Whitey, appellant told Joy
“he would do him in,” and that she saw Joy give appellant a gun. From this
testimony it is reasonable to conclude that a conspiracy existed to kill Whitey and
that the transfer of the gun was an overt act in furtherance thereof. We are
unpersuaded by appellant’s contention that Kerr’s impeachment on cross-
examination undermines the conspiracy evidence, as            Kerr’s veracity was a
question for the trier of fact.
        {¶ 11} Nor do we agree with appellant’s next argument.              Appellant
contends that because the trial court dismissed the murder-for-hire specification,
the state could not have demonstrated the existence of a conspiracy. Conspiracy,
however, is not the equivalent of murder for hire.              Rather, under R.C.
2929.04(A)(2), murder for hire requires proof of an additional element not
contained in the offense of conspiracy, specifically, that the murder “was


                                            4
                                January Term, 2000




committed for hire.”      Because the state failed to present any evidence of
compensation, the murder-for-hire specification was dismissed. But, as set forth in
the statute, a conspiracy may exist without regard to whether remuneration is
offered. Accordingly, a lack of evidence as to compensation has no bearing on the
existence of the conspiracy. Appellant’s argument is therefore without merit.
       {¶ 12} Appellant next contends that the trial court erred in allowing the
testimony of witness Kenny Swinford. Appellant disagrees with the admission of
Swinford’s statement that he participated in a conversation with Joy Hoop, Kathy
Kerr, and a third person whose identity he did not know. Appellant contends that
because Swinford never identified appellant as the unknown man, his testimony
about that conversation was inadmissible. Similarly, appellant argues that Swinford
improperly testified to what “they” were saying without identifying the individuals
speaking.
       {¶ 13} Appellant, however, failed to object on either of these grounds at
trial and therefore waived all but plain error. See State v. Slagle (1992), 

65 Ohio St.3d 597, 604

, 

605 N.E.2d 916, 925

. Plain error consists of an obvious error or
defect in the trial proceedings that affects a substantial right. Crim.R. 52(B). Under
this standard, reversal is warranted only if the outcome of the trial clearly would
have been different absent the error. State v. Long (1978), 

53 Ohio St.2d 91

, 

7 O.O.3d 178

, 

372 N.E.2d 804

, paragraph two of the syllabus. Upon review of
Swinford’s testimony in the plain error context, we are unpersuaded that the
outcome would have been different had Swinford not testified. Accordingly,
appellant’s thirteenth proposition of law is overruled.
                          B. Sufficiency of the Evidence
       {¶ 14} Appellant argues in his fourteenth proposition that the evidence
presented at trial was legally insufficient to support his conviction of aggravated
murder. The relevant question in determining the sufficiency of the evidence is
whether, “after viewing the evidence in the light most favorable to the prosecution,




                                          5
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any rational trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt.” (Emphasis deleted.) Jackson v. Virginia (1979), 

443 U.S. 307, 319

, 

99 S.Ct. 2781, 2789

, 

61 L.Ed.2d 560, 573

.
       {¶ 15} Appellant insists that the state failed to prove that he acted with
purpose to kill under R.C. 2903.01. Viewing the evidence in the light most
favorable to the prosecution, we are convinced that it is sufficient to support that
element of the offense. Witnesses testified that after Joy said she wanted Whitey
dead, appellant said he would “take care of it” or “do him in.” Furthermore, Whitey
was shot twice in the head at close range, the second time while he was lying on
the ground. As we have repeatedly held, multiple gunshots to a vital area at close
range tend to demonstrate purpose to kill. See State v. Palmer (1997), 

80 Ohio St.3d 543, 562

, 

687 N.E.2d 685

, 702; State v. Otte (1996), 

74 Ohio St.3d 555, 564

,

660 N.E.2d 711, 720

. This evidence, taken together, is sufficient to demonstrate
appellant’s purpose to murder Whitey Hoop.
       {¶ 16} We similarly reject appellant’s second argument, that the state failed
to prove appellant’s identity as the murderer. Appellant was heard to say he would
do Whitey in and was caught right after the shooting in Kerr’s bathroom soaking
his bloodstained clothes in her tub.      Police also discovered in the bathroom
Whitey’s wallet and a Jennings .22 with a bloodstain on it consistent with Whitey’s
blood. Lindsey’s clothing and truck were also heavily stained with blood consistent
with Whitey’s blood. Viewing this evidence in a light most favorable to the
prosecution, we are convinced that any rational trier of fact could have found
beyond a reasonable doubt that appellant committed the aggravated murder.
Appellant’s fourteenth proposition of law is overruled.




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                                January Term, 2000




                                C. Manifest Weight
       {¶ 17} Appellant’s fifteenth proposition of law challenges his conviction
for aggravated murder as against the manifest weight of the evidence.           In
considering a manifest-weight claim, “ ‘[t]he court, reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of
witnesses and determines whether in resolving conflicts in the evidence, the jury
clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered. The discretionary power to
grant a new trial should be exercised only in the exceptional case in which the
evidence weighs heavily against conviction.’ ” State v. Thompkins (1997), 

78 Ohio St.3d 380, 387

, 

678 N.E.2d 541, 547

, quoting State v. Martin (1983), 

20 Ohio App.3d 172, 175

, 20 OBR 215, 219, 

485 N.E.2d 717, 720-721

.
       {¶ 18} Appellant contends that circumstantial evidence pointed to suspects
other than himself and that such evidence outweighed the state’s evidence as to
appellant’s identity. In particular, appellant focuses upon Deputy Sheriff Moore’s
supposed testimony that an unidentified vehicle was seen leaving the parking lot of
Slammers at high speed. In fact, Moore testified only that a vehicle was seen
driving at a high speed past him as he returned to the bar, not that it left from
Slammers. Appellant also points to the fact that Swinford claimed he left the bar
before the shooting but that no one saw him drive away and that no gunshot residue
tests were taken from Swinford. Finally he emphasizes that Kathy Kerr was seen
to have blood on her but that police failed to sample it.
       {¶ 19} This evidence by itself is weak and cannot be said to implicate any
of the above as the murderer. Moreover, considered in the context of the remaining
identity evidence, this case most definitely does not fall into the category of the
“exceptional case in which the evidence weighs heavily against the conviction.”
State v. Thompkins, supra, 

78 Ohio St.3d at 387

, 

678 N.E.2d at 547

. Rather, the
evidence shows that appellant stated he would kill Whitey, that he was seen




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standing near his dead body, that police found him shortly after the shooting
soaking his bloodstained clothing in a bathroom that also contained Whitey’s wallet
and the same type of gun that killed Whitey, and that his truck was heavily stained
with blood consistent with Whitey’s. This evidence persuades us that the jury
neither lost its way nor created a manifest miscarriage of justice in convicting
appellant of aggravated murder.      Appellant’s fifteenth proposition of law is
overruled.

                             II. Penalty-Phase Issues
                                    A. Hearsay
       {¶ 20} In his fourth proposition of law, appellant challenges the trial court’s
exclusion of a statement made by appellant’s wife. During that portion of her
testimony, appellant’s wife was discussing appellant’s disappointment with himself
about his substance-abuse problem.            When asked how she knew he was
disappointed, she responded: “Because he said that he did not like himself like
that.” The trial court sustained the state’s objection to this statement without
providing a basis for the exclusion, but both parties assume it was on hearsay
grounds.
       {¶ 21} Appellant argues that this information was crucial to his defense and
therefore it was error to exclude it. Even assuming that the exclusion was error,
however, it was harmless. Appellant’s wife had already testified that appellant
“was disappointed in himself” when he resumed his substance abuse. The further
statement that he “said that he did not like himself like that” was cumulative and
added nothing additional to the defense’s point. Appellant’s fourth proposition of
law is overruled.
                             B. Guilt-Phase Evidence
       {¶ 22} In his sixth proposition of law, appellant takes issue with the trial
court’s admission of all the guilt-phase evidence into the penalty phase of the


                                          8
                                January Term, 2000




proceedings. Specifically in contention is the trial court’s failure to determine
which of the guilt-phase evidence was relevant to the penalty phase. Instead of
making that determination, the court instructed the jury to consider only that
evidence relevant to the specific aggravating circumstance at issue.
       {¶ 23} While R.C. 2929.03(D)(1) permits the reintroduction of much or all
of the guilt-phase evidence during the penalty phase, it does not relieve the trial
court of its duty to determine the evidence relevant for consideration. See State v.
Getsy (1998), 

84 Ohio St.3d 180, 201

, 

702 N.E.2d 866, 887

. In Getsy, we held that
the trial court’s admission of all the evidence from the trial phase — with an
instruction to the jury to consider “all the evidence, including exhibits presented in
the first phase of this trial which you deem to be relevant” — was error. 

Id.

 As we
explained there, it is the trial court’s responsibility, during the penalty phase, to
identify and admit only the evidence relevant to that phase. Under the same
reasoning, the trial court’s admission here of all the guilt-phase evidence with a
similar instruction to the jury was also error. In so doing, the trial court improperly
delegated to the jury the court’s duty to determine the evidence relevant to the
penalty phase.
       {¶ 24} As in Getsy, however, the admission of the specific evidence
challenged as prejudicial and irrelevant did not prejudice the outcome of the trial.
Here, appellant points to bloody photographs of the victim, the bloodstains in
appellant’s vehicle, and the bloodstains on the premises of Slammer’s bar as
irrelevant and prejudicial to appellant. These items, however, were relevant to the
aggravated robbery, the aggravating circumstance of which appellant was found
guilty, as they demonstrated the element of serious physical harm to the victim.
R.C. 2911.01(A)(3), R.C. 2929.03(D)(1).         While the trial court should have
exercised its responsibility to determine the relevance of the evidence admitted, the
evidence contested was neither irrelevant nor prejudicial to the penalty phase.
Accordingly, we overrule appellant’s sixth proposition of law.




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                             C. Prosecutor’s Misconduct
          {¶ 25} Appellant’s first proposition of law concerns the prosecutor’s
conduct in the penalty phase of the trial. Appellant challenges the following
statements made by the prosecutor:
          (1) “I guess that they said he grew up in a bad home, although it improved
with his grandparents; he was gone from the home for a period of time; and he has
an alcohol problem. Do they outweigh what he did?” (Emphasis added.)
          (2) “We have Al Nehus here. I’m not sure what he said other than he’s
been a good prisoner. I don’t see how that in any way mitigates what he’s done in
this case, how that mitigates murdering somebody coldbloodedly in the course of a
robbery, and that’s what this is about.” (Emphasis added.)
          (3) “There is nothing that has been presented to you that outweighs what
he did to Whitey Hoop, nothing. * * * [T]he circumstances of the offense itself
outweigh those mitigating factors that have been presented here today.” (Emphasis
added.)
          (4) “[W]hat you have to go back and decide is whether the Defendant’s
having taken a gun during the course of a robbery, held it to Mr. Hoop’s face, pulled
the trigger once, struggled with him, taking his wallet, and then place that gun to
his forehead an eighth of an inch away or closer and pulled that trigger ending his
life, whether that outweighs the fact that he didn’t come from a perfect home.
That’s the issue which you have to decide.”
          {¶ 26} As appellant argues, portions of the above comments improperly
suggested that the nature and circumstances of the offense were to be viewed by
the jury as aggravating circumstances. R.C. 2929.04(B) allows the nature and
circumstances of the offense to be involved in the weighing of aggravating
circumstances against mitigating factors only on the side of mitigation. State v.
Wogenstahl (1996), 

75 Ohio St.3d 344, 356

, 

662 N.E.2d 311, 322

. As we explained
in Wogenstahl, “the ‘aggravating circumstances’ against which the mitigating


                                          10
                                 January Term, 2000




evidence is to be weighed are limited to the specifications of aggravating
circumstances set forth in R.C. 2929.04(A)(1) through (8) that have been alleged in
the indictment and proved beyond a reasonable doubt.” “[I]t is improper for
prosecutors in the penalty phase of a capital trial to make any comment before a
jury that the nature and circumstances of the offense are ‘aggravating
circumstances.’ ” 

Id.

         {¶ 27} Appellant, however, failed to object to the prosecutor’s comments at
the time they were made. Accordingly, appellant waived any error except to the
extent it constitutes plain error. Viewed in this context, the prosecutor’s remarks
did not alter the outcome of the trial and therefore did not rise to the level of plain
error.
         {¶ 28} Nor do we believe that the prosecutor’s misstatement of the burden
of proof in the weighing process constituted plain error. The prosecutor did ask
whether the mitigating factors outweighed what appellant did, improperly
suggesting that the defense had the burden of showing that mitigating factors
outweighed the aggravating circumstances. See State v. Bey (1999), 

85 Ohio St.3d 487, 495-496

, 

709 N.E.2d 484, 494

. But this misstatement occurred only twice in
the context of various other times throughout his argument where he presented the
correct standard.
         {¶ 29} Furthermore, the trial court correctly instructed the jury on both of
these issues. As a result, any confusion caused by the prosecutor’s misstatements
was cured. See 

id.

 Appellant’s first proposition of law is overruled.
                                 D. Jury Instructions
         {¶ 30} In his third proposition of law, appellant argues that the trial court
improperly instructed the jury to consider and reject the death sentence before
considering any of the life-sentencing options.         Specifically, the trial court
instructed the jury that if it unanimously found that the aggravating circumstances
outweighed the mitigating factors, it must recommend death. “On the other hand,




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if * * * you find that the State of Ohio failed to prove that the aggravating
circumstance which the Defendant, Carl G. Lindsey, was found guilty of
committing outweighs the mitigating factors by proof beyond a reasonable doubt,
then you will return a verdict reflecting this decision. In this event you will
determine which of three possible life sentences to recommend to the Court.”
        {¶ 31} During deliberations the jury asked the court: “If we cannot reach a
unanimous decision on the death penalty based on the mitigating factors versus the
aggravating circumstances, what are our options?” The trial court responded:
“[A]ny verdict which you return must be unanimous. And let me give you this
further instruction. If you cannot unanimously agree on a death sentence, that you
are at such time to move on in your deliberations to a consideration of which life
sentence is appropriate * * * .”
        {¶ 32} Appellant argues that the above instructions were erroneous because
they suggested that the jury was to consider the life-versus-death issue first before
considering other sentencing options. However, this is precisely the procedure
required by the statute. Under R.C. 2929.03(D)(2), the jury must “determine
whether the aggravating circumstances the offender was found guilty of committing
outweigh the mitigating factors present in the case. If the trial jury unanimously
finds, by proof beyond a reasonable doubt, that the aggravating circumstances * *
* outweigh the mitigating factors, the trial jury shall recommend to the court that
the sentence of death be imposed on the offender.” As we stated in State v. Brooks
(1996), 

75 Ohio St.3d 148, 162

, 

661 N.E.2d 1030, 1042

, the statute requires the
jury to consider the death issue first and “when it cannot unanimously agree on a
death sentence, to move on in their deliberations to a consideration of which life
sentence is appropriate.” Accordingly, we reject appellant’s argument that a death-
first instruction constitutes error.
        {¶ 33} Nor do we agree with appellant that the trial court’s instruction was
similar to the instruction given in State v. Brooks and therefore erroneous. In


                                         12
                                 January Term, 2000




Brooks, the trial court improperly instructed that the jury must unanimously reject
the death penalty before it could consider other sentencing options.          As we
explained there, the statute requires unanimity to impose the death sentence, not to
reject it.
         {¶ 34} Here, admittedly, the court was somewhat vague in its initial
response to the jury’s question concerning its sentencing options. The trial court’s
statement that “any verdict which you return must be unanimous” is unclear and
could, by itself, be interpreted to require a unanimous rejection of the death
sentence. However, the trial court immediately clarified its instruction by correctly
stating that if the jury could not unanimously agree on a death sentence, it should
move on to consider the life sentence options. Thus, the court clearly set forth the
appropriate standard and eliminated any confusion caused by its initial instruction.
Appellant’s third proposition of law is overruled.
         {¶ 35} Appellant’s fifth proposition of law also challenges the trial court’s
instructions to the jury. Specifically, appellant argues that the court erred when it
refused to provide further oral instruction to the jury upon request.         During
deliberations, the jury asked, “When weighing the mitigating evidence versus the
aggravating circumstances, what are the aggravating circumstances? Is it solely
the aggravated robbery or the combination of the aggravated robbery and the
aggravated murder?”
         {¶ 36} Rather than instructing the jury orally on this point, the trial court
referred the jury to the written instructions that contained the court’s original
instruction on that issue:
         “It would be improper for you to weigh in this balance against the mitigating
factors the aggravated murder itself as an aggravating circumstance. This is
because the sentencing laws of Ohio have already incorporated consideration of the
commission of the aggravated murder itself in setting the sentence now available
to you. In other words, the sentences you are to consider have already been




                                          13
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increased beyond that which would have been imposed for the aggravated murder
itself due to the presence of the aggravating circumstance in this case.”
        {¶ 37} Appellant contends that the trial court had a duty to reinstruct the
jury based upon that question. However, as we held in State v. Carter (1995), 

72 Ohio St.3d 545

, 

651 N.E.2d 965

, paragraph one of the syllabus, “[w]here, during
the course of its deliberations, a jury requests further instruction, or clarification of
an instruction previously given, a trial court has discretion to determine its response
to that request.” In Carter we concluded that the trial court acted within the scope
of its discretion when it referred the jury to a written copy of the instructions rather
than giving further oral instructions. 

Id. at 553

, 

651 N.E.2d at 974

.
        {¶ 38} The same conclusion is warranted here. The trial judge referred the
jury to the written instructions, which clearly and comprehensively answered the
question. Even appellant admits that this instruction was a good statement of the
law. Accordingly, the trial court’s decision to refer the jury to that instruction rather
than giving further oral instruction was appropriate and within the scope of its
discretion. Appellant’s fifth proposition of law is overruled.
                               E. Sentencing Opinion
        {¶ 39} In his eighth and ninth propositions, Lindsey contends that the nature
and circumstances of the offense were improperly considered as nonstatutory
aggravating circumstances. Lindsey argues that because the trial court’s opinion
included details concerning the crime, the court necessarily considered the nature
and circumstances of the case as aggravating circumstances.
        {¶ 40} A review of the sentencing opinion, however, provides no support
whatsoever for appellant’s position. Rather, the trial court’s opinion reflects
precisely the process mandated by statute. The trial court considered carefully and
in substantial detail every portion of the mitigating evidence presented by appellant.
It explained which factors were due more weight and which were due less, and
concluded in sum that the mitigating factors were weak. The court then clearly and


                                           14
                                January Term, 2000




properly weighed the sole aggravating circumstance—the aggravated robbery—
against the mitigating factors. At no point did it include any consideration of the
nature and circumstances of the offense as aggravating circumstances.
Consequently, we find no merit to appellant’s claim, and we overrule appellant’s
eighth and ninth assignments of error.
                       III. Ineffective Assistance of Counsel
       {¶ 41} Appellant’s twelfth proposition of law states that he received
ineffective assistance of trial counsel at several times throughout the trial.
Appellant first asserts that his counsel was ineffective by “failing to voir dire,
attempt to rehabilitate, or object to the dismissal of jurors who did not support the
death penalty.” Appellant focuses upon fifteen jurors who were dismissed for cause
after expressing reservations in varying degree about imposing the death penalty.
Appellant argues that trial counsel had a duty to attempt to rehabilitate these jurors
and was ineffective by failing to do so.
       {¶ 42} Reversal of a conviction on the grounds of ineffective assistance of
counsel requires a showing, first, that counsel’s performance was deficient and,
second, that the deficient performance prejudiced the defense so as to deprive
defendant of a fair trial. Strickland v. Washington (1984), 

466 U.S. 668, 687

, 

104 S.Ct. 2052, 2064

, 

80 L.Ed.2d 674, 693

. We have previously held that counsel’s
failure to rehabilitate jurors does not render trial counsel ineffective, as counsel is
in a better position to determine whether the jurors merited in-depth examination.
State v. Phillips (1995), 

74 Ohio St.3d 72, 85

, 

656 N.E.2d 643, 658-659

. Because
voir dire is largely a matter of strategy and tactics, “[t]he reason for excusing these
prospective jurors may have been readily apparent to those viewing the jurors as
they answered the question.” State v. Keith (1997), 

79 Ohio St.3d 514, 521

, 

684 N.E.2d 47, 57

.
       {¶ 43} Employing this rationale, we decline to substitute our judgment for
that of trial counsel, and we hold that counsel was not deficient in failing to attempt




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to rehabilitate the fifteen prospective jurors.       Trial counsel was present and
witnessed the demeanor and statements of these jurors.               Based upon these
observations, counsel may have had strategic reasons for acting as he did.
Moreover, even if we were to find that the asserted deficiency existed, we see no
basis for holding that appellant was prejudiced by counsel’s performance. To
demonstrate prejudice, appellant must show that a reasonable probability exists
that, were it not for counsel’s errors, the result of the trial would have been different.
State v. Bradley (1989), 

42 Ohio St.3d 136

, 

538 N.E.2d 373

, paragraph three of the
syllabus. We do not believe that trial counsel’s failure to rehabilitate the prospective
jurors altered the outcome of the trial, since we find no evidence in the record that
the seated jurors were unable to follow their oaths and to make a recommendation
of death only when permitted by law and warranted by the facts. See State v. Keith,

79 Ohio St.3d at 522

, 

684 N.E.2d at 57

.
        {¶ 44} Appellant next urges that counsel was ineffective for “failing to
explore jurors’ demonstrated bias & prejudice and to attempt to strike those jurors.”
Appellant contends that eight prospective jurors made statements during voir dire
indicating bias or prejudice against him and that his counsel should have attempted
to have these jurors removed for cause. Upon consideration of the statements made
by these jurors, we disagree.
        {¶ 45} We first address the alleged bias of jurors Pride, Gee, and Hile. Each
of these prospective jurors initially indicated some misunderstanding of the law on
either defendant’s failure to testify or when capital punishment is appropriate under
Ohio law. But in each instance, after listening to the trial court’s explanation of
the law on the point at issue, the jurors stated in some form or another that they
could accept the court’s explanation, could set aside the previous belief, or would
consider the appropriate law. Given that the jurors indicated that they could follow
the law as presented by the trial court, we are not persuaded that they evinced
enmity or bias toward the defendant. Accordingly, there was no basis upon which


                                           16
                                January Term, 2000




to excuse them for cause, and trial counsel was not ineffective in failing to pursue
that course of action.
       {¶ 46} Nor are we persuaded that the views of prospective jurors Yeary,
Osborne, and Helbling demonstrated either bias or prejudice. Yeary simply left the
question of defendant’s failure to testify blank on his questionnaire, but stated that
he could draw no inference from the defendant’s refusal to testify and could follow
an instruction to that effect; Osborne stated he would have to take a hard look at
evidence of psychology or psychiatry in this case; and Helbling stated that he felt
that police officers cannot do their jobs without worrying about a loophole that
would affect the case. Because these statements do not necessarily reflect bias
against appellant, we are unwilling to hold trial counsel deficient in also reaching
that conclusion.
       {¶ 47} Turning now to the remaining two prospective jurors, we note that
both individuals were removed by means of peremptory challenges and therefore
were not seated. It is appellant’s position that, had counsel removed these jurors
for cause, the peremptory challenges could have been used on other jurors. As set
forth above, however, the jurors who were seated exhibited neither prejudice nor
bias and therefore it was unnecessary to excuse them. Thus, even if appellant’s use
of his peremptory challenges on these jurors was deficient, it had no effect on the
outcome of the case. Because the seated jurors were neither biased nor prejudiced,
their removal was unnecessary.
       {¶ 48} Finally, appellant argues that trial counsel was ineffective for failing
to object to the court’s refusal to orally answer the jury’s question concerning
aggravating circumstances. As set forth above, however, the trial court’s response
to that question, referring the jury to clear and complete written instructions on the
issue, was appropriate. Because the court’s action did not constitute error, trial
counsel’s failure to object cannot be considered deficient. Appellant’s twelfth
assignment of error is overruled.




                                         17
                            SUPREME COURT OF OHIO




                        IV. Independent Sentence Review
       {¶ 49} In his seventh proposition of law, appellant argues that the state
failed to establish beyond a reasonable doubt that the aggravating circumstance
outweighed the mitigating factors. As more fully set forth below, we conclude that
the aggravating circumstance of aggravated robbery conclusively outweighed the
mitigating factors.
       {¶ 50} Pursuant to R.C. 2929.05, we are obligated to independently weigh
the aggravating circumstance against the mitigating factors and to determine
whether appellant’s sentence is disproportionate to sentences in similar cases. We
begin this review, as required by R.C. 2929.05(A), with a consideration of whether
the evidence supports a finding of the aggravating circumstance, specifically, that
the aggravated murder was committed by appellant while committing, attempting
to commit, or fleeing immediately after committing or attempting to commit the
offense of aggravated robbery, and that appellant was the principal offender in the
commission of the aggravated murder.
       {¶ 51} As set forth above in our review of the sufficiency of the evidence,
the state presented sufficient evidence to prove beyond a reasonable doubt that
appellant committed the murder of Whitey Hoop. Upon further consideration of
the record, we also conclude that the evidence supports the commission of
aggravated robbery during that murder. Shortly after the shooting, police located
appellant in Kathy Kerr’s bathroom with Whitey’s empty wallet discarded in the
wastebasket. At that time, appellant’s own wallet contained approximately $1,300
in cash, although appellant had recently been laid off from seasonal employment.
Also, a witness testified that Whitey routinely carried about $1,000 in cash. This
evidence persuades us that the aggravating circumstance was proven beyond a
reasonable doubt.
       {¶ 52} Having so determined, we turn now to consideration of the
mitigating factors. Appellant presented the testimony of four mitigation witnesses.


                                        18
                                January Term, 2000




He called Sgt. Richard Nehus, a jailer at the county adult detention center, who
stated that appellant had been a good inmate, describing him as above average and
noting that he watched out for another inmate. Appellant also presented the
testimony of his wife, Pam Lindsey, who testified that appellant was an alcohol and
drug abuser and may have been under the influence of drugs on the night of the
murder. She further testified that he had tried to stop his substance abuse several
times over the years. She also stated that he was kind to her daughter and
granddaughter.
       {¶ 53} Appellant further called as witnesses his sisters Elizabeth Castle and
Stella Collins, who testified that appellant suffered an abusive childhood. In
particular, they testified that their parents were alcoholics who fought constantly
and who at some point dropped the children off to live with their grandparents.
While conditions were apparently better for the children with their grandparents,
the sisters testified that their grandfather was also an alcoholic, who may have been
violent toward appellant.
       {¶ 54} Appellant presented no other mitigating evidence. Nor can we find
any mitigating value in the nature and circumstances of the offense, as there can be
nothing mitigating about volunteering to murder someone’s husband, shooting the
victim twice in the head at close range, and taking his wallet. While we afford the
mitigating factors what weight they are due, overall we consider them of minimal
significance to our weighing process.         Consequently, we conclude that the
mitigating factors are substantially outweighed by the aggravating circumstance.
       {¶ 55} We also conclude that the penalty imposed is proportionate when
compared with capital cases involving similar circumstances. This court has often
upheld death sentences in situations involving aggravated murder committed
during aggravated robbery. See, e.g., State v. Benge (1996), 

75 Ohio St.3d 136, 146-147

, 

661 N.E.2d 1019, 1029

; State v. Allen (1995), 

73 Ohio St.3d 626

, 643-
644, 

653 N.E.2d 675, 690-691

; State v. Carter (1995), 

72 Ohio St.3d 545, 561-563

,




                                         19
                             SUPREME COURT OF OHIO

651 N.E.2d 965, 979-980

. Accordingly, we affirm appellant’s convictions and
sentence.
                                                                 Judgment affirmed.
       MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG
STRATTON, JJ., concur.
                               __________________


                                    APPENDIX
       {¶ 56} Proposition of Law No. 1: Egregious misconduct by the prosecutor
in the penalty phase of capital proceedings requires reversal of the death sentence,
and where the prosecutor’s final argument for death argues nonstatutory
aggravating factors, a death sentence based on a jury verdict following such
arguments violates due process and the Eighth Amendment of the Unite[d] States
Constitution, and their counterparts in the Ohio Constitution.
       {¶ 57} Proposition of Law No. 2: The Ohio death penalty statutes are
unconstitutional, violating the Eighth Amendment proscription of cruel and unusual
punishments, the Fourteenth Amendment guarantees to due process of law and to
the equal protection of the laws, and also violating the concomitant provisions of
the Ohio Constitution.
       {¶ 58} Proposition of Law No. 3: A jury deliberating with respect to the
sentence in a capital trial may not be instructed that it must consider and reject the
sentence of death before considering any of the life sentencing options; where the
jury is so instructed, the resulting death sentence violates the Eighth Amendment
and Art. I, Sec. 9 of the Ohio Constitution, and must be reversed.
       {¶ 59} Proposition of Law No. 4: At the penalty phase of an aggravated
murder prosecution, the trial court is required to extend considerable latitude to the
defense in the admission of evidence with respect to mitigation of the death penalty,
and where the trial court excludes relevant, probative evidence of mitigation, by


                                         20
                                January Term, 2000




granting an objection by the prosecutor, the right of the accused to due process of
law under the Fourteenth Amendment, and to be free from cruel and unusual
punishment under the Eighth Amendment, and under Art. I, Secs. 9 and 16, O.
Const., have been violated, the death sentence imposed is unlawful and
unconstitutional, and must be reversed, and the accused re-sentenced to life
imprisonment.
       {¶ 60} Proposition of Law No. 5: The killing itself is not an aggravating
circumstance, and where, at the penalty phase of a capital trial, the prosecution
argues that the accused deserves to die because of what he did to the victim, the
trial court refuses to answer the question from the deliberating jury as to whether
the killing is an aggravating circumstance, the death sentence imposed must be
reversed as violative of the Eighth Amendment, even where the trial court had
previously instructed, and defense counsel had previously argued, that the killing
was not an aggravating circumstance, and must not be weighed in the sentencing
calculus.
       {¶ 61} Proposition of Law No. 6: Only evidence relevant to the issues at
the penalty phase of capital proceedings is admissible, and it is prejudicial error
violative of the Eighth Amendment for the trial court to permit the prosecution to
introduce all evidence adduced at the guilty/innocence phase of the proceedings,
even where the trial court admonishes the jury that only evidence relevant to the
sentencing process is to be considered by the jury.
       {¶ 62} Proposition of Law No. 7: Where the state fails to establish beyond
a reasonable doubt that the aggravation outweighs mitigation beyond a reasonable
doubt, the death penalty is absolutely precluded, and the imposition of the death
sentence under such circumstances constitutes a violation of the offender’s
constitutional right to be free of cruel and unusual punishment and also his right to
due process of law.
       {¶ 63} Proposition of Law No. 8: The Eighth Amendment requirement of




                                         21
                              SUPREME COURT OF OHIO




reliability in capital sentencing is violated where the sentencing opinion of the trial
court fails to state the reasons why aggravation outweighs mitigation, and to refrain
from reliance upon the nature and circumstances of the offense as an aggravating
circumstance.
        {¶ 64} Proposition of Law No. 9: It is impermissible for a sentencer in a
capital case to weigh the nature and circumstances of the offense as an aggravating
circumstance, where a trial court considers, and weighs, such improper aggravator
[sic], the death sentence imposed violates the offender’s constitutional rights under
the Eighth and Fourteenth Amendments to the U.S. Constitution, and Art. I, Secs.
9 and 16 of the Ohio Constitution, and must be reversed.
        {¶ 65} Proposition of Law No. 10: It is impermissible under the Eighth and
Fourteenth Amendments to the U.S. Constitution and Art. I, Secs. 9 and 16 of the
Ohio Constitution for the jury to be informed that a death verdict is merely a
recommendation, which instruction impermissibly attenuates the jury’s sense of
responsibility for its decision.
        {¶ 66} Proposition of Law No. 11: The increased need for reliability
required in capital cases by the Ohio and Federal Constitutions mandates the
granting to the defense more than six peremptory challenges.
        {¶ 67} Proposition of Law No. 12: Where the defendant in a capital murder
trial is deprived of the effective assistance of counsel, his conviction and death
sentence offend the Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution, and their counterparts in the Ohio Constitution, and must be reversed,
and a new trial granted.
        {¶ 68} Proposition of Law No. 13: Where the state fails to meet the
requirements of Evidence Rule 801(D)(2)(e) for the introduction of statements of a
co-conspirator, the court errs in allowing those statements into evidence.
        {¶ 69} Proposition of Law No. 14: Where the state fails to prove beyond a
reasonable doubt the essential elements of purpose to kill, convictions for


                                          22
                                January Term, 2000




aggravated murder must be reversed as contrary to the right of the accused to due
process of law under the Ohio and Federal Constitutions.
       {¶ 70} Proposition of Law No. 15: Convictions for aggravated murder
which are contrary to the manifest weight of the evidence must be reversed, as
contrary to the right of the accused to due process of law under the Ohio and Federal
Constitutions.




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