Opinion · Ohio Supreme Court
State v. Wogenstahl
75 Ohio St. 3d 344
- Type
- Opinion
- Court
- Ohio Supreme Court
- Jurisdiction
- Ohio
- Date
- 1996-03-06
- Topic
- general
holding that “ ‘where two or more aggravating circumstances arise from the same act or indivisible course of conduct and are thus duplicative, the duplicative aggravating circumstances will be merged for purposes of sentencing’” | interpreting the Ohio code and holding that “it is wholly improper for the state to argue or suggest that the nature and circumstances of the offense are ‘aggravating circumstances’” | interpreting the Ohio code and holding that “it is wholly improper for the state to argue or suggest that the nature and circumstances of the offense are ‘aggravating circumstances’” | interpreting the Ohio code and holding that “it is wholly improper for the state to argue or suggest that the nature and circumstances of the offense are ‘aggravating circumstances’” | “[T]he nature and circumstances of the offense may only enter into the statutory weighing process on the side of mitigation” | “[T]he nature and circumstances of the offense may only enter into the statutory weighing process on the side of mitigation” | the failure to make objections does not constitute ineffective assistance of counsel per se, as that failure may be justified as a tactical decision | “evidence of * * * bad acts independent of, and unrelated to, the offenses for which a defendant is on trial is generally inadmissible to show criminal propensity”
Citator
- Cited by
- 119 opinions
[This opinion has been published in Ohio Official Reports at75 Ohio St.3d 344
.]
THE STATE OF OHIO, APPELLEE, v. WOGENSTAHL, APPELLANT.
[Cite as State v. Wogenstahl, 1996-Ohio-219
.]
Criminal law—Aggravated murder—Death penalty upheld, when—Penalties and
sentencing—“Aggravating circumstances” against which mitigating
evidence is to be weighed are limited to specifications of aggravating
circumstances set forth in R.C. 2929.04(A)(1) through (8) alleged in
indictment and proved beyond a reasonable doubt—Improper comment by
prosecutor in penalty phase of capital trial—Death sentence vacated on
appeal and cause remanded for resentencing, when.
1. In the penalty phase of a capital trial, the “aggravating circumstances”
against which the mitigating 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.
2. It 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.”
(No. 95-42—Submitted November 15, 1995—Decided March 6, 1996.)
APPEAL from the Court of Appeals for Hamilton County, No. C-930222.
__________________
{¶ 1} Peggy Garrett was first introduced to Jeffrey A. Wogenstahl,
appellant, in October 1991. During October and November 1991, appellant and
Peggy became casual acquaintances. At the time, Peggy resided in a two bedroom
apartment at 301 Harrison Avenue, Harrison, Ohio, with her five children: Eric
Horn, age sixteen, Justin Horn, age fifteen, Amber Garrett, age ten, Matthew
Garrett, age eight, and Shayna Perkins, age four. During October and November
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1991, appellant visited the apartment on several occasions and came to know
Peggy’s family.
{¶ 2} Appellant went to Peggy’s apartment on Saturday afternoon,
November 23, 1991. He asked Peggy if she had any plans for the evening. Peggy
told appellant that she had no plans, and appellant left following a brief
conversation. That night, Peggy put her three youngest children (Amber, Matthew
and Shayna) to bed for the evening. At approximately 10:30 p.m., she decided to
meet a friend, Lynn Williams, at a local bar. Justin was spending the weekend at a
friend’s house. Peggy left sixteen-year-old Eric in charge of the other children.
{¶ 3} Peggy met Lynn Williams at the “Escape” bar sometime between
11:00 p.m. and midnight. From there, the women drove Lynn’s car to the
Miamitown Lounge which was also known as “Hornsby’s.” At Hornsby’s, Peggy
and Lynn saw appellant at the bar. He was wearing a brown leather jacket and
jeans. Appellant joined the women for drinks and conversation. Appellant asked
Peggy where Justin was and what Eric and the other children were doing. Peggy
told appellant that Justin was away for the weekend, and that Eric was home baby-
sitting the children. At some point, the trio went outside to appellant’s car to smoke
marijuana.
{¶ 4} On Sunday morning, at approximately 2:15 a.m., appellant, Peggy
and Lynn drove Lynn’s car to the Flicker Inn. Later, the women drove appellant
back to Hornsby’s, where appellant’s car was parked. Appellant invited the women
to his apartment to smoke marijuana, but Peggy and Lynn told appellant that they
were going to the Waffle House restaurant. Peggy and Lynn then separated from
appellant and drove directly to the Waffle House. After the women had arrived at
the restaurant, a witness saw a car resembling appellant’s dark-brown four-door
1978 Oldsmobile Omega pull into and then out of the restaurant parking lot.
{¶ 5} At approximately 3:00 a.m., while the women were at the Waffle
House, appellant drove to Peggy’s apartment and spoke with Eric. According to
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Eric, appellant claimed that Peggy needed to see him (Eric) at Troy Beard’s house.
Beard was Peggy’s friend who lived approximately three blocks from the
apartment. Eric locked the door to the apartment, leaving the children unattended,
and drove with appellant to the vicinity of Beard’s residence. Appellant dropped
Eric off approximately one block from Beard’s apartment. According to Eric,
appellant said that he would drive around the block and then pick Eric up to drive
him home. When Eric arrived at the residence, Beard told Eric that he (Beard) had
not seen Peggy at all that evening. Eric left Beard’s apartment and waited for
appellant to drive him home. Appellant did not return. Eventually, Eric walked
home and found that the door to the apartment was unlocked. He checked on the
children and noticed that ten-year-old Amber was missing. However, Eric
mistakenly assumed that Amber might have been spending the night at a friend’s
house. Thus, he mentioned nothing to Peggy when she returned home later that
morning.
{¶ 6} On the morning of November 24, 1991, Vickie Mozena was working
at a United Dairy Farmers store in Harrison, Ohio, near the Ohio-Indiana border.
At approximately 3:15 a.m., Mozena saw a car resembling appellant’s Oldsmobile
drive past the store in the direction of Bright, Indiana. Mozena observed the
silhouette of a man driving the vehicle, and what appeared to be a young girl next
to him in the passenger’s seat. Between 3:45 and 4:00 a.m., Mozena saw the same
vehicle parked at a car wash across the street from the United Dairy Farmers store.
The vehicle pulled out of the car wash and into the farthest corner of the United
Dairy Farmers parking lot. The driver did not exit the vehicle for several minutes,
and Mozena thought that she was about to be robbed. However, appellant exited
the vehicle, came into the store, and purchased a pack of cigarettes. At that time,
Mozena noticed what appeared to be dirt or blood under appellant’s fingernails.
Later that morning, Mozena once again saw appellant’s car parked across the street
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at the car wash. According to Mozena, there was a man inside the car, presumably
cleaning the interior.
{¶ 7} Harold Borgman lived on Jamison Road between Harrison, Ohio, and
Bright, Indiana. Borgman’s home was located in a rural area of West Harrison,
Indiana, approximately four miles from Harrison. At 3:13 a.m. on the morning of
November 24, 1991, Borgman got out of bed to use the bathroom. Sometime later,
he looked out the window and saw a car driving very slowly on Jamison Road
toward the direction of Harrison. The driver pulled off to the side of Jamison Road,
stopped, and turned off the headlights. Borgman continued to watch for several
minutes, and observed two or three vehicles pass the parked car on Jamison Road.
{¶ 8} On November 24, at approximately 3:40 a.m., Brian Noel was driving
on Jamison Road toward Bright, Indiana. While driving near the location of
Borgman’s residence, Noel saw a late 1970’s model, dark-colored four-door
vehicle parked off to the side of Jamison Road, the vehicle facing the opposite
direction. Noel came to a rolling stop alongside the vehicle and observed a man
apparently retrieving something from the trunk of the automobile. The man was
wearing a dark jacket and bluejeans. Noel later identified appellant as the man he
had seen on Jamison Road in the early morning hours of November 24. He also
identified appellant’s 1978 Oldsmobile as the car that had been pulled off to the
side of Jamison Road.
{¶ 9} On November 24, at approximately 3:40 a.m., Kathy Roth was
driving on Jamison Road toward Bright, Indiana. While driving near the location
of Borgman’s residence, Roth saw a man wearing a brown leather jacket and
bluejeans standing near a parked car off to the side of Jamison Road. As Roth drove
past the vehicle, the man turned to face her, dropped his head, and then turned
around to face the woods. Roth later identified appellant as the man she had seen
on Jamison Road.
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{¶ 10} Frederick G. Harms was driving on Jamison Road on November 24,
at approximately 3:40 a.m. Harms also saw the vehicle parked off to the side of
Jamison Road. According to Harms, the vehicle resembled appellant’s 1978
Oldsmobile Omega.
{¶ 11} On Sunday afternoon, November 24, Peggy Garrett finally realized
that Amber was missing. At that time, Eric told Peggy about appellant’s 3:00 a.m.
visit to the apartment. Peggy and others went to appellant’s residence and knocked
on the door for over an hour. When appellant finally answered, Peggy asked him
why he had taken Eric to Troy Beard’s apartment earlier that morning. Appellant
stated that he had been “messing with Eric’s head,” and claimed to have no
knowledge of Amber’s whereabouts. On the evening of November 24, 1991,
appellant gave a similar statement to Officer Charles Lindsey of the Harrison Police
Department.
{¶ 12} On Monday, November 25, 1991, police executed a search warrant
at appellant’s residence. During the search, appellant was questioned concerning
his movements on the morning of November 24. Appellant admitted to having
visited the Harrison Avenue apartment on November 24 at approximately 3:00 a.m.
Appellant told police that he had duped Eric out of the Harrison Avenue apartment
as a practical joke. However, appellant stated that he went directly home to bed
after having taken Eric to the vicinity of Troy Beard’s apartment. Police then
requested that appellant accompany them to the Harrison Police Department.
Appellant agreed to go to the police station and asked for his leather jacket. Officer
Lindsey retrieved the jacket from the bedroom closet. Lindsey noticed that the
jacket was soaking wet and that the lining was discolored. According to police,
appellant explained that his cat had urinated on the jacket on Friday evening,
November 22, 1991. Appellant further explained that he had washed the jacket on
Friday night. Police were suspicious since appellant had worn the jacket on
Saturday night, November 23, 1991.
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{¶ 13} Police found several bloodstains in appellant’s bathroom. However,
it could not be determined whether the blood was human blood. The items seized
from appellant’s residence included drugs and drug paraphernalia. Police contacted
appellant’s parole officer, and a parole holder was placed against appellant. On
November 25, 1991, police also attempted to search a dumpster near appellant’s
apartment. However, the dumpster had been emptied earlier that morning. Two
witnesses had seen appellant near the dumpster on November 24, at approximately
5:15 a.m.
{¶ 14} On the morning of November 27, 1991, appellant made another
statement to law enforcement authorities. This time, appellant claimed that he had
driven Eric to the vicinity of Troy Beard’s apartment on November 24 because Eric
had wanted to deliver marijuana to Peggy. Appellant once again asserted that he
had proceeded directly home to sleep after dropping Eric off in the vicinity of
Beard’s residence.
{¶ 15} Meanwhile, the search for Amber Garrett continued. On November
27, 1991, Harold Borgman reported to police that he had seen a suspicious vehicle
on Jamison Road in the early morning hours of November 24. Borgman led police
to the location near his house where he had seen the suspicious vehicle. Sergeant
Kenneth J. Greves of the Indiana State Police searched the area and discovered
Amber’s partially frozen body down a steep embankment off to the side of Jamison
Road.
{¶ 16} The location where Amber’s body was discovered was heavily
wooded and overgrown with thorny bushes and vegetation. Amber was wearing a
dress and a pair of panties. Her dress had been rolled up from behind and pulled
down over her arms. She had been stabbed approximately eleven times, mostly in
the chest and neck. Additionally, she had been repeatedly struck in the head with
a blunt instrument. The blunt force injuries were consistent with having been
caused by an automobile jack handle or some other blunt stick or rod. Superficial
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January Term, 1996
wounds on the body indicated that a knife had been held to the base of Amber’s
neck. The body was covered with postmortem scratches that had apparently been
caused by the vegetation in the area. The evidence at the scene indicated that the
murder had occurred at a different location and that the killer had carried Amber’s
body through the dense vegetation.
{¶ 17} William L. Dean, a criminalist in the Trace Evidence Section of the
Hamilton County Coroner’s Laboratory, examined the leather jacket that appellant
had been wearing on the morning of Amber’s abduction. Thorn tips or “prickles”
were removed from small triangular tears in the jacket. Dean also examined a pair
of appellant’s shoes that were found to contain prickles and other plant material.
{¶ 18} Douglas W. Deedrick, a special agent with the Federal Bureau of
Investigation, compared the plant material recovered from appellant’s jacket and
shoes with known samples of vegetation collected from the area where the body
was discovered. Deedrick found that the plant material from appellant’s clothing
was similar to the vegetation collected from the crime scene. Additionally, Dr.
Robert D. Webster, a research botanist, concluded that there were no differences
between the vegetation recovered from appellant’s clothing and the type of
vegetation in the area where the body was discovered.
{¶ 19} Police found two car jacks in the trunk of appellant’s Oldsmobile, a
ratchet jack and a screw or “scissors” jack. The metal handle for the screw jack
was missing. There were no identifiable fingerprints anywhere in the vehicle. The
car was exceptionally clean, as if it had been thoroughly washed. However,
criminalists in the Trace Evidence Section of the Hamilton County Coroner’s
Laboratory found a very small bloodstain in appellant’s Oldsmobile. The specimen
was sent to the Serological Research Institute in California for testing. DNA was
extracted from the bloodstain and was tested using the HLA DQ (Haldo) Alpha
genetic marker system. The HLA DQ Alpha classification of the blood removed
from appellant’s vehicle was consistent with the HLA DQ Alpha classification of
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a known sample of Amber’s blood. According to Brian Wraxall, a forensic
serologist, Amber’s HLA DQ Alpha classification occurs in approximately 5.3
percent of the Caucasian population. The blood recovered from appellant’s vehicle
was not consistent with appellant’s blood or blood samples taken from Eric and
Justin Horn.
{¶ 20} Special Agent Deedrick of the Federal Bureau of Investigation found
a single pubic hair inside the crotch area of Amber’s panties. Deedrick compared
the pubic hair to known samples of pubic hair that had been combed and plucked
from appellant’s pubic region. According to Deedrick, appellant’s pubic hairs
exhibited the same microscopic characteristics as the pubic hair recovered from the
victim’s panties. Deedrick testified to a reasonable degree of scientific certainty
that the pubic hair recovered from the victim’s underpants had come from appellant.
Amber was prepubescent and, thus, the hair could not have come from her. Pubic
hair samples taken from Peggy Garrett, Eric Horn and Justin Horn did not match
the pubic hair recovered from Amber’s panties.
{¶ 21} Appellant was indicted by the Hamilton County Grand Jury for the
aggravated murder of Amber. Count One of the indictment charged appellant for
the purposeful killing of Amber during the commission of an aggravated burglary
and/or kidnapping. This count of the indictment carried three death penalty
specifications.1 Appellant was also indicted, in Counts Two and Three, for
kidnapping and aggravated burglary, respectively, with a specification alleging that
appellant had a prior (1985) aggravated felony conviction.
{¶ 22} Appellant was tried before a jury. Bruce Wheeler was the
prosecution’s final witness in the guilt/innocence phase of the trial. Wheeler and
1. The first death specification alleged that appellant had purposefully killed Amber during the
course of a kidnapping (R.C. 2929.04[A][7]), the second alleged that the killing occurred during the
course of an aggravated burglary (R.C. 2929.04[A][7]), and the third alleged that appellant had
killed Amber for the purpose of escaping detection, apprehension, trial, or punishment for having
committed the aggravated burglary and/or kidnapping (R.C. 2929.04[A][3]).
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appellant had been fellow inmates in the same “pod” at the Hamilton County Justice
Center. At trial, Wheeler testified that he had spoken with appellant on several
occasions concerning appellant’s involvement in the killing. According to
Wheeler, appellant had said that there was very little evidence against him because
he had been “too slick” and had “covered up” the evidence. Further, appellant
allegedly admitted to Wheeler that he (appellant) had entered the Garrett apartment
with a stolen key and had kidnapped Amber to have sex with her. Wheeler testified
that appellant “said he stuck it in her but * * * [did not] ejaculate * * * so there
would not be any evidence.” Additionally, appellant told Wheeler that he had
wanted to return Amber to the apartment because he thought he could get away
with having removed her from the residence. However, someone was at the Garrett
residence when appellant attempted to return Amber to her home. Thus, according
to Wheeler, appellant said that he decided to have “sex” with Amber once again.
Wheeler testified that appellant admitted stabbing Amber in the chest when she
refused his further sexual advances. According to Wheeler, appellant admitted
killing Amber, dumping the body, cleaning the car, and disposing of the evidence.
Appellant also told Wheeler that police had planted Amber’s blood in his
(appellant’s) car because appellant had “cleaned his car too well.”
{¶ 23} The defense presented several witnesses in the guilt phase of
appellant’s trial. Appellant testified on his own behalf and, among other things,
denied the charges against him.
{¶ 24} The jury found appellant guilty of all charges and specifications
alleged in the indictment. Following a mitigation hearing, the jury recommended
that appellant be sentenced to death for the aggravated murder of Amber Garrett.
The trial court accepted the jury’s recommendation and imposed the sentence of
death. The trial court also sentenced appellant for the kidnapping and aggravated
burglary convictions. On appeal, the court of appeals affirmed the judgment of the
trial court and upheld appellant’s death sentence.
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{¶ 25} The cause is now before this court upon an appeal as of right.
__________________
Joseph T. Deters, Hamilton County Prosecuting Attorney, and William E.
Breyer, Assistant Prosecuting Attorney, for appellee.
H. Fred Hoefle and Herbert E. Freeman, for appellant.
__________________
DOUGLAS, J.
{¶ 26} Appellant advances thirty-three propositions of law for our
consideration. (See Appendix, infra.) We have carefully considered each of
appellant’s propositions of law and have reviewed the death sentence for
appropriateness and proportionality. Upon review, and for the reasons that follow,
we affirm the judgment of the court of appeals and uphold the sentence of death.
I
{¶ 27} We have repeatedly held that this court is not required to address and
discuss, in opinion form, each and every proposition of law raised by the parties in
a death penalty appeal. See, e.g., State v. Scudder (1994), 71 Ohio St.3d 263, 267
,643 N.E.2d 524, 528
. We adhere to that position today. Several issues raised by
this appellant have been addressed and rejected under similar circumstances in a
number of our prior cases. Moreover, a number of appellant’s arguments have been
waived. Upon a careful review of the record and the governing law, we fail to
detect any errors that would undermine our confidence in the outcome of
appellant’s trial. We are convinced that appellant received a fair trial, a fair and
reliable sentencing determination, and competent representation both at trial and on
appeal. We address, in opinion form, only those matters that merit some discussion.
II
{¶ 28} In his thirteenth proposition of law, appellant contends that the state
engaged in “egregious misconduct” during closing arguments in the penalty phase.
Specifically, appellant contends, among other things, that the prosecutors had
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January Term, 1996
argued to the jury that the nature and circumstances of the offense appellant was
found guilty of committing were “aggravating circumstances” the jury was required
to consider in recommending the sentence to be imposed for appellant’s aggravated
murder conviction. Therefore, appellant suggests that the state improperly injected
“nonstatutory aggravating circumstances” into the sentencing determination.
Similarly, in his sixth proposition of law, appellant contends that the trial court, in
its sentencing opinion, considered the nature and circumstances of the offense as
“nonstatutory aggravating circumstances.” Before addressing the specific
arguments raised in these propositions of law, it is important to recognize the
distinctions between two very different concepts embodied in Ohio’s death penalty
statutes, i.e., “aggravating circumstances” and “nature and circumstances of the
offense.”
A
Aggravating Circumstances v. Nature and Circumstances
{¶ 29} Contentions similar to those raised by appellant (that the nature and
circumstances of the offense were converted into “nonstatutory aggravating
circumstances”) arise in nearly every capital case we review. Recently, in State v.
Gumm (1995), 73 Ohio St.3d 413, 416-423
,653 N.E.2d 253, 259-264
, we
attempted to clarify the law in this area. However, appellant suggests that Gumm
misapplied the law and/or that further clarification is required. Thus, we once again
review the interplay among R.C. 2929.03(D)(1) and (2) and 2929.04(B) to clarify
that it is completely improper for prosecutors in the penalty phase of a capital
murder trial to make any comment before a jury that the nature and circumstances
of the offense are “aggravating circumstances.”
{¶ 30} In Ohio, imposition of the death penalty for aggravated murder is
precluded unless one or more of the statutory aggravating circumstances set forth
in R.C. 2929.04(A)(1) through (8) are specified in the indictment and proved
beyond a reasonable doubt. See R.C. 2929.04(A). As we explained in Gumm,
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supra, 73 Ohio St.3d at 417
,653 N.E.2d at 260
, “[i]n Ohio, a capital defendant is
tried and sentenced in a two-stage process. During the first phase (commonly
referred to as the ‘guilt phase’) the state must prove the defendant guilty beyond a
reasonable doubt of the crime of aggravated murder, and must also prove the
defendant guilty of at least one statutorily defined ‘aggravating circumstance’ as
set forth in R.C. 2929.04(A)(1) through (8). At the point in time at which the
factfinder (either a jury or three-judge panel) finds the defendant guilty of both
aggravated murder and an R.C. 2929.04(A) specification, the defendant has become
‘death-eligible,’ and a second phase of the proceedings (the ‘mitigation’ or
‘penalty’ or ‘sentencing’ or ‘selection’ phase) begins. R.C. 2929.03(C)(2) and
(D)(1).”
{¶ 31} R.C. 2929.03(D)(1) provides that in making a determination whether
a death sentence should be imposed, “[t]he court, and the trial jury if the offender
was tried by a jury, shall consider * * * any evidence raised at trial that is relevant
to the aggravating circumstances the offender was found guilty of committing or to
any factors in mitigation of the imposition of the sentence of death, shall hear
testimony and other evidence that is relevant to the nature and circumstances of
the aggravating circumstances the offender was found guilty of committing, the
mitigating factors set forth in division (B) of section 2929.04 of the Revised Code,
and any other factors in mitigation of the imposition of the sentence of death, and
shall hear the statement, if any, of the offender, and the arguments, if any, of counsel
for the defense and prosecution, that are relevant to the penalty that should be
imposed on the offender.” (Emphasis added.)
{¶ 32} Thus, R.C. 2929.03(D)(1) mandates that in a capital jury trial, the
court and the jury “shall consider” any evidence that is relevant to the “aggravating
circumstances” the defendant was found guilty of committing. The “aggravating
circumstances” referred to in R.C. 2929.03(D)(1) are the statutory aggravating
circumstances set forth in R.C. 2929.04(A)(1) through (8). Further, R.C.
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January Term, 1996
2929.03(D)(1) requires that the trial court and jury “hear” testimony and other
evidence that is relevant to the nature and circumstances of the aggravating
circumstances the offender was found guilty of committing. Again, the
“aggravating circumstances” referred to in the statute are the R.C. 2929.04(A)(1)
through (8) death-eligible aggravating circumstances that were required to have
been specified in the indictment. R.C. 2929.03(D)(1) also permits the factfinder to
hear the arguments of counsel that are relevant to the penalty that should be
imposed on the defendant.
{¶ 33} R.C. 2929.03(D)(2) provides, in part:
“Upon consideration of the relevant evidence raised at trial, the testimony,
other evidence, statement of the offender, arguments of counsel, and, if applicable,
the reports submitted pursuant to division (D)(1) of this section [pre-sentence
investigation and mental examination reports], the trial jury, if the offender was
tried by a jury, shall determine whether the aggravating circumstances the offender
was found guilty of committing are sufficient to outweigh the mitigating factors
present in the case. If the trial jury unanimously finds, by proof beyond a
reasonable doubt, that the aggravating circumstances the offender was found guilty
of committing outweigh the mitigating factors, the trial jury shall recommend to the
court that the sentence of death be imposed on the offender.” (Emphasis added.)
{¶ 34} In Gumm, supra, 73 Ohio St.3d at 419
,653 N.E.2d at 261
, we
reviewed the requirements of R.C. 2929.03(D)(1) and (2) and concluded that
“[t]hese statutes thus expressly require the jury to ‘consider’ both relevant trial
evidence as well as ‘other’ evidence relevant to the aggravating circumstances the
offender was found guilty of committing. Because findings of guilt are only made
as to the specifications contained in the indictment, it is clear that the reference in
these provisions to ‘aggravating circumstances the offender was found guilty of
committing’ means the R.C. 2929.04(A) specifications set forth in the indictment
and at issue in each case. The jury is thus required to ‘consider’ ‘other evidence’
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relevant to those specifications, including evidence relevant to the nature and
circumstances of those specifications.” (Emphasis added.) In Gumm, supra,
syllabus, we held that:
“Subject to applicable Rules of Evidence, and pursuant to R.C.
2929.03(D)(1) and (2), counsel for the state at the penalty stage of a capital trial
may introduce and comment upon (1) any evidence raised at trial that is relevant to
the aggravating circumstances specified in the indictment of which the defendant
was found guilty, (2) any other testimony or evidence relevant to the nature and
circumstances of the aggravating circumstances specified in the indictment of
which the defendant was found guilty, (3) evidence rebutting the existence of any
statutorily defined or other mitigating factors first asserted by the defendant, (4) the
presentence investigation report, where one is requested by the defendant, and (5)
the mental examination report, where one is requested by the defendant. Further,
counsel for the state may comment upon the defendant’s unsworn statement, if any.
(R.C. 2929.03[D], construed; State v. DePew [1988], 38 Ohio St.3d 275
,528 N.E.2d 542
, affirmed and followed.)”
{¶ 35} R.C. 2929.04(B) provides that when one or more of the R.C.
2929.04(A)(1) through (8) specifications of aggravating circumstances contained
in the indictment are proved beyond a reasonable doubt, “the court, trial jury, or
panel of three judges shall consider, and weigh against the aggravating
circumstances proved beyond a reasonable doubt, the nature and circumstances of
the offense, the history, character, and background of the offender, and [all of the
factors listed in R.C. 2929.04(B)(1) through (7)].” Therefore, R.C. 2929.04(B)
clearly mandates that the nature and circumstances of the offense may only be
“weighed” against the R.C. 2929.04(A) specifications of aggravating
circumstances the defendant was found guilty of committing. We have recognized
this concept in a number of our prior cases.
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January Term, 1996
{¶ 36} For example, in State v. Steffen (1987), 31 Ohio St.3d 111
, 31 OBR 273,509 N.E.2d 383
, we recognized that for purposes of determining whether a
capital defendant should be sentenced to death, the nature and circumstances of the
offense are not to be weighed against the R.C. 2929.04(A) specifications of
aggravating circumstances but, rather, are to be reviewed for any possible
mitigating value. Specifically, in addressing an argument that the trial court in
Steffen improperly considered the nature and circumstances of the offense, we
stated that:
“R.C. 2929.04(B) provides that the court, in determining whether death is
an appropriate penalty, ‘shall consider, and weigh against the aggravating
circumstances proved beyond a reasonable doubt, the nature and circumstances of
the offense * * *.’ * * * Thus, the court is required to review this factor. However,
appellant appears to contend that the trial court’s remarks on this subject reveal that
it viewed the nature and circumstances of the offense herein as aggravating rather
than mitigating as required by R.C. 2929.04(B). We do not agree. The statute
merely requires that the court consider this factor in determining the mitigating
factors to be weighed against the proven aggravating circumstances. Obviously,
the nature and circumstances of certain offenses will be such that no mitigating
feature can be extracted. By its statement on the gruesome and vicious nature of
the murder, the trial court herein was merely justifying its conclusion that no
mitigating factors can be gleaned from the nature and circumstances of this
particular offense. We find nothing improper in the trial court’s remarks.”
(Emphasis added in part and deleted in part.) Steffen, supra,
31 Ohio St.3d at 116
- 117, 31 OBR at 278,509 N.E.2d at 390
.
{¶ 37} Similarly, in State v. Stumpf (1987), 32 Ohio St.3d 95, 99
,512 N.E.2d 598, 604
, we stated that “R.C. 2929.04(B) requires the jury, trial court, or
three-judge panel to ‘consider, and weigh against the aggravating circumstances
proved beyond a reasonable doubt, the nature and circumstances of the offense *
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* *.’ * * * In a particular case, the nature and circumstances of the offense may
have a mitigating impact, or they may not. * * * Either way, they must be
considered.” (Emphasis added in part and deleted in part.) See, also, State v. Davis
(1988), 38 Ohio St.3d 361, 367-373
,528 N.E.2d 925, 931-936
.
{¶ 38} Obviously, it is perfectly acceptable for the prosecution at the
penalty phase of a capital murder trial to argue that the specifications of aggravating
circumstances set forth in R.C. 2929.04(A)(1) through (8) that the defendant was
found guilty of committing outweigh the evidence in mitigation of the death
sentence. Further, it is perfectly acceptable for the state to present arguments
concerning the nature and circumstances of the offense. However, in light of the
foregoing discussion, it is wholly improper for the state to argue or suggest that the
nature and circumstances of the offense are “aggravating circumstances.” Any such
comment or suggestion is improper for at least two reasons. First, Ohio’s death
penalty scheme clearly provides that the “aggravating circumstances” against
which the mitigating evidence is to be weighed are limited to the death-eligible
statutory aggravating circumstances set forth in R.C. 2929.04(A)(1) through (8).
Second, R.C. 2929.04(B) specifically provides that the court, trial jury, or three-
judge panel “shall consider, and weigh against the aggravating circumstances
proved beyond a reasonable doubt, the nature and circumstances of the offense * *
*.” (Emphasis added.) Thus, in the penalty phase of a capital murder trial, any use
of the term “aggravating circumstances” must be confined to the statutory
aggravating circumstances set forth in R.C. 2929.04(A)(1) through (8).
Recognizing this, in Gumm, supra,
73 Ohio St.3d at 422
,653 N.E.2d at 263
, we
issued a strong admonition that courts and prosecutors should refrain from referring
to the nature and circumstances of the offense as “aggravating circumstances.”
{¶ 39} At oral argument, appellant criticized our decision in Gumm,
suggesting that Gumm somehow renders Ohio’s entire death penalty scheme
unconstitutional. We disagree. However, upon a careful review of Gumm, we find
16
January Term, 1996
certain errors in the body of that decision that seemingly cut across the grain of
Ohio’s death penalty scheme. In Gumm, supra, 73 Ohio St.3d at 420-421
,653 N.E.2d at 262
, we stated that:
“We believe that a large part of the confusion which has developed in this
area is semantical in nature in that the term ‘aggravating circumstances’ has been
imprecisely employed to refer not only to the eight enumerated specifications of
aggravating circumstances of R.C. 2929.04(A), but also to any evidentiary factors
which tend to increase the likelihood that a death sentence will be imposed. The
nature and circumstances of a crime may be ‘aggravating’ in the sense that they
are relevant and tend to reinforce the conclusion that a death sentence should be
imposed. This does not mean that the facts surrounding a crime can be set forth in
the indictment as a specified statutory aggravating circumstance, nor may they be
deemed an ‘aggravating circumstance’ in terms of determining death-eligibility.
State v. Johnson (1986), 24 Ohio St.3d 87
, 24 OBR 282,494 N.E.2d 1061
. Thus,
the fact that a particular murder was, for instance, particularly cruel or heinous is
relevant to the determination of the appropriateness of actually imposing a death
sentence on a death-eligible perpetrator, even though the fact of cruelty or
heinousness would not, of itself, be sufficient to bring the crime within the scope
of any section of R.C. 2929.04(A), nor could that fact be used to cause the defendant
to become death-eligible.” (Emphasis added in part and deleted in part.)
{¶ 40} We now recognize that this language in Gumm might be construed
to suggest that the nature and circumstances of an offense (such as the cruel and
heinous manner in which it was committed) can be included on the aggravation
side of the statutory weighing process. However, as we have pointed-out, the nature
and circumstances of the offense may only enter into the statutory weighing process
on the side of mitigation. See R.C. 2929.04(B). Thus, we modify Gumm to the
extent that that opinion indicates anything to the contrary.
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{¶ 41} Again and again and again, we hold that in the penalty phase of a
capital trial, the “aggravating circumstances” against which the mitigating 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. In this regard, it 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.”
B
Appellant’s Contentions
{¶ 42} In his thirteenth proposition of law, appellant challenges a number
of the prosecutor’s comments during the initial closing argument in the penalty
phase. However, appellant never objected to the prosecutor’s remarks at the time
they were made. Therefore, we find that appellant’s contentions of error based
upon the state’s initial closing argument have been waived.2 Accordingly, our
review of appellant’s contentions must proceed, if at all, under the plain error
analysis of Crim.R. 52(B). Plain error does not exist unless it can be said that but
for the error, the outcome of the trial would clearly have been otherwise. See, e.g.,
State v. Wickline (1990), 50 Ohio St.3d 114, 119-120
,552 N.E.2d 913, 919-920
.
{¶ 43} In the state’s initial closing argument in the penalty phase, the
prosecutor discussed the three statutory aggravating circumstances appellant was
found guilty of committing. In discussing the R.C. 2929.04(A)(7) kidnapping
specification, the prosecutor stated:
2. We recognize that appellant moved for a mistrial at the conclusion of the state’s initial closing
argument based upon the prosecutor’s alleged improper comments. The motion was denied. In this
regard, appellant claims that he did “object” to the prosecutor’s comments. However, “[i]mproper
remarks of counsel during argument, unless so flagrantly improper as to prevent a fair trial, should
be at once objected to and exception taken; otherwise error cannot be predicated upon the remarks
alleged to have been improper.” State v. DeNicola (1955), 163 Ohio St. 140
,56 O.O. 185
,126 N.E.2d 62
, paragraph three of the syllabus. See, also, State v. Johnson (1989),46 Ohio St.3d 96, 102
,545 N.E.2d 636, 642
.
18
January Term, 1996
“The second aggravating circumstance becomes a lot more serious: the
kidnapping of Amber Garrett. What I would like you to consider when you think
back about that is what Amber Garrett went through during that kidnapping when
she was taken out of her bed. It was a very cold night. All she had on was a little
nightie and a pair of underwear. She did not have her glasses, she did not have her
shoes.
“At some point in time she woke up and she really did not know where she
was. She was in his car and obviously she could not see well or she might have
been able to recognize him at this point. What did she say to him? What went
through her mind as she felt that knife pressed against her neck? We know from
Dr. Kenny [the coroner] that there was not one or a couple but eleven superficial
lacerations. That would hurt. It obviously hurt a lot. This is a 10-year-old girl.
That is the kidnapping. That is the aggravated circumstance. What went through
her mind while all that was going on? That is something to consider.” (Emphasis
added.)
{¶ 44} The prosecutor’s comments in this regard could be considered
objectionable for two reasons. First, the prosecutor obviously invited the jury to
concentrate on what the victim experienced and was thinking in her last moments
of life. As we recognized in State v. Combs (1991), 62 Ohio St.3d 278, 283
,581 N.E.2d 1071, 1077
, such argument could be considered error to the extent that it
invites the jury to speculate on facts not in evidence. Second, we are somewhat
troubled by the prosecutor’s statements: “That is the kidnapping. That is the
aggravated circumstance.” These statements are legally defensible since the
kidnapping was, in fact, the predicate for one of the R.C. 2929.04(A) specifications
of aggravating circumstances alleged in the indictment. However, the statements
were made in the midst of the prosecutor’s description of some of the nature and
circumstances of the crime and, thus, could be construed as suggesting that the
nature and circumstances of the offense were “aggravating circumstances.” In this
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SUPREME COURT OF OHIO
regard, a much better approach3 for the closing argument would have been to
entirely separate the discussion of the statutory aggravating circumstances
appellant was found guilty of committing from the discussion of the nature and
circumstances of the crime. For instance, the prosecutor could have first listed the
three statutory aggravating circumstances at issue in the case as specified in the
indictment. As a separate portion of the argument to the jury, the prosecutor could
have then set forth a description of all relevant facts and circumstances surrounding
the offense—without referring to any such facts and circumstances as
“aggravating.” Again, we emphasize that prosecutors need to exercise an
abundance of caution to avoid suggesting or implying that the nature and
circumstances of the offense are “aggravating circumstances.”
{¶ 45} Next, the prosecutor went on to discuss the third statutory (R.C.
2929.04[A][3]) aggravating circumstance, to-wit, a killing to escape detection. In
this part of the initial closing argument, the prosecutor again invited the jury to
speculate concerning the victim’s thoughts as she was being stabbed to death:
“Think of the savageness of the killing he actually inflicted on her; ten or eleven
knife wounds, and she was again alert and aware during this, going into her chest,
going into her neck when she was able to fend some of these off. There was a cut
in her hand and one of the knife wounds went all the way through her arm. Again,
what went through that little girl’s mind at that point?” Clearly, the prosecutor
should have refrained from encouraging the jury to speculate as to the victim’s final
thoughts. Additionally, near the conclusion of the prosecutor’s initial closing
argument, he stated “[a]nd what, if anything, did she do to deserve this? Those are
the aggravating circumstances, ladies and gentlemen, that he is guilty of and that
you found him guilty of.” (Emphasis added.) With respect to these remarks, it is
3. We recognize, of course, that we have the advantage of “Monday morning quarterbacking”
whereas the prosecutor was required to make his decisions and comments during the “heat of the
battle.” We further recognize that our job, in this regard, is much easier than was his.
20
January Term, 1996
not entirely clear whether the prosecutor was referring to the nature and
circumstances of the offense on the one hand or to the three statutory aggravating
circumstances that appellant was found guilty of committing on the other hand. In
this regard, we note that prosecutors should refrain from making any vague
comments in the penalty phase concerning precisely what the aggravating
circumstances are in a given case. Again, the only “aggravating circumstances” at
issue in the penalty phase of a capital trial are the R.C. 2929.04(A) specifications
of aggravating circumstances the defendant was found guilty of committing.
{¶ 46} Additionally, appellant challenges a number of comments made by
the prosecutor in the final closing argument in the penalty phase. During the final
closing argument, the prosecutor stated, in part:
“Now what were the aggravating circumstances? * * *
“* * * Mr. Piepmeier [the prosecutor who presented the initial closing
argument] explained it very eloquently what those aggravating things are. What
kind of person would commit the burglary of a friend’s house, knows they are not
going to be there, and returns to their house to burglarize and kidnap? What kind
of person is that? What kind of aggravating circumstance is that?
“What kind of aggravated circumstance is it that a 31-year-old man when
he’s doing this burglary and right before he gets the baby-sitter out of the house on
a cold November night with three small children in that apartment? Incredible
aggravation.
“He returns and now knows nobody is there. This is aggravation. This is
balancing on the end of this scale the mitigation and it is a simple balancing test.
He returns and takes a 10-year-old girl, takes a sleeping 10-year-old girl from her
warm bed which she is sharing with her little sister and her little brother.
Incredible in terms of an aggravating circumstance in this crime. He takes her
sound asleep from her home or half-asleep so quickly on this freezing cold night
and he removes her. There is not time to have shoes put on her, a coat put on her
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SUPREME COURT OF OHIO
and she is half blind without her glasses, and what kind of aggravation is it? What
kind of person would commit that kind of a crime?
“He throws her in the car. We know from the witnesses and the
eyewitnesses that saw this person out on the road, that saw his car on the road which
was a very tight time frame. He didn’t get what he wanted from Amber and this
vicious man, probably within thirty minutes of kidnapping her.
“What aggravation do we further have? We have these hesitation marks on
Amber’s neck. I am sure you looked at and saw when you think of her. He stabs
her eleven times. This is all on the scale side of aggravation. He stabs this little
girl eleven times. The wound to the heart area is incredible in terms of aggravation.
“What did the coroner testify to? He ran a knife in her chest, withdrew it
partially and then stuck it back in her. That is on the aggravation side against his
mitigation. This exhibit that you saw back in the jury room depicts her struggle in
trying to fight him. That is on the aggravation side. That is on the aggravation
scale.
“He wanted to make sure though so he takes a blunt object and probably a
jack handle and delivers the shots to the head. She will never talk. For the purpose
of escaping detection, just as Mike Piepmeier said in his opening statement. Isn’t
that incredibly consistent, isn’t that incredibly consistent with the cleaning of the
car, the cleaning of his clothes, the lies he told the police, the continued lies he told
this courtroom and even the lies he told you in this courtroom today?
“Killing Amber and that aggravation connected with it that you’re weighing
against his mitigation that was presented today. He was cleaning, he was getting
rid of the witness. It is the ultimate cleaning. It was the ultimate selfish act. He
made the decision to kill her.” (Emphasis added.)
{¶ 47} Initially, we note that appellant failed to raise an objection to any of
the prosecutor’s remarks concerning what constituted “aggravation” in this case.
Thus, appellant’s arguments based upon the prosecutor’s remarks have been
22
January Term, 1996
waived. Accordingly, our discretionary review of appellant’s contentions must
proceed, if at all, under the plain-error analysis of Crim.R. 52(B). See Wickline, supra,
50 Ohio St.3d 114, 119-120
,552 N.E.2d 913, 919-920
.
{¶ 48} We agree with appellant that the prosecutor’s final closing argument
was riddled with improper comments regarding the nature and circumstances of the
offense. Repeatedly, the prosecutor referred to the nature and circumstances of the
offense as “aggravation” or “aggravating circumstances.” Worse yet, the
prosecutor stated that such “aggravation” was to be balanced against the evidence
presented in mitigation. Such comments do not conform to Ohio’s death penalty
scheme for the reason stated in our discussion, supra.
{¶ 49} However, while many of the prosecutor’s comments in the closing
arguments (both the initial closing argument and the final closing argument) should
not have been made, we nevertheless conclude that the errors did not rise to the
level of plain error. We are persuaded that the prosecutor’s closing arguments to
the jury made no difference in the outcome of the trial, particularly in light of the
statutory aggravating circumstances appellant was found guilty of committing and
the lack of credible mitigating evidence presented by appellant. Moreover, the trial
court properly instructed the jury that the only “aggravating circumstances” at issue
in this case were the three specifications of aggravating circumstances the jury had
found appellant guilty of committing. The instruction was very clear in this regard,
and we assume that the jury followed the trial court’s instructions.
{¶ 50} We have been strongly urged, by some, to reverse appellant’s death
sentence based upon the prosecution’s closing arguments in this case. To do so, it
is argued, would send a very strong message that any reference to the nature and
circumstances of the offense as “aggravating circumstances” is not acceptable even
where, as here, there is no material prejudice to the defendant. We decline to do
so, trusting that our detailed clarification of this issue will suffice to put prosecutors
and trial judges on notice of what is acceptable and what is not.
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SUPREME COURT OF OHIO
{¶ 51} In his sixth proposition of law, appellant contends that in its
sentencing opinion, the trial court considered the nature and circumstances of the
offense as “nonstatutory aggravating circumstances.” With respect to this issue,
the court of appeals stated, in part:
“[T]he thrust of the argument * * * concerns what Wogenstahl portrays as
the unlawful conversion of the nature and circumstances of the murder from their
rightful role as a mitigating factor to an unauthorized aggravating circumstance.
“Under R.C. 2929.04(B), the nature and circumstances of the offense are
specifically to be considered in the sentencing process in that they are to be
weighed, along with other delineated factors, ‘against the [specified] aggravating
circumstances proved beyond a reasonable doubt’ in the guilt phase of the
proceedings. It is now well accepted that what this permits a trial court to do in a
given case is to decide, upon its assessment of the weight of the evidence, that the
nature and circumstances of an offense have little, if any, value as a mitigating
factor, and to refer to that comparative lack of value as part of the explanation given
in the sentencing opinion for why the aggravating circumstances have been found
to outweigh the mitigating factors beyond a reasonable doubt. See, e.g., State v.
Combs (1991), 62 Ohio St.3d 278
,581 N.E.2d 1071
* * *.
“Our reading of the sentencing opinion in this case convinces us that the
office assigned to the nature and circumstances of Amber Garrett’s murder was
precisely the one envisioned by the applicable statute and the case law that the
statute has spawned. There was no inappropriate conversion here.”
{¶ 52} We agree with this assessment of the issue. We are convinced that
the trial court did not improperly consider the nature and circumstances of the
offense as nonstatutory aggravating circumstances.
24
January Term, 1996
{¶ 53} Accordingly, for all of the foregoing reasons, we reject appellant’s
sixth and thirteenth4 propositions of law.
III
{¶ 54} In his twenty-third proposition of law, appellant suggests that
forensic serologist Brian Wraxall lacked the proper academic qualifications to
render an expert opinion concerning the HLA DQ Alpha (“Haldo Alpha”) testing
of the blood recovered from appellant’s vehicle. We disagree.
{¶ 55} With respect to Wraxall’s qualifications, appellant established at
trial that Wraxall had no college degree and was not a medical doctor. However,
“[u]nder Evid.R. 702, an expert may be qualified by knowledge, skill, experience,
training, or education to give an opinion which will assist the jury to understand
the evidence and determine a fact at issue.” (Emphasis added.) State v. Beuke
(1988), 38 Ohio St.3d 29, 43
,526 N.E.2d 274, 289
. Here, the record reflects that
Wraxall was educated in England where he achieved a Higher National Certificate
in Applied Biology. Wraxall testified that his education in England is
approximately equivalent to the Bachelor of Science degree in the United States.
He has studied microbiology at a United States university and has attended
numerous symposiums in the field of criminalistics. He has published several
papers in the field of bloodstain analysis. From 1963 through 1977, Wraxall
worked for the Metropolitan Police Forensic Science Laboratory in London. He
began working for the Serological Research Institute in 1978, and has over fourteen
years of laboratory experience. Additionally, Wraxall has testified as an expert in
twenty states, including Ohio.
{¶ 56} Although Wraxall lacks a college degree and is not a medical doctor,
we find that the trial court did not abuse its discretion in allowing him to testify as
an expert based upon his extensive background and experience in blood analysis.
4. With respect to the host of additional arguments appellant has raised in his thirteenth proposition
of law, we find no prejudicial errors requiring reversal of the death sentence.
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SUPREME COURT OF OHIO
Further, Wraxall’s expert opinions were based on his personal testing of the blood
samples that had been provided to him and, thus, the requirements of Evid.R. 703
have been satisfied.
{¶ 57} Next, appellant contends that Wraxall’s testimony should have been
stricken because Wraxall never offered an expert opinion that the blood recovered
from appellant’s vehicle was, in fact, Amber’s blood. We find that appellant’s
arguments demonstrate a complete lack of understanding of the purposes of
Wraxall’s testimony. Wraxall testified to a reasonable degree of scientific certainty
that the blood recovered from appellant’s vehicle was consistent with the Haldo
Alpha classification of a known sample of Amber’s blood. He also testified to a
reasonable degree of scientific certainty that the Haldo Alpha classification of
Amber’s blood occurs in approximately 5.3 percent of the Caucasian population.
The prosecution did not offer Wraxall’s testimony to establish specific
identification of the source of the blood recovered from appellant’s vehicle. The
Haldo Alpha test was incapable of establishing specific identification. Rather,
Wraxall’s testimony was probative that the source of blood could have come from
the victim, and was much more probative than the typical ABO blood grouping
evidence that is routinely considered in criminal trials. The testimony excluded
approximately ninety-five percent of the Caucasian population as potential sources
of the bloodstain recovered from appellant’s vehicle. Accordingly, we find no error
in the admission of Wraxall’s testimony.
{¶ 58} Furthermore, appellant points to the fact that the evidence at trial
established that appellant had purchased the 1978 Oldsmobile on November 18,
1991, i.e., approximately a week before Amber’s murder. On cross-examination,
Wraxall conceded that it was impossible to determine the age of the bloodstain
recovered from appellant’s vehicle. In this regard, appellant contends that the trial
court should have excluded the bloodstain evidence since the age of the bloodstain
could not be determined. However, we find that the question concerning the age of
26
January Term, 1996
the bloodstain goes to the weight, and not to the admissibility, of the bloodstain
evidence. In any event, appellant’s arguments in this regard have been waived.
{¶ 59} Accordingly, we reject appellant’s twenty-third proposition of law.
IV
{¶ 60} In his twenty-fourth proposition of law, appellant challenges the trial
court’s refusal to suppress the testimony of two witnesses who identified appellant
as the man they had seen on Jamison Road in the early morning hours of November
24, 1991. Appellant contends that the trial court erred by refusing to suppress the
identification testimony of Brian Noel and Kathy Roth. We disagree.
{¶ 61} Noel initially identified appellant on Thursday, November 28, 1991,
at a lineup conducted at the Hamilton County Justice Center. At that time, appellant
had not been charged with a crime and, thus, was not represented by counsel.
Appellant concedes that he had no Sixth Amendment right to counsel at the lineup
because he had not been formally charged with a crime. See Kirby v. Illinois
(1972), 406 U.S. 682
,92 S.Ct. 1877
,32 L.Ed.2d 411
. Nevertheless, appellant
invites us to find that he had a right to counsel under Section 10, Article I of the
Ohio Constitution. However, appellant has presented us with no compelling
reasons why Ohio constitutional law should differ from the federal law on this
issue. Moreover, a videotape of the lineup reveals that it was conducted in an
appropriate manner. At trial, Noel positively identified appellant as the man he had
seen on Jamison Road on the night in question. The trial court did not err in refusing
to suppress Noel’s identification testimony.
{¶ 62} Likewise, appellant has failed to demonstrate any impropriety by the
state with respect to Roth’s identification of appellant. In State v. Brown (1988),
38 Ohio St.3d 305, 310
,528 N.E.2d 523, 532
, we held that “[w]here a witness has
been confronted by a suspect before trial, that witness’ identification of the suspect
will be suppressed if the confrontation procedure was unnecessarily suggestive of
the suspect’s guilt and the identification was unreliable under the totality of the
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SUPREME COURT OF OHIO
circumstances. Manson v. Brathwaite (1977), 432 U.S. 98
[,97 S.Ct. 2243
,53 L.Ed.2d 140
].”
{¶ 63} Police showed Roth a photo array comprised of six photographs
shortly after Amber’s body was discovered. Roth was unable to positively identify
appellant. Almost a year later, a prosecutor showed Roth a different photo array.
At that time, Roth identified appellant’s picture, but expressed some reservations
since appellant’s face and hair as depicted in the photograph appeared “fuller” than
when she had seen him on Jamison Road. Roth was then shown a single black-
and-white photograph of appellant which she positively identified. At trial, Roth
expressed no reservations in identifying appellant as the man she had seen on
Jamison Road. Appellant suggests that the state acted improperly in obtaining
Roth’s identification of appellant. However, the record does not support appellant’s
contentions in this regard.
{¶ 64} Appellant also apparently suggests that Vickie Mozena’s
identification of appellant was “sufficiently uncertain” and resulted from overly
suggestive police practices. However, a review of Mozena’s testimony reveals that
appellant’s argument is completely unfounded. Mozena was shown a photo array
shortly after the murder and, without hesitation, identified appellant as the man she
had seen at the United Dairy Farmers store on the night of Amber’s disappearance.
Mozena testified at trial that she thought appellant was about to rob her when he
entered the United Dairy Farmers store. Thus, Mozena had good reason to focus
her attention on appellant and to remember him. Moreover, Mozena sold appellant
a pack of cigarettes and had seen him in the store on at least one other occasion. At
trial, Mozena expressed no doubt whatsoever that the man she had seen on the
morning of November 24, 1991 was, in fact, appellant. There is no evidence to
suggest that Mozena’s identification of appellant was the product of impermissible
police investigatory tactics.
28
January Term, 1996
{¶ 65} Accordingly, appellant’s twenty-fourth proposition of law is not well
taken.
V
{¶ 66} In his twenty-fifth proposition of law, appellant contends that the
evidence is insufficient to establish his identity as the perpetrator of the crimes. We
disagree. In reviewing the sufficiency of the evidence, “the relevant question is
whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” (Emphasis sic.) Jackson v. Virginia (1979), 443 U.S. 307, 319
,99 S.Ct. 2781, 2789
,61 L.Ed.2d 560, 573
. The weight to be given the evidence and the credibility of the witnesses are issues for the jury to determine. See State v. DeHass (1967),10 Ohio St.2d 230
,39 O.O.2d 366
,227 N.E.2d 212
, paragraph one of the syllabus. Upon a thorough review of the record, we are absolutely convinced that the evidence in this case was more than sufficient to prove appellant’s guilt beyond a reasonable doubt. In this proposition, appellant essentially requests that we evaluate the credibility of witnesses and resolve evidentiary conflicts in his favor. This we refuse to do. See, generally, State v. Hawkins (1993),66 Ohio St.3d 339, 344
,612 N.E.2d 1227, 1231
.
{¶ 67} In his twenty-sixth proposition of law, appellant urges that his
convictions are against the manifest weight of the evidence. However, appellant
readily concedes that this court does not, generally, weigh the evidence. See State
v. Cooey (1989), 46 Ohio St.3d 20, 26
,544 N.E.2d 895, 905-906
. Therefore, having
found that the evidence of appellant’s guilt is legally sufficient to sustain his
convictions, we reject appellant’s arguments concerning the manifest weight of the
evidence. Furthermore, we note, in passing, that the direct and circumstantial
evidence in this case overwhelmingly establishes appellant’s guilt of all charges
and specifications.
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SUPREME COURT OF OHIO
{¶ 68} Accordingly, we reject appellant’s twenty-fifth and twenty-sixth
propositions of law.
VI
{¶ 69} Appellant had a prior (1985) aggravated burglary conviction. At
trial, the state informed the court of its intention to call Officer Kent Miller to testify
concerning the circumstances of appellant’s prior conviction. The prosecutor stated
that Miller’s testimony would be used to establish the prior aggravated felony
specifications in connection with Counts Two and Three of the indictment.
Moreover, the prosecutor stated that “[i]n addition, Judge, we won’t offer his
[Miller’s] testimony only for that purpose. We are also going to [R.C.] 2945.59[A]
* * *, Evidence Rule 404[B], what is [oftentimes] referred to as same or similar
offenses. We think that it is relevant to prove defendant’s scheme, plan or system
in perpetrating a particular offense, particularly this [1989] aggravated burglary.”
The prosecutor explained to the trial judge that the prior burglary and the burglary
in this case both “involved people he [appellant] had been with or visited with the
day before, and in both offenses he utilized some rouse [sic ruse] to get the occupant
out of the home so he could commit the burglary. In either cases [sic] there was a
sign of force and, finally, he used an alibi when he was confronted that he had gone
straight home and gone to bed and didn’t know anything about the burglary.” The
trial court ruled in favor of allowing Miller’s testimony pursuant to R.C. 2945.59
and Evid.R. 404(B), and to establish the prior aggravated felony specifications in
Counts Two and Three of the indictment.
{¶ 70} In his twenty-first proposition of law, appellant contends that the
trial court committed reversible error in allowing Miller to testify concerning
appellant’s 1985 aggravated burglary conviction. We disagree.
{¶ 71} R.C. 2945.59 provides that:
“In any criminal case in which the defendant's motive or intent, the absence
of mistake or accident on his part, or the defendant's scheme, plan, or system in
30
January Term, 1996
doing an act is material, any acts of the defendant which tend to show his motive
or intent, the absence of mistake or accident on his part, or the defendant's scheme,
plan, or system in doing the act in question may be proved, whether they are
contemporaneous with or prior or subsequent thereto, notwithstanding that such
proof may show or tend to show the commission of another crime by the
defendant.”
{¶ 72} Evid.R. 404(B) provides:
“Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
{¶ 73} Evidence of other crimes, wrongs or bad acts independent of, and
unrelated to, the offenses for which a defendant is on trial is generally inadmissible
to show criminal propensity. See State v. Woodard (1993), 68 Ohio St.3d 70, 73
,623 N.E.2d 75, 78
, andWickline, supra,
50 Ohio St.3d 114, 120
,552 N.E.2d 913
, 920. However, the evidence of appellant’s 1985 aggravated burglary conviction was not used for an impermissible purpose. We agree with the court of appeals’ determination that there are “striking” similarities between appellant’s 1985 conviction and the aggravated burglary in the case at bar. The similarities tended to establish a number of the items enumerated in R.C. 2945.59 and Evid.R. 404(B). Thus, the evidence of appellant’s prior conviction was admissible for that limited purpose. See State v. Broom (1988),40 Ohio St.3d 277
,533 N.E.2d 682
, paragraph
one of the syllabus.
{¶ 74} Appellant protests that the prior offense was “dissimilar” to the
aggravated burglary committed in this case. However, as we recognized in State v.
Jamison (1990), 49 Ohio St.3d 182
,552 N.E.2d 180
, syllabus, “[o]ther acts forming
a unique, identifiable plan of criminal activity are admissible to establish identity
under Evid.R. 404(B). * * * Although the standard for admissibility is strict, the
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other acts need not be the same as or similar to the crime charged.” Moreover, we
note that Miller’s testimony concerning the prior aggravated burglary conviction
was clearly admissible because the prosecution bore the burden of establishing the
prior aggravated felony specification in connection with Counts Two and Three of
the indictment.
{¶ 75} Accordingly, appellant’s twenty-first proposition of law is not well
taken.
VII
{¶ 76} Appellant was found guilty of three death penalty specifications in
connection with the aggravated murder. The first specification alleged that the
killing occurred during the course of a kidnapping (R.C. 2929.04[A][7]). The
second specification alleged that the killing occurred during the course of an
aggravated burglary (R.C. 2929.04[A][7]). The third alleged that appellant had
killed Amber for the purpose of escaping detection, apprehension, trial, or
punishment for having committed the aggravated burglary and/or kidnapping (R.C.
2929.04[A][3]).
{¶ 77} In his first proposition of law, appellant contends that the trial court
should have merged the three aggravating circumstances prior to the penalty phase
since, according to appellant, the three aggravating circumstances were duplicative.
We disagree.
{¶ 78} In State v. Jenkins (1984), 15 Ohio St.3d 164
, 15 OBR 311,473 N.E.2d 264
, paragraph five of the syllabus, this court held that:
“In the penalty phase of a capital prosecution, where two or more
aggravating circumstances arise from the same act or indivisible course of conduct
and are thus duplicative, the duplicative aggravating circumstances will be merged
for purposes of sentencing. Should this merging of aggravating circumstances take
place upon appellate review of a death sentence, resentencing is not automatically
required where the reviewing court independently determines that the remaining
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January Term, 1996
aggravating circumstances outweigh the mitigating factors beyond a reasonable
doubt and that the jury's consideration of duplicative aggravating circumstances in
the penalty phase did not affect the verdict.”
{¶ 79} Here, the three aggravating circumstances appellant was found
guilty of committing were not duplicative. The evidence at trial, if accepted,
established that appellant broke into an occupied structure to kidnap ten-year-old
Amber Garrett. He forcibly removed Amber from the apartment to use her for his
own sexual gratification. Appellant physically restrained Amber and bound her
arms in the clothing she was wearing. A knife was held to Amber’s neck. She was
transported in appellant’s vehicle across the Ohio-Indiana border. At some point,
appellant killed Amber when he realized that he could not return her to the
apartment without being identified as the perpetrator of the aggravated burglary
and/or kidnapping offenses.
{¶ 80} In State v. Waddy (1992), 63 Ohio St.3d 424, 448
,588 N.E.2d 819, 837
, we recognized that aggravated burglary is not implicit within kidnapping, and that kidnapping is not implicit within aggravated burglary. In Waddy, we held that although Waddy had been convicted of two R.C. 2929.04(A)(7) death penalty specifications (i.e., aggravated burglary and kidnapping), the specifications were not duplicative.Id.
We reach the same conclusion here. Further, the R.C.
2929.04(A)(3) aggravating circumstance in the case at bar can clearly be viewed as
independent of the two R.C. 2929.04(A)(7) aggravating circumstances appellant
was found guilty of committing. The aggravating circumstances appellant was
found guilty of committing did not arise out of the same act or indivisible course of
conduct. Therefore, merger was not required. Moreover, given the dearth of
mitigating evidence in this case, we are convinced beyond a reasonable doubt that
the jury would have reached the same verdict in the penalty phase even if the three
aggravating circumstances had been merged.
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{¶ 81} Accordingly, we reject appellant’s first proposition of law.
Similarly, we reject the arguments in support of appellant’s second, third, and
fourth propositions of law which assume that the aggravating circumstances
appellant was found guilty of committing should have been merged at trial and on
appeal.
VIII
{¶ 82} Having considered each of appellant’s propositions of law, we must
now independently review the death sentence for appropriateness (also raised in
appellant’s twenty-seventh proposition of law) and proportionality. Again, we find
that the three specifications of aggravating circumstances appellant was found
guilty of committing are clearly shown on the record before us.
{¶ 83} In mitigation, appellant presented the testimony of friends, family
and others. The witnesses were aware of appellant’s criminal history, and testified
that appellant had reformed his life and had changed for the better in the months
preceding the murder. In an unsworn statement, appellant proclaimed his
innocence, challenged the state’s evidence, and expressed sympathy to Amber’s
family. Defense counsel urged the jury to consider, as mitigating, that Amber
Garrett died quickly and that she was neither raped nor tortured. Moreover, defense
counsel urged the jury to spare appellant’s life and suggested that the real killer was
yet to be identified.
{¶ 84} The trial court and court of appeals apparently found no credible
mitigating evidence and, upon a review of the record, neither do we. Accordingly,
we find that the aggravating circumstances appellant was found guilty of
committing outweigh the evidence presented in mitigation beyond a reasonable
doubt.
{¶ 85} As our final task, we have undertaken a comparison of the death
sentence in this case to those cases in which we have previously imposed the death
penalty. We have previously imposed the death sentence in cases involving murder
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January Term, 1996
during the course of a kidnapping (see, e.g., Scudder, supra,
71 Ohio St.3d 263
,643 N.E.2d 524
), murder during the course of an aggravated burglary (see, e.g., State v. Bonnell [1991],61 Ohio St.3d 179
,573 N.E.2d 1082
), and murder to escape detection (see, e.g., State v. Burke [1995],73 Ohio St.3d 399
,653 N.E.2d 242
).
Appellant’s death sentence is neither excessive nor disproportionate.
{¶ 86} Accordingly, we affirm the judgment of the court of appeals.
Judgment affirmed.
MOYER, C.J., WRIGHT, RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ.,
concur.
__________________
APPENDIX
{¶ 87} “Proposition of Law No. 1: Specifications under R.C.
2929.04(A)(3) and (A)(7) are duplicative, and must be merged prior to the weighing
by the sentencing jury, the trial judge, and an appellate court considering the
appropriate sentence in a capital case. The failure to merge such specifications
constitutes a violation of the rights of the accused under the United States
Constitution and the Ohio Constitution as well where the death sentence is imposed
thereafter.
{¶ 88} “Proposition of Law No. 2: The power conferred by R.C. 2929.05
upon appellate courts to review aggravating and mitigating factors, and to
determine the appropriateness of a given death sentence, is subordinate to the right
of the accused to trial by jury under Art. I. §§ 5 and 10 of the Ohio Constitution.
{¶ 89} “Proposition of Law No. 3: Unless it can fairly be held beyond a
reasonable doubt that penalty phase error in a capital trial had no effect upon the
jury’s sentencing verdict, appellate courts are rendered powerless by the right to
trial by jury set forth in the Ohio Constitution, Art. I. §§ 5 and 10, from purporting
to ‘cure’ the error and to affirm the death sentence; any such affirmance violates
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the right of the accused to trial by jury, and the death sentence must be vacated and
set aside.
{¶ 90} “Proposition of Law No. 4: The affirmance of a death sentence by
an appellate court which has reweighed the aggravating and mitigating factors
without merging specifications required to be merged, where the jury which
recommended the death sentence upon unmerged specifications, and the trial judge
also did not merge the specifications in determining the sentence, constitutes a
violation of the right of the accused under the Eighth Amendment to have the death
sentence imposed only after the proper procedures have been followed under the
state scheme for imposing the death sentence, and also constitutes a violation of the
right to due process of law in that such appellate reweighing abrogates the liberty
interest created by state law, which requires jury participation in the capital
sentencing process.
{¶ 91} “Proposition of Law No. 5: Where a trial court, in its opinion
justifying a death sentence, incorporates verbatim therein as the trial court’s own
conclusions negative statements about the accused made in the prosecutor’s
opening statement five weeks prior to the sentencing proceedings, and also
incorporates practically verbatim from similar opinions of other judges, and of the
same judge, in prior capital cases, conclusions purportedly resulting from the
sentencing process in the case at bar, then the offender has been denied his Eighth
Amendment right to individualized and independent consideration by the trial court
of the appropriate sentence in his case, and his Fourteenth Amendment right to due
process of law.
{¶ 92} “Proposition of Law No. 6: Where, in a capital case, the sentencing
court considers and weighs invalid or improper aggravating factors in imposing the
death sentence, that sentence offends the Eighth Amendment to the Constitution of
the United States, and the right to due process under the Fourteenth Amendment,
and their counterparts in the Ohio Constitution, and must be reversed.
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January Term, 1996
{¶ 93} “Proposition of Law No. 7: The defendant in a capital case is entitled
to 12 peremptory jury challenges, and the restriction of the defense to 6 peremptory
challenges violates Ohio law and the rights of the accused to a fair and impartial
jury under the Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution,
and under Art. I. §§ 5 and 9 of the Ohio Constitution.
{¶ 94} “Proposition of Law No. 8: The denial of the right of the accused to
jury instructions as to the mitigating factors of residual doubt and mercy violates
the right of the accused to consideration by the sentencer in a capital prosecution of
all relevant mitigating factors, in violation of his rights under the Eighth
Amendment to the Constitution of the United States, to due process under the
Fourteenth Amendment, and to his rights under the Ohio Constitution, Art. I. §§ 9
and 16.
{¶ 95} “Proposition of Law No. 9: The application against the accused by
an intermediate appellate court of a change in the law occurring between the
imposition of a death sentence and the decision of the appellate court to affirm,
which change deprives the accused of the benefit of mitigating factors to which he
was entitled when his case was tried, violates his protection against ex post facto
laws, in violation of Art. I. § 10 of the United States Constitution, and Art. II. § 28
of the Ohio Constitution, as well as R.C. 1.48.
{¶ 96} “Proposition of Law No. 10: The trial court committed error
prejudicial to appellant’s Eighth Amendment and due process rights in permitting
the prosecution to argue that the jury’s death verdict was only a recommendation,
and also in instructing the jury, and providing verdict forms to the effect that the
jury’s verdict was only a recommendation, and was not binding upon the trial court.
{¶ 97} “Proposition of Law No. 11: The denial of defense requests for
funds to retain the services of an investigator, and for a mitigation specialist, denied
appellant the right to the equal protection of the laws, secured to him by the
Fourteenth Amendment to the U.S. Constitution, and rendered his death sentence
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constitutionally infirm under the Eighth Amendment, as well as violating his right
to due process of law under the U.S. and Ohio Constitutions.
{¶ 98} “Proposition of Law No. 12: Where the prosecution, at the penalty
phase of a capital prosecution, is permitted, over objection and motions for mistrial,
to adduce evidence of a single incident of a prior ‘bad act’ occurring ten years prior
to the offense at bar, and the nature of such act, and even its existence, was not
shown to have occurred; the accused was not indicted for a specification based upon
such incident; and no conviction resulted from such incident, then the imposition
of the death sentence was the result of unconstitutional weighing and consideration
of a nonstatutory aggravating factor, the right of the accused under the Eighth and
Fourteenth Amendments has been violated, and reversal of the death sentence is
required.
{¶ 99} “Proposition of Law No. 13: Egregious misconduct by the
prosecutor in the penalty phase of capital proceedings requires reversal of the death
sentence, and where the prosecutor, in the guise of rebuttal, offers grossly
prejudicial and inadmissible evidence of a nonstatutory aggravating factor, and his
final argument for death argues nonstatutory aggravating factors, misstates the
evidence, contains inflammatory remarks and invective against the accused and his
counsel, a death sentence based on a jury verdict following such arguments violates
due process and the Eighth Amendment of the United States Constitution, and their
counterparts in the Ohio Constitution.
{¶ 100} “Proposition of Law No. 14: It is error for the trial court in a capital
prosecution to refuse a defense request to submit a questionnaire promulgated by
defense counsel to prospective jurors prior to voir dire, in violation of the rights of
the accused under the Eighth and Fourteenth Amendments to the Constitution of
the United States, and Art. I. §§ 9 and 16 of the Ohio Constitution.
{¶ 101} “Proposition of Law No. 15: It is error for the trial court in a capital
prosecution to refuse a defense request to conduct individual, sequestered voir dire,
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January Term, 1996
in violation of the rights of the accused under the Eighth and Fourteenth
Amendments to the Constitution of the United States, and Art. I. §§ 9 and 16 of the
Ohio Constitution.
{¶ 102} “Proposition of Law No. 16: It is error for the trial court in a capital
prosecution to refuse a defense request to argue first and last to the jury at the
penalty phase of the prosecution, in violation of the rights of the accused under the
Eighth and Fourteenth Amendments to the Constitution of the United States, and
Art. I. §§ 9 and 16 of the Ohio Constitution.
{¶ 103} “Proposition of Law No. 17: It is error for the trial court in a capital
prosecution to refuse a defense request for separate juries for the guilt and, if
necessary, the penalty phases of the prosecution, in violation of the rights of the
accused under the Eighth and Fourteenth Amendments to the Constitution of the
United States, and Art. I. §§ 9 and 16 of the Ohio Constitution[.]
{¶ 104} “Proposition of Law No. 18: The Ohio death penalty statutes are
unconstitutional, violating the Eighth and Fourteenth 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.
{¶ 105} “Proposition of Law No. 19: A conviction and death sentence for
aggravated murder must be reversed as violations of the fundamental fairness
required by the Due Process Clause of the Fourteenth Amendment, and the Sixth
Amendment of the right to trial before a fair and impartial jury, as well as their
counterparts in the Ohio Constitution, as well as the Eighth Amendment prohibition
against cruel and unusual punishment, where the conviction and death sentence
were obtained through use of repetitive, cumulative, photographs of the corpse of
the deceased, the net prejudicial effect of which far outweighed their probative
value.
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{¶ 106} “Proposition of Law No. 20: Unless and until the accused puts his
character in issue, it is improper, prejudicial error to permit the state to present
evidence in its case in chief purporting to demonstrate that the accused is a bad
person, in violation of the right of the accused to due process of law and to a fair
and impartial jury, under the Sixth and Fourteenth Amendments, respectively, to
the Constitution of the United States, and, where a death sentence is the result of
the proceedings, in violation of the Eighth Amendment as well; similar rights
protected by the Ohio Constitution were similarly violated.
{¶ 107} “Proposition of Law No. 21: It is prejudicial error, and a violation
of the right of the accused to due process of law, secured by the Fourteenth
Amendment to the Constitution of the United States, to admit evidence of a prior
offense which is temporally remote, and not at all similar to the offense in the case
at bar, under the purported ‘same and similar act’ exception to the general rule that
evidence of prior criminal conduct is not admissible to prove an element of the
subsequent offense then being tried.
{¶ 108} “Proposition of Law No. 22: A death sentence must be reversed as
contrary to the Revised Code, as well as the Eighth Amendment, where the trial
court fails to instruct the jury that the aggravating circumstance under R.C.
2929.04(A)(7) contains two mutually exclusive alternatives, and thus permits
conviction of the aggravating circumstance upon less than a unanimous vote of the
jury; such an error is also an independent violation of the right of the accused to
due process of law; similar rights secured by the Ohio Constitutional [sic] are also
violated thereby.
{¶ 109} “Proposition of Law No. 23: Admission of an expert opinion with
respect to a Haldo-Alpha blood test insufficient to establish to a reasonable
scientific certainty that blood found in the defendant’s auto was that of the deceased
victim, where the expert possesses insufficient expertise, and where the defendant
owned to [sic the] auto for but three days prior to the offense, and where the blood
40
January Term, 1996
removed from the defendant’s auto could have been there as long as ten years, is
prejudicial error, and a denial of due process.
{¶ 110} “Proposition of Law No. 24: Where the identification of the
accused by a witness is the result of overly suggestive police investigative tactics,
the refusal of the trial court to suppress the witness’ identification testimony
violates the right of the accused to due process of law, requiring reversal.
{¶ 111} “Proposition of Law No. 25: Where the state fails to prove beyond
a reasonable doubt that the accused is the perpetrator of the crimes with which he
has been charged, convictions for aggravated murder, aggravated burglary and
kidnapping, and the capital specifications attendant thereto, must be reversed as
contrary to the right of the accused to due process of law under the Ohio and federal
Constitutions.
{¶ 112} “Proposition of Law No. 26: 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.
{¶ 113} “Proposition of Law No. 27: The aggravating circumstances
appellant was found guilty of violating do not outweigh the mitigating factors, and
hence the death sentence imposed upon appellant violates his rights under the
Eighth and Fourteenth Amendments to the United States Constitution, and violate
Ohio law as well.
{¶ 114} “Proposition of Law No. 28: Where convictions of capital murder
and related offenses is [sic] tainted by prejudicial prosecutorial misconduct which
deprives the accused of a fair trial, those convictions violate the fundamental
fairness required by due process, and the conviction must be reversed as violative
of the Ohio and federal Constitutions.
{¶ 115} “Proposition of Law No. 29: A death sentence following a verdict
of a jury from which one or more venirepersons were improperly excused because
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of their views with respect to capital punishment violates the right of the accused
to a fair and impartial jury under the Sixth, Eighth and Fourteenth Amendments to
the United States Constitution, and their counterparts under the Ohio Constitution.
{¶ 116} “Proposition of Law No. 30: Where one on trial for a capital crime
is denied the effective assistance of counsel, in violation of his right thereto under
the Sixth, Eighth and Fourteenth Amendments to the Constitution of the United
States, and under the Ohio Constitution, Art. I. § 10, his conviction and sentence
must be reversed.
{¶ 117} “Proposition of Law No. 31: Where appellate counsel fail to raise
on appeal the issue of ineffectiveness of trial counsel in failing to object to
prejudicial prosecutorial misconduct in argument, the accused has been denied the
effective assistance of appellate counsel secured to him by the Sixth and Fourteenth
Amendments to the Constitution of the United States, and by Art. I. § 10 of the
Ohio Constitution.
{¶ 118} “Proposition of Law No. 32: Where, during a criminal trial, there
are multiple instances of error, and the cumulative effect of such errors deprives the
accused of a fair trial and undermines the reliability of the conviction and the
sentence of death imposed upon a jury verdict, the rights of the accused to due
process and to be free from cruel and unusual punishment, under the Fourteenth
and Eighth Amendments, respectively, of the United States Constitution, and their
corollaries in the Ohio Constitution, have been violated, requiring reversal.
{¶ 119} “Proposition of Law No. 33: To comport with due process under
the United States and Ohio Constitutions, and the Ohio capital statutes, for purposes
of proportionality review, death sentences must be compared with all other cases
within the jurisdiction in which the death sentence was imposed, as well as those
capital cases in which it was not imposed.”
42